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State v. Brown

Court of Appeals of Louisiana, Fifth Circuit

February 21, 2018

STATE OF LOUISIANA
v.
HAROLD J. BROWN

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-2369, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux, Gail D. Schlosser Joshua K. Vanderhooft

          COUNSEL FOR DEFENDANT/APPELLANT, HAROLD J. BROWN Jane L. Beebe DEFENDANT/APPELLANT, HAROLD J. BROWN In Proper Person

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

          SUSAN M. CHEHARDY CHIEF JUDGE

         On appeal, Harold J. Brown, defendant herein, challenges the constitutionality of the police search of his automobile. For the following reasons, we affirm defendant's convictions; amend defendant's sentence on count one, and, affirm as amended; affirm the remainder of defendant's sentences; and remand for correction of the Uniform Commitment Order.

         Facts and Procedural History

         Because defendant's convictions were the result of guilty pleas, the facts surrounding this matter were adduced from the testimony and evidence presented at pre-trial and guilty plea proceedings. With respect to district court case number 15-2369, if the matter had proceeded to trial, the State would have proven beyond a reasonable doubt that, on March 24, 2015, defendant possessed heroin, marijuana, and cocaine in Jefferson Parish, with the intent to distribute those substances, in violation of La. R.S. 40:966(A) and 40:967(A), respectively. Further, the State would present evidence that defendant possessed a handgun after being previously convicted of eight counts of armed robbery, two counts of aggravated burglary, and one count of aggravated assault upon a peace officer. Lastly, the State would have proven beyond a reasonable doubt that defendant possessed a handgun while possessing marijuana in violation of La. R.S. 14:95(E). Moreover, with respect to district court case number 15-2370, the State would have proven that, on or about March 24, 2015, in Jefferson Parish, defendant violated La. R.S. 40:1023 by knowingly and intentionally possessing drug paraphernalia to wit: scales, syringes, and baggies.

         On April 28, 2015, in district court case number 15-2369, the Jefferson Parish District Attorney filed a multi-count bill of information charging defendant, Harold J. Brown, with possession with intent to distribute heroin in violation of La. R.S. 40:966(A); possession with intent to distribute marijuana in violation of La. R.S. 40:966(A); possession with intent to distribute cocaine in violation of La. R.S. 40:967(A); possession of a firearm by a convicted felon[1] in violation of La. R.S. 14:95.1; and illegal carrying of weapons in violation of La. R.S. 14:95(E). On that same date, in district court case number 15-2370, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of drug paraphernalia, in violation of La. R.S. 40:1023.

         On December 10, 2015, the trial court heard defendant's motion to suppress evidence, which was denied on February 2, 2016. On March 29, 2016, this Court, in its writ denial, refused to disturb the ruling of the trial court and found that defendant had an adequate remedy on appeal. See State v. Brown, 16-131 (La.App. 5 Cir. 3/29/16) (unpublished writ disposition).

         On April 6, 2016, defendant withdrew his former pleas of not guilty and entered pleas of guilty as charged on all counts of both bills of information, reserving his right to appeal adverse pre-trial rulings under State v. Crosby, 338 So.2d 584 (La. 1976). After the acceptance of his pleas in case number 15-2369, the trial court sentenced defendant as follows: for possession with intent to distribute heroin, to twenty years at hard labor with ten years to be served without the benefit of probation, parole, or suspension of sentence; for possession with intent to distribute marijuana, to twenty years at hard labor; for possession with intent to distribute cocaine, to twenty years at hard labor with two years to be served without the benefit of probation, parole, or suspension of sentence; for possession of a firearm by a convicted felon, to twenty years at hard labor with ten years to be served without the benefit of probation, parole, or suspension of sentence; and for illegal carrying of weapons, to ten years at hard labor with five years to be served without the benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently with each other and with any other sentence defendant was serving. In case number 15-2370, the trial court sentenced defendant to six months in parish prison with the sentence to run concurrently with the sentences in case number 15-2369 and with any other sentence defendant was serving.

         Additionally, on April 6, 2016, the State filed a habitual offender bill of information in district court case number 15-2369, alleging that defendant was a second felony offender pursuant to La. R.S. 15:529.1, seeking to enhance the penalty for defendant's conviction of possession of a firearm by a convicted felon. Defendant stipulated to the habitual offender bill. The trial court vacated defendant's sentence for possession of a firearm by a convicted felon and imposed an enhanced sentence of twenty years at hard labor without the benefit of probation or suspension of sentence and with the first ten years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. Defendant's enhanced sentence was ordered to run concurrently with counts one through three and count five, the sentence in case number 15-2370, and any other sentence he was serving.

         Thereafter, on April 13, 2017, defendant filed a Uniform Application for Post-Conviction Relief requesting an out-of-time appeal. On April 18, 2017, the trial court granted defendant an out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336 (La. 1985) and dismissed his application for post-conviction relief without prejudice. On August 10, 2017, this Court consolidated appellate records 17-KA-420 and 17-KA-426 "for briefing and argument in this Court." This appeal follows.

         Jurisdictional Note

         This Court's appellate jurisdiction extends only to cases triable by a jury. La. Const. of 1974, Art. 5, § 10; La. C.Cr.P. art. 912.1; State v. Chess, 00-164 (La.App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287. Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess, supra.

         In this case, defendant was charged and pled guilty to misdemeanor possession of drug paraphernalia, in violation of La. R.S. 40:1023, in district court case number 15-2370. At the time of the offense, La. R.S. 40:1025 provided that the offender shall be subjected "to a fine not in excess of five hundred dollars, or imprisonment of not more than six months, or both." Thus, defendant's conviction for possession of drug paraphernalia is a misdemeanor conviction not triable by a jury. The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. See La. C.Cr.P. art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La. 10/24/08), 992 So.2d 1033.

         According to this Court's En Banc policy regarding jurisdictional matters adopted on May 29, 2014, "if the majority of the panel determined that the matter was not appealable, the matter shall be dismissed, allowing the parties time to file a writ application." However, this Court noted that dismissal may not be warranted in "exceptional cases, especially when there are misdemeanor and felony convictions intertwined to the point that the interests of justice are better served by considering the matters together." See generally, State v. Jones, 12-640 c/w 12-641 (La.App. 5 Cir. 10/30/13), 128 So.3d 436; State v. Christophe, 12-82 (La.App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied, 12-2432 (La. 4/19/13), 111 So.3d 1029; State v. Trepagnier, supra.

         In this case, we find that the instant matters are "exceptional cases … intertwined to the point that the interests of justice are better served by considering the matters together." Accordingly, we will review all of defendant's convictions on appeal.

         Law ...


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