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State v. McGowan

Court of Appeals of Louisiana, Third Circuit

December 7, 2017

STATE OF LOUISIANA
v.
DUSTIN R. MCGOWAN

         APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. CR-2015-1016 HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE

          Thomas L. Lorenzi Lorenzi & Barnatt, LLC FOR DEFENDANT/APPELLANT: Dustin R. McGowan

          Annette Fuller Roach Roach & Roach, APLC FOR DEFENDANT/APPELLANT: Dustin R. McGowan

          Herbert Todd Nesom District Attorney Joe Green Assistant District Attorney FOR PLAINTIFF/APPELLEE: State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

          JOHN E. CONERY JUDGE

         Defendant, Dustin McGowan, was charged by bill of information with possession of methamphetamine, possession of alprazolam, operating a vehicle while under the influence of alcohol, second offense, two counts of vehicular negligent injuring, and possession of drug paraphernalia. Defendant entered an open-ended plea of nolo contendere to the charge of possession of methamphetamine and the two charges of vehicular negligent injuring, with the remaining charges being dismissed. The trial court ordered a pre-sentence investigation report at the request of counsel and after a sentencing hearing, Defendant was sentenced to serve four years in the Department of Corrections with all but eighteen months suspended for possession of methamphetamine. He was placed on three years of supervised probation, and ordered to pay a $2, 000.00 fine, subject to the conditions set forth in La.Code Crim.P. art. 895, and other special conditions. Upon release, Defendant was ordered to be placed on one year of home incarceration. On each charge of vehicular negligent injuring, Defendant was sentenced to serve ninety days in the parish jail to run concurrently with each other and concurrently with the sentence above. Defense counsel filed a motion to reconsider sentence, which was denied by the trial court. Defendant is before this court appealing his sentences. For the following reasons we vacate Defendant's sentences and remand to the trial court for resentencing.

         FACTS:

         On or about May 13, 2014, a vehicle driven by Defendant struck the rear of a school bus resulting in injuries that formed the basis of two charges of vehicular negligent injuring. Blood testing done pursuant to a search warrant revealed the presence of methamphetamine in Defendant's system. Methamphetamine residue was found in a smoking device in the vehicle.[1]

         ERRORS PATENT & PROCEDURAL ISSUE:

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. First, there was a misjoinder of offenses in the bill of information. The bill of information charged Defendant with the following: Count (1) possession of methamphetamine, a violation of La.R.S. 40:967(C)(2); Count (2) possession of alprazolam, a violation of La.R.S. 40:969(C)(2); Count (3) driving under the influence of alcoholic beverages, second offense, a violation of La.R.S. 14:98; Counts (4) and (5) vehicular negligent injuring, violations of La.R.S. 14:39.1; and Count (6) possession of drug paraphernalia, a violation of La.R.S. 40:1023(C) and 40:1025.

         Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances if the offenses joined are triable by the same mode of trial. Counts 1 and 2 were properly joined in the bill of information, but the remaining counts were misdemeanors, and joinder with Counts 1 and 2 was improper. La.Code Crim.P. art. 779. Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses as required by law. La.Code Crim.P. art. 495. Additionally, by entering an unqualified plea of nolo contendere, Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976); State v. Peters, 546 So.2d 829 (La.App. 1 Cir.), writ denied, 552 So.2d 378 (La.1989). Thus, this error is precluded from review.

         Next, because the two counts of vehicular negligent injuring were not triable by jury, the proper mode of appellate review for these offenses is an application for writ of review rather than an appeal. La.Code Crim.P. art. 912.1.

         Defendant specifically raises excessiveness of the misdemeanor sentences, and the two sentences are running concurrently with the felony sentence. Accordingly, this court finds it should not sever the misdemeanor convictions. Rather, in the interest of judicial economy, this court will address the issues involving the misdemeanor sentences as if the issue was before the court on supervisory writs. State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744. Because of the remand order, we will not address the merits of the alleged excessive misdemeanor sentences at this time.

         ASSIGNMENT OF ...


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