Opinion
NUMBER 2015 KA 1298
09-19-2016
STATE OF LOUISIANA v. HENRY THAMES
Scott M. Perilloux, D.A. Patricia Parker Amos, A.D.A. Amite, LA Attorneys for Appellee State of Louisiana Lieu T. Vo Clark Mandeville, LA Attorney for Appellant Defendant - Henry Thames
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa, Louisiana
Trial Court Number 1400133 Honorable Jeffrey Johnson, Judge Scott M. Perilloux, D.A.
Patricia Parker Amos, A.D.A.
Amite, LA Attorneys for Appellee
State of Louisiana Lieu T. Vo Clark
Mandeville, LA Attorney for Appellant
Defendant - Henry Thames BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
The defendant, Henry L. Thames, was charged by amended bill of information with attempted possession with intent to distribute marijuana, a violation of La. R.S. 14:27 and La. R.S. 40:966(A)(1). The defendant entered a plea of not guilty, and was found guilty as charged after a trial by jury. The defendant was sentenced to fifteen years imprisonment at hard labor. The defendant now appeals, asserting in the sole assignment of error that the sentence is unconstitutionally excessive. For the following reasons, we affirm the conviction and sentence.
STATEMENT OF FACTS
On October 16, 2013, Special Agent Chad Scott of the United States Drug Enforcement Administration (DEA) received a tip from a previously used informant regarding one or more packages believed to contain narcotics addressed to the defendant and sent through the United States Postal Service. Based on the tip, Agent Scott contacted the postmaster at the Independence, Louisiana post office, where the packages were expected to arrive that day or by the following day. Agent Scott asked the postmaster to contact him if and when the packages arrived at the post office. The following morning, October 17, 2013, the postmaster contacted Agent Scott and informed him that the packages addressed to the defendant had arrived. Agent Scott and Agent Jacob Schwebel of the Tangipahoa Parish Sherriff's Office (TPSO) went to the post office, observed packages that were consistent with the informant's description, and summoned a TPSO narcotics canine detective to the post office. When Deputy Henry Neihaus of the TPSO arrived with his canine, the dog alerted to the packages in question. Based on the information provided in the tip and the dog's alert to the packages, the police obtained a search warrant for the packages. Once the packages were opened, the police recovered compressed "brick packages" of suspected marijuana. A field test was performed, which indicated the substance contained marijuana.
The record contains inconsistent testimony regarding the number of separate packages that contained marijuana in this case. Agent Scott initially referred to only one package, but then later indicated that he believed it was two. In subsequent trial testimony, Agent Scott and Agent Schwebel indicated the two packages arrived on October 17, and Agent Schwebel went back to the post office the next day after a third package arrived. All three of the packages were labeled with the defendant's name and address.
The substance was subsequently tested at the Louisiana State Police Crime Lab and determined to consist of 970.51 grams of marijuana.
The agents then went to the address provided on the packages and located a mailbox at 57266 Hano Road in Independence in front of a church. Behind the church was a house, which was later confirmed to be the defendant's residence. The agents left a postal note on the door of the defendant's residence indicating that a package was available at the post office and then conducted surveillance of the residence. During surveillance, the agents observed two vehicles; one came from the defendant's residence and met with the driver of the other vehicle on the side of the road. One of the vehicles was being driven by Richard Selders with the defendant as a passenger. Selders exited his vehicle and approached the other vehicle. The agents observed a hand-to-hand exchange between Selders and the occupants of the vehicle, after which Selders was observed counting money as he walked back to his vehicle before both vehicles departed.
As the vehicle occupied by Selders and the defendant was travelling toward the police, the agents activated their unit's emergency lights and sirens to conduct a traffic stop of the vehicle. As the vehicle came to a stop, Agent Scott exited his unit, identified himself as law enforcement, and asked the driver (Selders) to step out of the vehicle. Agent Scott's command was ignored by Selders, who sped away heading south on Hano Road.
Agent Scott reentered his vehicle, called for additional units, and pursued Selders and the defendant as they traveled at a high rate of speed along the narrow roadway. As the vehicles entered the 90-degree turn of the highway, the vehicle occupied by Selders and the defendant was damaged when it struck another vehicle. Selders and the defendant abandoned their vehicle and fled into a wooded area. Agent Schwebel pursued and captured the defendant.
A search of the defendant incident to the arrest resulted in the recovery of the postal note left at the residence regarding the packages. After being advised of his Miranda rights, the defendant made several statements and specifically indicated that he was picking up the package(s) for Selders, which he indicated belonged to Selders. The defendant further stated that a previous package had been mailed to his residence, which he also picked up for Selders. The defendant insisted that he was not a drug dealer and that the marijuana belonged to Selders. Yet, the defendant did tell the agents that he would receive currency or drugs as payment for allowing Selders to have the packages sent to his residence. A search of Selders' vehicle recovered over five thousand dollars. Selders acknowledged that the money belonged to him, that he was a street drug dealer specifically selling marijuana, and that the exchange observed by the agents was a marijuana transaction.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Both agents recalled the defendant stating that he picked up packages that belonged to Selders. While Agent Scott recalled the defendant further stating that he knew marijuana was in the packages, Agent Schwebel could not recall whether or not the defendant made that additional statement.
Selders indicated that drugs were sent to him on assignment or credit, and that he would send payment after the narcotics were sold.
Following a jury trial, the defendant was found guilty as charged, and sentenced to fifteen years hard labor. At the sentencing hearing on August 13, 2014, the trial court denied the defendant's motion for postverdict judgment of acquittal and motion for new trial. Before the imposition of sentence, the defendant did not present any argument on the issue of sentencing nor did he assert any mitigating circumstances. After the sentence was imposed, the defense attorney stated generally, "Just note our objection to the sentencing for appeal purposes."
On September 25, 2014, the defendant filed a motion for appeal, which was denied as untimely. The trial court then denied the defendant's motion for an out-of-time appeal on October 16, 2014. Likewise, the defendant's written "motion for amendment, modification, or reconsideration of sentence" filed on January 14, 2015, was also denied as untimely. However, the trial court did grant the defendant's subsequent application for postconviction relief in which he, without stating the grounds for appeal, asked the trial court to reinstate his appeal rights.
Time limitations for criminal appeals are governed by La. C.Cr.P. art. 914, which provides:
A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.
In the untimely motion to reconsider sentence, the defendant asks for leniency, citing his good behavior in prison and the negative effect of his imprisonment on his family as mitigating factors that developed since his incarceration. --------
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the sentence imposed by the trial court is unconstitutionally excessive in this case.
DISCUSSION
Louisiana Code of Criminal Procedure article 881.1 provides, in pertinent part with regard to the filing of a motion to reconsider sentence:
A. (1) In felony 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.
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B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the
motion is based.
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E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the district court still has jurisdiction to change or correct the sentence. State v. Emerson, 2004-0156 (La. App. 1st Cir. 10/29/04), 888 So.2d 975, 979, writ denied, 2005-0089 (La. 4/22/05), 899 So.2d 557. 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).
Louisiana Code of Criminal Procedure article 881.1's thirty-day deadline prohibits a trial court from reconsidering its sentencing decision once the deadline has passed. We note that an out-of-time motion to reconsider sentence is not contemplated by the Code of Criminal Procedure nor allowed by the jurisprudence. State v. Gedric, 99-1213 (La. App. 1st Cir. 6/3/99), 741 So.2d 849, 852 (per curiam), writ denied, 99-1830 (La. 11/5/99), 751 So.2d 239. Likewise, a motion for appeal, or a motion for postconviction relief to reinstate appeal rights, as in this case, is not a substitute for a timely motion to reconsider sentence and does not satisfy the requirements of La. C.Cr.P. art. 881.1. See State v. Gerald, 2013-1478 (La. App. 1st Cir. 5/2/14), 145 So.3d 436, 438, writ denied, 2015-1370 (La. 2/13/15), 157 So.3d 585.
Under La. C.Cr.P. art. 881.1(B) the defendant's request for reconsideration must set forth the "specific grounds" upon which the motion is based in order to raise an objection to the sentence on appeal. See State v. Mims, 619 So.2d at 1059; State v. Bickham, 98-1839 (La. App. 1st Cir. 6/25/99), 739 So.2d 887, 891. It is well settled that a contemporaneous objection to a sentence on the specific ground of excessiveness of sentence alone preserves a bare claim of excessiveness. See State v. Mims, 619 So.2d at 1059. However, under La. C.Cr.P. art. 881.1(D), a general objection to a sentence, preserves nothing for appellate review. See State v. Bickham, 739 So.2d at 891; State v. Jones, 97-2521 (La. App. 1st Cir. 9/25/98), 720 So.2d 52, 53.
In this case, the defendant entered a general objection to the sentence at the time of sentencing and then filed his motion to reconsider sentence more than thirty days following the imposition of sentence. Consequently, the defendant's failure to urge a claim of excessiveness or any other specific grounds for reconsideration of sentence by oral or timely written motion precludes our review of his assignment of error. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (per curiam). As such, we find review of the excessive sentence argument raised in the defendant's assignment of error is procedurally barred.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.