State Of Louisiana VS Leonard K. Wise
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 2012 STATE OF LOUISIANA AF VERSUS y El LEONARD K WISE Judgment rendered MAY 7 2010 On Appeal from the 22 Judicial District Court Parish of St Tammany State of Louisiana A Number 449329 Division C The Honorable Richard A Swartz Jr Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington La State of Louisiana Kathryn W Landry Attorney for the State Baton Rouge La Mary E Roper Baton Rouge La Counsel for Appellant Leonard K Wise BEFORE DOWNING GAIDRY AND McCLENDON JJ DOWNING J The defendant Leonard K Wise was charged by bill of information with one count of third offense possession of marijuana a violation of La R S Cand E He pleaded not guilty Following a jury trial he was found 966 40 3 guilty as charged Thereafter the State filed a habitual offender bill of information against the defendant alleging that he was a second felony habitual offender The defendant initially denied the allegations of the habitual offender bill Subsequently pursuant to a sentencing agreement he admitted the allegations of the habitual offender bill Thereafter he was adjudged a second felony habitual offender and was sentenced to ten years at hard labor without benefit of probation or suspension of sentence He now appeals For the following reasons we affirm the conviction habitual offender adjudication and sentence Additionally we grant defense counsel motion to withdraw s FACTS On February 14 2008 St Tammany Parish Sheriffs Department Deputy Gustave Bethea was providing security for a Valentine Day event at the Sons of s Italy Banquet Hall According to Deputy Bethea at approximately midnight he detected the odor of marijuana while walking to his police car He also saw smoke which smelled like marijuana coming from a Chevrolet Tahoe parked next to his police car Deputy Bethea approached the driver side and asked the driver to roll s down his window According to Deputy Bethea the driver of the Tahoe Richard D Thornton rolled the window down and Deputy Bethea illuminated the interior of the Predicate 1 was set forth as the defendant October 12 1998 conviction under Twenty second Judicial s District Court Docket 11 The State introduced documentation at trial indicating that in connection with 286857 predicate tt the defendant pled guilty to possession of marijuana Predicate 42 was set forth as the defendant 1 s January 6 2004 guilty plea under Twenty second Judicial District Court Docket N371929 to possession of marijuana R 20 The State introduced documentation at trial indicating that in connection with predicate t2 the defendant pled guilty to second offense possession of marijuana The habitual offender predicate offense was set Birth as the defendant October 12 1998 guilty plea under s Twenty second Judicial District Court Docket 12868 to possession with intent to distribute cocaine R 51 111 vehicle with his flashlight Deputy Bethea testified that the defendant was the front passenger and a female was seated in the back of the vehicle According to Deputy Bethea the defendant then placed a clear plastic bag of green vegetable matter in the center console which based on eight years of experience as a police officer Deputy Bethea recognized as marijuana Deputy Bethea asked the occupants of the Tahoe to exit the vehicle and the female ran away Thereafter Deputy Bethea recovered 11 24 grams of marijuana from the console of the Tahoe He denied planting the marijuana in the Tahoe so that he could arrest the defendant Thornton testified at trial He conceded that he had prior convictions for possession of marijuana and distribution of cocaine He also conceded that he was present in the Tahoe on the night in question He claimed that the defendant was the front passenger and that Dione Garrett and her friend or cousin were the rear passengers According to Thornton he and the defendant were smoking legal cigarettes in the vehicle with the windows rolled up He denied that anyone was smoking marijuana in the vehicle He claimed that a police officer started beating on the window with a flashlight and ordered him to roll down the window He claimed that rather than rolling down his window he opened his door to talk to the police officer He claimed that the police officer ordered him and the other occupants of the Tahoe out of the vehicle at gunpoint He claimed that Garrett ran away and that the police officer allowed Garrett sfriend or cousin to leave He claimed that the police officer then went into the truck and came out with a bag of marijuana He denied that the defendant had been in possession of marijuana The defendant also testified at trial He conceded that he had two prior convictions for possession of marijuana and a prior conviction for distribution of cocaine He claimed he had never seen the bag of marijuana recovered from the Tahoe 3 Neil Adam Fiest was accepted as an expert in the area of latent fingerprint analysis Based on a comparison ofthe defendant sfingerprints and the fingerprints appearing on Twentysecond Judicial District Court bills of information 286857 charging one count of possession of marijuana and 371929 charging one count of possession of marijuana Fiest testified that the defendant was the same person who was convicted under those docket numbers ISSUES PRESENTED The defense brief contains no assignments of error and sets forth that it is filed to conform with the procedures outlined in State v Benjamin 573 So 528 2d La App 4th Cir 1990 Benjamin set forth a procedure to comply with Anders v California 386 S U 738 87 S 1396 18 L493 1967 wherein the U Supreme Court Ct 2d Ed S discussed how appellate counsel should proceed when upon conscientious review of a case counsel found the case wholly frivolous Benjamin has repeatedly been cited with approval by the Louisiana Supreme Court See State v Jyles 96 2669 p 1 La 12 704 So 241 per curiam State v Mouton 950981 p 1 97 2d La 4 653 So 1176 1177 per curiam State v Royals 600 So 653 95 28 2d 2d La 1992 State v Robinson 590 So 1185 La 1992 per curiam 2d Defense counsel reviews the procedural history of the case and the evidence against the defendant She sets forth that after a conscientious and thorough examination and review of the entire record including the procedural history and facts she has found no non frivolous issues to present on appeal and no ruling of the trial court which arguably supports an appeal either under existing jurisprudence or under a change which should be effected in the law Accordingly she moves to withdraw A copy of defense counsel brief and motion to withdraw were sent to the s defendant Defense counsel also informed the defendant that he had the right to M file a brief on his own behalf The defendant has not filed a prose brief with this court This court has conducted an independent review of the entire record in this matter The minutes of the habitual offender arraignment reflect that before accepting the defendant stipulation to being a second felony habitual offender s the trial court read the habitual offender bill to the defendant advised him of his right to a habitual offender hearing and advised him of his right against self incrimination The transcript however indicates that the court only read the habitual offender bill to the defendant before accepting his stipulation to being a second felony habitual offender When there is a discrepancy between the minutes and the transcript the transcript must prevail State v Lynch 441 So 732 734 2d La 1983 In State v Griffin 525 So 705 La App 1st Cir 1988 the defendant 2d was separately charged with simple burglary a violation of La R 14 and S 62 with possession of a firearm by a convicted felon a violation of La R 14 S 95 1 Pursuant to a plea agreement for tenyear concurrent sentences on each count he pled guilty and agreed to stipulate to being a second felony habitual offender Thereafter the State filed two separate habitual offender bills of information against the defendant alleging he was a second felony habitual offender Griffin 525 So at 706 At the habitual offender hearing the State defense counsel and 2d the defendant all agreed that the allegations of the multipleoffender bills were correct Griffin 525 So at 706 07 2d Thereafter the trial court adjudged the defendant a second felony habitual offender and sentenced him in accordance with the plea agreement On appeal this court found that the trial court failure to s advise the defendant of the specific allegations contained in the habitual offender bills of information his right to be tried as to the truth of the allegations and his right to remain silent before obtaining the stipulations to the habitual offender bills 5 of information constituted error under LSA C art 920 which required P Cr 2 that the habitual offender adjudications and sentences be vacated Griffin 525 2d So at 707 Unlike the defendant in Griffin however the instant defendant received the statutory minimum sentence as a second felony habitual offender and does not challenge his sentence on appeal Absent the plea agreement in this case the ssentencing exposure is four times the sentence he received Thus the defendant trial court failure to comply with Griffin was not inherently prejudicial to the s defendant See State v Price 05 2514 pp 1822 La App 1st Cir 12 06 28 952 So 112 12325 en banc writ denied 070130 La 2 976 So 2d 08 22 2d 1277 Furthermore we conclude there are no non frivolous issues or trial court rulings which arguably support this appeal Accordingly the defendant s conviction habitual offender adjudication and sentence are affirmed Defense s counsel motion to withdraw which has been held in abeyance pending the disposition of this matter is hereby granted DECREE For the foregoing reasons we affirm defendant Leonard K Wise conviction s habitual offender adjudication and sentence IT IS ORDERED that Mary E Roper and the Louisiana Appellate Project be permitted to withdraw as counsel of record for defendant pursuant to their motion CONVICTION HABITUAL OFFENDER ADJUDICATION SENTENCE AFFIRMED MOTION TO WITHDRAW GRANTED 2 AND
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