State of Louisiana VS Zachary A. Martin
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 KA 1368 STATE OF LOUISIANA fieJ VERSUS ZACHARY A MARTIN V iW Judgment Rendered December Appealed from 23 2009 the Twenty Second Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 452 773 Honorable Richard A Swartz Walter P Reed District Covington LA Attorney Judge Attorneys State for Appellee and Kathryn W Landry Baton Rouge LA Mary E Roper Baton Rouge LA Attorney for Defendant Zachary BEFORE Appellant A Martin WHIPPLE HUGHES AND WELCH 11 WELCH J The defendant from aggravated flight pled The State subsequently was adjudicated a officer an and guilty defendant not A Martin Zachary filed second probation parole one guilty found or error as The charged The defendant to of suspension assignment of four years at The sentence We affirm the We amend the sentence and affirm conviction and habitual offender adjudication as was 14 108 1 C felony habitual offender and sentenced appeals designating now trial jury RS offender bill of information multiple hard labor without benefit of defendant a bill of information with charged by violation of La a following a was amended FACTS On June 30 2008 Detectives Gordon Summerlin and Brett Hardaker both Tammany Parish Sheriffs Office with the St Summerlin Town Car with As a on Louisiana patrol on in Detective 36 between Claiborne Highway Springs They observed the defendant drive past them in Hill and Abita vehicle unit stationary police s were a temporary license tag The defendant had The detectives were unable to result of this traffic violation defendant and followed him clearly see the a a Lincoln male passenger in his expiration Detective Summerlin date on the tag behind the pulled When the defendant turned onto Third Street Detective Summerlin activated his siren and traffic emergency lights defendant did pursued the not stop but accelerated Detective Summerlin The defendant The defendant traveled down the middle of the road gravel road on He fishtailed and drove and off the roads defendant was Arthur Street and driving about erratically at times 70 causing people mp on drove h in a 25 The defendant continued against traffic mp h traffic either side of the 2 then turned At zone one onto to a drive point the He drove down street to scatter off of the roadway Finally the defendant drove down the block the defendant slammed of the defendant collided into the rear vehicle without putting it into the on The defendant jumped As the defendant was a s vehicle also cellophane bag containing marijuana fall but after ran a s waistline very short Summerlin the passenger threw up his hands and stopped The passenger pursuit by Detective Detective Summerlin 73 grams of stayed with the passenger and seized the bag which contained Detective Hardaker gave chase marijuana to the defendant but was unable to him apprehend Two witnesses for the defense testified at trial friends of the defendant They defendant and the drive past them defendant from his his pavement from somewhere around the defendant in the defendant unit s exiting and fled park Detective Summerlin his brakes vehicle s vehicle Detective Summerlin observed to Bogue Falaya Avenue About midway onto was police traveling only at stated that about 25 they They testified that they were outside when According mp to they were saw these witnesses the the h ASSIGNMENT OF ERROR In his sole by an 11 1 non Constitutions of assignment was convicted Specifically the defendant contends that La C Cr P right to a jury trial art 782 A since it must be considered in of the Fourteenth Amendment right to due process of law The punishment confinement S the defendant argues that he unanimous verdict in violation of the United States and Louisiana violates the Sixth Amendment light error 17 A cases at for conviction of hard labor La R S 14 from aggravated flight 1 108 E punishment is necessarily jury composed of twelve jurors Under both state and federal ten at hard labor the of whom jurisprudence 3 a officer is Louisiana Constitution article I and Louisiana Code of Criminal Procedure article 782 A where an must case concur provide that in shall be tried to render criminal conviction by a a by a verdict less than unanimous jury does Amendment and Sixth Amendment 184 violate a defendant not See State 1972 15 16 1885 pp La verdict implicitly taken account of this 2005 2517 writ denied court has pp Article a non 782 does assignment the 6 8 6 So 2d 684 3d So 3d So of a 119 S Ct unanimous must be repeatedly rejected by App 1st Cir 12 28 06 964 So 2d 352 State 938 So 2d 147 156 57 Moreover of Article 782 The Bertrand 738 our supreme See State court v v specifically verdict is constitutional and that jury violate the Fifth at p 6 9 06 constitutionality 09 227 necessity La 9 28 07 955 17 3 Shanks 97 v holding in Apodaca and App 1st Cir unanimous 12 person not 526 U S This argument has been affirmed the Bertrand 2008 2215 The anomalous 4 27 07 La Bertrand 2008 2215 La found that emphasize La 15 16 State 164 65 Smith 2006 0820 pp 23 24 La 2006 2466 recently La 1982 Jersey 530 U S 466 120 S Ct 2348 15 16 writ denied 2007 0211 952 So 2d 1 Caples prior by this Court v 92 S Ct 1628 32 L Ed 2d United States v which 1999 overrule the See State court New v and Jones 143 L Ed 2d 311 1215 the Fourteenth by Ring v Arizona 536 U S 584 122 S Ct 2428 Apprendi 2000 by jury specified by the states 715 So 2d 157 6 29 98 The defendant suggests that 147 L Ed 2d 435 the to 410 So 2d 720 726 App 1st Cir 153 L Ed 2d 556 2002 trial Oregon 406 U S 404 v Belgard v applicable made Apodaca right to s Sixth and Fourteenth Amendments at 743 of error is without merit REVIEW FOR ERROR Under La discoverable inspection by Code Crim a mere of the evidence the defendant to P art inspection we four years at which limits 920 2 of the pleadings have discovered hard labor 4 as a a and sentencing our review proceedings error habitual offender In to errors without sentencing the trial court denied him the benefit of l parole habitual offender sentence sentence is unlawful aggravated flight an contains we court imprisonment sentenced the defendant it is not necessary See parole prohibition us La s amend the defendant s remand for also State Miller 96 2040 p 3 La 15 529 1 A possible period of after removing G La App 1st Cir 1992 1 La Because required resentencing App 1st Cir 701 writ denied 98 0039 La 5 15 98 on not the maximum 607 So 2d 817 823 State v to RS 14 108 1 E v Benedict for to an the defendant eligibility Accordingly from parole prohibition no by deleting the parole prohibition Resentencing is the trial the for Thus the denial of parole 1 108 E 14 sentence underlying felony officer conviction the enhanced See La R S The a 7 11 97 RS See 703 So 2d 698 700 719 So 2d 459 CONCLUSION Accordingly are the defendant s convictions and habitual offender affirmed the defendant s amended The trial court accordance with the views CONVICTION AFFIRMED RESTRICTION sentence is instructed to delete parole restriction and is amend the commitment order in to expressed herein AND SENTENCE AND is amended adjudication HABITUAL OFFENDER AMENDED AFFIRMED AS TO ADJUDICATION DELETE AMENDED PAROLE COMMITMENT ORDER TO BE AMENDED TO DELETE PAROLE RESTRICTION The minutes reflect that the sentence contained discrepancy 2d So between the minutes and the transcript 732 734 La 1983 5 the parole restriction When there transcript prevails State v Lynch no is a 441
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