State v. Mills

120 So. 3d 802, 2012 La.App. 4 Cir. 0851, 2013 WL 3376261, 2013 La. App. LEXIS 1393
CourtLouisiana Court of Appeal
DecidedJuly 3, 2013
DocketNo. 2012-KA-0851
StatusPublished
Cited by5 cases

This text of 120 So. 3d 802 (State v. Mills) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mills, 120 So. 3d 802, 2012 La.App. 4 Cir. 0851, 2013 WL 3376261, 2013 La. App. LEXIS 1393 (La. Ct. App. 2013).

Opinion

ROLAND L. BELSOME, Judge.

hThe defendant, Richard Mills, appeals his convictions for possession of cocaine and possession of drug paraphernalia [804]*804(third offense), along with his multiple offender sentence. We affirm the defendant’s conviction for possession of cocaine, as well as his multiple offender sentence. We reverse the defendant’s conviction for third offense possession of drug paraphernalia.

PROCEDURAL HISTORY

The defendant was charged by bill of information with one count of possession of cocaine in violation of La. R.S. 40:967(C) and one count of possession of drug paraphernalia (third offense) in violation of La. R.S. 40:1025(C). The defendant pled not guilty to both counts at arraignment. After a jury trial, the defendant was found guilty as charged on both counts. The trial court denied the defendant’s motions for new trial and post-verdict judgment of acquittal, and sentenced the defendant to serve five years at hard labor on the charge for possession of cocaine and five years at hard labor on the charge for possession of drug paraphilia. Both sentences were to be served concurrently, with | credit for time served. The State filed a multiple bill of information, alleging the defendant to be a second felony offender. The defendant pled guilty to the multiple bill. The trial court vacated the sentence imposed on the conviction for possession of cocaine and re-sentenced the defendant to ten years at hard labor with credit for time served.

This appeal followed.

STATEMENT OF FACT

On December 14, 2010, while on patrol, New Orleans Police Officers Glen Buckel and Steve Gaudet observed the defendant, near the intersection of Saratoga and Clio Streets. After seeing the officers, the defendant became startled and dropped a glass tube. Officer Buckel observed that the object was a pipe and heard it break into two pieces. Based upon these observations, he believed that the defendant had discarded some type of contraband so he exited his vehicle and retrieved the pipe. The object was consistent with a crack pipe: burnt at both ends with burnt copper mesh inside. Both officers believed that the pipe contained residual contraband in it. After Officer Buckel retrieved the pipe, the defendant was placed under arrest for possession of drug paraphernalia. In a search incident to the arrest, a white rock wrapped in plastic was recovered from the defendant. The rock-like object field tested positive for cocaine.

John Palm, a criminalist with the New Orleans Police Department Crime Lab, testified that he tested the glass tube for cocaine, and it tested positive. He also tested the rock-like substance, but it tested negative for illegal narcotics. Palm ^testified that it is possible, but not probable, that another part of the rock would test positive for cocaine.1

ERRORS PATENT

A review of the record for errors patent reveals that the trial court failed to wait for the legal delays after denying the defendant’s motion for new trial before imposing sentence. La. C.Cr.P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in [805]*805this article or pleads guilty, sentence maybe imposed immediately.

In the present case, the trial court asked the defendant if he was ready for sentencing, and defense counsel responded in the affirmative. By virtue of the defense counsel’s statement, defendant announced his readiness for sentencing, which implicitly waived the waiting period. See State v. Robichaux, 00-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 465.

DISCUSSION

In this appeal, the defendant asserts four assignments of error, two counseled and two pro se: 1) the defendant’s right against double jeopardy was violated; 2) the defendant’s right to present a defense was violated; 3) the trial court imposed an unconstitutionally excessive sentence; and 4) counsel was ineffective for failing to object to the sentence as unconstitutionally excessive.

[4In his first counseled assignment of error, the defendant argues that his conviction for both possession of cocaine and possession of drug paraphernalia violates the defendant’s right against double jeopardy. We agree.

The Double Jeopardy Clause protects defendants from being punished or prosecuted twice for the same offense. U.S. Const, amend. V; La. Const, art. I, § 15; and La.C.Cr.P. art. 591. La.C.Cr.P. art. 596 provides:

Double jeopardy exists in a second trial only when the charge in the trial is:

1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
2) Based on a part of a continuous offense for which the defendant was in jeopardy in the first trial.

The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted of that offense, and also to protect a person against multiple punishments for the same conduct. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), rev’d on other grounds; State v. Vaughn, 431 So.2d 763 (La.1983). Louisiana has used both the “Blockburger test” and the “same evidence test” to determine if double jeopardy exists. La.C.Cr.P. art. 596; State v. Vaughn, supra.

The “Blockburger test” was established by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in which the Court stated:

The applicable rule is that where the same act or transaction constitutes violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

|sOn the other hand, the “same evidence test”, adopted and explained in State v. Steele, 387 So.2d 1175 (La.1980), provides that:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for the conviction, not all the evidence introduced at trial ... The “same evidence test” is somewhat broader in concept than Blockburger, the central idea being that one should not be pun[806]*806ished (or put in jeopardy) twice for the same course of conduct.

Id. at 1177. Thus, double jeopardy offers protection not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct. State v. Vaughn, supra; State v. Watson, 97-0358 (La.App. 4 Cir.

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Bluebook (online)
120 So. 3d 802, 2012 La.App. 4 Cir. 0851, 2013 WL 3376261, 2013 La. App. LEXIS 1393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mills-lactapp-2013.