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State v. Ellison

Court of Appeal of Louisiana, Fifth Circuit

February 25, 2015

STATE OF LOUISIANA
v.
WILLIE J. ELLISON, JR

Page 863

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 07-6289, DIVISION " P" . HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, TERRY M. BOUDREAUX, ANDREA F. LONG, SHANNON K. SWAIM, DAVID B. WHEELER, ASSISTANT DISTRICT ATTORNEYS, TWENTY FOURTH JUDICIAL DISTRICT COURT, Parish of Jefferson, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

KEVIN V. BOSHEA, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg.

OPINION

ROBERT A. CHAISSON, J.

Page 864

[14-790 La.App. 5 Cir. 2] In this appeal, defendant, Willie J. Ellison, Jr., challenges his multiple offender adjudication and sentence. For the reasons that follow, we set aside defendant's adjudication and sentence as a fourth felony offender, enter judgment adjudicating defendant a third felony offender, and remand the matter to the trial court with instructions to resentence defendant as a third felony offender. In addition, we affirm defendant's sentence, as amended, on count two, and remand the matter to the trial court with instructions to correct the commitment, in accordance with that amendment, and to advise defendant of the prescriptive period for filing post-conviction relief applications.

PROCEDURAL HISTORY

On October 31, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute heroin, in [14-790 La.App. 5 Cir. 3] violation of LSA-R.S. 40:966(A) (count one), and possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967(A) (count two). On August 23, 2010, defendant pled guilty as charged, and sentencing was set for September 22, 2010. Defendant was advised on August 23 that if he appeared for sentencing on September 22 and reported to the home incarceration office, he would receive two concurrent fifteen-year sentences as a second felony offender. He was further advised

Page 865

that if he did not appear for sentencing on September 22, he would be multiple billed as a fourth felony offender and would be facing a sentence of fifty years to life imprisonment. Defendant verbally indicated that he understood those conditions. In addition, the waiver of rights form showed that defendant waived his rights and acknowledged the above terms and conditions of his guilty pleas.

Despite the warnings of the prosecutor and the trial judge, defendant did not comply with the terms of the plea agreement. He did not report to the home incarceration office, and he did not appear for sentencing on September 22. On September 28, 2010, defendant filed a motion to withdraw his guilty pleas, which was denied that same day. The trial judge thereafter sentenced defendant to thirty years imprisonment on count one and twenty years imprisonment on count two, to run consecutively. On September 28, 2010, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender, but later withdrew it.

On October 29, 2010, defendant filed an untimely motion to reconsider sentence and an untimely motion for appeal. Defendant's motion for appeal was granted, and his appeal was lodged in this Court under case number 11-KA-377. Thereafter, on October 19, 2011, defendant filed in this Court an " Unopposed Motion to Remand Instant Case for Expedited Consideration as an Out of Time Appeal." On October 28, 2011, this Court ordered that case number 11-KA-377 be [14-790 La.App. 5 Cir. 4] remanded to the district court for consideration as an out-of-time appeal. Defendant filed a motion for out-of-time appeal on November 4, 2011, that was granted on November 7, 2011.

On appeal, defendant argued that the trial judge erred by denying his motion to withdraw his guilty pleas. This Court found that the trial court did not err in denying defendant's motion to withdraw his guilty pleas; however, it did err in failing to sentence defendant in conformity with the plea agreement, since the fifty-year sentence was the result of two consecutive underlying sentences and not the result of the State's filing a multiple bill alleging him to be a fourth felony offender. As such, this Court vacated defendant's sentences and remanded the matter for proceedings consistent with its opinion. State v. Ellison, 12-910 (La.App. 5 Cir. 6/27/13), 121 So.3d 139, writ denied, 13-1829 (La. 2/14/14), 132 So.3d 411.

On October 16, 2013, pursuant to this Court's remand, the trial judge resentenced defendant to imprisonment for fifteen years in the Department of Corrections on each of the two counts, to run concurrently.[1] Thereafter, on October 22, 2013, the State filed a second multiple offender bill of information alleging defendant to be a fourth felony offender. In response, defendant filed a notice of objections to the multiple bill.[2] In that notice, defendant argued that the multiple offender bill should be quashed because the time period for filing the ...


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