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State v. Nelson

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2018

STATE OF LOUISIANA
v.
KEITHEN D. NELSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-570, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, KEITHEN D. NELSON Bruce G. Whittaker

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore

          JUDE G. GRAVOIS JUDGE

         CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING

         JGG

         RAC

         MFE

         Defendant, Keithen D. Nelson, appeals his conviction and sentence of armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. Specifically, defendant argues that the trial court erred in denying his motion to suppress statement because the evidence showed that he was too intoxicated to waive his right to remain silent. For the reasons that follow, we affirm defendant's conviction, vacate his sentence, and remand for resentencing.

         PROCEDURAL HISTORY

         On March 12, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Keithen D. Nelson, with first degree robbery, in violation of La. R.S. 14:64.1.[1] On that same date, defendant pled not guilty at his arraignment. On March 13, 2015, defendant filed omnibus motions, including motions to suppress statement and evidence.

         On February 18, 2016, the State filed a superseding bill of information amending the charge to armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3, [2] and defendant entered a plea of not guilty. On that same date, the trial court heard defendant's motion to suppress evidence, but held the hearing open for testimony on the motion to suppress statement. On March 28, 2017, defendant filed a pro se motion to suppress evidence.[3] On April 26, 2017, the trial court resumed the February 18, 2016 hearing and heard defendant's motion to suppress statement. At the hearing's conclusion, the trial court denied defendant's motions to suppress evidence and statement.

         On August 29, 2016, defendant filed a motion seeking the appointment of a sanity commission to determine his competency to proceed to trial. On October 12, 2016, after considering the opinion of the appointed sanity commission, the trial court found defendant competent to proceed to trial.

         On August 14, 2017, defendant withdrew his plea of not guilty and pled guilty as charged to armed robbery with a firearm[4] under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). After defendant waived delays, the trial court sentenced him to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to run concurrently with the sentences in district court case numbers 15-461 and 15-462.[5]

         Nearly one month later, on September 12, 2017, defendant filed a "Motion for Reconsideration of Sentence" under La. C.Cr.P. art. 881.1, advising the trial court that he had intended to enter his plea under State v. Crosby, 338 So.2d 584 (La. 1976). On September 15, 2017, following a hearing, the trial court advised defense counsel that it would grant the motion for reconsideration of sentence.

         On September 16, 2017, defendant filed a "Motion and Order for Appeal Pursuant to State vs. Crosby, " noting his right to appeal the April 26, 2017 denial of the motions to suppress evidence, statement, and identification.[6] On September 18, 2017, the trial court issued an "Order Amending Commitment and Sentence, " wherein it granted defendant's motion for reconsideration of sentence and ordered that the sentence and commitment be amended solely to reflect that defendant's right to timely appeal under Crosby be "reserved unto him commencing on the date of this order." Also, on September 18, 2017, defendant's motion for appeal pursuant to Crosby was granted. Defendant's appeal followed.

         FACTS

         As defendant pled guilty, the facts were not fully developed at trial. However, the superseding bill of information alleged that on or about January 9, 2015, defendant violated La. R.S. 14:64 and La. R.S. 14:64.3 by robbing Chen Yizi and/or Irene Yu while armed with a firearm in ...


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