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State v. Young

Court of Appeals of Louisiana, Fourth Circuit

May 1, 2019

STATE OF LOUISIANA
v.
ANTHONY YOUNG

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-484, SECTION "D" Honorable Jerome M. Winsberg, Judge Pro Tempore

          Leon Cannizzaro District Attorney Scott G. Vincent Assistant District Attorney ORLEANS PARISH COUNSEL FOR APPELLEE

          Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANT

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          Chase, J., concurs in the result.

          JOY COSSICH LOBRANO JUDGE

         The defendant, Anthony Young ("Defendant"), appeals from jury verdicts that convicted him of possession of hydrocodone, tramadol, and oxycodone.[1] After reviewing the record and applicable law, we affirm his convictions and sentence.

         On August 15, 2014, the State charged Defendant and co-defendant Floyd Boudreaux[2] in an eleven count bill of information.[3] The State charged Defendant with aggravated assault on a peace officer with a motor vehicle (count 5), a violation of La. R.S. 14:37.6(A) and aggravated flight and failure to stop a motor vehicle that endangered human life (count 6), a violation of La. R.S. 14:108.1(C).[4]

         Counts 8, 9 and 10 charged Defendant and Boudreaux with possession of hydrocodone and oxycodone in violation of La. R.S. 40:967 and tramadol without a prescription in violation of La. R.S. 40:1238.1 (now La. R.S. 40:1060.13).

         Count 11 charged Defendant with being a felon in possession of a firearm in violation of La. R.S. 14:95.1.

         A jury trial commenced on June 28, 2016, and concluded on June 30, 2016, with the jury finding Defendant guilty on courts 5, 6, 8, 9 and 10.[5] Defendant's post-trial motions for new trial and post-verdict judgment of acquittal were denied.

         On July 15, 2016, Defendant was sentenced to five years on counts 5, 8, 9 and 10 and to two years on count 6, with the sentences to run concurrently. The State filed a multiple bill of information charging Defendant as a recidivist as to count 5 and, on September 30, 2016, the trial court adjudicated him a third felony offender, [6] vacated his previous sentences, and resentenced him to eight years.

         ERRORS PATENT

         Our review for errors patent on the face of the record reveals one. In sentencing Defendant as a third offender, the district court failed to stipulate that the sentence be served without the benefit of probation or suspension of sentence in accordance with La. R.S. 15:529.1(G). However, La. R.S. 15:301.1(A) provides, in pertinent part: "[t]he failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement" that those restrictions apply. Our jurisprudence recognizes that "this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute." State v. Williams, 00-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799; State v. Dowell, 16-0371, pp. 4-5 (La.App. 4 Cir. 8/10/16), 198 So.3d 243, 246.

         STATEMENT OF FACTS

         On June 16, 2014, New Orleans Police Department ("NOPD") Detective Chad Cockerham, while in plain clothes and on foot, was conducting undercover surveillance of narcotics and weapons activity near the Desire Housing Development when he observed Defendant seated in the driver's seat of a black SUV in the area of Maurice Duncan and Treasure Streets. Det. Cockerham recognized Defendant from past encounters and noted that there was an active warrant for Defendant's arrest. The ...


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