State of Louisiana Versus Nickolos Marchiafava

STATE OF LOUISIANA NO. 19-KA-581
VERSUS FIFTH CIRCUIT
NICKOLOS MARCHIAFAVA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-7505, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
July 29, 2020
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Hans J. Liljeberg
CONVICTION AFFIRMED
SJW
FHW
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Gail D. Schlosser
Joshua K. Vanderhooft
Lindsay L. Truhe
COUNSEL FOR DEFENDANT/APPELLANT,
NICKOLOS MARCHIAFAVA
Jane L. Beebe
WINDHORST, J.
Defendant, Nickolos Marchiafava, appeals his conviction and sentence for
possession of methamphetamine weighing twenty-eight grams or greater. For the
following reasons, we affirm defendant’s conviction and sentence.
Procedural History
On December 3, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Nickolos Marchiafava, with one count of
possession with intent to distribute methamphetamine weighing twenty-eight grams
or greater in violation of La. R.S. 40:967(A), which occurred on October 1, 2018
(count one). Defendant was arraigned the same day and pled not guilty. On April
8, 2019, the State filed a superseding bill of information to add a second count of
possession with intent to distribute methamphetamine weighing twenty-eight grams
or greater in violation of La. R.S. 40:967(A), which occurred on March 12, 2019
(count two). Defendant was re-arraigned on the superseding bill of information that
same day and pled not guilty. The two counts were severed on July 16, 2019.
On July 16, 2019, defendant was tried as to count two before a twelve-person
jury and was convicted of the lesser offense of possession of methamphetamine
weighing twenty-eight grams or greater. On July 29, 2019, the trial court sentenced
defendant as to count two to twenty years imprisonment at hard labor. On August
16, 2019, defendant filed a motion to reconsider sentence and a motion for appeal
regarding the trial verdict on count two rendered on July 16, 2019, and the sentence
imposed on July 29, 2019. The trial court granted the appeal on August 20, 2019
and denied the motion to reconsider on September 16, 2019.
After the appeal was granted, the State filed a multiple offender bill of
information alleging defendant to be a third-felony offender using count two as the
underlying offense. Defendant was subsequently adjudicated a second-felony
offender. The trial court vacated defendant’s original sentence and resentenced him
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to twenty years imprisonment at hard labor without benefit of probation or
suspension of sentence. Defendant appeals his original sentence for count two.
Defendant’s multiple offender finding and sentence are not before this Court in the
present appeal, since they occurred after this appeal was instituted.
Law and Analysis
Defendant argues in this appeal that the trial court imposed an excessive
sentence. Specifically, defendant argues that the trial court failed to justify the
imposed maximum sentence and that imposition of the sentence to run concurrent
with the sentence for count one is also unjustified. Defendant asserts that his
admission to possessing methamphetamine should mitigate his sentence, not justify
the maximum sentence permitted, as well as that his prior criminal history should
not have been considered during his original sentencing because it was later used
against him in the multiple offender adjudication.
In response, the State asserts that defendant’s claim is moot because the
original sentence challenged here was imposed on July 29, 2019, and it was
subsequently vacated on October 8, 2019, when defendant was resentenced as a
multiple offender pursuant to La. R.S. 15:529.1.
The record reflects that the defendant was originally sentenced to twenty years
imprisonment at hard labor on July 29, 2019. On August 20, 2019, the trial court
granted defendant’s motion for appeal. Thereafter, the State filed a multiple offender
bill of information against defendant, and on October 8, 2019, defendant was
adjudicated a second-felony offender. The trial court vacated defendant’s original
sentence and resentenced him. Thus, defendant’s argument regarding his original
sentence is moot, because that sentence has been vacated and is no longer an issue.
State v. Riggins, 04-60 (La. App. 5 Cir. 9/28/04), 885 So.2d 42, 43; State v. Bell,
53,163 (La. App. 2 Cir. 1/15/20), 289 So.3d 658, 660.
19-KA-581 2
Decree
Accordingly, we affirm defendant’s conviction. We do not address
defendant’s original sentence because it was vacated, and we do not address
defendant’s sentence pursuant to the multiple bill, which is not before this Court.
CONVICTION AFFIRMED
19-KA-581 3
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
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
JULY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-581
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE L. BEEBE (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
JOSHUA K. VANDERHOOFT (APPELLEE)
LINDSAY L. TRUHE (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053