APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 16-5355, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Juliet L. Clark
COUNSEL FOR DEFENDANT/APPELLANT, RICKEY OVERSTREET Bertha M.
DEFENDANT/APPELLANT, RICKEY OVERSTREET In Proper Person
composed of Judges Stephen J. Windhorst, Hans J. Liljeberg,
and John J. Molaison, Jr.
STEPHEN J. WINDHORST JUDGE
Rickey Overstreet, through appointed counsel and by pro
se brief, appeals his convictions and sentences which
resulted from a guilty plea entered under State v.
Crosby, 338 So.2d 584 (La. 1976). For the reasons that
follow, we affirm defendant's convictions and sentences
and remand with instructions.
History and Facts
September 21, 2016, the Jefferson Parish District Attorney
filed a bill of information charging defendant, Rickey
Overstreet, with possession with intent to distribute cocaine
in violation of La. R.S. 40:967 A (count one); possession of
a firearm by a convicted felon in violation of La. R.S.
14:95.1 (count two); and possession of Tramadol in violation
of La. R.S. 40:969 C (count three). At his arraignment,
defendant pled not guilty to the charged offenses. On
November 16, 2016, the State amended the bill of information
charging defendant with the additional offense of possession
with intent to distribute marijuana and/or synthetic
cannabinoids in violation of La. R.S. 40:966 A (count four).
Defendant was re-arraigned on November 28, 2016, on the
amended bill and pled not guilty.
September 22, 2016, defendant filed motions to suppress
evidence and statement. On March 16, 2017, the trial court
denied defendant's motions to suppress. On the same date,
a hearing was held on the State's "Notice of Intent
to Use Other Acts Evidence Pursuant to L.C.E. Article 404
B." The trial court granted the State's motion with
respect to defendant's prior arrests, but took the
State's 404B motion under advisement regarding the text
message evidence sought to be used by the State at trial. On
April 5, 2017, the trial court granted the State's 404B
motion with respect to the text message evidence.
5, 2017, defendant filed a supervisory writ application with
this Court challenging the trial court's March 16, 2017
judgment denying his motions to suppress evidence and
statement and the trial court's April 5, 2017 judgment
granting the State's 404 B motion. This Court denied
defendant's writ application.
September 11, 2017, defendant withdrew his former pleas of
not guilty, and after being advised of his
Boykin rights, pled guilty under Crosby,
to the amended bill of information. Defendant was sentenced to
fifteen years imprisonment at hard labor on counts one, two,
and four and to five years imprisonment at hard labor on
count three. The trial court ordered defendant's
sentences to be served concurrently with one another and any
other sentence defendant may be currently serving. The trial
court also recommended defendant for any and all self-help
programs available through the Department of Corrections,
including substance abuse treatment.
same date, the State filed a habitual offender bill of
information alleging defendant to be a second-felony offender
on count one, to which defendant stipulated. The trial court
vacated the original sentence on count one and resentenced
defendant to fifteen years imprisonment without benefit of
probation or suspension of sentence. The trial court ordered
defendant's enhanced sentence to be served concurrently
with the original sentences imposed on counts two, three, and
April 16, 2018, defendant filed an application for
post-conviction relief seeking an out-of-time appeal, which
the trial court granted. This appeal followed.
defendant entered guilty pleas, the underlying facts were not
fully developed at trial. However, during the guilty plea
colloquy, the State provided the following factual bases for
the guilty pleas:
Yes, Your Honor. If this matter had proceeded to trial, the
State would prove beyond a reasonable doubt that the
Defendant violated Louisiana Revised Statute 40:967(A) in
that he did knowingly or intentionally possess with intent to
distribute a controlled dangerous substance, to wit cocaine
on or about August 17th of 2016.
For Count 2, the State would prove beyond a reasonable doubt
that on or about August 17th of 2016 the Defendant violated
Louisiana Revised Statute 14:95.1 in that he did have in his
possession a firearm, to wit a Kel-Tec P-11 caliber 9
millimeter Luger handgun having been previously convicted of
the crime of possession with intent to distribute marijuana
in violation of Louisiana Revised Statute 40:966(A) under
Case Number 04-4982 on August 20th, 2007, in Division A of
the 24th Judicial District Court, Parish of Jefferson.
For Count 3, the State would prove beyond a reasonable doubt
that the Defendant violated Louisiana Revised Statute
40:969(C) in that he did knowingly or intentionally possess a
controlled dangerous substance, to wit tramadol on or about
August 17th of 2016.
For Count 4, the State would prove beyond a reasonable doubt
that on or about August 17th of 2016 the Defendant did
violate Louisiana Revised Statute 40:966(A) in that he did
knowingly or intentionally possess with intent to distribute
a controlled dangerous substance, to wit marijuana.
counseled assignment of error, defendant argues the trial
court erred in denying his motion to suppress
evidence. He contends the officers made an illegal,
"pretext" stop of his vehicle because they were
familiar with him, as it is highly unlikely that Detective
Keenan Jackson observed him without a seat belt given the
distance, time of day, and window tinting on his vehicle.
Even assuming a valid stop, defendant contends the officers
had no authority to search or question him or to search his
vehicle solely based upon an alleged seat belt violation. He
further claims the officers were not authorized to search or
detain him for a period of time longer than reasonably
necessary to issue a citation for the seat belt violation
absent reasonable suspicion of additional criminal activity.
Because the officers had no reasonable suspicion of criminal
activity, defendant argues the officers' conduct was not
reasonably related to the circumstances that justified the
defendant's pro se assignments of error,
defendant additionally argues that Detective Jackson did not
have authority to order him from his vehicle once stopped for
the alleged seat belt violation. He also contends that the
police officers violated La. R.S. 32:295.1 F when they used
the seat belt law as a basis for probable cause to stop and
search defendant and his vehicle without additional evidence
of ongoing criminal activity. Defendant argues that the mere
backing up of his vehicle is not a specific articulable fact
of ongoing criminal activity; therefore, ...