APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 491-839, SECTION " L" . Honorable Franz Zibilich, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Katherine M. Franks, LOUISIANA APPELLATE PROJECT, Abita Springs, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Joy Cossich Lobrano).
[2014-0754 La.App. 4 Cir. 1]
Max N. Tobias, Jr., Judge.
The defendant, Anthony J. Richardson, was charged by bill of information on 4 November 2009 with possession of heroin, a violation of La. R.S. 40:966(C)(1), and possession of cocaine, a violation of La. R.S. 40:967(C)(2). He filed a request for a preliminary hearing, a bill of particulars, and motions to suppress the evidence and for discovery. Following a hearing on 5 February 2010 and additional briefing, the trial court denied the motion to suppress. From that denial, Mr. Richardson sought supervisory review of the ruling, which this court denied. State v. Richardson, unpub., 10-0356 (La.App. 4 Cir. 4/1/10).
Mr. Richardson was found guilty as charged by a twelve-person jury on 22 March 2011. He filed motions for post-verdict judgment of acquittal, new trial, and arrest of judgment on 31 March 2011, which were denied on 6 April 2011. On that same day, Mr. Richardson was sentenced to four years at hard labor on each count, to run concurrently, with credit for time served. Also on that same day, the state filed a multiple bill of information, charging the defendant as a fourth offender; a hearing on the multiple bill was set for 16 June 2011. Thereafter, the multiple bill [2014-0754 La.App. 4 Cir. 2] hearing was reset over twenty times. Mr. Richardson concedes that he did not appeal his conviction or sentence.
On 28 February 2013, the defendant filed a motion to quash the multiple offender bill of information, which the state opposed. A second motion to quash was filed on 3 May 2013. The trial court denied the quashal motions on 18 December 2013 following a hearing.
Thereafter, the state amended the multiple offender bill, charging the defendant as a second offender, to which he admitted his status as a second offender, signing a waiver of rights/plea of guilty form as a multiple offender. Accordingly, the trial court vacated Mr. Richardson's previous sentence and resentenced him as a second offender to the agreed-upon sentence of nine years at hard labor
Mr. Richardson timely appealed.
At trial, New Orleans Police Department Officers Sean Ogden and Christopher Carter testified for the state. Both officers testified that sometime after 9:00 p.m. on 30 October 2009, while patrolling together in an unmarked police vehicle in the 1900 block of Marigny Street in New Orleans, they pulled up behind a truck parked in the center of the street. The officers observed a male on a bicycle was speaking to the driver of the truck through the driver's window, and the truck remained in the middle of the street for several seconds. According to the officers, when the individual on the bicycle observed the officers, the bicyclist departed, [2014-0754 La.App. 4 Cir. 3] heading towards North Prieur Street. They elected to conduct a traffic stop because the truck had been impeding the flow of traffic. The officers activated their vehicle's lights, and the defendant pulled the truck to the side of the road.
As the officers approached, they observed that three other individuals were in the vehicle. Officer Ogden testified that as he approached the driver's side, he noticed the defendant leaning forward and appeared to be grabbing something at the floorboard. Officer Carter approached the passenger side of the vehicle. After being instructed by Officer Ogden three times to sit upright and show his hands, the defendant complied. Thereafter, the officers instructed all occupants to exit the vehicle for officer safety.
As the occupants exited the vehicle, Officer Ogden observed a sock on top of a bag lying on the floorboard. Part of the contents of the bag could be seen, and Officer Ogden suspected that the contents of the bag consisted of powder cocaine. He advised Officer Carter of his discovery, and Officer Carter placed the defendant under arrest for possession of cocaine. During the search incident to arrest, Officer Ogden searched the sock, wherein he discovered an additional clear plastic bag containing individual pieces of what he suspected to be crack cocaine and two [2014-0754 La.App. 4 Cir. 4] bags of heroin. Officer Ogden testified that he performed four preliminary tests to determine whether the items were powder cocaine, crack cocaine, and heroin, and the tests all came back positive. Officer Ogden further testified that he also issued the defendant a citation for impeding the flow of traffic and having a suspended driver's license
A review of the record reveals an error patent. The trial court originally sentenced Mr. Richardson immediately after denying his motion for new trial. La. C.Cr.P. art. 873 states that " [i]f a motion for new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." However, we find the error is harmless because the original sentence was vacated when the defendant was adjudicated and sentenced as a multiple offender.
ASSIGNMENT OF ERROR NUMBER 1
In the first counseled assignment of error, Mr. Richardson argues that the trial judge erred in denying the motion to quash the multiple offender bill.
La. R.S. 15:529.1(D)(1)(a) provides that a multiple bill may be filed " at any time, either after conviction or sentence." According to State v. Muhammad, 03-2991, p. 14 (La. 5/25/04), 875 So.2d 45, 55, " [a]lthough the statute does not prescribe a time within which the bill must be filed, this court has made a determination that the district attorney must file the habitual offender bill 'within a [2014-0754 La.App. 4 Cir. 5] reasonable time.'" (quoting State v. McQueen, 308 So.2d 752, 755 (La.1975)). See also La. C.Cr.P. art. 874 (" Sentence shall be imposed without unreasonable delay." ). The Muhammad Court noted that while " [t]he determination of whether the hearing is held within a reasonable time hinges on the facts and circumstances of the specific case," an important factor in the reasonableness analysis " requires a determination of when the district attorney acquired the knowledge that defendant is a multiple offender."  Muhammad, p. 14, 875 So.2d at 55.
This court has recognized that in considering whether a delay in holding a multiple bill hearing is reasonable, the four factors articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), may be considered, " which are: the length of delay, the reason for the delay, an assertion of the right, and prejudice to the defendant." State v. Simmons, 13-0312, p. 9 (La.App. 4 Cir. 10/16/13), 126 So.3d 692, 698. This court has further found that " [t]he Louisiana Supreme Court has noted that while these [ Barker ] factors are neither definitive nor dispositive in the context of a habitual offender proceeding, they are instructive." State v. Buckley, 11-0369, pp. 5-6 (La.App. 4 Cir. 12/27/11), 88 So.3d 482, 486 (citing Muhammad, p. 15, 875 So.2d at 55).
In Buckley, this court summarized the procedural history of Muhammad as follows:
In Muhammad, the original multiple offender bill of information was filed on the date of the defendant's sentencing, which was before he was released from custody. Due to a series of events, including remands following two appeals, the defendant was not finally [2014-0754 La.App. 4 Cir. 6] adjudicated a multiple offender until four months after his sentence completion date. [ Muhammad, 03-2991, p. 16, 875 So.2d at 56]. The issue was whether or not the multiple offender adjudication was timely completed. The Court found that the State did not unduly or unreasonably delay in completing the multiple offender proceedings, noting the " ...