Opinion
2016 KA 0411
09-19-2016
STATE OF LOUISIANA v. ANTROYNE OSBURN WARREN
Warren L. Montgomery District Attorney and Matthew Caplan Assistant District Attorney Covington, LA Attorneys for Plaintiff/Appellee State of Louisiana Prentice L. White Baton Rouge, LA Attorney for Defendant/Appellant Antroyne Osburn Warren
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 561613 "D" The Honorable Peter J. Garcia, Judge Presiding Warren L. Montgomery
District Attorney
and
Matthew Caplan
Assistant District Attorney
Covington, LA Attorneys for Plaintiff/Appellee
State of Louisiana Prentice L. White
Baton Rouge, LA Attorney for Defendant/Appellant
Antroyne Osburn Warren BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Defendant, Antroyne O. Warren, was charged by bill of information with distribution of a schedule II controlled dangerous substance (cocaine) in a drug-free zone (within two thousand feet of school property), a violation of La. R.S. 40:967(A)(1) and 40:981.3(A)(1). He pled not guilty. Following a jury trial, defendant was found guilty of the responsive offense of distribution of a schedule II controlled dangerous substance (cocaine) without the drug-free-zone enhancement. Thereafter, he filed motions for new trial and postverdict judgment of acquittal, which the trial court denied. The state filed a habitual offender bill of information alleging defendant to be a third-felony habitual offender. After initially denying the contents of the habitual offender bill, defendant later admitted to his status as a third-felony habitual offender. Accordingly, the trial court adjudicated defendant a third-felony habitual offender and sentenced him to twenty years at hard labor, without the benefit of probation or suspension of sentence. Defendant filed a motion to reconsider sentence, which the trial court denied.
"School property" means all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks. La. R.S. 40:981.3(C)(2). In this case, the alleged property was Sam Bosco Park.
The predicate convictions listed in the habitual offender bill of information were as follows: 1) a January 12, 2004, conviction for distribution of a schedule II controlled dangerous substance within one thousand feet of a school under 22nd JDC (St. Tammany Parish) docket number 371728; and 2) convictions on December 5, 2002, for possession of a schedule II controlled dangerous substance under 22nd JDC (St. Tammany Parish) docket number 354875, and for possession of a schedule II controlled dangerous substance and possession of marijuana within one thousand feet of a school under 22nd JDC (St. Tammany Parish) docket numbers 348942/3.
Defendant now appeals, asserting no assignments of error and asking this court to review the record for errors patent. Defense counsel has also filed a motion to withdraw. Having found one sentencing error not requiring a remand for resentencing, we amend defendant's habitual offender sentence. We affirm defendant's conviction, habitual offender adjudication, and habitual offender sentence, as amended. We also grant defense counsel's motion to withdraw.
FACTS
On March 19, 2014, a confidential informant advised St. Tammany Parish Sheriff's Detective Roger Gottardi that a subject known as T'wan would be willing to sell narcotics. The informant called T'wan and arranged to buy powder cocaine and crack cocaine at a McDonald's on Pontchartrain Drive in Slidell. St. Tammany Parish Sheriff's Detective Shane Wilkinson drove the informant to the McDonald's in an unmarked vehicle equipped with an audio recording device. T'wan arrived at the McDonald's and entered the back seat of the unmarked vehicle, at which point he sold $90.00 worth of crack cocaine to Detective Wilkinson and the informant. T'wan then left the McDonald's in his own vehicle. The state presented evidence at trial that this McDonald's was located within two thousand feet of Sam Bosco Park.
Detective Wilkinson testified that T'wan had been unable to procure the powder cocaine.
Detective Gottardi noted the license plate number of T'wan's vehicle as he drove away. Detective Gottardi later learned the vehicle was registered to defendant, and further investigation revealed defendant's phone number to be the same as the one dialed by the confidential informant to set up the transaction. Detective Gottardi then prepared a six-photograph lineup, which he presented to Detective Wilkinson. Using the lineup, Detective Wilkinson identified defendant as T'wan. He reiterated this identification at trial. Defendant was ultimately convicted of distribution of a schedule II controlled dangerous substance without the drug-free-zone enhancement. The trial court later adjudicated defendant a third-felony habitual offender.
ISSUES PRESENTED
The defense brief contains no assignments of error and sets forth that it is filed to conform with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), wherein the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So.2d 528 (La. App. 4th Cir. 1990). Benjamin set forth a procedure to comply with Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), in which the United States Supreme Court discussed how appellate counsel should proceed when, upon conscientious review of a case, counsel finds an appeal would be wholly frivolous. Benjamin has repeatedly been cited with approval by the Louisiana Supreme Court. See Jyles, 704 So.2d at 241; State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam); State v. Royals, 600 So.2d 653 (La. 1992).
Defense counsel has reviewed the procedural history of the case in his brief. He set forth that, after a review of the record in this case, he has found no non-frivolous errors to present on appeal. He noted that there were no pretrial rulings in this case, that the evidence was sufficient to support defendant's conviction, and that there was an adequate basis for the trial court to adjudicate defendant a third-felony habitual offender. Accordingly, defense counsel has requested that this court conduct a review for errors patent under La. Code Crim. P. art. 920. If the court finds no such errors, defense counsel has filed a motion to withdraw, requesting that he be relieved from further briefing.
Defendant was found guilty of distribution of a schedule II controlled dangerous substance (cocaine) following a jury trial. This court has conducted an independent review of the entire record in this matter. Pursuant to this review, we note one sentencing error that can be corrected by this court, without the need for a remand.
Whoever is convicted of distribution of cocaine shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence to be served without benefit of parole, probation, or suspension of sentence. See La. R.S. 40:967(B)(4)(b). As a third-felony habitual offender, defendant's sentencing range was between two-thirds of the longest possible sentence for the conviction (twenty years) and not more than twice the longest possible sentence prescribed for a first conviction (sixty years). See La. R.S. 15:529.1(A)(3)(a). The entirety of any sentence imposed under the Habitual Offender Law shall be at hard labor without benefit of probation or suspension of sentence. See La. R.S. 15:529.1(G). However, Subsection G must also be read in light of State v. Bruins, 407 So.2d 685, 687 (La. 1981), which states that the conditions imposed on a habitual offender sentence are those called for in the reference statute. Accordingly, defendant's habitual offender sentence, which restricted the benefits of suspension of sentence and probation for its duration, should also have restricted the benefit of parole for the first two years of the sentence. Therefore, defendant's sentence is illegally lenient.
This statute also authorizes, but does not mandate, a fine. However, the habitual offender statute does not authorize the imposition of a fine. See State v. Dickerson, 584 So.2d 1140 (La. 1991) (per curiam); State v. Thomas, 2012-0177 (La. App. 1st Cir. 12/28/12), 112 So.3d 875, 879-80.
Though defense counsel's recitation of the procedural history indicates that defendant's sentence did restrict the benefit of parole for the requisite amount of time, our review of the minute entries and transcript does not reflect the same. --------
While we note this illegally lenient sentence, we also recognize that the missing condition is resolved by the self-activating provisions of La. R.S. 15:301.1(A) because no discretion is required. See State v. Dorsey, 2012-1816 (La. App. 1st Cir. 2/4/14), 137 So.3d 651, 655-56, writ denied, 2014-0378 (La. 9/19/14), 148 So.3d 951, cert. denied, ___ U.S. ___, 135 S.Ct. 1495, 191 L.Ed.2d 435 (2015). Here, defendant was sentenced to the minimum possible habitual offender sentence, and the missing restriction of parole is fixed at a two-year period. Therefore, we simply amend defendant's sentence and deem it to restrict the benefit of parole for its first two years.
Concluding our independent review of the record, we have found no reversible errors under La. Code Crim. P. art. 920(2). Furthermore, we have found no nonfrivolous issues or trial court rulings which arguably support this appeal. Accordingly, defendant's conviction, habitual offender adjudication, and sentence (as amended) are affirmed. Defense counsel's motion to withdraw, which has been held in abeyance pending the disposition in this matter, hereby is granted.
SENTENCE AMENDED, AND AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED.