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State v. McAdory

Court of Appeals of Louisiana, Third Circuit

January 5, 2018

STATE OF LOUISIANA
v.
KELVIN LATRIAL MCADORY

         APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 87, 894 HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

          Asa A. Skinner, District Attorney, Terry W. Lambright, First Assistant District Attorney Counsel for Appellee: State of Louisiana

          Edward L. Tarpley, Jr.. Attorney At Law. Counsel for Defendant/Appellant: Kelvin Latrial McAdory

          Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

          PHYLLIS M. KEATY JUDGE

         Defendant, Kelvin Latrial McAdory, appeals the trial court's sentence. For the following reasons, the trial court's judgment is affirmed and remanded with instructions.

         FACTS & PROCEDURAL BACKGROUND

         On November 7, 2014, Defendant, Kelvin Latrial McAdory, was a passenger in a vehicle in Vernon Parish when it was stopped by police for a traffic violation. During the traffic stop, a consent to search the vehicle was requested and subsequently denied. Thereafter, a police canine at the scene was led around the vehicle and alerted the police to the presence of drugs. A subsequent search of the car uncovered drugs, which Defendant admitted belonged to him.

         On March 2, 2016, Defendant was charged with the intent to distribute marijuana, in violation of La.R.S. 40:966(A)(1); possession with the intent to distribute cocaine, in violation of La.R.S. 40:967(A)(1); possession with the intent to distribute methamphetamine, in violation of La.R.S. 40:967(A)(1); and possession of ethylone/bath salts, in violation of La.R.S. 40:966(C). On the same day, Defendant pled guilty to possession of methamphetamine pursuant to a written Plea Agreement. In the Plea Agreement, which was silent with respect to Defendant's sentence, the State dismissed the remaining charges. The trial court thereafter ordered a presentence investigation (PSI) report. On May 10, 2016, Defendant was sentenced to serve five years at hard labor, three years suspended, with him serving five years of supervised probation, with credit for time served. He was also fined $4, 000 plus court costs and, as conditions of probation, ordered to pay $2, 500 to the district attorney's office for the cost of prosecution, $1, 000 in restitution to the clerk of court, supervision fees, and $150 for the PSI. Defendant did not object to his sentence.

         On June 3, 2016, Defendant timely filed a Motion to Reconsider Sentence, arguing that the trial court failed to consider mitigating factors in its sentencing. He also alleged that the imposition of fines and costs was unreasonable, excessive, and imposed without any notice to Defendant that he would be subject to costs above and beyond the statutory fine and normal court costs. Following a hearing on August 24, 2016, the trial court denied the motion to reconsider. Defendant thereafter sought review of the denial through writ of review to this court. A panel of this court remanded the case to the trial court to be treated as an appeal rather than a writ due to Defendant's conviction arising out of a criminal case triable by jury. State v. McAdory, 16-872 (La.App. 3 Cir. 3/15/17) (unpublished writ opinion).

         Defendant appeals his sentence, arguing the trial court erred in denying his Motion to Reconsider Sentence because he did not have sufficient notice of the costs to be assessed by the trial court for the district attorney and clerk of court.

         DISCUSSION

         I. Errors Patent

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an error patent concerning Defendant's sentence. In sentencing Defendant, the trial court imposed a fine of $4, 000, court costs, $2, 500 for the cost of prosecution, and $1, 000 in restitution to the clerk of court. In outlining the conditions of probation, the trial court stated:

You will have to follow the normal conditions of probation and the following special conditions: you pay your fine and costs that are due immediately. If you do not pay those out, you have to get with the court's collection officer if you decide to do that. If not, you'll have to do one year in the Vernon Parish jail. Likewise, you will have to pay the fine and costs over that payment plan you work out at a minimum of $150 per month; a supervision fee in the amount of $71 to the probation office; $150 for the PSI; the restitution of $2, 500 to the - - for the costs of prosecution as well as the $1, 000 to the Clerk of Court as well.

         A payment plan was imposed for the fine and court costs. However, a payment plan was not imposed for the $150 PSI fee, the $2, 500 cost of prosecution, and the $1, 000 payment to the clerk of court. In State v. Wagner, 07-127, p. 7 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held:

When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine ...

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