State v. Pierre

131 So. 3d 319, 13 La.App. 5 Cir. 339, 2013 WL 6504548, 2013 La. App. LEXIS 2572
CourtLouisiana Court of Appeal
DecidedDecember 12, 2013
DocketNo. 13-KA-339
StatusPublished

This text of 131 So. 3d 319 (State v. Pierre) 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. Pierre, 131 So. 3d 319, 13 La.App. 5 Cir. 339, 2013 WL 6504548, 2013 La. App. LEXIS 2572 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

|20n April 3, 2012, the District Attorney for St. Charles Parish filed a bill of information charging defendant, Derrick Pierre, with one count of possession with intent to distribute cocaine in violation of La. R.S. 40:967(A)(1), and one count of possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E). After a trial by jury, defendant was found guilty as charged and sentenced to 25 years at hard labor on count one, with two years to be served without benefits, and to five years at hard labor on count two, without benefit of probation, parole or suspension of sentence, with the sentences to run concurrently. Defendant now appeals his conviction and sentence, alleging that the trial court abused its discretion in denying his motion for continuance, thereby violating his constitutional right to counsel of his choice, and that the trial court acted vindictively in imposing a 25-year sentence at hard labor after defendant refused to plead guilty before trial in return for a ten-year sentence at hard labor. |sFor the reasons that follow, we find defendant’s assignments of error to be without merit and affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On or about February 1, 2012, the St. Charles Parish Sheriff’s Office (“SCPSO”) executed a search warrant at the residence of defendant based upon a confidential informant’s three separate purchases of heroin from defendant. As a result of the search warrant, narcotics were seized consisting of 40 pre-packaged baggies of off-white rocks, weighing 7.5 grams, and an additional 4.5 grams of off-white rock substance, all containing cocaine. SCPSO also seized a Glock, .45 caliber handgun, digital scales and $842 in cash from defendant’s [322]*322residence. Defendant was arrested and attorney David Moyer of the Indigent Defendant Board was appointed to represent him on February 2, 2012.

On April 10, 2012, defendant was arraigned, while accompanied by Mr. Moyer, and pled not guilty to both counts. During the arraignment hearing, the court removed Mr. Moyer as defendant’s counsel after learning that he was able to meet his $100,000 bond obligation. Accordingly, the court ordered defendant to hire private counsel, to which defendant responded, “[a]ll right” [sic]. However, on April 30, 2012, the court re-appointed Mr. Moyer after defendant had not hired private counsel because he informed the court that he could not afford to do so.

Defendant’s case was initially set for trial on July 16, 2012. The court subsequently re-set the trial date for August 20, 2012, at the defendant’s request, because the lab reports had not yet been released. On August 14, 2012, the trial date was again re-set because the State indicated that it had still not received the lab report. Accordingly, the court re-set the trial date for October 15, 2012. During a September 25, 2012 status conference, Mr. Moyer stated that all discovery had been satisfied. Defendant subsequently filed a motion to suppress |4on October 3, 2012, which was set for hearing on October 10, 2012. However, on the date of the hearing on defendant’s motion to suppress, the parties agreed to continue the hearing until the morning of trial, on October 15, 2012, because Mr. Moyer had not been able to get in touch with defendant in advance of the hearing.

On the morning of October 15, 2012, defendant and Mr. Moyer appeared in court for the motion to suppress hearing and trial. After Mr. Moyer made his appearance on behalf of defendant for the motion to suppress hearing, he informed the trial judge, Judge M. Lauren Lemmon, that defendant wanted to address the court regarding another matter. Defendant stated that he had hired private counsel, Harold E. Weiser, on October 12, 2012, the Friday prior to trial. Defendant then handed the judge a motion to continue prepared by Mr. Weiser, which requested a continuance of the trial due to Mr. Weiser’s conflicting hearing date in Jefferson Parish Juvenile Court. The motion to continue had not been filed into the court record, but defendant stated that Mr. Weiser had faxed the motion to the district attorney’s office on October 12, 2012. The State objected to any continuance of the trial date.

In evaluating defendant’s request for a continuance the court responded as follows:

THE COURT:
The trial has been scheduled for a long time. The case has been pending for a long time. I don’t have a formal motion to continue or a motion to enroll before me. And, if I did, and there was an attorney here, they could try the case today.
We’re going to proceed forward with the trial. You’ve had a court-appointed attorney. Let’s proceed with the motion to suppress at this time.

Defendant then asked for a brief recess to call Mr. Weiser, after stating that he did not feel that Mr. Moyer would represent him properly. When Judge Lemmon asked defendant why he felt this way, he stated, “I just don’t. I don’t feel like he’s Ingoing to represent me properly.” Judge Lemmon allowed defendant to call Mr. Weiser to tell him that they would be proceeding with the motion to suppress and trial. After defendant returned and informed the court that he had asked his girlfriend to retrieve his phone from his car to make the call, the hearing on defen[323]*323dant’s motion to suppress commenced without objection. At the conclusion of the hearing, the court denied defendant’s motion to suppress.

Following the hearing, the court indicated that it had received a call from Mr. Weiser, who claimed to have filed a motion to continue and a motion to enroll the previous Friday at 3:42 p.m. with the Clerk of Court’s Office and that he also faxed a copy to the District Attorney’s Office. In response to Mr. Weiser’s call, the court stated as follows:

THE COURT:
Well, assuming that it was filed properly, I’m going to respectfully deny the motion to enroll and continue at this time.
In addition to the fax already put in the record regarding dates and how old the case is and how many times it’s been set for trial on April 10th, because Mr. Pierre bonded out on a $100,000 bond, I tested his indigency and removed the Public Defender’s office as his attorney and afforded Mr. Pierre the opportunity to hire an attorney.
On April 30th, Mr. Pierre returned to court for the next court date and did not have an attorney and indicated that he could not afford one and I reappointed Mr. Moyer at that time and the Public Defendant’s office.
The law states that defendants, in criminal matters, are entitled to a court-appointed attorney but not an attorney of their choice. This is a common ploy to get out of going to trial. The matter has been set for a long time. There was no urgency or change in the last several months that it made it urgent on Friday afternoon to hire an attorney.

The State indicated that it had received a motion to continue via fax, but no motion to enroll from Mr. Weiser at 3:42 p.m. on October 12, 2012, but that the faxed motion had not been clocked in by the Clerk of Court’s office. Regarding defendant’s motion to continue, the court acknowledged that the motion had not 1 fibeen filed, but allowed it to be filed orally before again denying it in open court. Mr. Moyer objected to the court’s ruling and then trial proceedings commenced.

During opening statements, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
131 So. 3d 319, 13 La.App. 5 Cir. 339, 2013 WL 6504548, 2013 La. App. LEXIS 2572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierre-lactapp-2013.