APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 16-5350, DIVISION
"C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Zachary
COUNSEL FOR DEFENDANT/APPELLANT, MATTHEW D. NELLON Kevin V.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Marc E. Johnson
FREDERICKA HOMBERG WICKER JUDGE
criminal appeal, defendant, Matthew Nellon, seeks review of
the denial of his motion to suppress filed prior to his
convictions for attempted possession of heroin in violation
of La. R.S. 14:27 and 40:966(C) and possession of oxycodone
in violation of La. R.S. 40:967(C)-both arising from
defendant's guilty pleas. Because we find that defendant
failed to preserve review of any pretrial rulings in
accordance with State v. Crosby, 338 So.2d 584 (La.
1976), we decline to consider relator's assignment of
error on appeal. We further affirm defendant's
convictions but vacate his sentences due to an error patent
and remand the matter to the trial court for resentencing.
OF THE CASE
August 24, 2016, the Jefferson Parish District Attorney filed
a bill of information charging defendant with one count of
possession of heroin in violation of La. R.S. 40:966(C) and
one count of possession of oxycodone in violation of La. R.S.
40:967(C). Defendant was arraigned and pled not guilty. On
January 19, 2017, defendant filed a motion to suppress
evidence, contending that the officers who seized the
evidence at issue during a traffic stop did not have
reasonable suspicion or probable cause to search his
March 16, 2017, the trial court conducted a hearing on
defendant's motion to suppress evidence. The trial judge
took the matter under advisement and, on May 9, 2017, issued
a judgment denying defendant's motion to suppress. On
July 26, 2017, this Court considered and denied
defendant's writ application seeking review of the denial
of defendant's motion to suppress evidence. State v.
Nellon, 17-K-336 (La.App. 5 Cir. 7/26/17) (unpublished
writ decision). On November 13, 2017, the Louisiana Supreme
Court declined to consider defendant's writ application
as it was untimely filed. State v. Nellon, 17-1482
(La. 11/13/17), 229 So.3d 478.
February 26, 2018, the state amended count one of the bill of
information to reflect the amended charge of attempted
possession of heroin in violation of La. R.S. 14:27 and
40:966. On the same date, defendant withdrew his not guilty
pleas and pled guilty to the amended bill of information.
After a colloquy with defendant and the acceptance of his
pleas, the trial court sentenced defendant in accordance with
the plea agreement to two years at hard labor on each count
with the sentences "to run concurrently with each other,
and concurrent with any other sentence." This appeal
appeal, defendant does not challenge the validity of his
guilty pleas, nor does he challenge the sentences imposed for
his attempted possession of heroin and possession of
oxycodone convictions. In his sole assignment of error on
appeal, defendant seeks review of a prior ruling denying his
motion to suppress the evidence.
when a defendant pleads guilty, he waives all
non-jurisdictional defects in the proceedings leading up to
the guilty plea. State v. Williams, 18-197 (La.App.
5 Cir. 11/07/18), 2018 La. App. LEXIS 2184. An unqualified
guilty plea precludes review of such defects either by appeal
or post-conviction relief. State v. Turner, 09-1079
(La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459. However, a
defendant may preserve for appellate review a prior adverse
ruling if, at the time he enters his guilty plea, he
expressly reserves his right to appellate review of a
specific ruling. State v. Crosby, 338 So.2d 584, 588
(La. 1976); State v. King, 99-1348 (La.App. 5 Cir.
5/17/00), 761 So.2d 791, 793.
record reflects that defendant in this case entered
unqualified guilty pleas and, therefore, waived all
non-jurisdictional defects in the proceedings which occurred
prior to his guilty pleas. The record reflects that during
the guilty plea proceedings, defendant did not preserve any
rulings for appeal under the holding in State v.
Crosby, supra. This Court has consistently held
that a defendant's failure to reserve the right to appeal
under Crosby precludes appellate review of a prior
denial of a motion to suppress. See State v. Nelson,
17-650 (La.App. 5 Cir. 5/23/18), 248 So.3d 683, 688;
State v. Turner, 10-995 (La.App. 5 Cir. 9/27/11), 75
So.3d 491, 492, writ denied, 11-2379 (La. 4/27/12),
86 So.3d 625; State v. Landry, 02-1242 (La.App. 5
Cir. 4/29/03), 845 So.2d 1233, wri ...