APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 511-901, SECTION " K" . Honorable Arthur Hunter, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorney, Donna Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE, STATE OF LOUISIANA.
Sherry Watters, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins).
[2013-1118 La.App. 4 Cir. 1]
Edwin A. Lombard, Judge.
The defendant, Shawn Jones, appeals his conviction for possession with intent to distribute marijuana, arguing insufficiency of evidence and ineffective assistance of counsel. After review of the record in light of the applicable law, although the defendant's assignments of error are meritless, we vacate and remand the defendant's conviction and sentence based upon an error patent.
Relevant Facts and Procedural History
On March 15, 2012, in response to reports of drug trafficking in the vicinity of Dale Street and Warfield Street in New
Orleans, Louisiana, Detectives Imani Ruffin and Joseph Jefferson of the New Orleans Police Department (NOPD), operating in an undercover capacity, approached Lewis Monroe to buy marijuana. In the officers' presence, Mr. Monroe made a phone call. Shortly thereafter, a person arrived with the marijuana tat Mr. Monroe handed the undercover officers in exchange for two $20 bills that had been previously photocopied by the NOPD, memorializing the serial numbers. Leaving the scene, the undercover officers transmitted descriptions of Mr. Monroe and the marijuana courier to the " arresting" or " take-down unit," which included Detectives Wesley Humbles and Travis Joseph. Arriving quickly, Detective Humbles moved to apprehend the [2013-1118 La.App. 4 Cir. 2] defendant, whose clothes matched the description of the marijuana courier. As he did so, Detective Humbles observed the defendant discard a clear plastic bag of marijuana. Accordingly, the defendant was arrested for possession of marijuana and, in the search incident to the arrest, Detective Joseph found the two $20 bills from the controlled buy in the defendant's pocket.
On May 30, 2012, Mr. Monroe and the defendant were jointly charged by bill of information with distribution of marijuana. The defendant pleaded not guilty and his defense counsel filed various motions on his behalf, including discovery motions, a motion to suppress, and for a preliminary examination. After a hearing on August 24, 2012, wherein the State offered the testimony of Detective Jefferson and introduced the crime laboratory report, the trial judge found probable cause to bind the defendant over for trial on the charge of simple possession of marijuana and denied the defendant's motion to suppress.
On September 18, 2012, the defendant filed notice of his election to be tried by the judge in a bench trial. Meanwhile, Mr. Monroe withdrew his plea of not guilty, pleaded guilty, and was sentenced to a term of five years imprisonment at hard labor, suspended, and five years of active probation. At the defendant's trial on March 1, 2013, the State offered the testimony of Detectives Ruffins, Joseph, and Humbles, as well as the crime laboratory report, two bags of marijuana, and a verification of the " buy money." The State and defense then rested and, after listening to final arguments, the trial judge found the defendant guilty of possession with intent to distribute marijuana. After waiver of sentencing delays, the trial judge sentenced the defendant to five years of hard labor with credit for time served but without benefit of probation, parole, or suspension of sentence.
[2013-1118 La.App. 4 Cir. 3] On March 5, 2013, new counsel enrolled on behalf of the defendant and filed a motion to reconsider sentence. After a hearing on April 1, 2013, in which the defense offered the testimony of Antoinesha Bernard (the mother of the defendant's infant child) and offered a letter from the defendant's former employer stating that the defendant would be employed if released, the trial judge granted the motion to reconsider ...