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State v. Burl

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

STATE OF LOUISIANA
v.
HOWARD BURL, JR.

          ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 15, 325, DIVISION "B" HONORABLE E. JEFFREY PERILLOUX, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut Briana C. Robertson

          COUNSEL FOR DEFENDANT/APPELLANT, HOWARD BURL, JR. Jane L. Beebe

          DEFENDANT/APPELLANT, HOWARD BURL, JR. In Proper Person

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         In this criminal appeal, defendant challenges the consecutive nature of his sentences imposed following convictions for five separate offenses. For the reasons that follow, we affirm defendant's convictions, and affirm his sentences as amended. We further remand the matter for correction of the Uniform Commitment Order.

         FACTS AND PROCEDURAL HISTORY

         The record shows that on July 23, 2015, defendant, Howard Burl, Jr., was under surveillance by Sergeant Michael Gil of the St. John Parish Sheriff's Office Special Operations Division. Sergeant Gil obtained information from a trusted confidential informant that defendant was in possession of a firearm and illegal narcotics at his residence in Edgard, Louisiana, and also carried a gun with him while he sold drugs in the surrounding areas. Sergeant Gil was aware of the type of vehicle that defendant drove, and also knew that defendant did not have a driver's license. When Sergeant Gil located defendant in Mt. Airy, he contacted detectives in the St. John Parish Sheriff's Office Narcotics Bureau to assist him in surveilling defendant. After defendant was observed committing several traffic violations, Detective Joshua Gilboy attempted to stop defendant's vehicle with the assistance of Lieutenant Tanner Mangano.[1] Defendant attempted to evade the traffic stop, and was observed throwing two plastic bags out of his car window as he fled.[2] Sergeant Gil noted the location of the bags as they landed, and subsequently retrieved them.[3] After detectives managed to stop defendant's car and read defendant his Miranda[4]rights, he denied being in possession of narcotics, but admitted that he had a firearm[5] in the vehicle underneath his seat. A subsequent search of defendant's residence led to the recovery of two stolen rifles: a Harrington and Richardson 1871 45-70 rifle and a Remington 1100 shotgun.

         Defendant was charged in a bill of information by the District Attorney for St. John Parish on September 11, 2015, with one count of obstruction of justice, a violation of statute La. R.S. 14:130.1, one count of possession with intent to distribute crack cocaine, a violation of statute La. R.S. 40:967(A)(1), one count of possession with intent to distribute powder cocaine, in violation of statute La. R.S. 40:967(A)(1), one count of illegal use of weapons, in violation of statute La. R.S. 14:95.E, four counts of felon in possession of a firearm, [6] in violation of statute La. R.S. 14:95.1, and one count of illegal possession of a stolen firearm, in violation of statute La. R.S. 14:69.1(A). Defendant pled not guilty to all charges at his arraignment on September 21, 2015. On September 18, 2017, following a colloquy with the trial court, defendant waived his right to a jury trial, instead electing to be tried before a judge. On December 18, 2017, the State amended the bill of information. At that time defendant was re-arraigned and he pled not guilty to all counts. On December 19, 2017, defendant proceeded to a bench trial, at the conclusion of which he was found guilty of attempted obstruction of justice on count 1, guilty of possession of crack cocaine on count 2, guilty of possession of cocaine with intent to distribute on count 3, guilty of possessing a weapon while in possession of a controlled dangerous substance on count 4, [7] and guilty of being a felon in possession of a firearm, as alleged in count 5 of the amended bill.

         The State filed a multiple offender bill of information on February 20, 2018, and defendant was ultimately adjudicated to be a third felony offender.[8] On May 2, 2018, defendant was sentenced to 10 years at hard labor for count one, without the benefits of probation, parole, or suspension of sentence. For his possession of crack cocaine conviction, defendant received a five-year sentence without the benefits of probation, parole, or suspension of sentence. Defendant received a 25-year sentence, without benefits, for his possession with intent to distribute conviction, and a 10-year sentence, without benefits, for his possessing a weapon while in possession of a controlled dangerous substance conviction. The sentences for these four counts were ordered to run concurrently. For his felon in possession of a firearm conviction, defendant received a consecutive 25-year sentence without the benefits of probation, parole, or suspension of sentence. In addition, defendant received a 90-day consecutive sentence for three instances of direct contempt of court. Defendant did not object to his sentences at the time of sentencing, nor did he file a motion for reconsideration of sentence. On September 6, 2018, defendant was granted an out of time appeal.

         LAW AND ARGUMENT

         Defendant's sole assignment of error on appeal is that the trial court erred in imposing an excessive sentence by making the sentence for count five consecutive to the sentences for counts one through four.

         As noted above, defendant did not object to the sentence on May 2, 2018, or file a subsequent motion for reconsideration of ...


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