State Of Louisiana VS Terry Peter Authement, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT T E STATE OF LOUISIANA VERSUS TERRY PETER AUTHEMENT JR DATE OF JUDGMENT MAY 0 6 2011 v ON APPEAL FROM THE THIRTY SECOND JUDICIAL DISTRICT COURT NUMBER 544 PARISH OF TERREBONNE 868 STATE OF LOUISIANA HONORABLE JOHN R WALKER JUDGE Joseph L Waitz Jr Counsel for Plaintiff Appellee District Attorney State of Louisiana Ellen Daigle Doskey Houma Louisiana Mary E Roper Baton Rouge Louisiana Counsel for Defendant Appellee Terry Peter Authement Jr BEFORE KUHN PETTIGREW AND HIGGINBOTHAM JJ Disposition CONVICTION AND SENTENCE AFFIRMED KUHN J Defendant Terry Peter Authement Jr was charged by bill of information with one count of possession of a firearm by a convicted felon a violation of La S 95 R 14 and pled not guilty Following a jury trial he was found guilty as 1 charged He was sentenced to ten years at hard labor without benefit of parole probation or suspension of sentence He now appeals contending the trial court imposed an unconstitutionally excessive sentence For the following reasons we affirm the conviction and sentence FACTS Tyler Authement testified at trial He is the biological brother of defendant When a gun belonging to Tyler deceased father disappeared from Tyler s s bedroom in Houma he suspected defendant had taken the weapon According to Tyler in a telephone conversation defendant denied taking the missing weapon but stated he had another gun Thereafter Tyler advised Terrebonne Parish Sheriffs Office Deputy Ryan Trosclair that defendant had a gun Tyler denied threatening to put defendant in prison Deputy Trosclair also testified at trial He was familiar with defendant because defendant had been an inmate when Deputy Trosclair worked as a correctional officer On April 6 2009 Tyler Authement reported he believed defendant had stolen a gun from him because the gun was missing from his bedroom and defendant was in the small group of people who had access to that area 1 Deputy Trosclair advised Tyler no crime had been committed because The State and the defense stipulated defendant had previously been convicted under Thirty second Judicial District Court Docket 386 of three counts of unauthorized entry of an 809 inhabited dwelling and under Thirtysecond Judicial District Court Docket 464 of one 871 count of simple burglary 2 ownership of the missing weapon was at issue Thereafter Tyler advised Deputy Trosclair defendant was a convicted felon and had traded the missing gun for another gun According to Deputy Trosclair in a telephone conversation between Tyler and defendant defendant stated tell the cop to come get this gun that I have I don have your gun but tell him to come t get this gun because I just because I a felon m m I just realizing I not supposed to have a gun m So tell him to come get this gun so I don get in trouble t Deputy Trosclair then identified himself and asked defendant to disclose his location Subsequently Deputy Trosclair met defendant at 103 Chauvin Street While travelling to that location central dispatch advised Deputy Trosclair defendant had a simple burglary conviction According to Deputy Trosclair when he arrived defendant stated I just want to give you this because I just found out m I a convicted felon and I not supposed to have a weapon So I want to give m you this before I get in any trouble Thereafter defendant gave Deputy Trosclair a red bag containing a 22 caliber revolver in a sock and Deputy Trosclair arrested him According to Deputy Trosclair following advice of his Miranda rights defendant stated he had obtained the gun from a juvenile in exchange for stereo equipment Amanda Lirette also testified at trial She resided at 103 Chauvin Street According to Amanda defendant visited her and other members of her family beginning on April 2 2009 and on April 4 5 and 6 2009 he was out fishing with them She claimed when they came back from fishing on April 6 2009 a red bag was on top of the garbage can at her residence She claimed her husband Mark 2 Miranda v Arizona 384 U 436 86 S 1602 16 L 694 1966 S Ct 2d Ed 3 Lirette Jr investigated the bag She denied ever seeing defendant with a gun She claimed that during an argument on April 4 2009 Tyler told defendant I m going to put you back in jail Mark Lirette Jr also testified at trial He had been defendant friend for s twentyfive years He claimed he did not see defendant with a gun while defendant stayed with him Mark claimed that when they returned from fishing on April 3 2009 there was a red bag on his garbage can with a gun in a sock He claimed he asked defendant if he knew anything about the gun and defendant stated he did not know anything about the weapon According to Mark two or three days prior to defendant arrest in reference to defendant Tyler stated I s ll put that damn no good little mother f in jail Mark claimed when Deputy Trosclair arrived defendant nodded in the direction of the red bag and Deputy Trosclair put the gun in his car EXCESSIVE SENTENCE In his sole assignment of error defendant argues the trial court imposed an unconstitutionally excessive sentence because it failed to realize it could sentence him to less than the statutorily mandated minimum sentence La Code Crim P art 881 in pertinent part provides 1 A 1 In felony cases within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence the S or the defendant may make or file a tate motion to reconsider sentence B The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based E Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based including a claim of excessiveness shall preclude the 4 tate S or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review The record indicates defendant failed to make or file a motion to reconsider sentence in this matter Accordingly review of the instant assignment of error is procedurally barred See La C art 881 State v Duncan 94 1563 p 2 P Cr E 1 La App 1st Cir 12 667 So 1141 1143 en Banc per curiam 95 15 2d REVIEW FOR ERROR Initially we note our review for error is pursuant to La C art 920 P Cr which provides the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence La P Cr C art 920 2 The trial court failed to impose the mandatory fine of not less than one thousand dollars or more than five thousand dollars See La R 14 S 95 B 1 Although the failure to impose the fine is error under Article 920 it certainly is 2 not inherently prejudicial to defendant Because the trial court failure to impose s the fine was not raised by the State in either the trial court or on appeal we are not required to take any action As such we decline to correct the illegally lenient sentence See State v Price 2005 2514 pp 18 22 La App 1 st Cir 12 06 28 952 So 112 123 25 en Banc writ denied 20070130 La 2 976 So 2d 08 22 2d 1277 CONVICTION AND SENTENCE AFFIRMED R
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