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State v. Nellon

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

STATE OF LOUISIANA
v.
MATTHEW D. NELLON

          ON 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 Popovich

          COUNSEL FOR DEFENDANT/APPELLANT, MATTHEW D. NELLON Kevin V. Kelly

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson

          FREDERICKA HOMBERG WICKER JUDGE

         In this 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.

         STATEMENT OF THE CASE

         On 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 vehicle.[1]

         On 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 State v. Nellon, 17-K-336 (La.App. 5 Cir. 7/26/17) (unpublished writ decision).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.

         On 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 follows.

         DISCUSSION

         On 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.[2]

         Generally, 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.

         The 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 ...


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