State v. Mourra

• Decision Date: 29 August 2006
• Docket Number: No. 06-KA-133.,06-KA-133.
• Citation: 940 So.2d 29
• Parties: STATE of Louisiana v. Salvador MOURRA.
• Court: Court of Appeal of Louisiana — District of US

940 So.2d 29

STATE of Louisiana v. Salvador MOURRA.

No. 06-KA-133.

Court of Appeal of Louisiana, Fifth Circuit.

August 29, 2006.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Provino C. Mosca, Attorney at Law, Harahan, Louisiana, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and JAMES C. GULOTTA, Judge, Pro Tempore.

JAMES C. GULOTTA, Judge, Pro Tempore.

The Defendant, Salvador Mourra, appeals from his guilty plea to attempted possession of a firearm by a convicted felon and his sentence to imprisonment at hard labor for five years. We affirm.

On July 22, 2005, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1.¹ The Defendant was arraigned on July 25, 2005 and pled not guilty. On January 20, 2006, the trial court denied the Defendant's motion to quash the bill of information.

On that same date, the state amended the bill of information reducing the charge to attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and 14:95.1. Because the Defendant pled guilty, there are no facts in the record other than those found in the probable cause affidavit and the bill of information. The affidavit indicates that on May 6, 2005, probation and parole conducted a residence check of the Defendant. A random drug test was administered and he tested positive for cocaine. A search of the residence revealed sixteen firearms and body armor. Defendant was arrested after the officer determined that he was a convicted felon. The bill of information states that, on May 6, 2005, the Defendant was found in possession of a firearm, having been previously convicted of the crime of aggravated flight from an officer, an enumerated crime of violence in La. R.S. 14:2(13)(oo).

After the bill of information was amended to the reduced charge, the Defendant withdrew his plea of not guilty and pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court's denial of the motion to quash. The trial court subsequently sentenced the Defendant to imprisonment at hard labor for five years to run concurrently with an earlier probation revocation.

ASSIGNMENT OF ERROR NUMBER ONE

In Defendant's sole assignment of error, he argues the trial judge erred in denying his motion to quash the bill of information. Mourra contends the State should not have charged him with a violation of La. R.S. 14:95.1, because his commission of the underlying felony, aggravated flight from an officer. La. R.S. 14:2(13) in 1999, was not classified as a crime of violence. The Defendant argues that the 2003 amendment to La. R.S. 14:2(13) making the crime of aggravated flight from an officer a crime of violence should not apply to him now because it constitutes retroactive application that violates his ex post facto rights.

The State responds that there is no ex post facto violation in this case, citing State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, and State v. Girod, 04-854 (La.App. 5th Cir.12/28/04), 892 So.2d 646, writ denied, 2005-0597 (La.6/3/05), 903 So.2d 455 in support of its position. The State argues that the amendment to La. R.S. 14:2(13) is not being applied retroactively in this case. The amendment was effective before the Defendant committed the acts that subjected him to the instant charge. The crime defined by La. R.S. 14:95.1, at the time the Defendant committed the offense, included the act of possessing a firearm by a person who had been convicted of aggravated flight from an officer. Moreover, the amendment to La. R.S. 14:2(13) did not redefine the crime or increase the penalty of La. R.S. 14:108.1(C), aggravated flight from an officer.

In the instant case, the Defendant was charged with violating La. R.S. 14:95.1 which provided, at the time the offense was committed, May 6, 2005, that, "[i]t is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(13) which is a felony ... or any crime defined as an attempt to commit one of the above-enumerated offenses ... to possess a firearm or carry a concealed weapon."² On May 6, 2005, La. R.S. 14:2(13), defining and enumerating "crimes of violence," listed "Aggravated flight from an officer."

Historically, when paragraph 13 was added to La. R.S. 14:2 in 1992, defining the term "crime of violence" and delineating certain offenses as crimes of violence, aggravated flight from an officer was not included. La. Acts 1992, No. 1015, § 1. The crime of aggravated flight from an officer was included in that list of violent crimes in 2003 when La. R.S. 14:2(13) was amended by La. Acts 2003, No. 637, § 1, effective August 15, 2003. The Defendant committed the offense of aggravated flight from an officer prior to the amendment but pled guilty to it after the amendment. More importantly, when the Defendant committed the instant offense of possessing a firearm by a convicted felon, the crime of aggravated flight from an officer for which the Defendant had been previously convicted was an enumerated crime of violence.

Art. I, § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272, 1280. The U.S. Supreme Court recently commented on the Ex Post Facto Clause in Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), as follows:

The Clause provides simply that "no State shall ... pass any ... ex post facto Law." Art. I, § 10, cl. 1. The most well-known and oft-repeated explanation of the scope of the Clauses's protection was given by Justice Chase, who long ago identified, in dictum, four types of laws to which the Clause extends:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder v. Bull, 3 Dallas [U.S.] 386, 390, (1798) (seriatim opinion of Chase, J.)

See also: California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Collins v. Youngblood, 497 U.S. 37, 41-42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).

In State v. Everett, 00-2998 (La.5/14/02) 816 So.2d 1272, the Court stated that the focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams, 00-1725 (La.11/29/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). In analyzing the ex post facto implications of the Habitual Offender Law in Everett, the Court noted that "the relevant `offense' is the current crime, not the predicate crime." State v. Rolen, 95-0347, p. 3 (La.9/15/95), 662 So.2d 446, 448 (quoting United States. v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994)). Further, the Louisiana Supreme Court recently, in State v. Sugasti 01-3407 (La.6/21/02), 820 So.2d 518, reiterated that it has consistently been held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Wright, 384 So.2d 399, 401 (La.1980).

While the Defendant is correct that, when he committed the offense of aggravated flight from an officer, the offense was not defined as a crime of violence, his argument overlooks the fact that the applicable law is that in effect at the time of the commission of the current offense and not the predicate crime. State v. Rolen, supra. The 2003 amendment to La. R.S. 14:2(13), delineated the offense of aggravated flight from an officer as a crime of violence. In doing so, the Legislature brought the offense within the criminal prescription set out in La. R.S. 14:95.1, making it unlawful for persons convicted of certain felonies, including aggravated flight from an officer, to possess a firearm. We note that criminal conduct was not redefined and the penalty by which the crime was punishable was not increased. Moreover, at the time of the offense, the amendment was effective and the conduct defined as criminal was clear.

In cases similar to the instant one, both the Supreme Court, in State v. Everett, supra, and this Court, in State v. Girod, supra, applied the same reasoning in finding no ex post facto violations where the changes in the statutes were effective before the defendants committed their latest offenses.

In Everett, the Court considered the ex post facto implications of an amendment to the Habitual Offender Law, La. R.S. 15:529.1. In 1995, the Habitual Offender statute was amended to increase the five year applicability period, for abating the collateral consequences of prior convictions for any future violations of the statute, to ten years. In finding no ex post facto violation, the Court noted:

The 1995 amendment did not redefine criminal conduct or increase the punishment after defendant committed the underlying offense, the only relevant crime for purposes of ex post facto analysis. At the time defendant committed the underlying offense on September 5, 1998, he had been placed on notice by the State that the period of applicability of the Habitual Offender Law had changed and that he could no longer rely on the former five-year period of...