State v. Newman

107 So. 3d 775, 12 La.App. 3 Cir. 359, 2012 WL 6176896, 2012 La. App. LEXIS 1615
CourtLouisiana Court of Appeal
DecidedDecember 11, 2012
DocketNo. 12-KA-359
StatusPublished
Cited by4 cases

This text of 107 So. 3d 775 (State v. Newman) 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. Newman, 107 So. 3d 775, 12 La.App. 3 Cir. 359, 2012 WL 6176896, 2012 La. App. LEXIS 1615 (La. Ct. App. 2012).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

|2On September 30, 2008, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Issac Newman, with possession of cocaine in violation of La. R.S. 40:967(C). On October 21, 2008, defendant entered a plea in ab-sentia of not guilty.1 On March 3, 2009, defendant withdrew his not guilty plea and pled guilty in open court. The trial court sentenced defendant to two years at hard labor. The trial court deferred defendant’s sentence contingent upon his successful completion of the Jefferson Parish Intensive Drug Program pursuant to La. R.S. 13:5304.

Beginning in March of 2009, however, multiple attachments were issued for defendant’s failure to comply with the drug program and, on September 3, 2010, a Rule to Make Sentence Executory was filed seeking revocation of defendant’s probation. On November 15, 2010, the trial court conducted a hearing at which [..¡defendant stipulated to the revocation of his probation. The trial court revoked defendant’s probation and imposed the original sentence of two years at hard [778]*778labor. On that same day, the state filed a multiple offender bill of information alleging defendant to be a third felony offender. With the assistance of counsel, defendant executed a waiver of rights form and pled guilty to the multiple offender bill in open court. The trial court vacated defendant’s original two year sentence and sentenced defendant to six years at hard labor without benefit of probation or suspension of sentence, in conformity with the written multiple bill plea form.

On January 9, 2012, the trial court granted defendant an out-of-time appeal. On May 15, 2012, defendant’s appointed appellate counsel filed an Anders2 brief asserting that, after a thorough review of the trial court record, he could find no non-frivolous issues to raise on appeal. Counsel further requested a review of the record for errors patent and filed a motion in this Court to withdraw as counsel of record pursuant to the procedure in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990). Defendant received notification of appointed counsel’s motion to withdraw and his right to file a supplemental pro se brief in this Court. Defendant timely filed a supplemental pro se brief with this Court on June 12, 2012.

Supplemental Pro Se Brief

In his supplemental brief and motions3 filed with this Court, defendant essentially alleges two grounds on which his multiple offender adjudication and sentence is improper: (1) his enhanced sentence of six years is in violation of his plea agreement; and (2) the state failed to timely file the multiple bill against him.

|4In his first argument, defendant contends that his enhanced sentence of six years is in violation of his contract with the state, ie., his plea agreement. Defendant asserts that neither his trial counsel nor the court advised him that he would receive a six year sentence; rather, defendant states that he understood the maximum sentence he would receive is two years at hard labor.

At the original sentencing hearing on March 3, 2009, the trial judge advised defendant that, if he failed to comply with the Jefferson Parish Intensive Drug Program, he would be sentenced to two years at hard labor. On November 15, 2010— after defendant failed to comply with the drug program — the trial court made defendant’s two-year deferred sentence executo-ry. On the same date, the state filed a multiple offender bill of information against defendant, alleging defendant to be a third felony offender. Defendant, represented by counsel, stipulated to the multiple bill and signed a written waiver of rights form.

The record reflects the trial judge ascertained that defendant was a twenty-six year old man with two years of college education who is able to read, write and understand the English language. The transcript of the multiple offender hearing shows that the trial judge, in open court, fully informed defendant of his right to a habitual offender hearing at which the state would have the burden to prove that defendant is in fact the same individual convicted of the prior felonies set forth in the multiple bill. The trial judge further advised defendant of the sentencing range pursuant to La. R.S. 15:529.1 and clearly informed defendant that he, pursuant to [779]*779his plea agreement, would receive a six year sentence.

The trial court did not err in finding that defendant’s plea was knowing, intelligent, and voluntary. Further, the defendant’s six year sentence is the sentence he agreed to in open court and on the multiple bill plea form. Therefore, we find no error in the sentence imposed as it conforms to the defendant’s plea 1 .¡agreement. Regardless, La.C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. See La.C.Cr.P. art. 881.2(A)(2); State v. Reese, 09-1058, p. 4 (La.App. 5 Cir. 5/25/10), 40 So.3d 1117, 1119; and State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. This assignment of error is without merit.

In his second argument, defendant contends that the multiple bill — filed twenty months after the trial court imposed his initial sentence — is untimely. A guilty plea waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Nevertheless, a review of the record shows that the state’s fifing of the multiple bill against defendant was not untimely.

La.C.Cr.P. art. 874 states that a sentence shall be imposed without unreasonable delay. State v. Jones, 08-466, p. 4 (La.App. 5 Cir. 10/28/08), 998 So.2d 178, 181. Under La. R.S. 15:529.1(D)(1)(a), a habitual offender bill may be filed against a defendant who has been convicted of a felony “at any time, either after conviction or sentence.” Id., 08-466 at 5, 998 So.2d at 181. The statute does not establish a time limit for the state to file a habitual offender bill. Id. Nevertheless, a habitual offender bill must be filed within a reasonable time after the state learned the defendant had prior felony convictions. Id., 08-466 at 5, 998 So.2d at 182. A reasonable time is determined on a case-by-case basis. Id. Further, in determining whether the state’s delay is reasonable, a court may consider, among other factors, the reason for the delay in filing the multiple bill. Id; see also State v. Muhammad, 2003-2991, p. 14 (La.5/25/04), 875 So.2d 45, 55.

|6In this case, defendant’s original sentence was deferred on the condition that he successfully complete a drug program. After it became apparent that defendant was not complying with the conditions of the drug program, the trial court revoked his probation and imposed his previously deferred sentence. On the same date that the trial court made defendant’s sentence executory, the state filed a multiple bill against him. Under the specific facts of this case — where the state refrained from fifing a multiple bill against defendant until he failed to comply -with the intensive drug program — we find the multiple bill to be filed in a timely manner. Accordingly, this assignment is without merit.

Anders Brief

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Cite This Page — Counsel Stack

Bluebook (online)
107 So. 3d 775, 12 La.App. 3 Cir. 359, 2012 WL 6176896, 2012 La. App. LEXIS 1615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-newman-lactapp-2012.