State v. Thompson

202 So. 3d 998, 2015 La.App. 1 Cir. 1983, 2016 La. App. LEXIS 1686
Procedural entryThis page is a short order in State v. Thompson. Read the opinion of the Court — 2016 La. App. LEXIS 324
Louisiana Court of Appeal·Decided September 16, 2016·No. NO. 2015 KA 1983·Published

Opinion

HIGGINBOTHAM, J.

hThe defendant, Charles Ray Thompson, Jr., was charged by felony bill of information with two, counts of distribution of a Schedule II controlled dangerous substance (“CDS”) (cocaine), violations of La. R.S. 40:967(A)(1) (counts 2 and 3); posses[999]*999sion with intent to distribute a Schedule II CDS (cocaine), a violation of La. R.S. 40:967(A)(1) (count 4); possession of a Schedule IV CDS (Alprazolam), a violation of La. R.S. 40:969(C) (count 6); and possession of a firearm-by a person convicted of a felony,1 a violation of La. R.S. 14:95.1 (count .6).2 He entered a plea of not guilty and, following a jury trial, was found guilty as charged on all counts.3 The defendant filed counseled motions for postverdict judgment of acquittal and arrest of judgment, as well as counseled and pro se motions for new trial,, all of which were denied. The defendant was then sentenced on count 2 to twenty years at hard labor; on count 3 to twenty years at hard labor; on count 4 to fifteen years at hard labor; on count 5 to five years at hard labor; and on count 6 to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. The district court ordered that the'sentences run concurrently with each other and consecutively with any other sentence that the defendant was currently serving. The defendant filed counseled and pro se motions to reconsider sentence, both of which were denied.

li>The State subsequently filed a habitual offender bill of information, listing five predicate offenses.4 After a hearing, the district court vacated the previously imposed sentence on count 2 and sentenced the defendant as a third-felony habitual, offender to a term of life imprisonment without the benefit of parole, probation, or suspension of sentence. The district court ordered the sentence to run concurrently with the sentences previously imposed on counts 3, 4, 5, and 6, and consecutively with any other sentence the defendant was currently serving. The defendant now appeals, challenging his habitual offender adjudication and sentence on count 2. For the following reasons, we affirm the defendant’s convictions on all counts, habitual offender adjudication on count 2, and his sentences on counts 3, 4, 5, and 6. We amend the defendant’s sentence on count-2 to reflect that it be served at hard labor and, a.s amended, affirm.

FACTS

Pursuant to an undercover investigation on September 25, 2014, St. Tammany Par[1000]*1000ish Sheriffs Office Detective Julie Boyn-ton purchased eight grams of cocaine from the defendant. On November 20, 2014, Detective Boynton purchased six grams of cocaine from the defendant. She subsequently prepared an affidavit for a search warrant of the defendant’s residence, and the residence was searched on November 21, 2014.

St. Tammany Parish Sheriffs Office Detective Bill Johnson assisted Detective Boynton with execution of the search warrant on the defendant’s | ¡¡residence. He testified to the seizure of various potential drug-related items including: razor blades; a digital scale; a Pyrex measuring cup containing white residue; boxes of baking soda; an empty box of sandwich baggies; and a ceramic bowl containing a metal whisk and a “cloudy liquid.” Alprazolam tablets, as well as crack and powder cocaine, were also confiscated. Detective Johnson testified to finding and removing a loaded .9 millimeter pistol from underneath the mattress in the master bedroom and a .45 caliber pistol magazine from the inside of a purse located in the kitchen.

After the search was conducted, the defendant provided a handwritten statement to the St. Tammany Parish Sheriffs Office, wherein he took full responsibility for the “guns and drugs” found, inside of his home. At trial, the defendant testified and claimed that he sold the cocaine in September and November of 2014 in order to help the Drug Enforcement Administration (“DEA”) catch a “big fish.” Contrary to the defendant’s assertion, DEA Agent Jeraid Crow testified that although the defendant was involved as a confidential informant for the DEA in the past, he was terminated as such in July 2014 after an arrest.

HABITUAL OFFENDER ADJUDICATION

In his first assignment of error, the defendant argues that the district court erred in failing to make an adjudication on the habitual offender bill of information prior to sentencing the defendant. In support of his argument, the defendant cites La.- R.S. 15:529.1(D), which provides in part:

(2) Following a contradictory hearing, the court shall find that the defendant is:
(a) A second offender[,] upon proof of a prior felony conviction.
(b) A third offender, upon proof of two prior felony convictions.
(c) A fourth offender, upon proof of three or more prior felony convictions.
|⅛(3) When the judge finds that.he has been convicted of a prior felony or felonies, or. if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling.

The defendant concludes that Section 15:529.1 “requires the trial court [to] make a finding as to whether an offender is a second, third, or fourth felony offender prior to imposing sentence.” In support of his position, the defendant cites State v. Jones, 516 So.2d 396 (La.App. 5th Cir. 1987) and State v. Olivieri, 2003-0563 (La. App. 5th Cir. 10/28/03), 860 So.2d 207.

In Jones, the court concluded that the district court erred in finding that the defendant had been properly “Boykin-ized”5 for one of-his predicate convictions [1001]*1001and in using that conviction to find the defendant a habitual offender. The court also noted that the district court judge “merely stated that the defendant was found to be a habitual offender, but made no determination whether the defendant is a second or third offender.” The court vacated the sentence and remanded the case for further proceedings, finding that the conviction under the habitual offender statute was defective. Jones, 516 So.2d at 402. The Fifth Circuit later distinguished Jones and held that where the record is sufficient to determine that the State’s evidence was restricted to one prior felony and the district court’s finding of habitual offender status can only relate to a second offense, there is no need to remand the case for a rehearing on the habitual offender bill. See State v. Henderson, 94-0286 (La.App. 5th Cir. 12/14/94), 648 So.2d 974, 979.

In Olivieri, the district court judge failed to specify that the defendant was a third felony offender. Rather, the judge stated, “the Court concludes that the State has met its burden of establishing that the Defendant is a Multiple Offender pursuant |Rto La. R.S. 15:529.1 and should be sentenced accordingly.” Citing Jones, the court concluded that because the district court judge failed to specify that the defendant was a third-felony offender, the sentence was defective since it was not determinate.

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State v. Thompson, 202 So. 3d 998, 2015 La.App. 1 Cir. 1983, 2016 La. App. LEXIS 1686 (La. Ct. App. 2016).

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