State v. Ross

• Decision Date: 21 December 2016
• Docket Number: NO. 2015–KA–1113,2015–KA–1113
• Parties: STATE of Louisiana v. Francis X. ROSS, Jr.
• Court: Court of Appeal of Louisiana — District of US

207 So.3d 511

STATE of Louisiana

v.Francis X. ROSS, Jr.

NO. 2015–KA–1113

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 21, 2016

Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals, Mithun Kamath, Assistant District Attorneys, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Sherry Watters, Louisiana Appellate Project, P.O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Paul A. Bonin, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )

PAUL A. BONIN, JUDGE

Francis Ross is appealing his convictions for possession of carisoprodol and for possession of cocaine. These are his fourth and fifth felony convictions for violating the Controlled Dangerous Substances Law. All of his felony convictions were for simple possession of an illegal substance. Until his most recent convictions, Mr. Ross had always been sentenced to probation and in each instance had satisfactorily completed probation.

Now, however, after adjudication as a quadruple felony offender under the Habitual Offender Law and despite never having been incarcerated for any of his non-violent offenses, Mr. Ross has been sentenced to two concurrent terms of twenty years imprisonment at hard labor, which is to be served without the benefit of parole, probation, or suspension of sentence.

He argues on appeal that the trial judge erroneously admitted evidence of a misdemeanor offense of possession of marijuana and that the trial judge erroneously failed to declare a mistrial when the prosecutor in his opening statement violated her in limine ruling. We have reviewed the rulings under an abuse-of-discretion standard and conclude that the trial judge did not abuse her discretion. Consequently, we affirm Mr. Ross' convictions.¹

He further argues on appeal that the prosecution's delay in filing the multiple bill against him until after he was eligible for release from incarceration on the underlying sentences was illegal and, moreover, that the prosecution failed to prove the allegations of the multiple bill beyond a reasonable doubt. Again, we have reviewed these arguments under an abuse-of-discretion standard and have detected no misapplication of law or of fact. Accordingly, we conclude that the trial judge correctly determined that Mr. Ross was subject to sentencing as a fourth felony offender.

But Mr. Ross' final argument, the only one asserted by his appellate counsel rather than himself, is that the sentences imposed violate Louisiana's constitutional protection against excessive sentences. And on this point we agree that the two concurrent sentences exceed that which could be constitutionally imposed upon Mr. Ross because such sentences are not meaningfully tailored to Mr. Ross' culpability, the gravity of his offenses, and the circumstances of this case, especially in the absence of any previous period of incarceration. Consequently, we vacate his sentences and remand to the sentencing judge for her to conduct an evidentiary hearing and impose lesser sentences which are not excessive.

We explain our decision in greater detail in the following Parts.

I

We first set out the relevant facts and procedural history. Briefly, Mr. Ross was pulled over in Orleans Parish for riding on a moped without a helmet. When officers discovered he had outstanding warrants in Jefferson Parish, they arrested him, searched his person, and discovered several controlled illicit substances—marijuana, carisoprodol (Soma), and cocaine. See State v. Ross , 13–0500 (La.App. 4 Cir. 3/26/14), 137 So.3d 759 (" Ross I ") for an in-depth discussion of the facts. The prosecution charged Mr. Ross in three counts by bill of information: in Count 1 with possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A)(1) ; in Count 2 with possession with intent to distribute alprazolam, a violation of La. R.S. 40:969(A)(1) ; and in Count 3 with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A)(1). All three counts were subsequently amended to charge in Count 1, possession of marijuana, a violation of La. R.S. 40:966(E)(1) ; in Count 2, possession of carisoprodol (Soma), a violation of La. R.S. 40:969(C)(2) ; and in Count 3, possession of cocaine, a violation of La. R.S. 40:967(C)(2).

Defendant pleaded not guilty to all counts at his June 20, 2012, arraignment. On January 7 and 9, 2013, defendant was tried by the court as to the misdemeanor Count 1 and by a six-person jury as to Counts 2 and 3. He was found guilty as charged on all counts. Subsequently, the trial judge denied defendant's motion for a new trial and sentenced him on Count 1 to six months in Orleans Parish Prison and on Counts 2 and 3, respectively, to three years imprisonment at hard labor, to run concurrently with all sentences in the instant case and any other sentence defendant was serving. Defendant was adjudicated a fourth-felony habitual offender as to Counts 2 and 3. The trial judge then vacated the original sentences imposed on those two counts and resentenced defendant to serve thirty years at hard labor on each count, without the benefit of parole, probation, or suspension of sentence, both sentences to run concurrently.

Mr. Ross appealed to this court. We affirmed his conviction as to Count 1, for possession of marijuana, but reversed the convictions as to Counts 2 and 3, for possession of carisoprodol and possession of cocaine, respectively (due to trial court error in denying defendant the right to backstrike) and remanded the case for a new trial. See Ross I , writ denied, 14–0886 (La. 11/14/14), 152 So.3d 880. Defendant's retrial on Counts 2 and 3 was held on June 3, 2015, and he again was found guilty as charged on both counts by a six-person jury. The trial judge sentenced Mr. Ross to three years at hard labor on each count, with the sentences to run concurrently. The prosecution subsequently filed a habitual offender bill of information and the trial judge again adjudicated defendant a fourth-felony offender. Later, after having heard testimony from two of defendant's sisters, the trial judge denied defendant's motion for downward departure from the mandatory minimum sentence as a fourth-felony habitual offender, and sentenced Mr. Ross to the mandatory minimum sentence of twenty years at hard labor without benefit of probation or suspension of sentence on both counts, with the sentences to run concurrently. The trial court denied defendant's oral and written motions to reconsider sentence that date and Mr. Ross again sought appellate review.

II

We begin by addressing Mr. Ross' uncounseled claims that allege error during the course of trial. He specifically attacks two of the trial judge's rulings. He first argues that the trial judge erred by ruling other crimes evidence admissible. Prior to trial, the prosecution submitted a Prieur notice, containing its intent to introduce evidence of Mr. Ross' prior misdemeanor conviction for marijuana, which we affirmed in Ross I . The prosecution argued that evidence of this prior conviction was relevant to demonstrate intent and absence of mistake because the marijuana seized in connection with the instant conviction was found in the same plastic bag as the carisoprodol and cocaine. The trial judge denied the defense motion to exclude the prior conviction and ruled the evidence admissible.

He next asserts that the trial judge erred by denying his motion for mistrial based on the prosecutor's improper opening statement. After our original opinion remanded this matter for a retrial, Mr. Ross filed a motion in limine to bar the prosecution from introducing evidence of his prior trial and guilty verdicts, which we reversed in Ross I . The trial judge granted the motion in limine . During opening statements, however, the prosecutor stated:

"[B]ut something else y'all will also hear is that this case had been tried before and the marijuana...." Defense counsel objected and then moved for a mistrial, which the trial judge denied.

We address each assignment of error in turn.

A

As a general rule, evidence of other crimes to prove a bad character or to show that the defendant acted in conformity therewith is not admissible at trial. See La. C.E. art. 404 B(1); State v. Prieur , 277 So.2d 126, 128 (La. 1973) ; State v. Hunter , 15–0306, p. 12 (La.App. 4 Cir. 9/9/15), 176 So.3d 530, 537. The Louisiana Code of Evidence, however, allows the prosecution to introduce evidence of other crimes or acts if an independent and relevant reason is established, for example as proof of motive, intent, identity, or absence of mistake. See La. C.E. art. 404 B(1). Such evidence should not be admitted unless it tends to prove a material fact at issue or rebuts a defendant's defense, and its probative value must outweigh its prejudicial effect. See La. C.E. art. 403 ; Hunter , 15–0306, p. 12, 176 So.3d at 537. A trial judge's "ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion." State v. Taylor , 16–1124, 16–1183, p. 18 (La. 12/1/16), ––– So.3d ––––, ––––, 2016 WL 7030750.

Here, the prosecution was burdened at trial with proving that, among other things, Mr. Ross knowingly or intentionally possessed the controlled substances. Mr. Ross, however, denied possessing the drugs. The prosecution argued that because the marijuana seized in connection with the instant conviction was found in the same plastic bag as the carisoprodol and cocaine, his possession of marijuana in the same bag as the other drugs demonstrated intent and/or absence of mistake. These reasons are valid grounds for other crimes evidence under La. C.E. art. 404 B(1), and served to rebut Mr. Ross' trial defense. Having reviewed the record in light of Mr. Ross' claims, and the Supreme Court's most recent discussion of the issue in Taylor , we conclude that the trial judge did not abuse her discretion in ruling this...