FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 2015-03199, DIVISION
"A" Honorable Kevin D. Conner, Judge.
Charles J. Ballay, District Attorney Sarah A. Tesvich,
Assistant District Attorney, COUNSEL FOR APPELLEE/STATE OF
Constance Hanes LOUISIANA APPELLATE PROJECT, COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Sandra Cabrina Jenkins.
CABRINA JENKINS JUDGE.
State v. Turner, 16-0230, unpub. (La.App. 4 Cir.
10/19/16), 2016 WL 6094507, writ denied, 16-2056
(La. 9/15/17), 225 So.3d 484 ("Turner I"),
this Court affirmed defendant's conviction on four counts
of distribution of cocaine but vacated defendant's
sentence and remanded the matter to the trial court in order
to hold a recusal hearing to determine if recusal of the
presiding trial court judge is proper. On remand, the trial
court judge, Division "B", issued an order recusing
himself on his own motion and ordering the case transferred
to Division "A". Thereafter, on January 9, 2018,
the trial court sentenced defendant as a third felony
offender to twenty-five years at hard labor on each of the
four counts of his conviction, to run concurrently with each
other but consecutively with the ten-year sentence he was
already serving for three other convictions. Defendant now
appeals his sentence. For the reasons that follow, we affirm.
AND PROCEDURAL BACKGROUND
October 27, 2014, defendant was charged by bill of
information with five counts of distribution of cocaine,
violations of La. R.S. 40:967(B)(1). Defendant pled not guilty to
all charges. Prior to trial, the State dismissed one count of
the bill. At the close of the jury trial, on October 14,
2015, defendant was convicted on the four remaining counts of
distribution of cocaine.
October 15, 2015, the State filed a multiple bill of
information charging defendant as a fourth felony offender.
On November 2, 2015, defendant filed a motion to quash the
multiple bill. On November 6, 2015, the trial court denied
defendant's motions for new trial and for post-verdict
judgment of acquittal.
December 16, 2015, the trial court sentenced defendant to
twenty-five years on each count of his conviction, sentences
to run concurrent with one another but consecutive to a ten
year sentence defendant was already serving. Also on that
date, the State amended the multiple bill to charge defendant
as a third felony offender and proceeded to present evidence
to the trial court in support of the multiple bill. Following
the presentation of evidence and argument, the trial court
denied defendant's motion to quash the multiple bill,
found sufficient proof that the State carried its burden of
proving the multiple bill, and adjudicated defendant a third
felony offender. The trial court vacated defendant's
original sentence and re-sentenced him pursuant to La. R.S.
15:529.1 to forty years, to run consecutive to the sentence
he was currently serving.
timely appealed his conviction and sentence, raising two
counseled and two pro se assignments of error. In
Turner I, this Court found no merit in
defendant's arguments as to insufficiency of evidence to
support his conviction, the denial of defendant's
challenge for cause to remove a prospective juror, and a
claim of ineffective assistance of trial counsel. Turner
I, 16-0230, pp. 6-9, 2016 WL 6094507. Accordingly, this
Court affirmed defendant's conviction. However, in
reviewing defendant's claim that his forty year sentence
as a third felony offender was excessive, this Court found
that "the trial judge's bias comments on record
regarding his past knowledge and experiences with Mr. Turner
create a possible conflict of interest that warrants a
recusal in this matter." Turner I, 16-0230, p.
10, 2016 WL 6094507. Consequently, this Court vacated
defendant's sentence and remanded the matter to the trial
court "to hold a recusal hearing to determine whether
the recusal of the presiding judge is warranted."
the remand, on October 17, 2017, the presiding trial court
judge, Division "B", issued an order recusing
himself on his own motion and transferring the case to
Division "A" for further proceedings. Thereafter,
on January 9, 2017, defendant appeared for resentencing in
Division "A." In consideration of the Presentencing
Investigation, and after hearing arguments from counsel, the
trial court resentenced defendant as a third felony offender
to twenty-five years at hard labor, to run consecutive to the
sentence he is serving in three other cases, pursuant to La.
C.Cr.P. art. 883.
January 12, 2018, defendant filed a motion to reconsider
sentence and a motion for appeal. On January 25, 2018, the
trial court denied the motion to reconsider sentence but
granted the motion for appeal.
now appeals the sentence imposed on remand from this
Court's prior decision affirming ...