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State v. Dorsey

Court of Appeals of Louisiana, Third Circuit

November 7, 2018

STATE OF LOUISIANA
v.
ADRIAN A. DORSEY A/K/A ADRIAN ANTON DORSEY

          APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. CR-2016-500 HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

          Edward Kelly Bauman Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Adrian A. Dorsey.

          Adrian A. Dorsey In Proper Person D. C. I. E. Dorm PRO SE DEFENDANT/APPELLANT: Adrian A. Dorsey.

          James R. Lestage District Attorney COUNSEL FOR APPELLEE: State of Louisiana.

          Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.

          JOHN E. CONERY JUDGE.

         Defendant, Adrian Anton Dorsey, was charged with possession of marijuana, fourth offense, in violation of La.R.S. 40:966, and resisting an officer with force or violence, in violation of La.R.S. 14:108.2. The jury convicted Defendant of the two charged offenses. Defendant was not sentenced on those two convictions. Instead, Defendant was later adjudicated as a fourth felony habitual offender and sentenced on the multiple offender adjudication pursuant to La.R.S. 15:529.1 to thirty-two years at hard labor, without benefit of parole, probation, or suspension of sentence on each count to run concurrently.

         Defendant now appeals his convictions and sentences, raising three assignments of error. The State also appeals the sentences imposed. For the following reasons, we affirm the Defendant's convictions. We note as an error patent that Defendant had not been sentenced on the original convictions prior to the imposition of the "Enhanced Sentence" under the Habitual Offender Law. We further find that Defendant had not waived the mandatory twenty-four hour sentencing delay required by La.Code Crim.P. art. 873 before being adjudicated as a habitual offender subject to enhanced sentencing. We vacate Defendant's habitual offender adjudication and sentences and remand the case for further proceedings consistent with this decision and the law.

         FACTS

         According to testimony presented at trial, at about 3:30 a.m. on June 6, 2016, Sgt. Joshua Stanford, a patrol sargent, was in uniform and on duty with the Deridder Police Department when he heard a car alarm in the HUD housing area about one block from his location. He then headed toward the sounding car alarm in his properly marked patrol unit. Officer Stanford testified that he immediately saw the lights of a vehicle flashing and, as the car alarm continued to go off, he observed a person, later identified as Defendant, standing next to the driver's door of the vehicle with a paper bag and miscellaneous items in his hand, including what was identified as a twenty (20) ounce beer can. As the officer approached the car and Defendant, he turned on his headlights and parked his unit facing the vehicle. Defendant walked away from the vehicle, attempting to hurriedly walk past the police unit. Officer Stanford testified that as he exited his police unit, he asked Defendant to stop, identify himself by name, produce an I.D., and state his reasons for being there, but Defendant avoided the officer, would not respond, and tried to walk away.

         Officer Stanford again tried to question Defendant to determine his identity, where he was coming from, what he was doing, and who owned the vehicle. Defendant became very agitated and stated to Officer Stanford that he knew he was "barred from the HUD housing property" and needed to get out of the area. He continually backed away from Officer Stanford and questioned the officer's reasons for stopping him, expressing his belief that Officer Stanford was trying to force him back on the HUD property to arrest him. Officer Stanford testified that he attempted to calm Defendant, but sensing the subject was becoming more agitated and was not going to cooperate, he called for assistance from Officer Chauncey Rupf, who was also on duty that night.

         Once Officer Rupf arrived, Officer Stanford again attempted to lawfully detain Defendant until he could be identified and questioned further as to why he was standing next to a parked car at 3:30 a.m. with the car alarm blaring and a beer and other objects in his hand at the HUD housing project, where he admittedly had been barred. Defendant continued to refuse to produce identification, insisted that he needed to "leave the property," and continued to resist all attempts to detain him. When the officers attempted to escort Defendant to the front of the police unit and temporarily detain him for further questioning, Defendant shoved both officers. Officer Stanford testified that he then distanced himself from the Defendant, who took a fighting stance. When Defendant took an aggressive step forward toward the officers, Officer Stanford tasered him. Defendant ripped the taser probes off and fled towards the HUD housing property.

         Officer Stanford gave chase and attempted to detain Defendant for questioning yet again, giving consistent verbal commands to stop. Defendant then continued resisting and pushed the officers as they tried to detain him. Defendant broke from Officer Stanford's grip and again ran from the officers. Upon encountering Officer Rupf, Defendant continued to disobey verbal commands and flee. Officer Rupf then struck Defendant with her taser. Again, Defendant tore the probes off and ran from the officers. When Defendant reached the middle of the street, he fell. The officers attempted to handcuff him, but he continued to resist, hitting the officers with his elbows. Finally, they were able to successfully handcuff him and arrest him for resisting an officer with force or violence in violation of La. R.S. 14:108.2. Defendant was searched by Officer Rupf incident to his arrest, and three packages of synthetic cannabis were found in one of his pockets. When he was subsequently strip searched at the jail, a plastic bag of marijuana was also recovered from Defendant's person.

         Following the Defendant's arrest, Officer Stanford testified that he spoke to the owner of the vehicle, Savannah Pickett, who identified Defendant by name and explained that Defendant had her permission to be inside her vehicle. Further, she explained that Defendant was not supposed to be on the HUD housing property, so he was leaving. Officer Stanford testified he reviewed a list of those barred from the HUD housing property and the list included Defendant's name. Defendant was also charged with remaining where forbidden in relation to his being on HUD housing property, but was not prosecuted on that charge.

         Defendant was formally charged by bill of information with possession of marijuana, fourth offense, in violation of La.R.S. 40:966, and resisting an officer with force or violence, in violation of La.R.S. 14:108.2. Defendant pled not guilty to the charges and was eventually found guilty on both counts at a jury trial held on June 21, 2017.

         Defendant filed several post-trial motions prior to sentencing, including a motion for a new trial, a motion in arrest of judgment and a motion for post-verdict judgment of acquittal. All of Defendants' motions were heard on October 5, 2017, and denied by the trial court, with extensive and well-articulated written reasons filed in the record. Prior to the hearing on the post-trial motions, on August 14, 2017, the State filed a habitual offender bill of information charging Defendant as a fourth-felony offender pursuant to La.R.S. 15:529.1, to which Defendant pled not guilty. The habitual offender adjudication and sentencing were also set for October 5, 2017. After denying Defendant's post-trial motions on October 5, 2017, the trial judge asked whether Defendant wished to waive the mandatory twenty-four hour sentencing delay required by La.Code Crim.P. art. 873 following denial of his post-trial motions. Defendant specifically did not waive the mandatory delay. Instead of re-scheduling sentencing on the original convictions, the trial court heard the State's evidence on its motion to conduct the habitual offender adjudication hearing.

         The trial court then adjudicated Defendant as a habitual offender pursuant to La.R.S. 15.529.1, but deferred judgment on whether the charge of resisting an officer with force or violence in violation of La.R.S. 14:108.2 was a crime of violence for sentencing enhancement purposes under La.R.S. 15:529.1, and scheduled sentencing on the habitual offender adjudication for October 26, 2017. The trial judge eventually found that the conviction of resisting an officer with force or violence in violation of La.R.S. 15:529.1 was a crime of violence, and for oral and written reasons assigned, sentenced Defendant as a fourth felony habitual offender pursuant to La.R.S. 15:529.1 to thirty-two years at hard labor on each count, without benefit of parole, probation, or suspension of sentence, to run concurrently. Defendant has not been sentenced on the original convictions.

         Defendant now appeals his convictions as well as his habitual offender adjudication and sentences, asserting three assignments of error by the trial court. The State now also appeals, assigning a single error by the trial court.

         ASSIGNMENTS OF ERROR

         The Defendant assigns the following assignments of error on appeal:

1. The evidence adduced at trial was insufficient to support convictions for resisting an officer by force or violence or possession of marijuana, fourth offense.
2. The sentence of thirty-two years for resisting an officer by force or violence is illegal.
3. The sentences of thirty-two years for possession of marijuana, fourth offense, and resisting an officer with force or violence, are constitutionally excessive.

         The State of Louisiana assigns the following single assignment of error on appeal:

1. The trial court erred in applying the recently amended version of the Habitual Offender Law [La.]R.S. 15:529.1, as amended by the 2017 Legislature, particularly 2017 Acts §282, to a case involving crimes committed on June 6, 2016, for which he was convicted at a jury trial on June 21, 2017, adjudicated a fourth-felony habitual ...

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