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State v. Turner

Court of Appeals of Louisiana, Fourth Circuit

November 28, 2018

STATE OF LOUISIANA
v.
MYRON LEE TURNER

          APPEAL 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 LOUISIANA.

          Mary Constance Hanes LOUISIANA APPELLATE PROJECT, COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins.

          SANDRA CABRINA JENKINS JUDGE.

         In 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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).[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.

         On 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.

         On 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.

         Defendant 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." Id.

         Following 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.

         On 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.

         Defendant now appeals the sentence imposed on remand from this Court's prior decision affirming ...


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