APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 513-576, SECTION " H" . Honorable Camille Buras, 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.
Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/APPELLANT, TIMOTHY HARTFORD.
Powell W. Miller, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT, JOSHUA HOGAN.
Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Sandra Cabrina
Max N. Tobias, Jr., Judge
[2014-0643 La.App. 4 Cir. 1] The defendants/appellants, Timothy Hartford (" Hartford" ) and Joshua Hogan (" Hogan" ) (collectively, " the defendants" ), appeal their convictions for attempted looting during a state of emergency, a violation of La. R.S. 14:62.5 C. After a review of the law and evidence, for the reasons that follow, we affirm their convictions and sentences.
On 4 October 2012, Hartford and Hogan were charged by a bill of information with one count of looting during a state of emergency. The defendants pled not guilty at their 11 October 2012 arraignment. Following a preliminary hearing on 11 January 2013, the trial court found probable cause as to both defendants.
Hartford and Hogan were found guilty by a jury in a two-day trial of attempted looting during a state of emergency. The defendants filed motions for new trial and motions for post-verdict judgment of acquittal, which were denied following a hearing on 29 August 2013. The state subsequently filed multiple bills of information as to each defendant, alleging each defendant was a [2014-0643 La.App. 4 Cir. 2] fourth offender. A multiple offender hearing was conducted on 18 October 2013, and Hartford and Hogan were adjudicated as fourth felony offenders. At the 25 February 2014 sentencing hearing, Hartford and Hogan were each sentenced to twenty years at hard labor, without benefit of parole, probation, or suspension of sentence for the first three years, with credit for time served. The defendants' motions to reconsider sentence were denied. These timely appeals followed.
STATEMENT OF FACTS
Mr. Mohammed Almasala worked at the Uptown Food Market, located at 2001 Seventh Street in New Orleans since June 2012. In late August 2012, he left New Orleans for a few days due to Hurricane Isaac. Before he left, he locked and secured the store. No holes or damages to the walls existed before he left. When Mr. Almasala returned, he found that someone had entered the store. A hole in the wall was present, and the inside of the building had been damaged. He recognized the defendants from the neighborhood because they had been in the store on numerous occasions. In the process of cleaning up, he found some tools in the backyard of the store, between the fence and the wall with the hole.
On 28 August 2012, New Orleans Police Department (" NOPD" ) Officer Troy Pichon was assigned to patrol the Sixth District ahead of Hurricane Isaac making landfall. That evening, the winds were forty-nine miles per hour, and it was raining very heavily. Officer Pichon responded to a call of looting at a store at the intersection of Seventh and Danneel Streets. The officer testified that he was very familiar with this area, as he passed it four to five times a day during his [2014-0643 La.App. 4 Cir. 3] normal patrol. He was one block away from the intersection when he received the call of a business burglary. He and Detective Clay, who was driving another police vehicle right behind him, proceeded to the area. When the officers pulled up on the Danneel Street side of the building, everything appeared normal. When he turned onto Seventh Street, Officer Pichon observed that a side gate to an alleyway was swinging open. He pulled up to the alleyway and shined his mounted spotlight down it to get a view of it and the side of the building. He observed Hogan standing facing the wall, with his back to the wooden fence. Hogan turned, looked directly at the spotlight, and then turned his attention back to the hole in the wall. The officer informed dispatch that a person was present in the alleyway and requested additional assistance.
Officer Pichon exited his vehicle and proceeded down the alleyway. He gave Hogan verbal instructions to show his hands. At that time, the officer observed Mr. Spivey straddling the hole with half of his body outside and the other half inside the building. Mr. Spivey exited the building and ran down the alleyway, towards the rear of the building. Hogan stood in place and showed the officer his hands.
While Officer Pichon was dealing with Hogan, other police officers arrived on the scene. Officer Pichon placed handcuffs on Hogan and handed Hogan off to Officer Jeff Young. Officer Pichon asked Hogan if anyone else was in the building. At that time, Mr. Fox put his hands outside the hole and pleaded with the officer not to shoot him. Officer Pichon handcuffed Mr. Fox, escorted him out of the hole and handed him off to Officer Young. Officer Pichon then stuck his head into the hole to get a visual of the interior of the building and to determine if any other subjects were present in the building. The officer shined his handheld flashlight into the building and observed Hartford walking from the rear [2014-0643 La.App. 4 Cir. 4] of the building through the food preparation area. After observing Hartford in the building, Officer Pichon told Hartford to get out of the building. Hartford put his hands through the hole, and Officer Pichon handcuffed him and escorted him from the building. Officer Pichon handed Hartford to Officer Young, who took Hartford down the alleyway.
Officer Pichon testified that while Hartford was in the building, Hartford had a sock on one hand. The officer testified that from his experience, burglary suspects will try to conceal their hands to keep from leaving fingerprints on any items that they may touch.
Officer Pichon informed Officer Young that he observed one subject, later identified as Mr. Spivey, run to rear of the alleyway. While Officer Young and another officer went in search of the subject who ran away, Officer Pichon and other police officers entered the building to search and clear the building. No other subjects were found. When the officer when into the store, he observed that a sink or table was pushed away from the wall where the hole was made, and water was flowing from a faucet. A water pipe had been broken when the subjects moved the sink away from the wall in order to gain entry to the building. Several items, including alcohol and cigarettes, were grouped together on a table. It appeared that the subjects had packaged everything together to carry it out at one time.
As the officers were exiting the building, Officer Pichon noted that Officer Young had Mr. Spivey in custody. Officer Pichon was informed that the officers had found Mr. Spivey lying next to the fence in a puddle of water and mud, trying to conceal himself.
The crime lab was called out to the scene. The subjects were put in marked police vehicles and transported to Central Lockup. Officer Pichon identified both [2014-0643 La.App. 4 Cir. 5] Hogan and Hartford at trial. The officer stated that he had seen the defendants together numerous times. Hogan, Hartford, and Mr. Fox hung out together on a daily basis in the 1900 block of Seventh Street, between Dryades and Danneel Streets. The officer was not sure if Mr. Spivey hung out with the other three men on a daily basis.
Officer Young was on patrol on the evening of 28 August 2012, when he responded to a call of looting at the intersection of Seventh and Danneel Streets. When he arrived at the scene, on the Danneel Street side, he observed nothing. However, when he drove to the Seventh Street side of the store, he saw Officer Pichon in a narrow alleyway. Just beyond Officer Pichon were two men who were not police officers. As Officer Pichon placed the subjects under arrest, the subjects were passed from one police officer to another, almost like an assembly line, from the alleyway to the street. Officer Pichon passed the subjects to him, and he passed them onto the police officer behind him. Three subjects were arrested in that manner. The fourth subject, Mr. Spivey, was found in the rear corner behind the building,
between the building and the fence. He was lying down in the grass, attempting to conceal himself. Officer Young initially observed Mr. Spivey coming out of the hole and running off. Hogan, however, was standing outside. Mr. Fox and Hartford were inside the building and brought out. Hartford had a sock on his hand when he was arrested.
Erin Cunningham, a crime scene technician with the NOPD, was called to the scene on 28 August 2012. Ms. Cunningham testified that she took photographs of the scene. She identified the photographs and stated that they accurately depicted the scene. The photographs were introduced into evidence.
[2014-0643 La.App. 4 Cir. 6] Gregory Spivey acknowledged that he had pleaded guilty in the present matter to looting. However, he denied that he was involved in the looting of the store. Mr. Spivey testified that on 28 August 2012, he was walking down Seventh Street when he saw that the building had a hole in the wall. He was feeling bad, but thought he could ask the owner if he could repair the wall to make a few dollars. Mr. Spivey stated that he has seizures and must have had a seizure and blacked out at that time because the next thing he remembered was the police officers standing over him while he was lying in puddle of water. He stated that he knew Hogan and Hartford from the neighborhood, but did not know their names. He denied making any statements about what Hogan was doing on the night of the arrest. He claimed he did not make any statement that Hogan wanted to get some stuff from the store.
The state impeached Mr. Spivey's testimony with a recorded jailhouse telephone call in which Mr. Spivey stated that Hogan was standing outside the hole and said that he " wanted to get some" and asked the other men to " get [him] some." The phone call was played for the jury.
A review of the record for patent errors reveals that the sentences imposed by the trial court are illegally lenient. The trial court sentenced both Hartford and Hogan to twenty years at hard labor, with three years without benefit of parole. (The sentences orally handed down are silent concerning the rights relating to probation or suspension of sentence.) The minute entries show that the twenty-year sentences were without benefit of parole, probation, or suspension of sentence for [2014-0643 La.App. 4 Cir. 7] the first three years. However, under La. R.S. 14:27, 14:62.5 C, 15:529.1, and State v.
Bruins, 407 So.2d 685, 687 (La. 1981), their entire sentences are to be served without benefit of probation or suspension of sentence. Pursuant to State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, the defendants' sentences are deemed to have been imposed with the restriction of benefits. We find that each defendant's sentence is for twenty years without benefit of probation or ...