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State v. Ables

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

STATE OF LOUISIANA
v.
COURTNEY ABLES

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-1411, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Thomas P. Sanderson, Joshua K. Vanderhooft

          COUNSEL FOR DEFENDANT/APPELLANT, COURTNEY ABLES Jane L. Beebe

          DEFENDANT/APPELLANT, COURTNEY ABLES In Proper Person

          Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

         CONVICTIONS AFIRMED; SENTENCE ON COUNT TWO AFFIRMED; ENHANCED SENTENCE ON COUNT ONE VACATED; REMANDED WITH INSTRUCTIONS

         RMM

         SJW

         HJL

          ROBERT M. MURPHY JUDGE

         Defendant appeals his convictions and sentences following a Crosby plea and multiple offender adjudication. For the reasons that follow, defendant's convictions, and his sentence for count two, are affirmed. Defendant's enhanced sentence for his conviction of possession with intent to distribute Acetyl Fentanyl is vacated, and we remand for resentencing consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         This is defendant's second appeal. In defendant's prior appeal, we vacated the guilty plea, set aside defendant's convictions and sentences, and remanded for further proceedings. State v. Ables, 15-720 (La.App. 5 Cir. 02/24/16), 186 So.3d 1274. On remand, after defendant's motions to suppress evidence and statement were denied, defendant pled guilty pursuant to State v. Crosby[1] to one count of possession with intent to distribute Acetyl Fentanyl, a violation of La. R.S. 40:966(A), and to one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. On July 12, 2016, in accordance with the plea agreement, defendant was sentenced to twenty years imprisonment in the Department of Corrections on counts one and two, and the sentences were ordered to run concurrently. On the same date, the State filed a multiple offender bill of information as to count one, alleging defendant to be a third felony offender. Defendant stipulated to the multiple offender bill and the trial court sentenced defendant under La. R.S. 15:529.1 to twenty years imprisonment without benefit of probation or suspension of sentence. The instant appeal follows.

         LAW AND ANALYSIS

         Both in his counseled and pro se assignments of error, defendant argues that the trial court erred in applying the inevitable discovery doctrine to deny his motions to suppress.

         On May 10, 2016, a hearing on defendant's motions to suppress evidence and his statement was held. At the motion to suppress hearing, Deputy Glenn Webber of the Jefferson Parish Sheriff's Office testified that on March 8, 2015, at 1:30 a.m., he and Sergeant David Canas were dispatched to 4061 Indigo Court, Harvey, Louisiana, regarding a call concerning the illegal discharge of a firearm and criminal damage to property. Upon arrival, Deputy Webber spoke to Darren Barrier, who explained that his wife had heard "a loud popping noise" and that when walking through his home he observed what he believed to be a bullet hole in his wall. The officers confirmed the presence of the bullet hole in the wall and retrieved a projectile from the floor of the master bedroom. Based on the estimated trajectory of the bullet, the officers looked at the residence next door at 4065 Indigo and discovered a similar bullet hole on the exterior of the home. Upon discovery of the bullet hole on the exterior of the neighboring residence, Deputy Webber contacted his ranking officer, Sergeant Robert Fox. When Sergeant Fox arrived on the scene they attempted to speak to the residents at 4065 Indigo. After a prolonged period of time, the officers' knocks were answered by the owners of the residence, Darrell Painter and his wife, Lisa Painter. The Painters were advised of the situation and indicated that they were unaware of a firearm having been discharged in their home. Mr. Painter then signed a consent to search "the residence for any signs of aggravated criminal damage and illegal discharge of a firearm." They further advised the officers that their adult son, defendant, also lived at the residence but was not present at the time.

         During a search of the residence, a bullet hole was observed in the wall of defendant's bedroom, a bullet was found on the bed, a spent bullet casing was found on a night stand, and a concealed gun holster and an empty gun case were also discovered. Despite the Painters' information to the contrary, during the search of their home, defendant was found in the dark master bathroom without pants or shoes. Defendant was patted down for officer safety, and a set of keys was removed from around his neck for safety reasons. He was then detained and advised of his rights per Miranda, [2] after ...


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