Opinion
2014 KA 1533
09-18-2015
STATE OF LOUISIANA v. AVIS JAMES WILLIAMS
Joseph Waitz District Attorney and Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Counsel for Plaintiff State of Louisiana Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant/Appellant Avis James Williams Avis James Williams Winnfield, Louisiana Defendant/Appellant In Proper Person
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
No. 641477
Honorable John R. Walker, Judge Presiding Joseph Waitz
District Attorney
and
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana
Counsel for Plaintiff
State of Louisiana
Frederick Kroenke
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Avis James Williams
Avis James Williams
Winnfield, Louisiana
Defendant/Appellant
In Proper Person
BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. McCLENDON, J.
Defendant, Avis James Williams, was charged by bill of information with possession of cocaine, a violation of LSA-R.S. 40:967c. He entered a plea of not guilty and, following a jury trial, defendant was found guilty as charged. The State filed a habitual offender bill of information and, following a hearing on the matter, defendant was adjudicated a fourth-felony habitual offender and sentenced to thirty years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals, designating one counseled assignment of error and several pro se assignments of error. We affirm the conviction, habitual offender adjudication, and sentence. We remand to the trial court for correction of the minutes and, if necessary, the commitment order.
Defendant was also charged with transactions involving proceeds from drug offenses, a violation of LSA-R.S. 40:1041; the State subsequently dismissed this charge.
Defendant has prior convictions for sexual battery, second degree battery, simple robbery, battery of a police officer, and attempted possession of cocaine.
FACTS
On July 16, 2011, Deputy Keith Bergeron, with the Terrebonne Parish Sheriff's Office, conducted a traffic stop on Savannah Drive in Gray, Louisiana. Deputy Bergeron recognized defendant from previous encounters. The deputy searched defendant and found a small cellophane bag containing cocaine in his left pants pocket. The deputy also found a pack of cigarettes that contained what appeared to be a marijuana "joint," but after testing, was found to contain cocaine.
Under "Statement of Facts" in his brief, defendant provides additional information educed at the motion to suppress regarding his arrest. For example, Detective Bergeron was patrolling when he heard gunshots. Shortly thereafter, dispatch announced that defendant was a suspect and that he had an outstanding warrant for parole violation. Deputy Bergeron knew defendant from previous dealings with him. Deputy Bergeron conducted a felony stop and arrested defendant for the outstanding felony warrant (as well as being wanted in questioning for the disturbance with a weapon). Subsequent to a search incident to arrest, the deputy found the cocaine on defendant's person. The foregoing testimonial evidence was elicited at a hearing on a pretrial motion to suppress and, accordingly, the jury at trial did not hear any of this evidence; as such, it cannot be considered "facts" for purposes of this appeal.
COUNSELED ASSIGNMENT OF ERROR
In his sole counseled assignment of error, defendant argues that his sentence is unconstitutionally excessive.
A thorough review of the record indicates that defendant did not make or file a motion to reconsider sentence based on any specific ground following the trial court's imposition of the sentence. Under LSA-C.Cr.P. arts. 881.IE and 881.2A(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 (La. 1993) (per curiam). Defendant, therefore, is procedurally barred from having this assignment of error reviewed because of his failure to file a motion to reconsider sentence after being sentenced. See State v. Duncan, 94-1563 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).
Following sentencing of defendant, defense counsel stated, "Your Honor, if we may, we would ask -- we would respectfully object to the sentence and ask that you reconsider." Defense counsel's objection did not constitute an oral motion to reconsider sentence as contemplated by LSA-C.Cr.P. art. 881.1B ("The motion ... shall set forth the specific grounds on which the motion is based."). Moreover, a general objection to a sentence without stating specific grounds, including excessiveness, preserves nothing for appellate review. See State v. Bickham, 98-1839 (La.App. 1 Cir. 6/25/99), 739 So.2d 887, 891.
The assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR
In several pro se assignments of error, defendant raises the same issue, namely, that the bill of information for the instant offense is invalid. Specifically, defendant contends that the bill of information was not properly authenticated or certified.
Defendant asserts the bill of information was not in compliance with LSA-C.E. art. 902 because it did not "bear a seal of legal authenticity." The purported copy of the bill of information, according to defendant, was not certified as true and correct by the custodian or other person authorized to make that certification. As such, defendant maintains, anything after the filing of the bill of information on June 19, 2012 (also the date of defendant's arraignment for the instant offense of possession of cocaine) "is null and void and of no effect."
An information is a written accusation of crime made by the district attorney and signed by him. LSA-C.Cr.P. art. 384. The requirement that the bill of information be signed by the district attorney is satisfied by the signing of the bill of information by an assistant district attorney. State v. Refuge, 300 So.2d 489, 490-91 (La. 1974). The bill of information in the instant matter was signed by an assistant district attorney and was, therefore, in compliance with the law. (R. p. 19). Furthermore, the bill of information is included in a six-volume record. At the end of the record is a Certificate of the Clerk of Court of Terrebonne Parish, certifying, as a true and correct copy of the original, which is on file in this office, that "the said record is complete in every detail and contains all entries on the Minutes of this Court, all Pleadings . . . as well as all Orders and Judgments." The Certificate is signed by a Deputy Clerk of Court. See LSA-C.E. art. 902(2)(b) (which does not require a seal for authentication purposes).
Moreover, even assuming arguendo that the bill of information was defective, by presenting the case at trial, the prosecution fully ratified the filing of formal charges, curing any alleged defect in authenticity in an otherwise fully sufficient bill of information that fairly apprised defendant of the nature and cause of the accusation against him. See State v. White, 404 So.2d 1202, 1205 (La. 1981); State v. Thompson, 543 So.2d 1132, 1135 (La.App. 1 Cir. 1989). If there were any doubts concerning the authenticity of the prosecutorial instrument, those were undoubtedly dispelled by the district attorney's active prosecution of this case. White, 404 So.2d at 1205.
Finally, we note that a motion to quash is a pretrial procedural vehicle for challenging an indictment or bill of information. See LSA-C.Cr.P. arts. 521 and 531, et seq.; State v. Byrd, 96-2302 (La. 3/13/98), 708 So.2d 401, 411, cert. denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998). Defendant (or defense counsel) did not file any pretrial motions to quash. Defendant's failure to file a motion to quash precludes him from raising this issue on appeal. See State v. Ruiz, 06-1755 (La. 4/11/07), 955 So.2d 81, 88; Thompson, 543 So.2d at 1135.
These pro se assignments of error are without merit.
SENTENCING ISSUE
We note that when the trial court sentenced defendant at the habitual offender hearing, it stated the sentence was "without benefit of probation or parole in connection with the statute that applies in connection with these matters." Shortly thereafter, the trial court stated "the sentence is without benefit of probation or suspension of sentence." The minutes indicated defendant's sentence is "without the benefit of [p]robation, parole or suspension of sentence."
The penalty provision for possession of cocaine (the sentence being enhanced under the habitual offender statute) does not contain a parole restriction. Defendant's thirty-year enhanced sentence, thus, similarly contains no restriction on parole eligibility and is to be only without the benefit of probation or suspension of sentence. See LSA-R.S. 40:967C(2), LSA-R.S. 15:529.1A(4)(a), and LSA-R.S. 15:529.1G; State v. Bruins, 407 So.2d 685, 687 (La. 1981).
It appears the trial court corrected itself when it subsequently stated that defendant's enhanced sentence was without benefit of probation or suspension of sentence; however, because the minutes, albeit not controlling of the issue alone, indicate a restriction on defendant's parole eligibility, and because we cannot be certain what the trial court intended when sentencing defendant, we confirm that defendant's sentence is thirty years imprisonment at hard labor without the benefit of probation or suspension of sentence. We remand to the trial court for correction of the minutes and, if necessary, the commitment order.
CONCLUSION
For the foregoing reasons, defendant's conviction, habitual offender adjudication, and sentence are affirmed. This matter is remanded to the trial court for correction of the minutes and, if necessary, the commitment order.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED. REMANDED FOR CORRECTION OF MINUTES AND, IF NECESSARY, COMMITMENT ORDER.