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State v. Simmons

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

STATE OF LOUISIANA
v.
WESTLEY SIMMONS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-6369, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux, Thomas J. Butler, Blair C. Constant.

          COUNSEL FOR DEFENDANT/APPELLANT, WESTLEY SIMMONS Jane L. Beebe.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert M. Murphy

          SUSAN M. CHEHARDY, CHIEF JUDGE

         Defendant Westley Simmons appeals his multiple offender adjudication as a second felony offender. For the reasons that follow, we affirm defendant's convictions and multiple offender adjudication, amend and affirm as amended defendant's multiple offender sentence, affirm defendant's other sentences, and remand the matter for correction of the commitment/minute entry and the Uniform Commitment Order.

         FACTUAL AND PROCEDURAL HISTORY

         On November 15, 2014, near Manhattan Boulevard and the Westbank Expressway in Jefferson Parish, a license plate reader flagged a passing vehicle as stolen. Deputy Thorin Guidry of the Jefferson Parish Sheriff's Office ("JPSO") was on duty nearby and tracked the vehicle to a residence in Harvey. There, with the assistance of JPSO Sergeant Lee Hardy and JPSO Deputies Chad Gagnon, Blake Hollifield, and Patrick New, the officers sought to recover the stolen vehicle. Upon speaking with an individual outside the residence, the officers detected an odor of marijuana and learned that the driver of the vehicle was inside the residence. The officers announced their presence and knocked on the partially opened door causing it to open fully and providing the officers with a complete view inside. The marijuana odor became stronger once the door was opened, making it apparent that it was coming from within the residence.

         Through the opened door the officers observed an individual standing in the kitchen who was later identified as defendant and who matched the description of the driver of the stolen vehicle. Upon observing the officers, defendant attempted to escape out the back door and the officers gave chase. Deputy Hollifield observed defendant move his hands towards his right hip, suggesting that defendant was attempting to conceal or "grab for something." After a brief struggle, defendant was subdued and a firearm was recovered from his waistband. He was placed under arrest, advised of his Miranda[1] rights, and searched. From his pockets were recovered a key to the stolen car, a digital scale, five hundred fifty dollars in cash, Tramadol, and a clear plastic bag containing individually-wrapped quantities of crack cocaine, individually-wrapped foils of heroin, and a bag of powder cocaine. When asked about the key, defendant replied, "You got me. It was a crack rental[2] from a white guy in Avondale." At trial, however, defendant denied having the key to the stolen vehicle, the gun, and the drugs.

         On December 5, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) (count three); possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count four); possession of heroin, a violation of La. R.S. 40:966(C) (count five); possession of cocaine, a violation of La. R.S. 40:967(C) (count six); and possession without a prescription of Tramadol, a violation of La. R.S. 40:1238.1 (count seven).[3] Defendant pled not guilty to the charges.

         Following a two-day jury trial, on May 25, 2016, a twelve-person jury returned a verdict of guilty as charged on all counts. On June 17, 2016, the district court sentenced defendant to concurrent terms of five years imprisonment at hard labor on each of counts three, five, six, and seven; and on count four, the court sentenced defendant to a concurrent term of fifteen years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence for the first ten years.[4]

         On September 13, 2016, the State filed a multiple offender bill of information alleging defendant was a second felony offender. At the multiple bill hearing on December 21, 2016, the district court adjudicated defendant a second felony offender, vacated his original sentence on count three, and imposed an enhanced sentence of fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant timely appealed.

         DISCUSSION

         In defendant's sole assignment of error on appeal, he argues that the trial court erred in adjudicating him a second felony offender. He contends that the State failed to introduce evidence of his predicate conviction at the multiple offender hearing. Defendant concedes that he admitted to the predicate conviction at his trial in relation to his charge of possession of a firearm by a convicted felon, but argues that ...


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