State Of Louisiana VS Leonard Emanuel Blackburn
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL 6kr FIRST CIRCUIT NO 2010 KA 1075 STATE OF LOUISIANA VERSUS F49 LEONARD EMANUEL BLACKBURN Judgment Rendered December 22 2010 On Appeal from the 22nd Judicial District Court in and for the Parish of Washington State of Louisiana District Court No 08 CR1 97839 0 The Honorable William J Knight Judge Presiding Gwendolyn K Brown Baton Rouge La Counsel for Defendant Appellant Leonard E Blackburn Appellant Defendant Appearing Pro Se Walter P Reed Counsel for Appellee District Attorney State of Louisiana Leonard Emanuel Blackburn Lewis V Murray III Assistant District Attorney Franklinton La Kathryn W Landry Baton Rouge La BEFORE CARTER C GAIDRY AND WELCH JJ J CARTER C J The defendant Leonard Emanuel Blackburn was charged by bill of information with possession with intent to distribute cocaine a violation of La R 40 count one and possession of hydrocodone a violation S 967A 1 of La R 40 count two S 967C The defendant pled not guilty and following a jury trial was found guilty as charged on both counts defendant was filed subsequently adjudicated sentenced to fifteen years at hard labor a a multiple fourth felony offender habitual bill and the defendant on his conviction offender possession with intent to distribute cocaine The The State was for The trial court vacated the previously imposed fifteenyear sentence and sentenced the defendant to twenty years at hard labor The defendant appealed On June 12 2009 in an unpublished opinion this court rendered judgment affirming the possession of cocaine with intent to distribute conviction habitual offender adjudication and sentence and remanding the matter to the trial court for imposition of sentence on the possession of hydrocodone conviction State v Blackburn 090178 La App 1 Cir 09 12 6 11 So 3d 1244 unpublished On remand the trial court sentenced the defendant to five years at hard labor for the possession of hydrocodone conviction The court ordered that the sentence be served concurrently with the sentence on count one The trial court also denied the defendant motion for a new trial The defendant s now appeals the possession of hydrocodone conviction and sentence designates the following assignments of error by counseled brief I The trial court erred in imposing an excessive sentence 2 He 2 The trial court erred by failing to comply with the sentencing mandates of La Code Crim Proc art 894 1 3 The defendant appellant was denied effective assistance of counsel as a result of counsel failure to file a motion s to reconsider sentence to preserve for appellate review his right to object specific on grounds to the excessiveness of the sentence 4 The trial court erred in its treatment of the motion for new trial By pro se brief the defendant also urges a claim of ineffective assistance of counsel We affirm the possession of hydrocodone conviction However finding error under La Code Crim Proc art 920 we vacate the 2 possession of hydrocodone sentence and remand for resentencing REVIEW FOR ERROR In reviewing the record for error under La Code Crim Proc art 2 920 we note the following error On remand in open court the defendant filed pro se motions for a determinate sentence a new trial and an appeal The trial court accepted the motions into the record The court then granted the motion for a determinate sentence and immediately imposed the sentence on count two The trial court did not rule on the defendant s motion for a new trial until after the sentence was imposed Louisiana Code of Criminal Procedure article 873 provides that if a motion for a new trial is filed a sentence shall not be imposed until at least twentyfour hours after the motion is overruled However if the defendant expressly waives a delay provided in Article 873 or pleads guilty sentence may be imposed immediately Id The trial court erred by sentencing the defendant without waiting twentyfour hours after the denial of the motion for a new trial Nothing in the record indicates the defendant waived this 3 time period Prejudice will not be found if the defendant has not challenged the sentence imposed and the twentyfour hour delay violation is merely noted on review for error under La Code Crim Proc art 920 See State 2 v Ducre 604 So 2d 702 709 La App 1st Cir 1992 On appeal the defendant has not assigned as error the trial court failure to observe the s twentyfour hour delay However the defendant through his counseled assignments of error which include a claim of ineffective assistance of counsel for failure to file a motion to reconsider the sentence has contested the sentence imposed In State v Augustine 555 So 2d 1331 1333 34 La 1990 the Louisiana Supreme Court held that a trial court failure to s observe the twentyfour hour delay is not harmless error if the defendant challenges the sentence on appeal Accordingly we vacate the sentence imposed on count two possession of hydrocodone because we find that the trial court violated Article 873 We remand the matter to the trial court for resentencing on that count and we pretermit discussion of counseled assignments of error 1 3 which all relate to the count two sentence COUNSELED ASSIGNMENT OF ERROR 4 In this assignment of error the defendant contends the trial court erred in considering the merits of his motion for a new trial Specifically he argues that the claims raised in the motion were not claims that could be decided on the trial record and were more appropriately raised in an application for post conviction relief He asserts the trial court should have I When the matter came before the court for count two sentencing on remand the defendant requested that the matter be reset until a later date so that he could secure the presence of his trial attorney at the sentencing The trial court denied the request The defendant clearly did not intend to waive sentencing delays 4 considered the motion as an application for post conviction relief and treated it accordingly As the state correctly notes in its brief in response to this claim the defendant motion for a new trial filed before sentencing could s not possibly have been treated as an application for post conviction relief La Code Crim Proc art 1 924 provides a application for post n conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge or if an appeal is pending Thus any application for post conviction relief filed before the sentencing would have been premature Furthermore as the state also notes once the defendant timely filed the motion for a new trial the trial court was required to dispose of the motion before sentencing See La Code Crim Proc art 853 Accordingly we find no error in the trial court denial of the motion s for a new trial This assignment of error lacks merit PRO SE ASSIGNMENT OF ERROR INEFFECTIVE ASSISTANCE OF COUNSEL In his pro se brief the defendant argues he was denied his Sixth Amendment right to effective assistance of counsel Specifically he asserts his trial counsel was ineffective in failing to be adequately prepared to try the case and to present a defense and in failing to move for a continuance A claim of ineffective assistance of counsel is more properly raised by an application for post conviction relief in the district court where a full evidentiary hearing may be conducted State v Williams 632 So 2d 351 361 La App 1st Cir 1993 writ denied 941009 La 9 643 So 2d 94 2 139 However if the record discloses the evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by 5 assignment of error on appeal the issue may be addressed in the interest of judicial economy Williams 632 So 2d at 361 A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I Louisiana Constitution 13 of the In assessing a claim of ineffectiveness a two pronged test is employed Strickland v Washington 466 U 668 687 S 1984 The defendant must show that 1 his attorney performance was s deficient and 2 the deficiency prejudiced him Strickland 466 U at S 687 The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or a trial whose result is reliable Strickland 466 U at S 687 In order to show prejudice the defendant must demonstrate that but for counsel unprofessional conduct the result of the proceeding would s have been different Strickland 466 U at 694 State v Felder 002887 S La App 1 Cir 9 809 So 2d 360 36970 writ denied 01 3027 La 01 28 02 25 10 827 So 2d 1173 Further it is unnecessary to address the issues of both counsel performance and prejudice to the defendant if the s defendant makes an inadequate showing on one of the components State v Serigny 610 So 857 860 La App 1st Cir 1992 writ denied 614 So 2d 2d 1263 La 1993 The defendant claims among other things his trial counsel was ineffective because he was not adequately prepared for trial he failed to properly investigate the case and present an adequate defense for instance failed to secure a crime lab report andor request a continuance These shortcomings the defendant asserts show that his counsel failed to exercise the skill judgment and diligence of a reasonably competent defense attorney These particular allegations of ineffective assistance of counsel cannot be sufficiently investigated from an inspection of the record alone It is well settled that decisions relating to investigation preparation and strategy require an evidentiary hearing and cannot possibly be reviewed on appeal See e State v Martin 607 So 2d 775 788 La App 1st Cir g 992 1 Only in an evidentiary hearing in the district court where the defendant could present evidence beyond that contained in the instant record could these allegations be sufficiently investigated Albert 96 La App 1991 1 See State v Cir 6 697 So 2d 1355 97 20 1364 Accordingly these allegations are not subject to appellate review Albert 697 So 2d at 1364 The remaining ineffective assistance of counsel claims failure to object to the presentation of perjured testimony by a state witness and s failure to object to improper comments by the prosecutor during closing remarks can be reviewed on this record Inconsistent Testimony by a State Witnesses s First the defendant claims his counsel should have entered an objection when Sergeant Kendall Bullen testified at the trial that he was not sure who was driving the vehicle on the night in question The defendant argues that this testimony is in direct conflict with testimony provided by Deputy Charles McDaniel at the hearing on the motion to suppress The defendant notes that Deputy McDaniel testified at the suppression hearing that the vehicle was being driven by a subject known to us as Jasmine Brown 2 He further testified that Jasmine Brown had been spotted by The defendant would have to satisfy the requirements of La Code Crim Proc art 924 et seq in order to receive such a hearing 7 Sergeant Bullen in the vehicle getting in the vehicle The defendant notes that at the trial however Sergeant Bullen initially corroborated Deputy s McDaniel account of the events but later changed his testimony and indicated that he was not sure who was driving the vehicle on the night in question The defendant argues his counsel should have objected to Sergeant Bullen inconsistent trial testimony as evidence of perjury s Our review of the record reveals that at the hearing on the motion to suppress Deputy McDaniel explained the circumstances surrounding the stop of Jasmine Brown vehicle on the night in question He explained that s he was patrolling the area when he received information indicating that Jasmine Brown vehicle had been spotted in the s Deputy McDaniel area participated in the traffic stop Shortly thereafter When questioned regarding his ability to identify the driver of the vehicle Deputy McDaniel explained that he was the second vehicle in line during the traffic stop and he could not actually see inside the vehicle He went on to explain that according to the information he received Sergeant Bullen had observed Brown getting in the vehicle At the trial Sergeant Bullen testified that on the night in question he alerted his group that active warrants existed for the arrest of Jasmine Brown and asked them be on the lookout for her vehicle Later as he was patrolling Sergeant Bullen observed a vehicle he recognized as that of Jasmine Brown with what appeared to be a female driver pass by In response he radioed to alert the other officers This radio alert apparently led to Deputy McDaniel involvement in the traffic stop of s s Brown vehicle Sergeant Bullen testified that due to the late hour the 8 direction of travel and the vehicle heavily tinted windows there was no s way for him to be sure who was actually driving the vehicle Although the record reflects a discrepancy as to whether Sergeant Bullen actually observed Brown enter the vehicle in question there is nothing to indicate that there was perjury on the part of either McDaniel or Bullen Deputy McDaniel testified as to what he recalled hearing in the radio dispatch and Sergeant Bullen told what he personally observed during the street patrol Thus it is clear why counsel did not object to the aforementioned testimony as perjury This argument lacks merit Improper Closing Remarks by the Prosecutor Next the defendant claims his counsel was ineffective in failing to object when the prosecutor during closing arguments vouched for the credibility of the state witnesses and offered an unsolicited personal s opinion on the defendant guilt s During closing argument the prosecutor made the following comment You are the judges of the evidence and the credibility of witnesses so you get to decide whether those police officers told you the truth I would submit to you that they did and there are a couple of reasons why You heard them testify They were forthright they looked you in the eye they told you what No three people are going to remember things exactly the same way I guarantee you that when youall go happened back in the jury room and start deliberating you going to re remember things a little bit differently Because our brains work in different ways and certain statements certain facts are going to be more important and stick out in some of your minds more than others The discrepancies are how you know they telling you re If they came up here and said the exact same thing the truth the exact same way and in the exact same order what would Well that prosecutor helped them and they re you think X lying They told you what they remembered There are things that are important and there are things that are red herrings While a prosecutor may not give his personal opinion regarding the veracity of a witness it is permissible for a prosecutor to draw inferences about a witness truthfulness from matters on s the record See La Code Crim Proc art 774 State v Palmer 000216 La App I Cir 12 775 So 2d 1231 1236 00 22 writs denied 01 0211 La 1 11 807 So 2d 224 0 1 1043 02 La 1 807 So 2d 229 02 11 Taken in context we find the aforementioned comments were confined to explaining why the testimony of the officers contained some discrepancies The comments were based on the evidence and were not personal opinion based on anything outside of the record Thus the prosecutor did not improperly vouch for the credibility of the officers This assignment of error lacks merit Next the defendant claims his counsel was ineffective in failing to object to the prosecutor expression of her personal opinion regarding the s s defendant guilt The record reflects that during her rebuttal closing argument the prosecutor stated to the jury Thank you Your Honor In my first closing I mentioned red herrings I want to talk to you a little bit about some of those Mr May defense counsel did a fine job and if he t hadn told you this was his first trial I don think you would t have known that But his client is guilty His client is guilty as charged s Let consider the facts While it is generally considered error for a prosecutor to state an individual belief concerning the accused guilt when that remark is made in s such a way that the jury may conclude that the prosecutor belief is based s on evidence outside the record the expressing of an opinion based on evidence within the record is permissible See State v Motton 395 So 2d 10 1337 1346 La cert denied 454 U 850 1981 Upon review of the S record in this case we find that this challenged comment was based only on matters in the record and thus was permissible The prosecutor comment s regarding her opinion of the defendant guilt was made during rebuttal s closing argument immediately before a repeated summation of the evidence presented at the trial The defendant did not suffer any prejudice from s counsel failure to object to this comment This assignment of error lacks merit POSSESSION AFFIRMED OF FIVE YEAR HYDROCODONE SENTENCE REMANDED FOR RESENTENCING 11 CONVICTION VACATED CASE
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