State v. Williams
| Decision Date | 24 August 2016 |
| Docket Number | No. 16–KA–32.,16–KA–32. |
| Citation | 199 So.3d 1205 |
| Parties | STATE of Louisiana v. Kerwin WILLIAMS. |
| Court | Court of Appeal of Louisiana — District of US |
Paul D. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark, for Plaintiff/Appellee, State of Louisiana.
Margaret S. Sollars, for Defendant/Appellant, Kerwin Williams.
Panel composed of SUSAN M. CHEHARDY, MARC E. JOHNSON, and LEE V. FAULKNER, Jr., Pro Tempore.
, C.J.
Defendant Kerwin Williams appeals his conviction of possession with intent to distribute cocaine and his multiple offender adjudication. For the reasons that follow, we affirm defendant's underlying conviction, his multiple offender adjudication, and his enhanced sentence.
On July 14, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant as a principal to possession with intent to distribute cocaine, a violation La. R.S. 40:967(A)
.1 Defendant entered a plea of not guilty and after waiving his right to trial by jury, proceeded to a bench trial on May 28, 2015. He was found guilty as charged. On June 15, 2015, he was sentenced to ten years at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence. That same day, the State filed a multiple offender bill of information alleging defendant was a second felony offender. Defendant denied the bill's allegations and on July 14, 2015, filed a motion to quash. On July 17, 2015, the court heard and denied this motion. The court adjudicated defendant a second felony offender, vacated his original sentence, and imposed an enhanced sentence of seventeen years at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence.2 Defendant orally moved for an appeal after imposition of sentence. A written motion for appeal followed on July 22, 2015.
It is well established that a defendant may only appeal from a final judgment of conviction when sentence has been imposed. State v. Chapman, 471 So.2d 716 (La.1985)
; State v. London, 316 So.2d 743 (La.1975) ; State v. Moore, 260 La. 299, 256 So.2d 96 (1971) ; La.C.Cr.P. art. 912. After sentence has been imposed, a motion for appeal must be made within the time period specified by La.C.Cr.P. art. 914. Under this article, unless a motion to reconsider is filed, a motion for appeal must be made, whether orally or in writing, no later than “thirty days after the rendition of the judgment or ruling from which the appeal is taken.” See La.C.Cr.P. art. 914(B). If a defendant fails to move for an appeal within this time, the conviction and sentence become final and the defendant loses the right to obtain an appeal by simply filing a motion for appeal in the trial court. State v. Williams, 12–687 (La.App. 5 Cir. 05/16/13), 119 So.3d 228, 237, writ denied, 13–1335 (La.12/02/13), 126 So.3d 500. To obtain reinstatement of his right to appeal, the defendant must timely file in the trial court an application for post-conviction relief seeking an out-of-time appeal. Id. ; State v. Counterman, 475 So.2d 336 (La.1985).
Here, defendant was convicted on May 28, 2015 and was sentenced on June 15, 2015. He did not file a motion to reconsider sentence. Under La.C.Cr.P. art. 914(B)(1)
, he had thirty days from his date of sentencing, or until July 15, 2015, to appeal his conviction and sentence. Defendant did not move for an appeal until July 17, 2015, when he did so orally, after having been adjudicated and sentenced as a second felony offender. Additionally, it is not clear from that oral appeal whether defendant intended to appeal his underlying conviction3 or only his multiple offender adjudication and sentence. It was not until July 22, 2015, in his written motion for appeal, that defendant expressly sought review of “his conviction and sentence that was handed down on June 15, 2015[.]”
As the foregoing demonstrates, defendant did not timely appeal his underlying conviction. On the other hand, defendant timely appealed his multiple offender adjudication and sentence. As a result, defendant's first assignment of error, which relates to his underlying conviction, is not properly before us, though his second assignment of error is, since it relates to his multiple offender adjudication. Under these circumstances, while we could address defendant's second assignment of error, dismiss the appeal in part with respect to his first assignment of error, and instruct defendant to obtain reinstatement of his right to appeal his underlying conviction, 4 this would only result in piecemeal litigation and would further delay defendant's right to appellate review. Consequently, in the interests of judicial economy and equity, we will consider both assignments of error in this opinion. See State v. S.J.I., 06–2649 (La.6/22/07), 959 So.2d 483
.
On June 19, 2014, Detective David Dalton and Detective Jeffrey Reynolds of the Jefferson Parish Sheriff's Office were conducting a proactive patrol in Bridge City in Jefferson Parish. The officers were in an unmarked police vehicle patrolling 4th Street, an area of high crime and narcotics trafficking where previous arrests had been made. Around 8:30 p.m. the officers observed a silver Pontiac Grand Prix parked in front of an abandoned building, a location reputed for narcotics distribution. Although it was dark, the scene was illuminated by street lamps and lights from nearby homes. The officers parked their vehicle and began surveillance. They observed three occupants in the Pontiac: a black male driver, a black male front passenger, and a black male rear passenger. During the officers' surveillance, the rear passenger exited the vehicle and approached two individuals in the driveway of the abandoned building. The officers observed what appeared to be a hand-to-hand narcotics transaction when the rear passenger handed each individual an object in exchange for cash.
While this transaction was occurring, the Pontiac drove down to the dead end of 4th Street, U-turned, and came back, parking at a distance from the transaction, but approximately one car's length in front of the officers. Through their untinted windshield, both officers were able to see the driver's face through the Pontiac's untinted windshield.
After completing the transaction, the rear passenger summoned the Pontiac with a hand signal. The vehicle proceeded up the street, the passenger climbed in, and it departed the scene. The officers followed. When the Pontiac ran a stop sign, the officers activated their lights and sirens to initiate a traffic stop. But the Pontiac accelerated and fled, so the officers gave chase. During this pursuit, the rear passenger discarded from the rear window clear plastic bags containing a white rock-like substance.
The Pontiac eventually came to a stop and the three occupants fled on foot. Detective Dalton identified himself as law enforcement and ordered the men to stop, but they continued to flee. He followed on foot, while Detective Reynolds remained with the Pontiac. Detective Dalton apprehended the rear passenger, but the driver and front passenger escaped. The rear passenger, who had engaged in the hand-to-hand narcotics transaction, was advised of his rights, placed under arrest, and searched incident to that arrest. He was identified as co-defendant Torrian Veal. A white rock-like substance, 241 dollars, and two cell phones were located in his pockets. Detective Dalton also recovered the plastic bags that Mr. Veal had discarded from the Pontiac. These bags contained several pieces of the white rock-like substance. These substances seized from Mr. Veal's person and the roadway later tested positive for cocaine.
Meanwhile, Detective Reynolds observed in plain view inside the Pontiac a white rock-like substance on the rear seat where Mr. Veal had been sitting. This subsequently tested positive for cocaine. Detective Reynolds further located three cell phones outside the passenger side of the vehicle. After Detective Dalton advised Detective Reynolds via radio that he had apprehended the rear passenger and found in his possession what he suspected to be contraband, Detective Reynolds conducted a search of the Pontiac. He located two traffic tickets behind the visor of the driver's seat. These tickets were dated June 15, 2014 and had been issued to Kerwin Williams, defendant.
Approximately six days later, the officers contacted the owner of the Pontiac, who was not defendant. The owner explained that she had loaned the car to someone nicknamed “Homie” who left traffic tickets inside the car. Based on this information, the officers ran an NCIC check of the name on the traffic tickets. This revealed that defendant was on parole for a previous narcotics offense. Detective Dalton contacted defendant's parole officer who later located defendant. Defendant was brought to the detective bureau, and upon coming into contact with him, both Detective Dalton and Detective Reynolds immediately recognized defendant as the driver of the Pontiac. At this point, defendant was advised of his rights and placed under arrest. At trial, Detective Dalton and Detective Reynolds both identified defendant as the driver of the Pontiac on the evening of June 19, 2014.
The State and defense also made the following stipulations at trial: if called, Michael Cole would be qualified as an expert in the field of forensic science, specifically with regard to the analysis and comparison of narcotics, including marijuana and cocaine; Mr. Cole examined items as reflected in his report that was prepared in connection with this case; and Mr. Cole would offer opinions consistent with his report. The State and defense further stipulated to the introduction of Mr. Cole's report, which reflected that the substances contained in four plastic bags tested positive for cocaine and the substance contained in one plastic bag tested positive for marijuana.
On appeal, defendant raises two assignments of...
To continue reading
Request your trial
-
State v. Brown
...intentional possession of the substance [and] (2) with specific intent to distribute it." Id. at 295(citing State v. Williams , 16-32 (La.App. 5 Cir. 8/24/16), 199 So.3d 1205, 1212 ); Bell , 178 So.3d at 240 (citing La. R.S. 40:967(A) ; State v. Snavely, 99-1223 (La. App. 5 Cir. 4/12/00), 7......
-
State v. Lloyd
...denied , 21-100 (La. 4/27/21), 314 So.3d 836. Actual possession amounts to physical custody of the object. State v. Williams , 16-32 (La. App. 5 Cir. 8/24/16), 199 So.3d 1205, 1212. Constructive possession is when the object is not in the person's physical custody but is under his dominion ......
-
State v. Taylor
...(1) a knowing and intentional possession of the substance (2) with a specific intent to distribute it. State v. Williams , 16–32 (La.App. 5 Cir. 8/24/16), 199 So.3d 1205, 1212. Thus, "specific intent is required to commit the crime to possess cocaine with intent to distribute." State v. Elz......
-
Marsh v. Goodwin
...did not file a direct appeal, his conviction became final thirty days later, on September 6, 2018. See State v. Williams, 16-32 (La. App. 5 Cir. 8/24/16), 199 So. 3d 1205, 1209 ("It iswell established that a defendant may only appeal from a final judgment of conviction when sentence has bee......