State Of Louisiana VS John H. Cook
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 KA 2336 Jam STATE OF LOUISIANA VERSUS JOHN H COOK Judgment Rendered June 8 2012 Appealed from the 22 d Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 504 777 Honorable Allison H Penzato Judge Walter P Reed District Attorney Covington LA Attorneys for State Appellee and Kathryn W Landry Baton Rouge LA Bertha M Hillman Attorney for Thibodaux LA Defendant Appellant John H Cook BEFORE PETTIGREW McCLENDON AND WELCH JJ WELCH J Defendant John Harley Cook was charged by bill of information with one count of creation or operation of a clandestine laboratory methamphetamine a violation of La R 40 count one and one count of possession of a S 983 Schedule III controlled dangerous substance hydrocodone a violation of La R S C 968 40 count two Defendant pled not guilty to both charges The state nol prossed count two and proceeded to trial on count one only After a trial by jury defendant was found guilty as charged on count one Defendant filed motions for new trial and postverdict judgment acquittal but these motions were denied by the trial court Defendant also filed a motion for reconsideration of sentence but the trial court dismissed this motion as premature because defendant had not been sentenced at the time of its filing Defendant was subsequently adjudicated a second felony habitual offender and sentenced to a term of ten years at hard labor without benefit of probation or suspension of sentence On appeal defendant asserts one assignment of error For the following reasons we affirm defendant s conviction habitual offender adjudication and sentence FACTS On March 23 2011 James Planche Jr contacted a friend in hopes of purchasing painkillers Planche friend asked him to meet defendant at the Wal s Mart on Gause Boulevard in Slidell and to buy a box of Sudafed for defendant in exchange for four hydrocodone pills Upon his arrival at WalMart Planche met defendant in the electronics section and defendant gave him 5 in cash a card 00 used to purchase Sudafed from the pharmacy counter and an empty cigarette pack containing four hydrocodone pills The predicate convictions set forth in defendant shabitual offender bill of information were a May 27 1997 conviction for possession of a Schedule 1 controlled dangerous substance marijuana second offense and a May 16 2005 conviction for possession of a Schedule I controlled dangerous substance marijuana third offense However in exchange for defendant stipulation to the contents of the habitual offender bill of information the s state agreed to nolprosse defendant sMay 27 1997 predicate conviction and defendant was adjudicated a second felony habitual offender PA Brandon Brown the loss prevention officer for the Slidell WalMart observed defendant in the electronics section prior to Planche arrival at the store s Brown recognized defendant as a person who he had previously seen in the store buying Sudafed and other precursors to the manufacture of methamphetamine Brown observed as defendant spoke to someone on his cell phone retrieved cash from his wallet and met with Planche Defendant and Planche walked together to the pharmacy area but defendant continued walking and he exited the store before Planche bought a box of Sudafed Brown telephoned Officer Bradley Hoopes of the Slidell Police Department to inform him that he suspected Planche purchase s of Sudafed was related to methamphetamine production Officer Hoopes received s Brown call as he was pulling into the WalMart parking lot to begin his detail assignment at the store After Planche purchased the Sudafed he exited the store and began looking for defendant Planche entered his vehicle started to drive around the parking lot and called defendant to let him know that he had bought the Sudafed Planche spotted defendant and pulled into a parking space near the front ofthe store As defendant approached the driver side of Planche vehicle Officer s s Hoopes parked his vehicle behind Planche and he observed Planche handing s defendant a Wal Mart bag Upon seeing Officer Hoopes Planche threw the hydrocodone pills into his back seat Officer Hoopes exited his vehicle and instructed defendant and Planche to show him their hands Defendant showed his hands to be empty Officer Hoopes observed Planche begin to reach behind the front passenger seat s He asked again to see Planche hands and Planche s complied showing Officer Hoopes that they were empty Officer Hoopes asked the men where the box of Sudafed was located and while Planche immediately admitted that he had purchased it for and had given it to defendant defendant immediately denied any knowledge of the Sudafed and allowed Officer Hoopes to C pat him down During defendant pat down Planche again reached into his s backseat area and Officer Hoopes again asked to see Planche hands s opened up his hand to reveal at least three hydrocodone pills Planche When Officer Hoopes had Planche exit his vehicle the WalMart bag containing Sudafed fell out onto the ground Officer Hoopes placed both men under arrest After defendant was read his Miranda rights he admitted that he had given Planche cash to purchase Sudafed because he was over his thirtyday personal limit and he stated that the Sudafed was going to be used to manufacture methamphetamine ASSIGNMENT OF ERROR In his sole assignment of error defendant argues that his habitual offender sentence of ten years at hard labor without benefit of probation or suspension of sentence is constitutionally excessive Herein defendant was sentenced as a habitual offender on September 29 2011 A thorough review of the record shows the defendant did not make or file a timely oral or written motion to reconsider sentence pursuant to La C art P Cr 1 881 subsequent to his sentencing Instead after he was sentenced defendant filed a motion to reconsider sentence on August 30 2011 At defendant s September 6 2011 arraignment on his habitual offender bill of information the trial judge denied the motion as premature because defendant had not yet been sentenced and she specifically noted that this motion could be refiled at a later date Article 881 of the Code of Criminal Procedure provides In felony A 1 cases within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence the state or the defendant may make or file a motion to reconsider sentence Emphasis added An objection to a sentence or a motion to reconsider sentence filed before the sentence is imposed is 2 Miranda v Arizona 384 U 436 86 S 1602 16 L 694 1 S Ct 2d Ed 966 3 We note that defendant was never sentenced for his underlying conviction in this case but prior sentencing on the underlying conviction is not required where a defendant is subsequently adjudicated to be and sentenced as a habitual offender See La R 15 S 529 3 D 1 0 premature Under the clear language of La C art 881 a failure to make P Cr E 1 or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred during sentencing while the trial judge still has the jurisdiction to change or correct the sentence The defendant may point out such errors or deficiencies or may present argument or evidence not considered in the original sentencing thereby preventing the necessity of a remand for resentencing State v Mims 619 So 2d 1059 La 1993 per curiam sfailure to timely make or file a motion to reconsider sentence Defendant precludes him from arguing that his sentence was excessive for the first time on appeal Thus defendant is procedurally barred from having the sole assignment of error reviewed See State v Felder 20002887 La App 1 Cir 9 809 01 28 2d So 360 369 writ denied 2001 3027 La 10 827 So 1173 02 25 2d Even if we consider defendant prematurely filed motion to reconsider s sentence sufficient to preserve this issue for review we would still find that s defendant sentence is not excessive For a firstoffense conviction of creation or operation of a clandestine laboratory defendant could have received a sentence of not less than five nor more than fifteen years at hard labor See La R S C 983 40 Having been adjudicated a second felony habitual offender on this conviction defendant was exposed to a sentencing range of not less than seven and onehalf years to thirty years at hard labor without benefit of probation or suspension of sentence See La R 15 S 529 A 1 G Thus defendant s sentence of ten years at hard labor without benefit of probation or suspension of sentence was near the lower end ofthe potential sentencing range At defendant s sentencing the trial judge articulated that she had considered any aggravating and mitigating circumstances under La art 894 1 and she found that defendant P Cr C G1 presented an undue risk of future criminal activity and that a lesser sentence would depreciate the seriousness of defendant crime s On the record before us we cannot say that the trial court abused its discretion or that defendant habitual s offender sentence is constitutionally excessive CONCLUSION For the foregoing reasons the defendant conviction habitual offender s adjudication and sentence are affirmed CONVICTION HABITUAL OFFENDER SENTENCE AFFIRMED 6 ADJUDICATION AND
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