State of Louisiana Versus Dewayne A. Allen ( 2020 )


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  • STATE OF LOUISIANA                                     NO. 19-KA-377
    VERSUS                                                 FIFTH CIRCUIT
    DEWAYNE A. ALLEN                                       COURT OF APPEAL
    STATE OF LOUISIANA
    ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
    PARISH OF JEFFERSON, STATE OF LOUISIANA
    NO. 17-5152, DIVISION "B"
    HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
    April 30, 2020
    HANS J. LILJEBERG
    JUDGE
    Panel composed of Judges Robert A. Chaisson,
    Hans J. Liljeberg, and John J. Molaison, Jr.
    CONVICTIONS AFFIRMED; SENTENCES ON
    COUNTS 2-5 AFFIRMED; SENTENCE ON COUNT
    1 AFFIRMED AS AMENDED; REMANDED FOR
    CORRECTION OF THE UNIFORM COMMITMENT
    ORDER; MOTION TO WITHDRAW GRANTED
    HJL
    RAC
    JJM
    COUNSEL FOR PLAINTIFF/APPELLEE,
    STATE OF LOUISIANA
    Honorable Paul D. Connick, Jr.
    Thomas J. Butler
    Zachary P. Popovich
    Meredith Hearn
    COUNSEL FOR DEFENDANT/APPELLANT,
    DEWAYNE A. ALLEN
    Dewayne A. Allen
    Cynthia K. Meyer
    LILJEBERG, J.
    Defendant appeals his convictions and sentences for five felony offenses.
    For the following reasons, we affirm defendant’s convictions and his sentences on
    counts two through five. We amend the sentence on count one and affirm as
    amended. We also remand for correction of an error patent. Finally, we grant
    appellate counsel’s motion to withdraw as counsel of record.
    PROCEDURAL HISTORY
    On August 9, 2017, the District Attorney for Jefferson Parish filed a bill of
    information charging defendant, Dewayne A. Allen, with possession with intent to
    distribute heroin, in violation of La. R.S. 40:966(A) (count one); possession with
    intent to distribute cocaine, in violation of La. R.S. 40:967(A) (count two);
    possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count
    three); possession of an unidentifiable firearm, in violation of La. R.S. 40:1792
    (count four); and possession of a firearm by a person previously convicted of
    domestic abuse battery, in violation of La. R.S. 14:95.10 (count five). Defendant
    pleaded not guilty to the charged offenses.
    On February 5, 2019, defendant withdrew his former pleas of not guilty, and
    after being advised of his Boykin1 rights, pleaded guilty as charged.2 In accordance
    with the plea agreement, defendant was sentenced on count one to 18 years
    imprisonment at hard labor, with the first ten years of the sentence to be served
    without benefit of probation, parole, or suspension of sentence; on count two to 18
    years imprisonment at hard labor with the first two years to be served without
    benefit of probation, parole, or suspension of sentence; on count three to 18 years
    imprisonment at hard labor without benefit of probation, parole, or suspension of
    1
    Boykin v. Alabama, 
    395 U.S. 238
    , 
    89 S.Ct. 1709
    , 
    23 L.Ed.2d 274
     (1969).
    2
    On the same date, defendant pleaded guilty under district court case number 18-1307 to possession with
    intent to distribute heroin and possession of a firearm by a convicted felon. Defendant’s appeal of those
    convictions is currently pending before this Court under companion case number 19-KA-388.
    Defendant also pleaded guilty to two misdemeanor offenses under case number 18-1571, which are not
    before this Court on appeal.
    19-KA-377                                           1
    sentence; on count four to five years imprisonment at hard labor without benefit of
    probation, parole, or suspension of sentence; and on count five to five years
    imprisonment at hard labor. The trial court ordered defendant’s sentences to run
    concurrently with each other.
    On the same date, the State filed a multiple offender bill of information on
    count three—possession of a firearm by a convicted felon—alleging defendant to
    be a second-felony offender. Defendant stipulated to the multiple bill after being
    advised of his rights. The trial court then vacated defendant’s original sentence on
    count three, and pursuant to the multiple offender stipulation, resentenced
    defendant on count three as a second-felony offender under La. R.S. 15:529.1, to
    18 years imprisonment at hard labor without benefit of parole or suspension of
    sentence. The trial court ordered all of defendant’s sentences, including those
    imposed in case numbers 18-1307 and 18-1571, to run concurrently and
    recommended defendant for participation in any available self-help programs.
    Defendant appeals.
    FACTS
    Because defendant’s convictions were the result of guilty pleas, the facts
    underlying the crimes of conviction are not fully developed in the record. Thus,
    the facts were gleaned from the bill of information which alleged that on July 12,
    2017, defendant violated La. R.S. 40:966(A) in that he did knowingly or
    intentionally possess with the intent to distribute heroin (count one), defendant
    violated La. R.S. 40:967(A) in that he did knowingly or intentionally possess with
    the intent to distribute cocaine (count two), defendant violated La. R.S. 14:95.1 in
    that he did have in his possession a firearm, to wit: a Sig Saur 9 mm, serial number
    52A062448, and Taurus .45 caliber pistol, having been previously convicted of the
    crime of possession of cocaine, in violation of La. R.S. 40:967(C), under case
    number 471-934 on January 9, 2009, in Orleans Parish Criminal District Court
    19-KA-377                                 2
    (count three), defendant violated La. R.S. 40:1792 in that he did knowingly and
    intentionally possess, transfer, or transport a firearm, to wit: a Taurus .45 caliber
    pistol, with the serial numbers or identifying marks obliterated, altered, removed,
    or concealed (count four), and defendant violated La. R.S. 14:95.10 in that he did
    have in his possession a firearm, to wit: a Sig Saur 9 mm, serial number
    52A062448, having been previously convicted of the crime of domestic abuse
    battery (2 counts) in violation of La. R.S. 14:35.3, under case number 531-678 on
    June 16, 2017, in Orleans Parish Criminal District Court (count five).
    LAW AND DISCUSSION
    Defendant’s appointed counsel has filed an appellate brief pursuant to
    Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
     (1967). She
    has also filed a motion to withdraw as counsel of record. Defendant has filed a pro
    se brief raising three assignments of error, namely, that the trial court erred in
    denying his motion to suppress, ineffective assistance of counsel, and sentencing
    errors.
    Anders Brief
    Under the procedure adopted by this Court in State v. Bradford (La. App. 5
    Cir. 6/25/96), 
    676 So.2d 1108
    , 1110-11,3 appointed appellate counsel has filed a
    brief asserting that she has thoroughly reviewed the trial court record and cannot
    find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders,
    
    supra,
     and State v. Jyles, 96-2669 (La. 12/12/97), 
    704 So.2d 241
     (per curiam),
    appointed counsel requests permission to withdraw as counsel of record.
    In Anders, 
    supra,
     the United States Supreme Court stated that appointed
    appellate counsel may request permission to withdraw if she finds her case to be
    3
    In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 
    573 So.2d 528
    , 530
    (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-
    0981 (La. 4/28/95), 
    653 So.2d 1176
    , 1177 (per curiam).
    19-KA-377                                           3
    wholly frivolous after a conscientious examination of it.4 The request must be
    accompanied by “a brief referring to anything in the record that might arguably
    support the appeal” so as to provide the reviewing court “with a basis for
    determining whether appointed counsel have fully performed their duty to support
    their clients’ appeals to the best of their ability” and to assist the reviewing court
    “in making the critical determination whether the appeal is indeed so frivolous that
    counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
    Wisconsin, Dist. 1, 
    486 U.S. 429
    , 439, 
    108 S.Ct. 1895
    , 1902, 
    100 L.Ed.2d 440
    (1988).
    In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an
    Anders brief need not tediously catalog every meritless pre-trial motion or
    objection made at trial with a detailed explanation of why the motions or
    objections lack merit. The supreme court explained that an Anders brief must
    demonstrate by full discussion and analysis that appellate counsel “has cast an
    advocate’s eye over the trial record and considered whether any ruling made by the
    trial court, subject to the contemporaneous objection rule, had a significant,
    adverse impact on shaping the evidence presented to the jury for its consideration.”
    
    Id.
    When conducting a review for compliance with Anders, an appellate court
    must conduct an independent review of the record to determine whether the appeal
    is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review,
    the reviewing court determines there are no non-frivolous issues for appeal, it may
    grant counsel’s motion to withdraw and affirm the defendant’s conviction and
    sentence. However, if the court finds any legal point arguable on the merits, it may
    either deny the motion and order the court-appointed attorney to file a brief arguing
    4
    The United States Supreme Court reiterated Anders in Smith v. Robbins, 
    528 U.S. 259
    , 
    120 S.Ct. 746
    ,
    
    145 L.Ed.2d 756
     (2000).
    19-KA-377                                          4
    the legal point(s) identified by the court, or grant the motion and appoint substitute
    appellate counsel. 
    Id.
    In the present case, defendant’s appellate counsel asserts that after a detailed
    review of the record, she could find no non-frivolous issues to raise on appeal.
    Appellate counsel submits that the only pre-trial ruling which could arguably
    support an appeal is the denial of defendant’s motion to suppress; however, she
    notes that defendant did not preserve his right to seek appellate review of the
    denial of any motions. Appellate counsel further maintains defendant entered
    unqualified guilty pleas, thereby waiving any non-jurisdictional defects. She
    further asserts the trial court advised defendant of the rights necessary to ensure a
    knowing and intelligent waiver of rights, as well as the sentencing ranges for the
    offenses and the sentences that would be imposed. Appellate counsel concludes
    that defendant was sentenced pursuant to the plea agreement, precluding him from
    challenging his sentences on appeal.
    Appellate counsel has also filed a motion to withdraw as attorney of record
    which states she has made a conscientious and thorough review of the trial court
    record and can find no non-frivolous issues to raise on appeal and no rulings of the
    trial court which would arguably support the appeal.
    The State agrees with appellate counsel that there are no non-frivolous issues
    to be raised on appeal, and that appellate counsel’s request to withdraw should be
    granted.
    An independent review of the record supports appellate counsel’s assertion
    that there are no non-frivolous issues to be raised on appeal.
    The bill of information properly charged defendant and plainly and
    concisely stated the essential facts constituting the charged offenses. It also
    sufficiently identified defendant and the crimes charged. See generally La. C.Cr.P.
    arts. 464-466. The record also shows there are no appealable issues surrounding
    19-KA-377                                  5
    defendant’s presence. The minute entries show defendant appeared at each stage
    of the proceedings against him, including his arraignment, his guilty plea
    proceeding, his sentencing, and his multiple bill proceeding, including his
    stipulation and his enhanced sentencing.
    Further, defendant pleaded guilty as charged to the offenses contained in the
    bill of information. If a defendant pleads guilty, he normally 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. Turner,
    09-1079 (La. App. 5 Cir. 7/27/10), 
    47 So.3d 455
    , 459. Because defendant entered
    unqualified guilty pleas, any non-jurisdictional defects were waived.
    The record also indicates that defendant filed several pre-trial motions,
    including motions to suppress, which the trial court denied. However, defendant
    did not preserve any pre-trial rulings for appeal under the holding in State v.
    Crosby, 
    338 So.2d 584
     (La. 1976).5
    Additionally, a review of the record reveals no irregularities in defendant’s
    guilty pleas that would render them invalid. Once a defendant is sentenced, only
    those guilty pleas that are constitutionally infirm may be withdrawn by appeal or
    post-conviction relief. A guilty plea is constitutionally infirm if it is not entered
    freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is
    induced to enter the plea by a plea bargain or what he justifiably believes was a
    plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir.
    2/27/06), 
    924 So.2d 1120
    , 1124.
    The record shows defendant was aware he was pleading guilty to possession
    with intent to distribute heroin, possession with intent to distribute cocaine,
    possession of a firearm by a convicted felon, possession of an unidentifiable
    5
    Under Crosby, a defendant may reserve his right to appeal a prior adverse ruling of the trial court. State
    v. Richardson, 09-714 (La. App. 5 Cir. 2/9/10), 
    33 So.3d 903
    , 906-07, writ denied, 10-526 (La. 10/15/10),
    
    45 So.3d 1109
    .
    19-KA-377                                           6
    firearm, and possession of a firearm by a person having been previously convicted
    of domestic abuse battery. Defendant was also properly advised of his Boykin
    rights. On the waiver of rights form and during the colloquy with the trial judge,
    defendant was advised of his right to a judge or jury trial, his right to confrontation,
    and his privilege against self-incrimination, and he indicated he understood he was
    waiving these rights.
    Further, defendant was informed during the colloquy of the sentencing
    ranges for the offenses as well as the actual penalties that would be imposed upon
    acceptance of his guilty pleas. The trial court further informed defendant that his
    guilty pleas could be used to enhance a penalty for any future conviction.
    Defendant confirmed that he understood the possible legal consequences of
    pleading guilty and that he had not been forced, coerced, or intimidated into
    entering his guilty pleas. After his colloquy with defendant, the trial judge
    accepted defendant’s guilty pleas as knowingly, intelligently, and voluntarily
    made.
    Next, a review of the multiple offender proceeding does not reveal any non-
    frivolous issues for appeal. Defendant was advised of his multiple offender rights
    and indicated that he understood he was waiving them by stipulating to the
    allegations in the multiple offender bill. Defendant was also advised of the
    potential sentencing range as a second-felony offender for the crime of possession
    of a firearm by a convicted felon (count three), as well as the actual sentence that
    would be imposed. Defendant stipulated to being a second-felony offender as
    alleged in the multiple bill, thereby waiving his right to a hearing and any possible
    non-jurisdictional defects. By stipulating to the multiple bill, defendant is barred
    from asserting on appeal that the State failed to produce sufficient proof at the
    multiple bill hearing. See State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97), 
    704 So.2d 300
    , 304.
    19-KA-377                                  7
    Lastly, defendant’s original sentences and enhanced sentence are within the
    sentencing ranges prescribed by the statutes. See La. R.S. 40:966(B)(4)(a); La.
    R.S. 40:967(B)(4)(b); La. R.S. 14:95.1(B); La. R.S. 40:1792; La. R.S. 14:95.10;
    La. R.S. 15:529.1(A)(1). Further, defendant’s original and enhanced sentences
    were imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P.
    art. 881.2(A)(2) precludes a defendant from seeking review of his sentence
    imposed in conformity with a plea agreement, which was set forth in the record at
    the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 
    958 So.2d 36
    , 46; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 
    916 So.2d 1171
    ,
    1173.
    Based on the foregoing, the proceedings surrounding defendant’s guilty
    pleas and sentencing do not present any non-frivolous issues to be raised on
    appeal. Appellate counsel’s brief adequately demonstrates by full discussion and
    analysis that she has reviewed the trial court proceedings and cannot identify any
    basis for a non-frivolous appeal, and an independent review of the record supports
    counsel’s assertion.
    Pro Se Brief
    In his first pro se assignment of error, defendant argues the evidence against
    him was illegally obtained, and thus, the trial court improperly denied his motion
    to suppress. He maintains the officers that entered his residence possessed an
    arrest warrant and not a search warrant, which he submits constituted an illegal
    search of the evidence that was seized.
    As previously noted in the Anders discussion, defendant entered unqualified
    guilty pleas on all counts and thus waived all non-jurisdictional defects. Further,
    while defendant had a hearing on his motion to suppress, he did not preserve the
    denial of his motion to suppress for appeal under the holding in Crosby, supra,
    when he pleaded guilty and, therefore, he has waived any challenge to his guilty
    19-KA-377                                  8
    pleas based upon the denial of this motion.6 Accordingly, because the ruling was
    not preserved for appellate review, we will not review the merits of defendant’s
    motion to suppress as requested in this assignment of error.
    In his second pro se assignment of error, defendant argues that his counsel
    was ineffective because he provided false information regarding the time he would
    have to serve in prison. Thus, defendant contends his pleas were unknowingly and
    involuntarily made. He further argues that he asked his attorney to have a
    preliminary hearing, but he did not receive one.
    The Sixth Amendment to the United States Constitution and Article I, § 13
    of the Louisiana Constitution safeguard a defendant’s right to effective assistance
    of trial counsel. According to the United States Supreme Court’s opinion in
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    (1984), a defendant asserting an ineffective assistance claim must show: 1) that
    defense counsel’s performance was deficient; and 2) that the deficiency prejudiced
    the defendant. The defendant has the burden of showing that “there is a reasonable
    probability that, but for counsel’s unprofessional errors, the results of the
    proceeding would have been different. A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.” 
    Id. at 694
    .
    The Louisiana Supreme Court has held that the two-part analysis of
    Strickland, 
    supra,
     relative to ineffective assistance of counsel claims, applies to
    challenges to guilty pleas based upon ineffective assistance of counsel. State v.
    Crawford, 15-0784 (La. 10/2/15), 
    176 So.3d 394
    , cert denied, -- U.S. -- , 
    136 S.Ct. 1454
    , 
    194 L.Ed.2d 557
     (2016); State v. Washington, 
    491 So.2d 1337
    , 1338 (La.
    1986).
    6
    A defendant may be allowed appellate review if, at the time he enters a guilty plea, he expressly reserves
    his right to appeal a specific adverse ruling in the case. State v. Turner, 10-995 (La. App. 5 Cir. 9/27/11),
    
    75 So.3d 491
    , 492, writ denied, 11-2379 (La. 4/27/12), 
    86 So.3d 625
    .
    19-KA-377                                            9
    Generally, an ineffective assistance of counsel claim is most appropriately
    addressed through an application for post-conviction relief filed in the district
    court, where a full evidentiary hearing can be conducted, if necessary, rather than
    by direct appeal. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 
    887 So.2d 589
    , 595. When the record contains sufficient evidence to rule on the merits of the
    claim and the issue is properly raised in an assignment of error on appeal, it may be
    addressed in the interest of judicial economy. 
    Id.
     Where the record does not
    contain sufficient evidence to fully explore a claim of ineffective assistance of
    counsel, the claim should be relegated to post-conviction proceedings under La.
    C.Cr.P. arts. 924-930.8. 
    Id.
    Here, the record does not contain sufficient evidence to rule on the merits of
    defendant’s ineffective assistance of counsel claims.7 Accordingly, because the
    record is insufficient to fully explore defendant’s claims, they would be more
    appropriately raised in an application for post-conviction relief in the trial court,
    where a full evidentiary hearing can be conducted, if necessary, and defendant can
    present evidence to support his allegations.8
    In his final pro se assignment of error, defendant avers the trial court
    violated the ex post facto clause of the United States Constitution when he was
    sentenced under the habitual offender statute. He further argues he was subjected
    to double jeopardy by his sentencing under the habitual offender statute because he
    is already having to pay an increased penalty based on his prior felon status and
    thus, to enhance his sentence would be considered excessive. Finally, defendant
    argues his enhanced sentence is illegal because “the habitual offender bill was
    7
    As an attachment to his pro se brief filed with this Court, defendant has provided alleged text message
    communications between his sister and his trial counsel. He contends that these messages establish that
    his counsel provided false information about the time he would have to serve in prison. However, this
    evidence is not in the record before us, and an appellate court is precluded from considering evidence
    which is not part of the record. State v. Pertuit, 95-935 (La. App. 5 Cir. 3/13/96), 
    673 So.2d 1055
    , 1057.
    8
    The defendant would have to satisfy the requirements of La. C.Cr.P. art. 924, et seq., in order to receive
    such a hearing.
    19-KA-377                                            10
    amended as to the time between [defendant]’s release from supervision to the date
    of his new arrest, which resulted in an 18 year sentence as a habitual offender
    under the old law.”
    First, defendant claims that the ex post facto clause was violated when he
    was sentenced under the habitual offender statute. However, defendant has not
    briefed this issue. This conclusory statement, without more, is insufficient for this
    Court to review on appeal. Any assignment of error that is not briefed is
    considered abandoned on appeal.. See State v. Allen, 06-778 (La. App. 5 Cir.
    4/24/07), 
    955 So.2d 742
    , 757-58, writ denied, 08-2432 (La. 1/30/09), 
    999 So.2d 754
    . Thus, because defendant has not briefed this assignment of error, we find that
    it is abandoned.
    With respect to defendant’s double jeopardy claim, the Habitual Offender
    Law creates no independent offense but rather prescribes the conditions under
    which there is an enhanced penalty for the current offense. State v. Boykin, 34,133
    (La. App. 2 Cir. 12/6/00), 
    774 So.2d 1074
    , 1075. Considerations of double
    jeopardy do not apply to multiple offender proceedings. See State v. Dorthey, 
    623 So.2d 1276
    , 1279 (La. 1993) (explaining that because the multiple offender
    hearing is not a trial, legal principles such as double jeopardy do not apply).
    Accordingly, defendant’s claim that he was subjected to double jeopardy by being
    sentenced under the habitual offender statute is without merit.
    Lastly, defendant argues that his enhanced sentence is illegal because “the
    Habitual Offender Bill was amended as to the time between [his] release from
    supervision to the date of new arrest, which resulted in an 18 year sentence as a
    habitual offender under the old law.” However, this argument is unclear and
    defendant provides no further argument in support of this claim. Without further
    19-KA-377                                 11
    argument, defendant has failed to brief this issue and we consider it abandoned.9
    See Allen, supra.
    ERRORS PATENT
    The record was reviewed for errors patent in accordance with La. C.Cr.P.
    art. 920; State v. Oliveaux, 
    312 So.2d 337
     (La. 1975); and State v. Weiland, 
    556 So.2d 175
     (La. App. 5th Cir. 1990). Two errors requiring corrective action were
    noted.
    With regard to defendant’s conviction on count one—possession with intent
    to distribute heroin—the trial court imposed an illegally harsh sentence. At the
    time defendant committed the offense on July 12, 2017, the sentencing range was
    not less than ten nor more than 50 years imprisonment with at least ten years to be
    served without benefit of probation or suspension of sentence. See La. R.S.
    40:966(B)(4)(a). The statute did not provide for the restriction of parole.
    However, defendant was sentenced on count one to 18 years at hard labor without
    benefit of probation, parole, or suspension of sentence for the first ten years.
    Pursuant to La. C.Cr.P. art. 882, an appellate court can correct an illegal
    sentence at any time. When a sentencing error involves the imposition of
    restrictions beyond those authorized by the legislature, the Louisiana Supreme
    Court instructs appellate courts to correct the error pursuant to their authority under
    La. C.Cr.P. art. 882. State v. Sanders, 04-17 (La. 5/14/04), 
    876 So.2d 42
    .
    Therefore, we amend defendant’s sentence to eliminate the parole restriction on
    count one for the first ten years of defendant’s 18-year sentence. See State v.
    9
    To the extent defendant challenges his enhanced sentence based upon changes to the multiple offender
    law, we reiterate that defendant pleaded guilty as charged and was sentenced in accordance with the
    multiple offender plea agreement. La. C.Cr.P. art 881.2(A)(2) provides: “[t]he defendant cannot seek
    appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in
    the record at the time of the plea.” See Moore, supra; Washington, 
    supra.
    19-KA-377                                         12
    Durall, 15-793 (La. App. 5 Cir. 5/12/16), 
    192 So.3d 310
    . We also remand to the
    trial court with instructions to amend the sentencing minute entry and the
    Louisiana Uniform Commitment Order (UCO) to correctly reflect the sentence on
    count one as amended.
    Also, the sentencing minute entry and the UCO, as to count five—
    possession of a firearm having been previously convicted of domestic abuse
    battery—reflect that defendant’s five-year sentence is to be served without
    benefits. However, the trial court did not restrict benefits on defendant’s count-
    five sentence, and the statute does not provide for a restriction of benefits. See La.
    R.S. 14:95.10. Where there is a discrepancy between the transcript and the minute
    entry, the transcript generally prevails. State v. Lynch, 
    441 So.2d 732
    , 734 (La.
    1983). Accordingly, we remand the matter for correction of the sentencing minute
    entry and the UCO to correct this inaccuracy as to count five.
    Once the UCO is corrected as to counts one and five, the Clerk of Court for
    the 24th Judicial District Court is ordered to transmit the corrected UCO to the
    appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the
    Department of Corrections’ legal department. See State v. Ordonez, 16-619 (La.
    App. 5 Cir. 3/15/17), 
    215 So.3d 473
    , 479; State v. Doucet, 17-200 (La. App. 5 Cir.
    12/27/17), 
    237 So.3d 598
    , writs denied, 18-0077 (La. 10/8/18), 
    253 So.3d 789
     and
    18-0196 (La. 11/5/18), 
    255 So.3d 1052
    , cert. denied, --U.S.--, 
    139 S.Ct. 2676
    , 
    204 L.Ed.2d 1079
     (2019); State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 
    106 So.3d 1136
    , 1142.
    DECREE
    For the foregoing reasons, we affirm defendant’s convictions, and we affirm
    his sentences for counts two through five. We amend defendant’s sentence as to
    19-KA-377                                 13
    count one, and affirm as amended. We also remand for correction of the UCO.
    Finally, we grant appellate counsel’s motion to withdraw as attorney of record.
    CONVICTIONS AFFIRMED; SENTENCES ON COUNTS 2-5
    AFFIRMED; SENTENCE ON COUNT 1 AFFIRMED AS
    AMENDED; REMANDED FOR CORRECTION OF THE
    UNIFORM COMMITMENT ORDER; MOTION TO
    WITHDRAW GRANTED
    19-KA-377                               14
    SUSAN M. CHEHARDY                                                               CURTIS B. PURSELL
    CHIEF JUDGE                                                                     CLERK OF COURT
    MARY E. LEGNON
    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
    JUDE G. GRAVOIS
    MARC E. JOHNSON
    ROBERT A. CHAISSON                                                              SUSAN BUCHHOLZ
    STEPHEN J. WINDHORST
    FIRST DEPUTY CLERK
    HANS J. LILJEBERG
    JOHN J. MOLAISON, JR.                        FIFTH CIRCUIT
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    NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
    I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
    IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
    APRIL 30, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
    REPRESENTED BY COUNSEL, AS LISTED BELOW:
    19-KA-377
    E-NOTIFIED
    24TH JUDICIAL DISTRICT COURT (CLERK)
    HONORABLE CORNELIUS E. REGAN (DISTRICT JUDGE)
    THOMAS J. BUTLER (APPELLEE)           CYNTHIA K. MEYER (APPELLANT)
    MAILED
    ZACHARY P. POPOVICH (ATTORNEY)        DEWAYNE A. ALLEN #442373
    HONORABLE PAUL D. CONNICK, JR.        NATCHITOCHES PARISH DETENTION
    (ATTORNEY)                            CENTER
    MEREDITH HEARN (ATTORNEY)             299 EDWINA DRIVE
    TWENTY-FOURTH JUDICIAL DISTRICT       NATCHITOCHES, LA 71457
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Document Info

Docket Number: 19-KA-377

Judges: Cornelius E. Regan, Pro Tempore

Filed Date: 4/30/2020

Precedential Status: Precedential

Modified Date: 10/21/2024