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State v. Nelson

Court of Appeals of Louisiana, Fifth Circuit

November 29, 2017

STATE OF LOUISIANA
v.
CHARLES E. NELSON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-7082, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

          COUNSEL FOR DEFENDANT/APPELLANT, CHARLES E. NELSON Gwendolyn K. Brown

          DEFENDANT/APPELLANT, CHARLES E. NELSON In Proper Person

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE.

         On appeal, defendant's appointed appellate counsel filed an Anders[1] brief on defendant's behalf asserting that there are no non-frivolous issues to raise on appeal. Defendant filed a pro se supplemental brief arguing one assignment of error. For the following reasons, defendant's convictions and sentences are affirmed. We further grant appellate counsel's motion to withdraw as counsel of record.

         Procedural History

         On February 1, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Charles E. Nelson, with possession with intent to distribute cocaine in violation of La. R.S. 40:967 A (count one); possession with intent to distribute hydrocodone in violation of La. R.S. 40:967 A (count two); possession with intent to distribute Alprazolam in violation of La. R.S. 40:969 A (count three); and simple criminal damage to property in violation of La. R.S. 14:56 (count four).[2] Defendant was arraigned and pled not guilty. On February 12, 2016, defendant filed omnibus motions, including motions to suppress evidence and statement. On February 16, 2016, the State filed a notice of intent to use other crimes evidence. On February 25, 2016, after a hearing, the trial court granted the State's notice of intent to use other crimes evidence and denied defendant's motions to suppress evidence and statement.

         On March 21, 2016, the State amended count four of the bill of information to allege that the criminal damage to property amounted "to $500.00 to $50, 000" and the case proceeded to trial. However, after the jury was selected, defendant withdrew his not guilty pleas and pled guilty as charged. Defendant was sentenced to imprisonment at hard labor for twenty-two years with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence on count one; imprisonment at hard labor for five years on count two; imprisonment at hard labor for five years on count three; and imprisonment at hard labor for one year on count four.

         Thereafter, the State filed a habitual offender bill of information on count one contending defendant was a second felony offender to which he stipulated. The trial court vacated the original sentence on count one and resentenced defendant under the habitual offender statute to imprisonment at hard labor for twenty-two years with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence and the remainder of the sentence to be served without benefit of probation or suspension of sentence. The trial court also ordered defendant's sentence to run concurrently with the sentences on counts two, three, and four and with the sentences in case numbers 13-1528 and 16-518. Additionally, the trial court ordered defendant to pay restitution to the victim in the amount of $3, 007.34.

         On January 6, 2017, defendant filed an Application for Post-Conviction Relief requesting an out-of-time appeal which was granted on January 17, 2017.

         Facts

         Because defendant entered guilty pleas, the underlying facts were not fully developed at a trial. Nevertheless, the State contended in the amended bill of information that on November 19, 2015, defendant violated La. R.S. 40:967 A in that he knowingly or intentionally possessed with intent to distribute cocaine (count one); that on November 19, 2015, defendant violated La. R.S. 40:967 A in that he knowingly or intentionally possessed with intent to distribute hydrocodone (count two); that on November 19, 2015, defendant violated La. R.S. 40:969 A in that he knowingly or intentionally possessed with intent to distribute Alprazolam (count three); and that on November 19, 2015, defendant violated La. R.S. 14:56 in that he committed simple damage to a vehicle with the damage amounting "to $500.00" belonging to the Jefferson Parish Sheriff's Office (count four).

         Additionally, the State provided the following factual basis for the pleas:

If the State were to proceed, well, if the State were to continue with trial against Charles Nelson in 15-7082, the State would prove beyond a reasonable doubt that on November 19th, 2015, while in the confines of Jefferson Parish, the defendant committed three separate violations of Title, well, two separate vacations [sic] of Title 40, Section 967.A and that he did knowingly possess cocaine and knowingly possessed hydrocodone with the intent to distribute both of those substances. The State would further prove as alleged in count thee [sic] the defendant violated Revised Statute Title 40, Section 969.A and that he did knowingly possess Alprazolam with the intent to distribute it. And finally, the State would prove as alleged in count four that on that same date in Jefferson Parish the defendant violated Title 14, Section 56 and that he did commit simple criminal damage to a vehicle with the damage amounting to five-hundred dollars or more, but less than fifty-thousand dollars, and that vehicle belonged to the Jefferson Parish Sheriff's Office.

         Defendant stated he understood and agreed ...


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