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State v. Payne

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

STATE OF LOUISIANA
v.
ARTHUR L. PAYNE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-3039, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Anne M. Wallis

          COUNSEL FOR DEFENDANT/APPELLANT, ARTHUR L. PAYNE Lieu T. Vo Clark

          Panel composed of Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg.

         CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT TWO AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED

         HJL

         JGG

         RAC

          LILJEBERG, J.

         Defendant appeals his convictions and sentences for two counts of distribution of cocaine within 2, 000 feet of a playground. For the following reasons, we affirm defendant's convictions on both counts and his enhanced sentence on count one. We amend his sentence on count two and affirm the sentence as amended. We also grant appellate counsel's motion to withdraw as counsel of record.

         PROCEDURAL HISTORY

         On June 10, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Arthur L. Payne, with two counts of possession with intent to distribute cocaine within 2, 000 feet of a playground, in violation of La. R.S. 40:981.3. Defendant entered a plea in absentia of not guilty at his arraignment on June 18, 2014. On February 29, 2016, the State amended the bill of information on both counts to charge defendant with distribution of cocaine within 2, 000 feet of a playground, in violation of La. R.S. 40:981.3(A)(1).

         Thereafter, on April 27, 2016, defendant withdrew his pleas of not guilty and pleaded guilty to the charges in the amended bill of information. In accordance with the plea agreement, the trial court sentenced defendant to 22½ years imprisonment with the Department of Corrections on count one and to 20 years imprisonment with the Department of Corrections on count two, with both sentences to be served without benefit of probation, parole, or suspension of sentence. The trial court also ordered that defendant's sentences run concurrently with each other and with his sentences in case numbers 14-2956, 14-6035, and 14-2957.[1]

         Also on April 27, 2016, the State filed a multiple bill of information alleging defendant to be a second felony offender on count one, to which defendant stipulated. On the same date, the trial court vacated the original sentence on count one and resentenced defendant under the multiple bill statute to 22½ years imprisonment with the Department of Corrections without benefit of probation or suspension of sentence. The trial court ordered that defendant's enhanced sentence run concurrently with his sentence on count two and with his sentences in case numbers 14-2956, 14-6035, and 14-2957. Defendant filed an application for postconviction relief seeking an out-of-time appeal, which was granted by the trial court.

         FACTS

         Because defendant pleaded guilty, the facts were not fully developed at a trial. During the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[H]ad this matter proceeded to trial, the State was prepared to show that on or about the date listed on the bill of information this defendant, within the 24th Judicial District Court, did violate Louisiana Revised Statute 40:967(C), distribution of cocaine, Judge, and that's more properly under 40:981.3. That's distribution of C.D.S. within 2, 000 feet of a playground.

         The amended bill of information provides that the dates of the offenses were March 20, 2014, for count one ...


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