Opinion
NO. 2016 KA 0277
09-16-2016
STATE OF LOUISIANA v. SHAWN MYRON STEVENSON
JOSEPH L. WAITZ, JR. DISTRICT ATTORNEY J. CHRISTOPHER ERNY ELLEN DAIGLE DOSKEY ASSISTANT DISTRICT ATTORNEYS HOUMA, LA ATTORNEYS FOR STATE OF LOUISIANA PAUL J. BARKER MARTIN E. REGAN, JR. NEW ORLEANS, LA AND MORRIS "MICHAEL" HAIK, III NEW IBERIA, LA SUSAN KUTCHER JONES GONZALES, LA STEPHEN J. HAEDICKE NEW ORLEANS, LA ATTORNEYS FOR DEFENDANT-APPELLANT SHAWN MYRON STEVENSON
NOT DESIGNATED FOR PUBLICATION Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne, Louisiana
Trial Court No. 641,509
Honorable Randall L. Bethancourt, Judge JOSEPH L. WAITZ, JR.
DISTRICT ATTORNEY
J. CHRISTOPHER ERNY
ELLEN DAIGLE DOSKEY
ASSISTANT DISTRICT ATTORNEYS
HOUMA, LA ATTORNEYS FOR
STATE OF LOUISIANA PAUL J. BARKER
MARTIN E. REGAN, JR.
NEW ORLEANS, LA
AND
MORRIS "MICHAEL" HAIK, III
NEW IBERIA, LA
SUSAN KUTCHER JONES
GONZALES, LA
STEPHEN J. HAEDICKE
NEW ORLEANS, LA ATTORNEYS FOR
DEFENDANT-APPELLANT
SHAWN MYRON STEVENSON BEFORE: PETTIGREW, McDONALD, AND DRAKE, JJ. PETTIGREW, J.
Defendant, Shawn Myron Stevenson, was charged by bill of information with possession with intent to distribute a schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967.A(1) (count one), and illegal receiving or acquiring proceeds derived from drug transactions, a violation of La. R.S. 40:1041.D (count two). He pled not guilty. Following a three-day jury trial, defendant was found guilty as charged on both counts. He filed a motion for a new trial, which, following a hearing, the trial court denied.
The state filed a habitual offender bill of information alleging defendant to be a second-felony habitual offender. Defendant entered a plea of not guilty to the habitual offender bill of information. After a contradictory hearing, the trial court adjudicated defendant a second-felony habitual offender as to each underlying count.
The alleged predicate offense was an April 18, 2002 conviction for possession with intent to distribute a schedule II controlled dangerous substance under 32nd JDC (Terrebonne Parish) docket number 365014.
On count one, the trial court sentenced defendant as a second-felony habitual offender to fifteen years at hard labor without the benefit of probation or suspension of sentence. On count two, the trial court sentenced defendant as a second-felony habitual offender to five years at hard labor, without the benefit of probation or suspension of sentence, to run concurrently with the sentence on count one. The trial court denied defendant's motion to reconsider these sentences.
Defendant now appeals, alleging five assignments of error. For the following reasons, we affirm defendant's convictions, habitual offender adjudications, and his habitual offender sentence on count two. We amend his habitual offender sentence on count one and affirm that sentence as amended.
FACTS
Around 9:28 p.m. on June 18, 2012, Louisiana State Trooper Kevin Resweber was on patrol near the intersection of La. Hwy. 182 and La. Hwy. 662, near Gibson. While sitting in his patrol vehicle, parked on a shelled driveway parallel to Hwy. 182, with the lights on, Trooper Resweber observed a southbound vehicle on La. Hwy. 662 approaching, and then come to a complete stop, approximately thirty feet before the intersection's stop sign. Trooper Resweber noted that the vehicle caught his attention; he believed the driver of the vehicle also saw him, became nervous, and again, slowly approached the stop sign. The vehicle came to another complete stop, for what Trooper Resweber considered to be an extended and long time, given the lack of traffic on the roadways, further raising Trooper Resweber's awareness and suspicion about the vehicle. The driver eventually turned left onto La. Hwy. 182. When the vehicle turned, Trooper Resweber ran its license plate and discovered that it was canceled. Trooper Resweber then saw the vehicle cross the white fog line, and he decided to conduct a traffic stop based on those two violations.
Trooper Resweber activated his vehicle's emergency lights and spotlight and began to follow the suspect vehicle down La. Hwy. 182, attempting to get it to pull over. However, the suspect vehicle continued to drive away at a constant speed of approximately 55 to 60 mph. Trooper Resweber notified dispatch of the fleeing vehicle, and he activated his siren in a further attempt to attract the driver's attention. Trooper Tracy Plaisance was in the area and received Trooper Resweber's dispatch. He attempted to set up a roadblock on La. Hwy. 182 to assist Trooper Resweber. The driver of the vehicle swerved around Trooper Plaisance's vehicle and led Trooper Resweber on a chase that continued onto La. Hwy. 20, Carol Street, and eventually North Bayou Black Drive. Trooper Plaisance also proceeded behind Trooper Resweber to assist in the pursuit.
At 6026 North Bayou Black Drive, the vehicle turned into a private gravel driveway and came to a quick stop. The passenger of the vehicle, identified at trial as defendant, exited the vehicle with a tan plastic grocery bag in his hands, and began to flee on foot toward the woods at the rear of the property. Trooper Resweber briefly chased defendant until he realized that Trooper Plaisance also was already on the scene and in pursuit. At that time, Trooper Resweber turned his attention toward the vehicle's driver, whom he secured, and handcuffed once further assistance arrived. Trooper Plaisance deployed his Taser and ultimately apprehended defendant. At the time of his arrest, defendant was in possession of approximately $4,840.00 in cash found in his pocket. Another responding officer, Trooper Michael Stewart, ultimately found a plastic grocery bag of suspected narcotics in foliage near the area where defendant had fled on foot away from the vehicle. Both Trooper Resweber and Trooper Plaisance testified that the bag found by Trooper Stewart was consistent with the bag they had seen the defendant holding when he exited the vehicle, and it was found in the general area where the defendant had thrown it while he was being pursued. Subsequent chemical testing revealed that this bag contained approximately 123.75 grams of cocaine. Along with the bag and its contents and the cash found on defendant, the state troopers also seized the defendant's cell phone.
MOTION FOR MISTRIAL
In his first assignment of error, defendant argues that the trial court erred in denying his motion for a mistrial. Defendant contends that the state unlawfully introduced other crimes evidence contained in a "Louisiana State Police Use of Force Report" that indicated defendant had ten prior arrests.
Louisiana Code of Evidence article 404(B) provides that evidence of other crimes, acts, or wrongs is generally not admissible. Louisiana Code of Criminal Procedure article 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument, and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
In the instant case, defense counsel cross-examined Trooper Plaisance and was the first party to raise questions concerning facts that were cited in the "Use of Force" report. On redirect examination, Trooper Plaisance explained that the "Use of Force" report differed from an arrest report in that it was primarily used to track use-of-force incidents as a tool for further training. On redirect examination, with no objection from defense counsel, the state introduced the "Use of Force" report as State's Exhibit 2 and later had it published to the jury. Apparently, neither the state nor the defense noticed that the first page of this report contained the following line item: "14. Prior Arrests 10."
During its deliberations, the jury sent the following note to the trial judge: "We, the jury seen that he was arrested ten times before. What was his prior arrests?" The state and the defense immediately reacted with surprise about where the jury might have found such information. The parties eventually determined that, inadvertently, it was included in the "Use of Force" report, State's Exhibit 2. Defense counsel moved for a mistrial, arguing that the defense had not noticed that the report referred to defendant's prior arrests. The trial court denied the motion for a mistrial, noting that neither party noticed this information in the report and that the evidence had been introduced without objection two days prior. The trial court then returned the jury and addressed the question in open court as follows:
THE COURT:Defense counsel agreed to allow the trial court to issue this instruction.
All right. Y'all did exactly as I instructed y'all, you had a question, so y'all wrote it down, thank you. All right, the response to that is I'm assuming y'all must have viewed State exhibit 2, which I'm holding in my hand. It's entitled "Louisiana State Police Use of Force Report." And on line 14 it says prior arrests, that was a typo, there shouldn't be anything right there, okay. So that's a typo, it's as if nothing was there. There should not have been anything there, that was a typo.
And No. 2) I wanted to let you know, this use of force report should not be considered by you in determining whether or not the defendant is guilty of the counts that he's in court about today. So this should not be considered when you reach a verdict concerning Count 1 or Count 2, okay?
On appeal, defendant argues that the trial court should have granted a mistrial because he was prejudiced when the state introduced the "Use of Force" report that contained other crimes evidence. He contends that a mistrial was warranted under both La. Code Crim. P. art. 770(2), the mandatory mistrial provision, and art. 775, the discretionary mistrial provision.
Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the accused. A trial court ruling denying mistrial will not be disturbed absent an abuse of discretion. State v. Smith, 418 So.2d 515, 523 (La. 1982). We find that the trial court did not err or abuse its discretion in denying the defendant's motion for a mistrial. Defense counsel did not object to the state's introduction of the "Use of Force" report or to the subsequent publication of this evidence to the jury. Once the evidence had been published to the jury, defendant abandoned any right to complain of its introduction. See La. Code Evid. art. 103.A(1); State v. Scully, 2015-0385 (La. App. 1 Cir. 11/6/15), 2015WL6835435, p. 7 (unpublished), writ denied, 2015-2214 (La. 3/4/16), 188 So.3d 1056. Therefore, defendant is not entitled to appellate relief on this ground. See La. Code Crim. P. art. 841.A.
This assignment of error is without merit.
MOTION FOR NEW TRIAL
In his second assignment of error, defendant argues that the trial court erred in denying his motion for a new trial. Defendant contends that the trial court should have granted this motion in the interest of justice, on the basis of new evidence, or as the result of ineffective assistance of counsel.
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. La. Code Crim. P. art. 851.A. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at trial it would probably have changed the verdict or judgment of guilty.La. Code Crim. P. art. 851.B (in pertinent part).
...
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.
Defendant's written motion for a new trial was filed by one of his trial attorneys and simply set forth a general request for a new trial under all of the provisions of La. Code Crim. P. art. 851. After the filing of the motion, another attorney enrolled as defendant's counsel of record. This new attorney, Stephen Haedicke, filed a memorandum in support of defendant's motion for new trial. In the memorandum, defense counsel argued that defendant was entitled to a new trial based upon the introduction of the "Use of Force" report, upon a claim of newly discovered evidence in the form of Trooper Resweber's testimony at a civil forfeiture hearing, and upon a claim of ineffective assistance of counsel related to trial counsel's failure to object to the introduction into evidence of the "Use of Force" report.
On November 5, 2014, the trial court held a hearing on defendant's motion for new trial. The sole issue argued at this hearing was the claim that defendant was entitled to a new trial as a result of the introduction of the "Use of Force" report. The trial court heard no arguments concerning the alleged newly discovered evidence, and defense counsel withdrew the claim of ineffective assistance of counsel, presumably because trial counsel was not present at the hearing. Following arguments from both parties, the trial court denied the motion for a new trial.
Defendant's first claim supporting his motion for a new trial (the "Use of Force report) has already been addressed above, in connection with defendant's first assignment of error, and found to be without merit. Defendant's claim of ineffective assistance of counsel was withdrawn as it relates to his motion for a new trial, so it presents nothing for review on appeal.
We note that defendant also raises this claim, separately, in his fourth assignment of error, which is discussed more fully later herein.
The claim of newly discovered evidence in the memorandum supporting defendant's motion for new trial was never explicitly raised and ruled upon at the hearing on this motion. Therefore, we are entitled to conclude that this claim is not properly before us. See State v. Taylor, 2015-1144 (La. App. 1 Cir. 2/10/16), 2016WL562674, p. 8, n.7 (unpublished) (issue not subject to appellate review where a defendant filed a generalized motion to suppress and never asked the trial court to rule on specific grounds raised on appeal). Nevertheless, out of an abundance of caution, we elect to discuss why the alleged newly discovered evidence would not warrant a new trial.
A defendant who seeks a new trial based on newly discovered evidence must establish: (1) that the new evidence was discovered after trial; (2) that failure to discover the evidence before trial was not attributable to his lack of diligence; (3) that the evidence is material to the issues at trial; and (4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. State v. Cavalier, 96-3052 (La. 10/31/97), 701 So.2d 949, 951 (per curiam).
The merits of a motion for new trial based on newly discovered evidence should be viewed with extreme caution in the interest of preserving the finality of judgments. Furthermore, where the issue on a motion for new trial primarily involves a question of credibility, the trier of fact is better situated to make such determinations. See State v. Tyler, 342 So.2d 574, 587-588 (La.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). Discussing the issue of credibility as a basis for a new trial in Tyler, the Louisiana Supreme Court stated:
Experience teaches that recantations of trial testimony should be looked upon with the utmost suspicion. And, as a legal proposition, a new trial should not be granted on the ground that the newly discovered evidence destroys the credibility of the State's witness.Tyler, 342 So.2d at 588 (citations omitted).
In Cavalier, the supreme court stated:
Newly discovered evidence affecting only a witness's credibility "ordinarily will not support a motion for a new trial, because new evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial." Nevertheless, the court possesses the discretion to grant a new trial when the witness's testimony is essentially uncorroborated and dispositive of the question of guilt or innocence and it "appears that had the impeaching evidence been introduced, it is likely that the jury would have reached a different result." In making this determination, the court may assume that the jury "would have known that [the witness] had lied about the matter[.]"Cavalier, 701 So.2d at 951-52 (citations omitted).
In the instant case, the alleged newly discovered evidence relates to the nature of the object that Trooper Resweber saw in defendant's hand as he exited the suspect vehicle. At trial, Trooper Resweber testified that the object appeared to be similar to a plastic grocery bag that was tannish brown in color. This object appeared on the dashcam video that was played at trial, and Trooper Resweber testified that the object might have appeared lighter on that video because of his vehicle's spotlight. The jury had the opportunity to view this video depicting the object defendant carried.
To support the claim for newly discovered evidence, defense counsel attached to his memorandum a transcript from a civil forfeiture hearing related to the cash seized from defendant. At this hearing, held approximately five months after the trial and nearly two years after the incident, Trooper Resweber stated that the object defendant carried was "a small, brown paper sack, like you would get from the grocery store."
Defendant contends that this conflicting testimony regarding the type of bag is significant enough to make it "very likely" that the jury would have necessarily had a reasonable doubt as to defendant's guilt had this evidence been available at the time of trial. We disagree. This evidence is "merely impeaching" Trooper Resweber's trial testimony relating to the material of the bag. This testimony does nothing to call defendant's guilt into doubt, particularly in light of the fact that another officer, Trooper Plaisance, identified the recovered item as the same bag he had seen in defendant's hand during the foot pursuit. Considering the record as a whole, there is no support for defendant's claim that this conflicting testimony is sufficiently substantial to support a finding that the jury would have had a reasonable doubt about his guilt.
This final portion of defendant's second assignment of error is without merit.
MOTION FOR CONTINUANCE
In his third assignment of error, defendant contends that the trial court erred in denying his motion for a continuance. He argues that the motion for continuance should have been granted based on the state's last minute disclosure of exculpatory information (dispatch logs and the "Use of Force" report) and alleges that he suffered specific prejudice when his trial counsel was unable to review the "Use of Force" report and the report was ultimately introduced into evidence.
On the morning of the first day of trial (December 10, 2013), defense counsel orally moved for a continuance, alleging that several pending discovery motions were still unresolved. Defense counsel presented this motion as one requesting a continuance because the state had failed to produce allegedly exculpatory material as is required by Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). In particular, defense counsel requested that the state produce any reports from the officers who responded to the scene of defendant's arrest.
In addressing defense counsel's arguments, the trial court had the parties set forth the procedural history of defendant's case. Defendant was charged by a felony bill of information on July 16, 2012. Defense counsel (Ms. Susan Jones) enrolled as counsel of record on August 8, 2012, and filed an initial motion for discovery on September 4, 2012. Over the course of the next fourteen months, defendant's trial date was continued approximately seven or eight times, at least four of which were attributable to requests by the defense.
Defendant's prior counsel, an attorney with the public defender's office, had also filed a motion for discovery on August 15, 2012.
On August 16, 2013, defense co-counsel (Mr. Morris Haik) filed an additional motion for discovery, disclosure, and inspection. This motion specifically requested the reports and any other pertinent evidence from the state troopers who responded to the scene of defendant's arrest. This motion was set for a hearing on September 18, 2013. However, as Ms. Jones explained in arguing for a continuance, this hearing did not occur because the state supplied the defense with two DVDs on the date set for hearing, leading her to believe that the motion had been satisfied. Ms. Jones stated that she watched the DVDs and realized that she would need to reurge her discovery motion because not all of the requested material (reports, etc.) had been supplied. It appears from the record that defense counsel waited until an unrecorded conference the day before trial to re-assert the discovery issue. Ms. Jones then raised the issue formally on the record just before the beginning of jury selection.
In ultimately denying the motion for a continuance, the trial court noted that defense counsel had more than a year to request the items she reurged her need for on the morning of trial. Notably, the trial court pointed out that the state had sent out a request for subpoenas on November 21, 2013, indicating that the matter was going to proceed to trial on the set date, and defense counsel took no action to try to continue the trial at that time. Additionally, the trial court took issue with the fact that defense counsel admitted to knowing that the "Use of Force" report existed, but waited until the day of trial to request a continuance for the state to produce it.
As a courtesy, the trial court allowed the parties to question one witness -- Trooper Plaisance -- regarding the "Use of Force" report. Trooper Plaisance testified that this type of report is typically not publicly accessible or even provided to the district attorney's office. Rather, these use-of-force reports are stored in an internal database and are used for training purposes. Following Trooper Plaisance's testimony, the trial court again denied defendant's motion for a continuance. It appears that defense counsel received the "Use of Force" report in connection with Trooper Plaisance's testimony.
Louisiana Code of Criminal Procedure article 707 provides:
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.
The trial court has much discretion in deciding to grant or deny a motion for a continuance, and a reviewing court will not disturb such a determination absent a clear abuse of that discretion and a specific showing of prejudice caused by the denial. State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 229; see La. Code Crim. P. art. 712; see also State v. Roy, 496 So.2d 583, 588 (La. App. 1 Cir. 1986), writ denied, 501 So.2d 228 (La. 1987).
On appeal, defense counsel argues that the trial court should have granted the motion for a continuance because of the state's last-minute disclosure of exculpatory information. Defense counsel presented this argument to the trial court during the hearing, but the trial court doubted whether anything exculpatory existed in the requested documents.
It is well-settled that the state has an affirmative duty to disclose exculpatory evidence favorable to the defendant. See Brady 373 U.S. at 87, 83 S.Ct. at 1196-1197. But, to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was, in fact, exculpatory or impeaching. State v. Garrick, 2003-0137 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). The state should disclose exculpatory evidence in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Prudholm, 446 So.2d 729, 738 (La. 1984). However, even where disclosure is made during trial, it will be considered timely if the defendant is not prejudiced. See State v. Huls, 95-0541 (La. App. 1 Cir. 5/29/96), 676 So.2d 160, 170, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126. To be entitled to reversal, the defendant must show that he was prejudiced by the state's failure to timely disclose. Garrick, 870 So.2d at 993.
Initially, we note that defendant's oral motion for a continuance presents nothing for review on appeal. See State v. Penny, 486 So.2d 879, 887 (La. App. 1 Cir.), writ denied, 489 So.2d 245 (La. 1986). Even assuming defendant had properly filed his motion to continue, we find that the trial court did not err or abuse its discretion in denying this motion.
Ms. Jones admitted that she was aware "under the law" that it was mandatory for the "Use of Force" report to exist as a result of Trooper Plaisance's Taser-assisted apprehension of defendant. Defense counsel became aware, on or around September 18, 2013, that the defense had not yet been provided with this report in connection with the August 2013 discovery request. Nonetheless, counsel waited until the morning of trial to request a continuance so that this report could be produced. There is no evidence that any other police reports exist.
In the first instance, there is nothing in the record or in the "Use of Force" report to indicate that it even qualifies as Brady material. Nothing about the nature or contents of this report gives any indication that there is exculpatory evidence in the report itself or that there would be other discoverable exculpatory evidence based upon the report. Therefore, defendant was not entitled to a continuance based on the claim that the state made a last-minute disclosure of exculpatory evidence.
The defense's request for a continuance is better viewed as a request based upon a lack of preparedness. The denial of a motion for continuance, which motion is based on the ground of counsel's lack of preparedness, does not warrant reversal unless counsel demonstrates specific prejudice resulting from the denial or unless the preparation time is so minimal as to call into question the basic fairness of the proceeding. See State v. Dupre, 408 So.2d 1229, 1231-32 (La. 1982). Here, defendant alleges specific prejudice resulted because his attorneys did not have adequate time to review the "Use of Force" report, leading it to be introduced into evidence with a line item indicating he had ten prior arrests.
We note that the "Use of Force" report is a five-page document that largely consists of short fill-in-the-blank responses to standard questions. Defendant was represented by two attorneys who received the report on the first day of trial. The trial testimony did not begin until approximately 2:00 p.m. on the second day of trial. It was Ms. Jones who drew attention to the contents of the report during her cross-examination of Trooper Plaisance, leading the state to introduce this report as part of Trooper Plaisance's redirect testimony. Despite surprise by the state and the defense that this report included information related to defendant's prior arrest count, at least one juror saw this information during the publication of exhibits, which occurred on the morning of the third day of trial.
Based upon these particular facts and circumstances, we cannot conclude that the trial court's denial of the continuance was the reason that the "Use of Force" report came into evidence with no objection from the defense. The nature and brevity of the report mitigate concerns about the late production and its implications for trial preparation.
This assignment of error is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth assignment of error, defendant argues that his trial counsel were ineffective for failing to object to the introduction of the "Use of Force" report. Defendant states that he suffered specific prejudice because the report, which the jury viewed, contained a notation that he had ten prior arrests.
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the trial court, where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1 Cir. 11/8/96), 684 So.2d 432, 438. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Defendant contends that this assignment of error is properly addressed on appeal because there can be no sound trial strategy in defense counsel's failure to object to the introduction of the "Use of Force" report. However, this claim necessarily calls into question the preparation of defense counsel, as is evidenced by the protracted arguments in the hearing on defendant's motion for continuance. Any evaluation of this claim will necessarily require further explanation from both defense attorneys concerning their discovery requests and ability to review the "Use of Force" report.
Because defendant's claims raise issues related to his counsel's investigation, preparation, and strategy, these claims cannot be reviewed on appeal. Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond what is contained in the instant record, could these allegations be sufficiently investigated. Accordingly, these allegations are not subject to appellate review. See State v. Albert, 96-1991 (La. App. 1 Cir. 6/20/97), 697 So.2d 1355, 1363-64; see also State v. Johnson, 2006-1235 (La. App. 1 Cir. 12/28/06), 951 So.2d 294, 304.
Defendant would have to satisfy the requirements of La. Code Crim. P. art. 924, et seq., in order to receive such a hearing.
This assignment of error is unreviewable on appeal.
HABITUAL OFFENDER SENTENCES
In his final assignment of error, defendant contends that the trial court erred in imposing a habitual offender sentence for each of his convictions. He argues that because the two counts were part of the same criminal episode, he cannot be sentenced as a habitual offender on each count.
Defendant is incorrect. In State v. Shaw, 2006-2467 (La. 11/27/07), 969 So.2d 1233, 1245, the Louisiana Supreme Court held that La. R.S. 15:529.1 contains no prohibition against enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode.
This assignment of error is without merit.
PATENT ERROR
For errors not assigned, we are limited in our review under La. Code Crim. P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 2005-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After careful review, we have found an error in defendant's habitual offender sentence on count one.
Defendant was found guilty of possession with intent to distribute a schedule II controlled dangerous substance (cocaine). Whoever is convicted of possession with intent to distribute cocaine shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence to be served without benefit of parole, probation, or suspension of sentence. See La. R.S. 40:967.B(4)(b). As a second-felony habitual offender, defendant's sentencing range was between one-half of the longest possible sentence for the conviction (fifteen years) and not more than twice the longest possible sentence prescribed for a first conviction (sixty years). See La. R.S. 15:529.1.A(1). The entirety of any sentence imposed under the Habitual Offender Law shall be at hard labor without benefit of probation or suspension of sentence. See La. R.S. 15:529.1.G. However, Subsection G must also be read in light of State v. Bruins, 407 So.2d 685, 687 (La. 1981), which states that the conditions imposed on a habitual offender sentence are those called for in the reference statute. Accordingly, defendant's habitual offender sentence, which restricted the benefits of suspension of sentence and probation for its duration, should also have restricted the benefit of parole for the first two years of the sentence. Therefore, defendant's sentence is illegally lenient.
This statute also authorizes, but does not mandate, a fine. However, the habitual offender statute does not authorize the imposition of a fine. See State v. Dickerson, 584 So.2d 1140 (La. 1991) (per curiam); State v. Thomas, 2012-0177 (La. App. 1 Cir. 12/28/12), 112 So.3d 875, 879-80. --------
While we note this illegally lenient sentence, we also recognize that the missing condition is resolved by the self-activating provisions of La. R.S. 15:301.1.A, because no discretion is required. See State v. Dorsey, 2012-1816 (La. App. 1 Cir. 2/4/14), 137 So.3d 651, 655-56, writ denied, 2014-0378 (La. 9/19/14), 148 So.3d 951, cert. denied, ___ U.S. ___, 135 S.Ct. 1495, 191 L.Ed.2d 435 (2015). Here, defendant was sentenced to the minimum possible habitual offender sentence, and the missing restriction of parole is fixed at a two-year period. Therefore, we simply amend defendant's sentence and deem it to restrict the benefit of parole for its first two years.
For all of the foregoing reasons, we find no merit to any assignments of error urged on appeal. Accordingly, we affirm Shawn Myron Stevenson's convictions, the habitual offender adjudication, and the sentence on count two; we amend the sentence on count one, and as amended, the judgment of the trial court is affirmed. The matter is remanded in order for the minute entry to be updated to reflect the amended portion of the sentence.
CONVICTIONS AFFIRMED, HABITUAL OFFENDER ADJUDICATION AFFFIRMED, AND SENTENCE ON COUNT TWO AFFIRMED; SENTENCE ON COUNT ONE AMENDED, AFFIRMED AS AMENDED; AND REMANDED.