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State v. Overstreet

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

STATE OF LOUISIANA
v.
RICKEY OVERSTREET

          ON 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. Hillman

          DEFENDANT/APPELLANT, RICKEY OVERSTREET In Proper Person

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

          STEPHEN J. WINDHORST JUDGE

         Defendant, 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.

         Procedural History and Facts

         On 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.

         On 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.

         On May 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.[1]

         On September 11, 2017, defendant withdrew his former pleas of not guilty, and after being advised of his Boykin[2] rights, pled guilty under Crosby, to the amended bill of information.[3] 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.

         On the 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 four.

         On 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.

         Because 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.

         Discussion[4]

         In his counseled assignment of error, defendant argues the trial court erred in denying his motion to suppress evidence.[5] 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 stop.

         In 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[6] 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, ...


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