State v. Evans
| Decision Date | 29 December 2009 |
| Docket Number | No. 09-KA-477.,09-KA-477. |
| Citation | 30 So.3d 958 |
| Parties | STATE of Louisiana v. Majuangy D. EVANS. |
| Court | Court of Appeal of Louisiana — District of US |
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
Gwendolyn K. Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant, Majuangy D. Evans.
Majuangy D. Evans, Kinder, LA, Defendant/Appellant, In Proper Person.
Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
This is the second appeal in this matter. The defendant has filed briefs both through counsel and pro se. In the brief by counsel, the defendant seeks review of his sentence as excessive. In the pro se supplemental brief, the defendant argues ineffective assistance of counsel, and also raises search and seizure issues. We affirm the sentence, but remand for correction of patent errors.
The facts of the arrest are taken from the record in the first appeal, 02-KA-1108 lodged in this Court as an exhibit to the record in the current appeal. On March 7, 2001, Jefferson Parish Sheriff's Office narcotics detectives Frank Horn and John Pacaccio executed a search warrant at 3725 Marian Street, Apartment # 5, in Jefferson Parish. The warrant was based on statements of an informant who had made a purchase of crack cocaine from a white female's residence. Agent Horn learned that the resident participated in sales of cocaine with a black male who came to the house regularly to sell crack. The informant had observed a black male cutting up crack cocaine in the residence at the time of the purchase.
The agents approached the apartment, knocked on the door, and announced their presence, but did not receive an answer. The front door of the residence was barricaded. The police used a ram to open the door, but it only formed a hole in the door. Agent Pacaccio looked through the hole in the door, using his flashlight, and saw a white female. He ordered her to remove the barricade, which was a metal pipe, and she complied. He also saw a black male (later identified as Majuangy D. Evans, the defendant) run from the front room to the bathroom. The resident, her ex-husband, and her two children also were in the residence.
Upon entry Agent Pacaccio went to the bathroom, where he saw the defendant. Agent Horn testified that the toilet seat was up and a coat hanger was "kind of hanging on the toilet." There was toilet paper in the toilet and it looked as if it had been stirred with the coat hanger. There was no water in the tank of the toilet and the water had been turned off, so the toilet could not flush.
Agent Horn removed the toilet from the floor, turned it upside down, and shook it. When he did this, a bag containing rocks of cocaine fell out. The defendant was the only one in the bathroom when the agents entered the residence. One of the defendant's arms was wet. Agent Horn believed he had been reaching into the toilet.
The police seized the plastic bag that had fallen out of the toilet. It contained numerous off-white colored rocks individually packaged into "baggies." These later were determined to be crack cocaine that belonged to the defendant. Police also recovered $380 from the defendant's pocket, in small denominations. The defendant, who was visiting the apartment, was arrested.
On August 28, 2001, Majuangy D. Evans was convicted of violation of La. R.S. 40:967(A), possession of cocaine with intent to distribute. On October 11, 2001, he was sentenced to imprisonment at hard labor for 30 years, without benefit of parole, probation or suspension of sentence. On the same date he was adjudicated a second-felony offender, his original sentence was vacated, and he was resentenced to 45 years' imprisonment at hard labor without benefit of probation or suspension of sentence.
On appeal this Court affirmed the conviction, but remanded the case to the trial court for rulings on the defendant's motions to reconsider sentence.1 State v. Evans, 02-1108, p. 2 (La.App. 5 Cir. 3/11/03), 844 So.2d 111, 112. We held that after disposition of the motions to reconsider, the defendant was authorized to re-lodge his appeal within a specified time. Evans, 02-1108 at 2-3, 844 So.2d at 112-13.
On remand, the trial court denied both motions to reconsider sentence. Thereafter the trial court resentenced the defendant to 45 years' imprisonment at hard labor, with the first five years to be served without benefits.2
The defendant filed a motion to appeal his sentence in this Court, arguing that his 45-year sentence was excessive. His motion was docketed as a pro se post-conviction writ application, which was denied on a finding that the defendant had failed to raise the claim in his previous appeal. State v. Evans, 03-KH-660 (La.App. 5 Cir. 6/12/03). On August 26, 2008, the defendant filed a writ application with the Louisiana Supreme Court, which transferred it to this Court on October 18, 2008, with instructions to consider it under State v. Cordero, XXXX-XXXX (La.10/03/08), 993 So.2d 203.
The transferred application was lodged in this Court under case number 08-KH-651, consolidated with number 08-WR-1001. We ordered that the defendant's motion for appeal, previously treated as a pro se writ application in case number 03-KH-660, be transferred to the district court. We instructed the trial court to grant the defendant's Motion for Appeal of Sentence, to prepare the record for lodging in this Court, to appoint an attorney to represent the defendant, and to perform "any other actions that normally occur when an appeal is granted" within a specified time.3 The trial court granted the defendant's Motion for Appeal of Sentence on December 15, 2008.
As mentioned above, the appeal has been briefed by counsel, with a supplemental brief by the defendant pro se. The counseled assignments relate to excessive sentence and whether the trial judge complied with the sentencing mandates. The pro se assignments relate to ineffective assistance of counsel at trial and on the first appeal, and to search and seizure.
The assignments of error as briefed by counsel are as follows:
In these assignments, the defendant asserts the trial court erred by imposing an excessive sentence, and by failing to comply with the sentencing mandates of La. C. Cr. P. art. 894.1.
At the May 15, 2003 hearing on remand, the prosecutor advised the trial court that the case had been remanded for a ruling on two motions to reconsider sentence.4 Defense counsel asked the court to "take note" of the record and consider the excessiveness of the 45-year sentence. Thereafter, the trial court ruled on the motions and stated,
The prosecutor then stated, "And Judge, at this time, the state would ask you now to re-sentence him on the original 45 years, and I believe the Fifth Circuit also indicated that to clarify the record, the first five years is without benefit of probation, parole or suspension of sentence."
Without setting aside the original enhanced sentence, the trial judge resentenced the defendant to 45 years imprisonment at hard labor, with the first five years to be served without benefits.
According to this Court's directive on the first appeal, the trial court was supposed to rule only on the two motions to reconsider sentence. Our opinion did not instruct the trial court to resentence the defendant as a multiple offender, but merely noted a patent sentencing error that it was premature to address on the first appeal.
Had the trial court granted the motions to reconsider, it would have had to resentence the defendant. The trial court denied the motions, however. On the first appeal the defendant argued only that there were errors patent on the face of the record. He specifically assigned as error the failure of the trial judge to rule on the motion to reconsider sentence. The defendant did not raise excessive sentence or compliance with La. C. Cr. P. art. 894.1 on the first appeal. The defendant argues that his sentence is excessive and that the record does not contain evidence warranting a maximum sentence for his underlying conviction. He contends that the judge focused on the war on drugs and the hazards drugs bring before concluding he had no choice in the matter but to give him the maximum sentence.
The defendant argues that the trial court failed to articulate its reasons for the sentence imposed, and that the record does not indicate a rationale for the court's harshness. He concludes the court failed to comply with the sentencing mandate of La. C. Cr. P. art. 894.1. The defendant contends the judge did not mention other factors under the sentencing guidelines other than the consideration of the defendant's criminal history, which included repeated drug offenses. The defendant asserts that having a drug addiction should not have been a factor that warranted a harsher prison term, and he contends the sentence was not particularized to him.
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