Opinion
NO. 19-KA-581
07-29-2020
STATE of Louisiana v. Nickolos MARCHIAFAVA
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Gail D. Schlosser, Joshua K. Vanderhooft, Lindsay L. Truhe COUNSEL FOR DEFENDANT/APPELLANT, NICKOLOS MARCHIAFAVA, Jane L. Beebe
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Gail D. Schlosser, Joshua K. Vanderhooft, Lindsay L. Truhe
COUNSEL FOR DEFENDANT/APPELLANT, NICKOLOS MARCHIAFAVA, Jane L. Beebe
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
WINDHORST, J.
Defendant, Nickolos Marchiafava, appeals his conviction and sentence for possession of methamphetamine weighing twenty-eight grams or greater. For the following reasons, we affirm defendant's conviction and sentence.
Procedural History
On December 3, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant, Nickolos Marchiafava, with one count of possession with intent to distribute methamphetamine weighing twenty-eight grams or greater in violation of La. R.S. 40:967(A), which occurred on October 1, 2018 (count one). Defendant was arraigned the same day and pled not guilty. On April 8, 2019, the State filed a superseding bill of information to add a second count of possession with intent to distribute methamphetamine weighing twenty-eight grams or greater in violation of La. R.S. 40:967(A), which occurred on March 12, 2019 (count two). Defendant was re-arraigned on the superseding bill of information that same day and pled not guilty. The two counts were severed on July 16, 2019.
On July 16, 2019, defendant was tried as to count two before a twelve-person jury and was convicted of the lesser offense of possession of methamphetamine weighing twenty-eight grams or greater. On July 29, 2019, the trial court sentenced defendant as to count two to twenty years imprisonment at hard labor. On August 16, 2019, defendant filed a motion to reconsider sentence and a motion for appeal regarding the trial verdict on count two rendered on July 16, 2019, and the sentence imposed on July 29, 2019. The trial court granted the appeal on August 20, 2019 and denied the motion to reconsider on September 16, 2019.
After the appeal was granted, the State filed a multiple offender bill of information alleging defendant to be a third-felony offender using count two as the underlying offense. Defendant was subsequently adjudicated a second-felony offender. The trial court vacated defendant's original sentence and resentenced him to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant appeals his original sentence for count two. Defendant's multiple offender finding and sentence are not before this Court in the present appeal, since they occurred after this appeal was instituted.
Law and Analysis
Defendant argues in this appeal that the trial court imposed an excessive sentence. Specifically, defendant argues that the trial court failed to justify the imposed maximum sentence and that imposition of the sentence to run concurrent with the sentence for count one is also unjustified. Defendant asserts that his admission to possessing methamphetamine should mitigate his sentence, not justify the maximum sentence permitted, as well as that his prior criminal history should not have been considered during his original sentencing because it was later used against him in the multiple offender adjudication.
In response, the State asserts that defendant's claim is moot because the original sentence challenged here was imposed on July 29, 2019, and it was subsequently vacated on October 8, 2019, when defendant was resentenced as a multiple offender pursuant to La. R.S. 15:529.1.
The record reflects that the defendant was originally sentenced to twenty years imprisonment at hard labor on July 29, 2019. On August 20, 2019, the trial court granted defendant's motion for appeal. Thereafter, the State filed a multiple offender bill of information against defendant, and on October 8, 2019, defendant was adjudicated a second-felony offender. The trial court vacated defendant's original sentence and resentenced him. Thus, defendant's argument regarding his original sentence is moot, because that sentence has been vacated and is no longer an issue. State v. Riggins, 04-60 (La. App. 5 Cir. 9/28/04), 885 So.2d 42, 43 ; State v. Bell, 53,163 (La. App. 2 Cir. 1/15/20), 289 So.3d 658, 660.
Decree
Accordingly, we affirm defendant's conviction. We do not address defendant's original sentence because it was vacated, and we do not address defendant's sentence pursuant to the multiple bill, which is not before this Court.