State v. Salinas

703 So. 2d 671, 1997 WL 671962
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
DocketCR97-716
StatusPublished
Cited by6 cases

This text of 703 So. 2d 671 (State v. Salinas) 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. Salinas, 703 So. 2d 671, 1997 WL 671962 (La. Ct. App. 1997).

Opinion

703 So.2d 671 (1997)

STATE of Louisiana
v.
Guadalupe SALINAS.

No. CR97-716.

Court of Appeal of Louisiana, Third Circuit.

October 29, 1997.

*672 Robert Richard Bryant, Jr., Lake Charles, for State.

Phyllis E. Mann, Alexandria, for Guadalupe Salinas.

Before SAUNDERS, PETERS and AMY, JJ.

SAUNDERS, Judge.

The Defendant, Guadalupe Salinas, and his co-defendant, Erica Resendez, were charged with one count of possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A).

The Defendant and Ms. Resendez, the codefendant, were both appointed the same attorney at their right-to-counsel hearing held on January 22, 1997. Their attorney, appearing on their behalf, advised the trial court of the possible conflict of interest. The trial court then advised the Defendant and Ms. Resendez conflict-free counsel and that there may be a potential conflict of interest. Despite this, both parties agreed to retain the same attorney. His attorney then advised the trial court that the Defendant had been offered a plea of guilty to one count of possession of marijuana with intent to distribute and desired to enter a plea of guilty, and that the co-defendant had been offered a plea of guilty to a misdemeanor and desired to enter a plea of guilty. The Defendant's plea bargain envisioned a sentence recommendation of nine years. The trial court Boykinized Defendant about his constitutional rights, at which time Defendant chose to waive them. During the course of the plea colloquy, the trial court questioned *673 the State regarding Defendant's prior criminal history. At that time, the State showed a prior out of state conviction for vehicular assault, but was unable to determine whether that crime was a felony. The Defendant was placed under oath and questioned by the Court regarding his prior criminal history. The Defendant stated that he was not the individual involved in the vehicular assault offense and subsequently stated that he had no prior criminal history. The State then presented a joint recommendation to the court. The court informed Defendant that it was not bound by any recommendation and ordered a pre-sentence investigation report.

On February 24, 1997, Defendant appeared with counsel. The trial court stated for the record that Defendant was not truthful about his prior criminal history when he was previously questioned by the court. The trial court rejected the joint recommendation and sentenced Defendant to serve twenty-five years at hard labor. The trial court ordered Defendant to be immediately arrested for perjury, at which time Defendant was advised of his Miranda rights. On May 9, 1997, Defendant filed a Motion to Reconsider Sentence, a Motion and Order for Transcript, and a Motion to Withdraw Guilty Plea. On May 9, 1997, the Defendant withdrew his Motion to Withdraw Guilty Plea. Thereafter, the Motion to Reconsider Sentence was denied. Defendant now appeals his sentence and conviction, assigning seven errors committed by the trial court. However, Defendant abandons assignment of error number 4.

FACTS

On September 10, 1996, Lake Charles Police Officers Bellow and Sierra were traveling eastbound on Interstate 10, when they spotted a 1995 Chevrolet in the middle lane. The officers observed the vehicle "lane straddle," occupying two lanes at one time. This erratic driving behavior was observed several times before the officers motioned the vehicle to stop by using the unit's emergency lights and horn. Once the vehicle stopped, the driver exited his automobile and met Officer Bellow between the two vehicles. Officer Bellow asked him for his driver's license, at which time the driver, later identified as Guadalupe Salinas, the Defendant, advised that he did not have his driver's license at that moment. Officer Bellow asked the driver his name, and he indicated that his name was Joe Salinas. The Defendant was advised that he was stopped for "lane straddling." Defendant advised that he was sleepy and that was the reason for his erratic driving. Officer Bellow asked Defendant various routine questions. During this line of questioning, Defendant appeared very nervous.

Officer Bellow met with the passenger, Erica Resendez, the co-defendant. When Officer Bellow questioned her in the same manner that the Defendant had been questioned, she gave very different answers. While Officer Bellow was questioning Ms. Resendez, he could smell a very strong odor of marijuana coming from within the vehicle. Officer Bellow then asked Defendant if he could read and write the English language. The Defendant indicated that he could not. Officer Bellow gave a search and seizure form to Officer Sierra who at that time began to read the form to the Defendant in Spanish. Shortly thereafter, Defendant stopped Officer Sierra and advised that he could understand the form better in English. After Officer Sierra read the form, the Defendant then signed the form giving permission for the officers to search his vehicle for illegal contraband. During the search, the odor of marijuana appeared to be emitting from the trunk area. A large box was found in the trunk. Defendant advised the officers that the box contained a wedding present from his brother. Officer Bellow made a hole in the box, and the smell of marijuana became stronger. The hole was large enough that Officer Bellow observed an object that appeared to be a large brick of marijuana. At that time, the officers advised the Defendant and Ms. Resendez of their Miranda rights and arrested them. The Defendant and Ms. Resendez were transported to jail, and the vehicle was transported to the police station. Once at the police station, an extensive search was conducted. Approximately 63 pounds of marijuana was found in the box located in the trunk. The officers also found within the backseat of their police unit, in which the Defendant and Ms. Resendez were *674 transported to the police station, a small bag of white powder resembling cocaine. The next day the Defendant admitted that the marijuana was his and that Resendez did not know anything about it.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find the record contains one error patent.

The record indicates the trial court did not give the Defendant credit toward service of his sentence for time he spent in actual custody prior to the imposition of the sentence. As such, on remand, the trial court shall amend the sentence to reflect that the Defendant is given credit for time he served prior to the execution of the sentence. Further, the district court is ordered to amend the commitment and minute entry of the sentence to reflect credit for time served in conformity with La.Code Crim.P. art. 880. See La.Code Crim.P. art. 882(A) and State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94); 640 So.2d 561, writ denied, 94-1455 (La.3/30/95); 651 So.2d 858.

ASSIGNMENT OF ERROR NO. 7

(DEFENDANT'S ARGUMENT NO. 1)

Under this assignment of error, Defendant alleges counsel for the indigent defender was ineffective due to a conflict of interest that violated Defendant's right to effective assistance of counsel.

In the case at bar, the record indicates that the Defendant waived his right to conflict-free counsel. Defendants who desire to do so may waive a dual representation conflict of interest, as long as the waiver is knowingly and intelligently made. State v. Castaneda, 94-1118 (La.App. 1 Cir. 6/23/95); 658 So.2d 297.

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Cite This Page — Counsel Stack

Bluebook (online)
703 So. 2d 671, 1997 WL 671962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-salinas-lactapp-1997.