State of Louisiana Versus Oneil Gilbert, III ( 2023 )

STATE OF LOUISIANA NO. 23-KA-121
VERSUS FIFTH CIRCUIT
ONEIL GILBERT, III COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 22-1212, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
November 08, 2023
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Robert A. Chaisson,
John J. Molaison, Jr., and Scott U. Schlegel
CONVICTIONS AFFIRMED; SENTENCE ON COUNT
ONE AFFIRMED; SENTENCE ON COUNT TWO
VACATED AND REMANDED FOR RESENTENCING;
REMANDED ON COUNT ONE FOR CORRECTION
OF THE COMMITMENT
SUS
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Kristen Landrieu
Carolyn Chkautovich
COUNSEL FOR DEFENDANT/APPELLANT,
ONEIL GILBERT, III
Katherine M. Franks
SCHLEGEL, J.
Defendant, Oneil Gilbert, III, appeals his convictions and sentences for one
count of possession of a firearm by a convicted felon, and one count of possession
of cocaine in an amount under two grams. We affirm defendant’s convictions and
sentences. However, we remand the matter for correction of errors patent.
PROCEDURAL HISTORY
On March 22, 2022, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Oneil Gilbert, III, with possession of a firearm by
a convicted felon in violation of La. R.S. 14:95.1 (count one), and possession with
intent to distribute a controlled dangerous substance, cocaine weighing less than 28
grams, in violation of La. R.S. 40:967(A) (count two). Defendant was arraigned
and pled not guilty on March 25, 2022. Various pleadings were filed, including an
omnibus motion containing motions to suppress statement and evidence.
Following a hearing on July 13, 2023, the trial court denied the motions to
suppress the evidence and statement.
On October 19, 2022, the State amended count two of the bill of information
to charge defendant with possession of a controlled dangerous substance, cocaine
weighing less than 2 grams, in violation of La. R.S. 40:967(C). During a jury trial
held the same day, a twelve-person jury unanimously found defendant guilty as
charged on both counts.
On October 24, 2022, defendant was sentenced to 20 years on count one,
and 2 years on count two.1 The sentences were ordered to run concurrent with
each other.
The State subsequently filed a multiple offender bill of information on
November 10, 2022, as to count one (possession of a firearm by a convicted felon),
1
As discussed below under errors patent, the trial court did not state at the sentencing hearing whether
the sentences were to be served with or without benefit of probation, parole or suspension or with or
without hard labor.
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and alleged that defendant previously pled guilty to obscenity in Case No. 20-2252
in violation of La. R.S. 14:106 on October 13, 2021, and pled guilty to simple
burglary in Case No. 10-2480 in violation of La. R.S. 14:62 on January 17, 2012.
An amended multiple offender’s bill was also filed on November 10, 2022, in
which the State alleged that defendant had pled guilty to obscenity in Case No. 20-
2253 in violation of La. R.S. 14:106 on October 13, 2021. The charge of simple
burglary under Case No. 10-2480 was removed from the multiple bill.
At the multiple offender bill hearing on January 20, 2023, the trial court
adjudicated defendant as a second-felony offender on count one, vacated the
original sentence on count one, and sentenced defendant to “40 years” to run
“concurrent with the other crimes”.2
Defendant now appeals and asserts, as his sole assignment of error, that the
trial court erred in denying the motions to suppress evidence and statement.
FACTS
On March 6, 2022, Deputy Michael Morrison, a Jefferson Parish Sheriff’s
Office deputy of almost seventeen years with nearly twenty years of military
experience, responded to a dispatch by the 911 operator, who had received a
suspicious person call. The caller relayed via 911 that he had seen a black male
break off a piece of crack cocaine, put it in a baggy, and sell it to somebody near a
Honda truck (Ridgeline) in the Fast Stop store parking lot at 3220 Jefferson
Highway. The initial report was made by someone named “Brian,” but “Brian”
was never located or interviewed. Deputy Morrison was not initially given a
description, but when he asked the dispatcher for a better description, he was told
that it was a bald, black man wearing black pants and a black shirt.
When Deputy Morrison arrived on the scene, he did not see anyone
matching the description, but was able to speak with someone in the parking lot
2
See errors patent discussion below.
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about who owned the truck. The person was not able to provide Deputy Morrison
with a name but stated that the owner of the subject truck was a bald, black male
wearing a blue shirt and black pants. Deputy Morrison also spoke with a clerk
inside the store, who stated that the Honda pick-up truck belonged to a bald, black
male wearing black pants and a blue shirt.3 The clerk further noted that the person
driving the subject truck told him that he would be right back because he had lost
his key and was going back to his house to get a spare. The clerk last saw this
person walking southbound on Shrewsbury Court.
As Deputy Morrison was speaking with the clerk, Deputy Justin McCubbins,
arrived on the scene to assist with the investigation.4 Deputy Morrison provided
Deputy McCubbins with a description of the subject soon thereafter, whereupon
Deputy McCubbins relayed that he had just seen a black male who matched the
description exiting the corner of the parking lot, heading southbound, down
Shrewsbury Court on foot. More specifically, Deputy McCubbins testified that as
he walked out of the store, he saw defendant walking towards them but the
defendant turned around and started walking extremely fast in the opposite
direction when he saw the deputies. As a result, Deputy Morrison pursued on foot
while Deputy McCubbins entered his unit and drove southbound.
Deputy McCubbins drove past defendant, pulled in front of him on
Shrewsbury Court and exited his vehicle as Deputy Morrison was still walking
down the road towards them. Deputy McCubbins instructed defendant to stop and
drop the two yellow bags that he was carrying. Defendant refused, so Deputy
McCubbins grabbed the yellow bags and placed them on the ground. When he
grabbed the bags, he could immediately tell by the weight that one of the bags was
3
At the suppression hearing, Deputy Morrison testified that the clerk told him the suspect was wearing a
red shirt with blue pants.
4
Deputy McCubbins had been working for the Jefferson Parish Sheriff’s Office for approximately two
months at the time and had previously worked at the New Orleans Police Department for six years.
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heavier than the other. In his experience this suggested that the bag contained a
firearm. Deputy McCubbins advised defendant of his Miranda rights as Deputy
Morrison approached. Defendant was then brought over to the vehicle to be
handcuffed and searched for officer safety, at which point he began to resist. The
deputies were able to gain control and get handcuffs on defendant. Defendant was
then brought to the other side of the car and patted down by Deputy McCubbins,
who felt what he believed to be narcotics packaging in defendant’s right pocket.
At this point, Deputy Morrison took over the pat-down and felt a slightly
oblong object consistent with a marijuana bud in defendant’s right, front, pants
pocket. He pulled the zipper down and observed what he believed to be drugs on
top, all while smelling a strong odor of marijuana. During the subsequent search,
the deputies located a large white bag containing marijuana, a smaller bag that
contained crack cocaine, and some wadded up money in multiple denominations.
These items were removed and placed in Deputy McCubbins’s unit. Deputy
Morrison also found several bullets and a crack pipe in defendant’s front, left, jean
jacket pocket, which he put on top of the unit by the windshield. At this point,
Deputy Morrison became concerned about continuing the search on the street
because it was nighttime and dark, so they all relocated to the store parking lot.
Unfortunately, the bullets and crack pipe were lost as they were forgotten about
and left on the hood during the drive back. Deputy Morrison escorted defendant
back to the store parking lot on foot.
When they arrived back at the parking lot, Deputy Morrison again advised
defendant of his Miranda rights by memory and told him that there had been a
report of him selling crack cocaine and that someone had observed him break off a
piece of crack, put it in a bag, and sell it. Defendant eventually admitted to such
when speaking with Detective Colton O’Connor, who had been summoned to the
scene by Deputy Morrison. After being advised of his Miranda rights again by
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Detective O’Connor, defendant admitted that he had sold a little bit of cocaine to a
friend of his. Detective O’Connor did not testify at the trial.
Sometime after arriving back at the store, Deputy Morrison searched the two
yellow bags and found a Taurus revolver with five rounds of .38 caliber
ammunition inside the revolver. The deputies also searched defendant’s truck after
receiving his consent to do so. They did not locate additional weapons or
narcotics, but found suitcases in the back of the truck that contained clear, plastic
baggies.
Upon running defendant’s rap sheet, Deputy Morrison learned that
defendant was on probation or parole and that he had a history of armed robbery
and rape offenses. Defendant was arrested for (1) possession with intent to
distribute crack cocaine under La. R.S. 40:967A, (2) possession of a firearm with
controlled dangerous substance under La. R.S.14:95E, (3) felon in possession of a
firearm under La. R.S. 14:95.1, and (4) possession of marijuana under La. R.S.
40:966C.
LAW AND ANALYSIS
As a preliminary matter, we acknowledge that defendant’s motion for appeal
is in part untimely filed. Defendant was originally sentenced on October 24, 2022.
He was resentenced on the multiple bill on January 20, 2023. His motion for
appeal, filed on January 27, 2023, includes an appeal from the verdict rendered on
October 24, 2022. Thus, the appeal was not filed within 30 days of the October 19,
2022 verdict in accordance with the requirements of La. C.Cr.P. art. 914.
However, we will consider defendant’s appeal to avoid “further useless delay.” See
State v. Fair, 15-434 (La. App. 5 Cir. 12/23/15), 182 So.3d 1238, 1240 n.1, writ
denied, 16-185 (La. 2/3/17), 215 So.3d 688 (“Although the motion for appeal was
untimely according to La. C.Cr.P. art. 914, we will address the merits of
defendant’s appeal to avoid further useless delay.”)
23-KA-121 5
In a hearing on a motion to suppress, the State bears the burden of proof in
establishing the admissibility of evidence seized without a warrant. La. C.Cr.P.
art. 703(D); State v. Morales, 12-454 (La. App. 5 Cir. 12/18/12), 125 So.3d 1141,
1145. A trial court is afforded great discretion when ruling on a motion to
suppress, and its ruling will not be disturbed absent an abuse of that discretion. Id.;
State v. Abrego, 21-166 (La. App. 5 Cir. 12/1/21), 334 So.3d 883, 889, writ denied,
21-1949 (La. 2/22/22), 333 So.3d 450. In determining whether the trial court’s
ruling on a motion to suppress is correct, an appellate court is not limited to the
evidence presented at the motion to suppress hearing but may also consider
pertinent evidence presented at trial. State v. Bradley, 22-191 (La. App. 5 Cir.
12/21/22), 356 So.3d 485, 495, writ denied, 23-147 (La. 10/31/23), __ So.3d __.
The Fourth Amendment of the United States Constitution and Article 1, § 5
of the Louisiana Constitution protect individuals against unreasonable searches and
seizures. State v. Richardson, 18-401 (La. App. 5 Cir. 2/6/19), 265 So.3d 1006,
1010. However, the right of law enforcement officers to stop and interrogate those
reasonably suspected of engaging in criminal activity is recognized by La. C.Cr.P.
art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Abrego, 334 So.3d at 888. The
Terry standard, as codified in La. C.Cr.P. art. 215.1, authorizes police officers to
stop a person in a public place whom they reasonably suspect is committing, has
committed, or is about to commit an offense and demand that the person identify
himself and explain his actions. State v. Abrego, 334 So.3d at 888. Reasonable
suspicion, which is something less than probable cause to arrest, requires that
police officers have sufficient knowledge of facts and circumstances to justify an
infringement of the individual’s right to be free from government interference. Id.;
State v. Sam, 05-88 (La. App. 5 Cir. 5/31/05), 905 So.2d 379, 383-84, writ denied,
05-2100 (La. 3/10/06), 925 So.2d 510. Police do not have to observe what they
23-KA-121 6
know to be criminal behavior before investigating. State v. McKnight, 22-499 (La.
App. 5 Cir. 5/24/23), 366 So.3d 798, 804. Evidence derived from an unreasonable
stop will be excluded from trial. Id. The determination of reasonable grounds for
an investigatory stop does not rest on the officer’s subjective beliefs or attitudes,
but is dependent on an objective evaluation of all the circumstances known to the
officer at the time of his challenged action. Id. A reviewing court must take into
account the totality of the circumstances, giving deference to the inferences and
deductions of a trained police officer that might elude an untrained person. Id.Under certain circumstances, an informant’s tip can also provide reasonable
suspicion to detain and question a person. State v. Clay, 06-37 (La. App. 5 Cir.
4/25/06), 930 So.2d 1028, 1032, citing, Alabama v. White, 496 U.S. 325, 110 S.Ct.
2412, 110 L.Ed.2d 301 (1990). Whether an informant’s tip creates reasonable
suspicion necessary to justify an investigatory stop is determined by considering
the totality of the circumstances. Id., citing, Illinois v. Gates, 462 U.S. 213, 214,
103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983). As further explained by this court in
State v. Clay:
The anonymous caller’s ability to predict the suspect’s future behavior
goes toward proving reliability, as it demonstrates inside information and a
special familiarity with the suspect’s affairs. See, Alabama v. White, 496
U.S. at 332, 110 S.Ct. at 2417; State v. Boss, supra. Independent
corroboration of the details of an informant’s tip by police investigation is
valuable to the totality of the circumstances analysis. State v. Boss, supra. A
non-predictive anonymous tip paired with either police corroboration
or independent police observation of unusually suspicious conduct can
provide police with the reasonable suspicion needed to temporarily
detain the suspect. Id. “[I]f a tip has a relatively low degree of reliability,
more information will be required to establish the requisite quantum of
suspicion than would be required if the tip were more reliable.” Alabama v.
White, 496 U.S. at 330, 110 S.Ct. at 2416. See also, State v. Boss, supra.
Id. [Emphasis added].
23-KA-121 7
In his sole assignment of error, defendant argues that the trial judge erred in
denying the motions to suppress evidence and statements.5 He argues that the stop,
his handcuffing, and subsequent search of his person and his belongings were not
justified under the circumstances. He further argues that because the evidence
seized flowed from an unjustified stop and frisk, it is fruit of the poisonous tree and
should have been suppressed. Specifically, defendant argues that the tip, from an
unknown informant, did not give a time frame as to when the sale had occurred,
did not have a description of the truck other than that it was a Honda, did not have
a description of the person who sold the piece of crack, and did not include a
“predictive element”. The State, on the other hand, asserts that the deputies had
sufficient reasonable suspicion to stop defendant as a suspicious person under the
totality of the circumstances.
Upon review, we find that the deputies had reasonable suspicion to stop
defendant based upon the tip, corroborating evidence and independent observations
of the deputies. In the case of State v. Clay, supra, we found that the police did not
have reasonable suspicion necessary for an investigatory stop when the tip
consisted of a report of gunfire made by an unknown complainant, and the officers
“simply approached the first people they saw in the area.” State v Clay, 930 So.2d
at 1033.
Similarly, in the case of State v. Lane, 09-179 (La. App. 5 Cir. 9/29/09), 24
So.3d 920, 925, writ denied, 09-2360 (La. 5/21/10), 36 So.3d 226, a policeman,
who had just gotten off duty, heard a sheriff’s office dispatch regarding a
suspicious maroon car in a parking lot, and “[p]ossible drug activity going on at
that location.” The officer then observed a maroon car attempting to leave the
5
It is unclear which statements defendant challenges. At the trial, the deputies’ body camera videos were
played on silent. Detective O’Connor testified as to a statement made by defendant at the suppression
hearing, but did not testify at the trial. Thus, we conclude that there are no statements made by defendant
that are at issue in this appeal.
23-KA-121 8
parking lot. The Lane court held that “[w]ith no predictive tip, no corroboration of
the tip given, and no observation of suspicious activity, we find that Deputy
Sperandeo lacked reasonable suspicion to conduct an investigatory stop of the
vehicle in which defendant was riding.” Id.In the pending case though, contrary to Clay and Lane, the tip included
specific information about the sale of narcotics, a particular vehicle and the
description of a bald, black male, later expanded to also include a description of
the clothing worn by defendant. Further, the tip was corroborated by other
individuals on the scene and the deputies personally observed suspicious conduct
on the part of defendant, who began walking extremely fast in the opposite
direction upon the sight of the deputies. Considering these factors and the
experience of the deputies, we conclude that under the totality of the
circumstances, the deputies had sufficient reasonable suspicion for an investigatory
stop of defendant.
We next consider defendant’s remaining arguments that the forcible taking
of defendant’s belongings, his handcuffing, the frisk and search of his person, and
the later search of his belongings were unjustified and violated his Fourth
Amendment right to privacy.
Once an officer conducts an investigatory stop of a person pursuant to La.
C.Cr.P. art. 215.1(B), the officer may conduct a limited pat-down frisk for
weapons if he reasonably believes he is in danger or that the suspect is armed.
State v. Johnson, 10-209 (La. App. 5 Cir. 10/12/10), 52 So.3d 110, 119, writ
denied, 10-2546 (La. 4/1/11), 60 So.3d 1248. If in the course of an Article 215.1
weapons frisk, an officer feels an object whose contour or mass makes its identity
as contraband immediately apparent, the officer may seize it under the “plain feel”
exception to the warrant requirement. State v. Taylor, 06-558 (La. App. 5 Cir.
7/30/07), 966 So.2d 631, 640, writ denied, 07-1902 (La. 2/1/08), 976 So.2d 717.
23-KA-121 9
The plain view doctrine renders a warrantless search reasonable: (1) if the police
officer is lawfully in the place from which he views the object; (2) where the
object’s incriminating character is immediately apparent; and (3) the officer has a
lawful right of access to the object. State v. Gray, 13-1326 (La. 6/28/13), 122
So.3d 531, 533. The plain smell exception is an extension of the plain view
exception. State v. McKnight, 366 So.3d at 804, citing, State v Gray, 122 So.3d at
533.
Again in the present case, we find the deputies’ actions were justified
considering the totality of the circumstances. Defendant was seen leaving the
parking lot in a hurry and refused to cooperate when the deputies caught up to him
on Shrewsbury Court. Defendant also refused to drop the two yellow bags when
ordered to do so, requiring Deputy McCubbins to grab the bags and then physically
detain him. Deputy McCubbins also testified that the weight of one of the bags
suggested to him based upon his experience that it contained a firearm. As a result,
Deputy McCubbins conducted a pat-down for officer safety and felt what he
believed to be narcotics packaging in defendant’s right pocket. The deputy was
justified in conducting a limited pat-down frisk. These actions led to the discovery
of the evidence that defendant now seeks to exclude. As set forth above in La.
C.Cr.P. art. 215.1(B), the deputies’ actions in seizing the evidence from the
defendant’s pocket under the plain feel, plain view and plain smell exceptions to
the warrant requirement were justifiable and thus constitutional. Furthermore, the
deputies’ actions in searching the two yellows bags when they arrived back at the
parking lot, which led to the seizure of a firearm, were also justifiable for the
reasons assigned above and thus constitutional. The fruit of the poisonous tree
doctrine does not apply. Accordingly, we find no abuse of discretion in the trial
court’s denial of defendant’s motion to suppress.
23-KA-121 10
ERRORS PATENT REVIEW
We reviewed the record for errors patent, according to 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). The following require corrective action.
A. Count Two
Defendant was sentenced to 2 years on count two. La. R.S. 40:967(C)(1)
provides that the term of imprisonment for possession of cocaine weighing less
than 2 grams is “with or without hard labor, for not more than two years.”
Although the commitment dated October 24, 2022, reflects that defendant’s
sentence was imposed at hard labor, the sentencing transcript does not reflect the
trial court ordered the sentence to be with or without hard labor. When there is a
discrepancy between the minutes and the transcript, the transcript must prevail.
State v. Lynch, 441 So.2d 732, 734 (La. 1983).
Where the applicable sentencing statute allows discretion, the sentencing
court’s failure to indicate whether the sentence is to be served with or without hard
labor is an impermissible, indeterminate sentence. State v. Brignac, 17-455 (La.
App. 5 Cir. 3/14/18), 241 So.3d 528, 535, writ denied, 2018-0564 (La. 2/11/19),
263 So.3d 894. We must therefore vacate defendant’s sentence on count two for
possession of cocaine weighing less than 2 grams and remand the matter to the trial
court for the imposition of a determinate sentence in accordance with La. C.Cr.P.
art. 879.
B. Count One
At the multiple offender bill hearing on January 20, 2023, the trial court
adjudicated defendant as a second-felony offender on count one, vacated the
original sentence, and sentenced defendant to “40 years” to run “concurrent with
the other crimes”. Although the minute entry reflects that defendant’s sentence
was imposed at hard labor, it does not say that the sentence is to be without benefit
23-KA-121 11
of parole, probation, or suspension of sentence. The sentencing transcript also
does not reflect whether the sentence was to be with hard labor or without the
benefit of parole, probation, or suspension of sentence. As set forth above, when
there is a discrepancy between the minutes and the transcript, the transcript must
prevail. State v. Lynch, 441 So.2d at 734.
La. R.S 15:529.1(G) provides that the multiple offender sentence was to be
served “at hard labor without benefit of probation or suspension of sentence”. The
restrictions on parole eligibility in multiple offender sentences under La. R.S.
15:529.1 “are those called for in the reference statute.” State v. Heath, 17-502 (La.
App. 5 Cir. 12/27/17), 236 So.3d 732, 736. Pursuant to La. R.S. 14:95.1,
defendant’s sentence as to count one was supposed to be imposed without the
benefit of parole, probation, or suspension of sentence. Under La. R.S. 15:301.1,
the statute’s requirement that a defendant be sentenced without the benefit of
parole, probation, or suspension of sentence is self-activating and no correction is
required. State v. Fisher, 19-504 (La. App. 5 Cir. 12/23/20), 307 So.3d 1204,
1227, writ denied, 2021-00130 (La. 5/4/21), 315 So.3d 219.
However, we remand the matter and direct the district court to correct the
commitment and the Uniform Commitment Order (“UCO”) to reflect that
defendant’s sentence to the multiple bill is to be served without benefit of parole,
probation, or suspension of sentence. See State v. Bourgeois, 22-418 (La. App. 5
Cir. 4/26/23), 361 So.3d 1138, 1151-52 (Matter remanded to district court to
correct the multiple bill sentencing minute entry to reflect that the entire enhanced
sentences were to be served without benefit of parole, probation, or suspension of
sentence); State v. Bardell, 17-274 (La. App. 5 Cir. 11/15/17), 232 So.3d 82, 89-
90 (While the statutory restriction of benefits was self-activating, the court
nonetheless remanded for correction of the sentencing minute entry and UCO to
reflect the correct restriction of benefits).
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We also direct the trial court to correct the UCO to reflect that defendant
was adjudicated a habitual offender on January 20, 2023, and that his original
sentence was vacated on January 20, 2023, instead of on January 27, 2023, as
reflected in the UCO.
C. Post-Conviction Relief Advisal
We further note that according to the transcript, the trial court did not advise
defendant of the two-year prescriptive period for filing an application for post-
conviction relief as required by La. C.Cr.P. art. 930.8. If a trial court fails to
advise, or gives an incomplete advisal, as required by La. C.Cr.P. art. 930.8, the
appellate court may correct this error by informing the defendant of the applicable
prescriptive period for post-conviction relief by means of its opinion. State v.
Becnel, 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022.
Accordingly, by way of this opinion, we advise defendant that no application
for post-conviction relief, including applications that seek an out-of-time appeal,
shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922.
CONCLUSION
For the foregoing reasons, we affirm defendant’s convictions on counts one
and two, and defendant’s sentence on count one. We vacate defendant’s sentence
on count two and remand for resentencing on count two. We further remand the
matter and direct the district court to correct the commitment and the UCO to
reflect that (1) defendant’s sentence as to count one is to be served with hard labor,
without benefit of parole, probation, or suspension of sentence as required by La.
R.S 15:529.1(G) and La. R.S. 14:95.1, and (2) that defendant was adjudicated a
habitual offender as to count one on January 20, 2023, and that his original
sentence was vacated on January 20, 2023.
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We further instruct the Clerk of Court for the 24th Judicial District Court to
transmit the original of the amended commitments to the officer in charge of the
institution to which defendant has been sentenced and the Department of
Corrections’ Legal Department.
CONVICTIONS AFFIRMED; SENTENCE ON
COUNT ONE AFFIRMED; SENTENCE ON
COUNT TWO VACATED AND REMANDED
FOR RESENTENCING; REMANDED ON
COUNT ONE FOR CORRECTION OF THE
COMMITMENT.
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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
NOVEMBER 8, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-121
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
MAILED
ONEIL GILBERT, III #121293 (APPELLANT) CAROLYN CHKAUTOVICH (APPELLEE)
RAYBURN CORRECTIONAL CENTER HONORABLE PAUL D. CONNICK, JR.
27268 HIGHWAY 21 (APPELLEE)
ANGIE, LA 70426 KRISTEN LANDRIEU (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053