State v. Allen

• Decision Date: 18 January 2012
• Docket Number: No. 11–610.,11–610.
• Citation: 79 So.3d 1220
• Parties: STATE of Louisiana v. Brandon Dale ALLEN.
• Court: Court of Appeal of Louisiana — District of US

79 So.3d 1220

STATE of Louisiana

v.Brandon Dale ALLEN.

No. 11–610.

Court of Appeal of Louisiana, Third Circuit.

Dec. 7, 2011.Rehearing Denied Jan. 18, 2012.

James C. Downs, District Attorney, 9th Judicial District Court, John T. Giordano, Assistant District Attorney, 9th Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.

Dmitrc Ian Burnes, Burnes & Burnes, Alexandria, LA, for Defendant/Appellant, Brandon Dale Allen.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.

THIBODEAUX, Chief Judge.

[3 Cir. 1] Defendant, Brandon Dale Allen, appeals jury verdicts convicting him of possession of cocaine, possession of hydrocodone, and possession of a firearm by a felon. The court sentenced him to five years on the two drug possession convictions and ten years on the possession of a firearm by a convicted felon, all to be served concurrently. The State then filed a habitual offender bill seeking to enhance the drug convictions. After a hearing, the trial court sentenced Defendant to concurrent ten year sentences on each of the drug convictions, and ten years on the firearm conviction, to be served consecutively to the two ten year terms, for a total of twenty years imprisonment.

Defendant also appeals the denial of his motion to suppress.

For the following reasons, we affirm the two drug possession convictions and the denial of the motion to suppress. We reverse the conviction for possession of a firearm by a convicted felon because of insufficient evidence to convict. We remand for resentencing.

FACTS

On the afternoon of February 2, 2010, Corporal Glenn Hall, a patrol officer with the Alexandria Police Department, pulled Defendant's car over at the request of Detective Latisha Gaudin, an officer in the narcotic division of the Alexandria Police Department. Detective Gaudin had been tailing Defendant's vehicle in an unmarked police car. Defendant, a passenger, Troy Newton, and Defendant's six-year-old son were in the car. Defendant's vehicle was searched, and a small amount of cocaine was located under the driver's seat and a loaded handgun was found under the backseat of the vehicle. After Defendant was transported to police headquarters, a plastic bag was found in the backseat of the patrol car [3 Cir. 2] containing several hydrocodone pills, marijuana, and two small packets of cocaine. Upon obtaining a search warrant for Defendant's residence, the police found a Styrofoam cup in the refrigerator which contained more hydrocodone pills and two more small packets of cocaine. Defendant was arrested and charged with possession with intent to distribute cocaine and hydrocodone and with possession of a firearm by a convicted felon.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is one error patent concerning the bill of information and several errors patent concerning Defendant's sentences.

(1) Failure to Vacate Original Sentences

The record indicates the court failed to vacate Defendant's original sentences on his two drug offenses. For each of his convictions of possession of cocaine and possession of hydrocodone, Defendant was originally sentenced to serve five years to run concurrently. Defendant was subsequently adjudicated a third felony offender and was sentenced to serve ten years on each count to run concurrently with each other, but consecutively to any other time, including the ten-year sentence for possession of a firearm by a convicted felon. Neither the court minutes nor the sentencing transcript indicate the trial court vacated the two originally-imposed sentences when it imposed the two habitual offender sentences as required by La.R.S. 15:529.1(D)(3).

This issue was before this court as an error patent in State v. Pitre, 04–1134, pp. 4–5 (La.App. 3 Cir. 2/9/05), 893 So.2d 1009, 1012:

Additionally, the court notes that the minutes of the habitual offender adjudication do not indicate the trial court vacated the originally imposed sentences of seven years on each count before imposing the habitual offender sentences. [3 Cir. 3] Louisiana Revised Statutes 15:529.1(D)(3) requires the trial court to vacate the previously imposed sentence prior to imposing a habitual offender sentence. In State v. Mayer, 99–3124 (La.3/31/00), 760 So.2d 309, however, the supreme court found that vacation of the habitual offender sentence was not necessary where the transcript failed to reflect the trial court vacated the previously imposed sentence before imposing the habitual offender sentence. The supreme court reasoned that the substantial rights of the defendant were protected since the commitment/minute entry “reflect[ed] that the trial judge vacated the defendant's original sentence and thereby eliminated any possible confusion as to the terms of the defendant's confinement....” Id. at 310.

The present case is distinguishable since the minute entry does not indicate that the trial court vacated the originally imposed sentences before sentencing the Defendant as a habitual offender. To eliminate any possible confusion as to the terms of the Defendant's confinement, this court will order the trial court to vacate the originally imposed sentences of seven years on each count. See State v. Mayer, 99–3124 (La.App. 3 Cir. 3/31/00), 760 So.2d 309 ( citing State ex rel. Haisch v. State, 575 So.2d 816 (La.1991)).

Consistent with Pitre, we order the trial court to vacate Defendant's originally-imposed five-year sentences for his convictions of possession of cocaine and possession of hydrocodone prior to the imposition of the habitual offender sentences.

(2) Error in Court Minutes

Second, although the court minutes of sentencing indicate Defendant's habitual offender sentences were imposed at hard labor, the sentencing transcript indicates the court sentenced Defendant as a third felony offender to ten years on each count of his drug possession offenses without indicating whether the sentences were to be served at hard labor. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00–137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00–2051 (La.9/21/01), 797 So.2d 62.

The trial court is ordered to correct the sentencing minutes to reflect the [3 Cir. 4] sentences imposed by the trial court as shown in the sentencing transcript, which did not mention hard labor. Additionally, the court minutes should be amended to reflect that the ten-year habitual offender sentence was imposed on each count of the drug offenses. The court minutes state in pertinent part:

Court gives reasons and sentences the defendant as a third felony offender: Court sentenced accused for POSSESSION CDS II. POSSESSION CDS III. Court sentenced accused to be committed to the Louisiana Department of Corrections. Accused to serve 10 Year(s). Sentence is to be served at Hard Labor. Sentence is to run concurrent. Sentence is to run consecutive with any other time presently serving. Sentence is also to run consecutive with Count # 3, Firearm Possession by a Felon, in this docket number.

The transcript states in pertinent part, however, “I sentence you as a third felony offender, on the two convictions for the Possession of CDS II, to ten years on each account [sic].” As noted above, when there is a discrepancy, the transcript controls. Accordingly, the trial court is ordered to correct the sentencing minutes to reflect that the court imposed a ten-year sentence on each of Defendant's two drug convictions.

INSUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to connect him with the drugs and gun located in the vehicle he was driving, the drugs located in the backseat of the police unit, or the drugs found in the refrigerator of his girlfriend's house. He contends he had no knowledge of any of the drugs or of the gun.

State v. Miller, 98–1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99–3259 (La.5/5/00), 761 So.2d 541, noted:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); [3 Cir. 5] State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

Additionally, in State v. Ortiz, 96–1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998), the Louisiana Supreme Court stated:

When circumstantial evidence is used to prove the commission of the offense, La.R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction; all evidence, both direct and circumstantial must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142 (La.1985).

Defendant was convicted of illegally possessing cocaine, a Schedule II drug, and hydrocodone, a Schedule III drug. La.R.S. 40:964. Louisiana Revised Statutes 40:967(C) provides, in pertinent part, that “[i]t is unlawful for any person knowingly or...