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State v. Lawson

Court of Appeals of Louisiana, Fourth Circuit

November 6, 2019

STATE OF LOUISIANA
v.
MALIK K. LAWSON

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 542-667, SECTION "D" Honorable Paul A. Bonin, Judge

          Leon Cannizzaro District Attorney Donna Andrieu Kyle Daly DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR STATE/APPELLEE

          Meghan Harwell Bitoun Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT

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

          JOY COSSICH LOBRANO, JUDGE

         This is an appeal of the district court's denial of a Motion to Suppress the Evidence and Statement filed by defendant, Malik Lawson ("Defendant"). On January 10, 2019, Defendant entered a Crosby plea of guilty[1] to the charges against him, while reserving his right to appeal the district court's decision to deny his motion to suppress.

         After reviewing the record and applicable law, we find that the district court properly denied Defendant's motion to suppress, thereby affirming Defendant's conviction. Finding, however, errors in Defendant's sentencing, we remand the matter to the district court to make the appropriate corrections consistent with this opinion.

         On September 7, 2018, the State filed a bill of information charging Defendant with one count of possession of a firearm by a felon, a violation of La. R.S. 14:95.1, and one count of resisting an officer, a violation of La. R.S. 14:108. On September 12, 2018, Defendant entered pleas of not guilty. On September 17, 2018, Defendant filed motions for discovery; to preserve evidence; for suppression of statements, evidence, and identification; and for preliminary examination.

         On November 15, 2018, the district court heard Defendant's motion to suppress and conducted a preliminary examination. Finding probable cause, the district court took the motion to suppress under advisement. On January 7, 2019, the district court denied Defendant's motion to suppress. On January 9, 2019, Defendant filed motions to reconsider the motion to suppress and supplement the record, and request for a stay. All motions were denied. On January 10, 2019, Defendant withdrew his pleas of not guilty and pled guilty as charged, reserving his right to appeal the denial of his motion to suppress as per Crosby.

         The court sentenced Defendant to five years in the custody of the Department of Corrections without the benefit of probation, parole, or suspension of sentence for count one, possession of a firearm by a convicted felon. As to count two, resisting an officer, Defendant was sentenced to six months at Orleans Justice Center without benefit of probation, parole, or suspension of sentence. Defendant was given credit for time served with both sentences to run concurrently.

         The record reveals two patent errors. First, the sentence for resisting an officer was imposed without benefit of probation, parole, or suspension of sentence. This is contrary to the sentencing requirements of La. R.S. 14:108.[2] The matter is remanded to the district court to remove restrictions on the sentence.

         Second, the sentence imposed under La. R.S. 14:95.1, possession of a firearm by a felon, is illegally lenient because it did not impose the fine mandated by law. The district court correctly imposed a sentence of not less than five years without the benefit of probation, parole, or suspension of sentence but without a fine.

         La. R.S. 14:95.1(B) provides that:

Whoever is found guilty of violating the provisions of [La. R.S. 14:95.1] shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. (Emphasis added.)

See also State v. Watson, 13-1532, p. 6 (La.App. 4 Cir. 8/6/14), 147 So.3d 1169, 1172-73 (the fine imposed by La. R.S. 14:95.1 is mandatory and the trial judge is without discretion to waive it).

         Therefore, we remand this case for the district court to correct the sentence under La. R.S. 14:108 to remove restrictions and impose a fine under La. R.S. 14:95.1(B).

         Defendant raises two assignments of error, however, the first assigned error is closely related to the second.[3] Thus, we address both in our discussion of whether the police conducted an illegal warrantless search (assignment of error number two).

         At the outset, we note our well-settled jurisprudence that an appellate court is to review the district court's findings of fact on a motion to suppress under a clearly erroneous standard, while the review of the district court's ultimate determination of Fourth Amendment reasonableness is de novo. State v. Everett, 13-0322, p. 4 (La.App. 4 Cir. 3/26/14), 156 So.3d 705, 709 (citing State v. Dorsey, 00-2331, p. 1 (La.App. 4 Cir. 1/24/01), 779 So.2d 1008, 1009. "On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo." Everett, 13-0322, pp. 4-5, 156 So.3d at 709. Furthermore, a district court's decision as to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Id. (citing State v. Wells, 08-2262, p. 5 (La. 7/6/10), 45 So.3d 577, 581). When a district court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not disturb those findings unless there is no evidence to support them. State v. Thompson, 11-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563; Wells, 08-2262, p. 5, 45 So.3d at 581.

         It is well settled that "[t]he State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La. C.Cr.P. art. 703(D)."[4]Wells, 08-2262, p. 5, 45 So.3d at 581; State v. Loicana, 18-0497, pp. 6-7 (La.App. 4 ...


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