State v. Thompson
State v. Thompson
Opinion of the Court
hThe defendant, Charles Ray Thompson, Jr., was charged by felony bill of information with two, counts of distribution of a Schedule II controlled dangerous substance (“CDS”) (cocaine), violations of La. R.S. 40:967(A)(1) (counts 2 and 3); posses
li>The State subsequently filed a habitual offender bill of information, listing five predicate offenses.
FACTS
Pursuant to an undercover investigation on September 25, 2014, St. Tammany Par
St. Tammany Parish Sheriffs Office Detective Bill Johnson assisted Detective Boynton with execution of the search warrant on the defendant’s | ¡¡residence. He testified to the seizure of various potential drug-related items including: razor blades; a digital scale; a Pyrex measuring cup containing white residue; boxes of baking soda; an empty box of sandwich baggies; and a ceramic bowl containing a metal whisk and a “cloudy liquid.” Alprazolam tablets, as well as crack and powder cocaine, were also confiscated. Detective Johnson testified to finding and removing a loaded .9 millimeter pistol from underneath the mattress in the master bedroom and a .45 caliber pistol magazine from the inside of a purse located in the kitchen.
After the search was conducted, the defendant provided a handwritten statement to the St. Tammany Parish Sheriffs Office, wherein he took full responsibility for the “guns and drugs” found, inside of his home. At trial, the defendant testified and claimed that he sold the cocaine in September and November of 2014 in order to help the Drug Enforcement Administration (“DEA”) catch a “big fish.” Contrary to the defendant’s assertion, DEA Agent Jeraid Crow testified that although the defendant was involved as a confidential informant for the DEA in the past, he was terminated as such in July 2014 after an arrest.
HABITUAL OFFENDER ADJUDICATION
In his first assignment of error, the defendant argues that the district court erred in failing to make an adjudication on the habitual offender bill of information prior to sentencing the defendant. In support of his argument, the defendant cites La.- R.S. 15:529.1(D), which provides in part:
(2) Following a contradictory hearing, the court shall find that the defendant is:
(a) A second offender[,] upon proof of a prior felony conviction.
(b) A third offender, upon proof of two prior felony convictions.
(c) A fourth offender, upon proof of three or more prior felony convictions.
|⅛(3) When the judge finds that.he has been convicted of a prior felony or felonies, or. if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling.
The defendant concludes that Section 15:529.1 “requires the trial court [to] make a finding as to whether an offender is a second, third, or fourth felony offender prior to imposing sentence.” In support of his position, the defendant cites State v. Jones, 516 So.2d 396 (La.App. 5th Cir. 1987) and State v. Olivieri, 2003-0563 (La. App. 5th Cir. 10/28/03), 860 So.2d 207.
In Jones, the court concluded that the district court erred in finding that the defendant had been properly “Boykin-ized”
In Olivieri, the district court judge failed to specify that the defendant was a third felony offender. Rather, the judge stated, “the Court concludes that the State has met its burden of establishing that the Defendant is a Multiple Offender pursuant |Rto La. R.S. 15:529.1 and should be sentenced accordingly.” Citing Jones, the court concluded that because the district court judge failed to specify that the defendant was a third-felony offender, the sentence was defective since it was not determinate. The court vacated the sentence and remanded the case for a determination of the number of felonies proven by the State and for resentencing following that determination. Olivieri, 860 So.2d at 219.
In the instant case, at the conclusion of the habitual offender hearing, the district court stated:
Under the provisions of 15:529.1(3)(b), the Court finds that the appropriate penalty for [the defendant] is imprisonment for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.
The Court will, therefore, vacate the sentence imposed in Count 2 of docket number 559308 and sentence [the defendant] to’ serve a period of the remainder of his natural' life without benefit of parole, probation or suspension of sentence.6
The instant case is distinguishable from both Jones and. Olivieri. In Jones, the district court “made no determination” whether the defendant was a second or third-felony offender. Similarly, in Olivi-eri, the district court simply stated that it was sentencing the defendant ■ under “ 15:529.1 ” without specifying whether 'the defendant was being sentenced as a second or third-felony offender. In contrast, the district court in the instant case clearly stated that it was sentencing the defendant “[u]nder the provisions of 15:529.1 (3)(b),” which provide sentencing guidelines for third-felony offenders with certain predicates. Moreover, a district court’s “mere failure to state that a defendant is found to be a habitual offender is not cause for reversal where the [district court] clearly intends to sentence the defendant as a habitual |fioffender.” State v. O’Conner, 2011-1696 (La.App. 1st Cir. 9/21/12), 2012 WL 4335425, n.13 (unpublished), writ denied, 2012-2163 (La. 4/1/13), 110 So.3d 138
This assignment of error is without merit'.
EXCESSIVE SENTENCE
In his second assignment of error, the defendant argues that the sentence of life imprisonment imposed by the district court is excessive. Specifically, the defendant contends that he is only thirty-four years old and has a history of “primarily non-violent drug offenses.”
The defendant filed a motion to reconsider sentence after the district court imposed the original sentences. However, a thorough review of the record indicates the defendant did not make or file a second motion to reconsider sentence after the original sentence on count 2 was vacated and the new life sentence was imposed at the habitual offender hearing. Under La. Code Crim. P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So.2d 1059, 1059-1060 (La. 1993) (per curiam). The defendant, therefore, is procedurally barred from having this assignment of error reviewed, since he failed to file a new motion to reconsider sentence after the district court resentenced him as a habitual offender. See State v. Emerson, 2004-0156 (La.App. 1st Cir. 10/29/04), 888 So.2d 975, 979-80, writ denied, 2005-0089 (La. 4/22/05), 899 So.2d 557; State v. Chi-solm, 99-1055 (La.App. 4th Cir. 9/27/00), 771 So.2d 205, 212, writs denied, 2000-2965, 2000-3077 (La. 9/28/01), 798 So.2d 106,108.
|7This assignment of error is without merit.
REVIEW FOR ERROR
On count 2, the defendant was sentenced to a term of life imprisonment without the benefit of parole, probation, or suspension of sentence. In reviewing the record for error pursuant to La. Code Crim. P. art. 920(2), we have discovered that the district court failed to order that the defendant’s sentence on count 2 be served at hard labor. See La. R.S. 40:967(B)(4)(b) and La. R.S. 15:529.1(G).
Louisiana Revised Statutes 40:967(B)(4)(b), provides, in pertinent part,
On count 6, the defendant was sentenced to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. In addition to the sentencing provisions provided for in La. R.S. 14:95.1(B), the statute mandates that a person convicted “be fined not less than one thousand dollars nor more than five thousand dollars.” The sentencing transcript indicates that the district court failed to impose the mandatory fine. The minutes also reflect that no fine was imposed. Accordingly, the defendant’s sentence, which did not include the fine, is illegally lenient. However, because the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See Price, 952 So.2d at 123-125.
CONVICTIONS ON ALL COUNTS AND HABITUAL OFFENDER ADJUDICATION ON COUNT 2 AFFIRMED; SENTENCES ON COUNTS 3, 4, 5, AND 6 AFFIRMED; SENTENCE ON COUNT 2 AMENDED, AND AS AMENDED, AFFIRMED.
. For purposes of count 6, the defendant's predicate conviction was his May 6, 2009 conviction for possession of a Schedule II CDS (cocaine), under 22nd Judicial District Court ("JDC”), Parish of St. Tammany, dock- ' et number 434328.
. The defendant was also charged with distribution of a Schedule II CDS (cocaine) (count 1); possession of marijuana (third offense) (count 7); and operation of a clandestine laboratory (count 8), but those counts were nolle prossed by the State.
. The transcript reflects that the minute clerk did not read the verdict related to the defendant’s charge for possession with intent to distribute a CDS (cocaine). However, both the minutes and the verdict forms confirm that the jury found the defendant guilty of that offense.
. The predicate offenses listed on the habitual offender bill of information include: (1) Janu-aiy 28, 2012 conviction for possession of marijuana (second offense), a violation of La. R.S. 14:966(D)(2), under 22nd JDC, Parish of St. Tammany, docket number 342638; (2) Janu-aiy 28, 2012 conviction for possession of marijuana (second offense), a violation of La. R.S. 14:966(D)(2), under 22nd JDC, Parish of St. Tammany, docket number 338541; (3) May 6, 2009 conviction for distribution of a Schedule II CDS, a violation of La. R.S. 40:967(A)(1), under 22nd JDC, Parish of St. Tammany, docket number 434328; (4) March 27, 2000 conviction for illegal discharge of a weapon, a violation of La. R.S. 14:94, under 22nd'JDC, Parish of St Tammany, . docket number 310920; and (5) May 1, 2015 conviction for possession of a Schedule II CDS (cocaine in an amount of twenty-eight grams or more, but less than two hundred grams), a violation of La. R.S. 40:967(F)(l)(a), under 14th JDC, Parish of Calcasieu, docket number 17040-13.
. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).
. We note that the correct citation is La. R.S. 15:529.1(A)(3)(b), not “15:529,l(3)(b).” However, it is still clear that the district court intended to sentence the defendant as a third-felony habitual offender because Section ■ 15:529.1(A) is the only section of the statute containing a "(3)(b)” subsection. Moreover, although the minutes indicate that the defendant was found to be a fourth-felony habitual offender, when there is a discrepancy between the minutes and the ■ transcript, the transcript prevails. See State v. Lynch; 441 So.2d 732, 734 (La, 1983).
. Any sentence imposed concerning second and subsequent offenses under the provisions of the Habitual Offender Law "shall be served at hard labor.” See La. R.S. 15:529,1(G).
. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882(A).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.