State Of Louisiana VS Jeremy John Passow
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 KA 0341 STATE OF LOUISIANA VERSUS JEREMY JOHN PASSOW I Judgment Rendered NOV O I O On Appeal from 32nd Judicial District Court In and for Terrebonne Parish State of Louisiana Trial Court No 644 556 The Honorable David W Arceneaux Judge Presiding Joseph Waitz Jr District Attorney Attorneys for Plaintiff Appellee State of Louisiana Jason Lyons Assistant District Attorney Houma Louisiana William G Yates Houma Louisiana BEFORE WHIPPLE Attorney far Defendant Appellant Jeremy John Passow J C WELCH AND CRAIN JJ CRAIN J The defendant Jeremy John Passow pled guilty to third driving offense while intoxicated DWI pursuant to State v Crosby 338 So 2d 584 La 1976 and was sentenced to five imprisonment at hard labor He now appeals years challenging the trial court denial of his motion to quash two of the predicate s offenses We affirm the conviction and sentence as amended to comply with the mandatory sentencing provisions of Louisiana Revised Statute 14 a 1 98D PROCEDURAL HISTORY The defendant was charged by amended bill of information with one count of fourth DWI a violation of Louisiana Revised Statute offense subsequent or 98 14 He pled not guilty He then moved to quash the predicate convictions used to support the charge of DWI fourth offense Following a hearing subsequent or the trial court granted the motion as to two of the predicate convictions and denied the motion as to two others The bill of information was then amended to charge the defendant with third DWI The defendant pled guilty pursuant to State offense v Crosby reserving his right to seek review of the partial denial of the motion to quash He was sentenced to five years at hard labor MOTION TO QUASH The defendant argues the trial court erred in denying his motion to quash the two predicate convictions namely a January 9 2007 DWI conviction in Vermilion Parish under docket number 2006 and a June 17 2009 DWI conviction in T2693 Lafayette Parish under docket number 2008 9157 He argues that he received suspended sentences for those offenses under Louisiana Code of Criminal Procedure article 894 and because there was no valid sentence in either case the predicates should have been quashed Prior to amendment by 2012 La Acts No 670 2 1 Article 894 pertinently provided A 1 Notwithstanding any other provision of this Article to the contrary when a defendani has been convicted of a misdemeanor the court may suspend the imposition or the execution of the whole or any part of the sentence imposed provided suspension is not prohibited by law and place the defendant on unsupervised probation or probation supervised by a probation office agency or officer designated by the court other than the division of probation and parole of the Department of Public Safety and Corrections upon such conditions as the court may fix Such suspension of sentence and probation shall be for a period of t years or such shorter period as o the court may specify B 1 When the imposition of sentence has been deferred by the court as authorized by this Article and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence and that no criminal charge is pending against him the court may set the conviction aside and dismiss the prosecution However prior to setting aside any conviction and dismissing the prosecution for any charge far operating a vehicle while intoxicated the court shall require proof in the form of a certified letter from the Department of Public Safety and Corrections office of motor vehicles that the requirements of Paragraph A of this Article have been complied 5 with 2 The dismissal ofthe prosecution shall have the same effect as an acquittal except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender Discharge and dismissal under this provision may occur only once with respect to any person during a year five period However discharge and dismissal under this provision for the offense of operating a vehicle while intoxicated may occur only once with respect to any person during a ten period year Emphasis added When a trial court denies a motion to quash factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial s court discretion See State v Odom 02 La App 1 Cir 6 861 So 2d 2698 03 27 187 191 writ denied 03 La 10 855 So 2d 765 However a trial 2142 03 17 s court legal findings are subject to a de novo standard ofreview See State v Smith 0606 2015 2019 2094 99 99 99 99 La 7 766 So 2d 501 504 00 6 3 In support of the use of the Vermilion Parish conviction the State introduced documentation showing that on Jar 9 200 the defendant pled guilty to first uary offense DWI under Article 894 and was sentenced to ten days parish jail suspended on condition he serve six months supervised probation subject to certain conditions In support of the use of the Lafayette Parish conviction the State introduced documentation indicating that on June 17 2009 the defendant pled nolo contendere to first DWI under Article 894 and was sentenced to six offense months in the parish jail suspended on the condition that he serve twelve months supervised probation subject to certain conditions Far both the Vermillion Parish and the Lafayette Parish convictions the State established that the defendant pled guilty and was sentenced under Article 894 Both were final convictions because a sentence was imposed in each case There is no support in the law for the defendant argument that a suspended sentence is not s a final conviction and sentence Further Article 894 expressly provides that even if a conviction is eventually dismissed thereunder it may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender La Code Crim Pro art 894B prior to amendment by 2012 La Acts 2 No 670 1 See also State v Finch 31 La App 2 Cir 5 733 So 2d 888 99 716 727 The trial court conectly denied the motion to quash This assigrunent of error is without merit REVIEW FOR ERROR Louisiana Revised Statute 14 provides that on a conviction for aj lj 98D A sentence imposed upon a plea of nolo contendere is a conviction and may be considered as a prior conviction and provide a basis for prosecution or sentencing under laws pertaining to multiple offenses and shall be a conviction for purposes of laws providing for the granting suspension or revocation of licenses to operate motor vehicles La Code Crim P art 4 552 4 offense third DWI the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars One year of tha sentence of imprisonment shall be imposed without benefit of probation parole or suspension of sentence emphasis added The defendant was sentenced to five imprisonment at hard labor Although not years specifically stated by the trial court the sentence is deemed to contain the restriction of probation parole or suspension of sentence La Rev Stat 30L1 15 State v Williams 00 La 11 800 So 2d 790 799 1725 O1 28 However since the sentence does not include the mandatory fine it does not comply with the legislatively mandated sentencing range set forth in the Section a 1 98D 14 and is illegally lenient The judiciary role is to select an appropriate sentence within the range s fixed by the Legislature so long as the sentence is not constitutionally excessive See State v Rome 96 La 7 696 Sa 2d 976 978 State v Dorthey 0991 97 1 623 So 2d 1276 1280 La 1993 An illegal sentence may be corrected at any 81 time by an appellate court on review La Code Crim Pro art 882A The defendant has no constitutional right to an illegally lenient sentence State v Williams 800 So 2d at 797 Because there is no sentencing discretion relative to the 2000 fine and to conform with the legislatively mandated provisions of 00 Section 14 we amend the defendant sentence to five years at hard a 1 98D s labor without benefit of probation parole or suspension of sentence for one year and a fine of 2 00 000 CONVICTION AFFIRMED AMENDED AFFIRMED SENTENCE AMENDED AND AS I 5 I
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