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State v. Ellison

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

STATE OF LOUISIANA
v.
WILLIE J. ELLISON, JR.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 07-6289, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long

          COUNSEL FOR DEFENDANT/APPELLANT, WILLIE J. ELLISON, JR. Kevin V. Boshea

          Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

          SUSAN M. CHEHARDY CHIEF JUDGE.

         Defendant Willie J. Ellison, Jr. appeals his multiple offender sentence of fifty years imprisonment at hard labor as a fourth felony offender. For the reasons that follow, we affirm defendant's sentence and remand the matter for correction of the Uniform Commitment Order.

         This is defendant's fifth appeal and this Court's third opinion in this case.[1]This matter has returned twice to the district court for resentencing and defendant has been sentenced five times[2] on the underlying conviction that forms the basis of these several appeals. This tortuous history belies the simplicity of the matter at issue: the imposition of a multiple offender sentence in accordance with a plea agreement. Below we reprise the history of this case.

         PROCEDURAL HISTORY

         On October 31, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute heroin, a violation of La. R.S. 40:966(A) (count one), and possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) (count two). On August 23, 2010, defendant pled guilty as charged, and sentencing was set for September 22, 2010. At the time of his guilty plea, defendant was advised that if he reported to the home incarceration office and then appeared for sentencing on September 22, he would receive two concurrent fifteen-year sentences as a second felony offender. He was further advised that if he failed to report to the home incarceration office and failed to appear for sentencing on September 22, he would be multiple billed as a fourth felony offender and would be facing a sentence of fifty years to life imprisonment. Defendant verbally indicated that he understood these conditions and his waiver of rights form reflected the same.

         Despite these warnings, defendant failed to report to the home incarceration office and failed to appear for sentencing on September 22. He later appeared in court on September 28, 2010, where he filed a motion to withdraw his guilty pleas, which the court denied that day. In accordance with the court's prior warning, defendant was sentenced to fifty years imprisonment: thirty years on count one and twenty years on count two, to be served consecutively. Also that day, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender, but later withdrew it.

         More than a month later, on October 29, 2010, defendant filed a motion to reconsider sentence and a motion for appeal. Defendant's motion for appeal was granted and his appeal was lodged in this Court under Case No. 11-KA-377, but was later removed from the docket and remanded to the district court for consideration as an out-of-time appeal. On remand, defendant's motion for an out-of-time appeal was granted.

         Back before this Court on appeal, defendant argued that the district court erred by denying his motion to withdraw his guilty pleas. This Court found no merit to this argument, but did find that the district court had erred in failing to sentence defendant in conformity with his plea agreement, since his fifty-year sentence was the result of two consecutive underlying sentences and not the result of adjudication as a fourth felony offender. State v. Ellison, 12-910 (La.App. 5 Cir. 6/27/13), 121 So.3d 139, 146, writ denied, 13-1829 (La. 2/14/14), 132 So.3d 411. Accordingly, this Court affirmed defendant's convictions, but vacated his sentences and remanded the matter. Id.

         On remand on October 16, 2013, the district court resentenced defendant to imprisonment for fifteen years at hard labor on each of the two counts, to be served concurrently. Thereafter, on October 22, 2013, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender. On May 22, 2014, the court adjudicated defendant a fourth felony offender, vacated his original sentence on count one, and resentenced defendant to thirty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, to be served concurrently with his fifteen-year sentence on count two.

         Defendant appealed, challenging his multiple offender adjudication and enhanced sentence. State v. Ellison, 14-790 (La.App. 5 Cir. 2/25/15), 168 So.3d 862. This Court determined that one of defendant's predicate convictions had erroneously been used to adjudicate defendant a fourth felony offender because the plea colloquy of that conviction established that he was not advised of, nor waived, his right against self-incrimination. Id. at 868-69. Accordingly, this Court vacated defendant's adjudication as a fourth felony offender, rendered judgment adjudicating defendant a third felony offender, and remanded the matter for resentencing. Id. at 869. On count two, finding in an errors patent review that the district court had improperly restricted sentence benefits, this Court amended defendant's sentence on count two and affirmed that sentence as amended. Id. at 870.

         Both defendant and the State sought writs of certiorari. The Louisiana Supreme Court declined review of defendant's writ, State v. Ellison, 15-559 (La.App. 5 Cir. 1/25/16), 184 So.3d 1288, but granted the State's and found that this Court had erred in vacating defendant's adjudication as a fourth felony offender. State v. Ellison, 15-612 (La. 1/25/16), 186 So.3d 634. The supreme court reversed this Court's ruling and reinstated defendant's fourth felony offender adjudication. Id. The court did not, however, reinstate defendant's thirty-year enhanced sentence, agreeing with the State that it was illegally lenient. Id. As a result, the matter was remanded to the district court for resentencing on defendant's fourth felony offender adjudication. Id.

         On remand on February 25, 2016, the district court sentenced defendant as a fourth felony offender on count one to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with his sentence on count two. Defendant filed a motion to reconsider sentence and a motion for appeal on February 29, 2016. The district court granted defendant's motion for appeal and issued a rule to show cause on his motion to reconsider. On March 18, 2016, the State filed a motion to reconsider and/or correct illegally lenient sentence. The court referred the State's motion to the rule to show cause hearing.

         The matter was continued over the next several months, during which time, on September 30, 2016, defendant filed a motion in this Court seeking to dismiss his appeal on the grounds that he and the State were engaged in negotiations. This Court ...


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