author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Jermaine WEBER.
    No. 13-KA-163.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

12Defendant, Jermaine Weber, appeals his conviction and sentence for manslaughter. For the following reasons, we affirm his conviction and sentence, and we grant appellate counsel’s motion to withdraw.

PROCEDURAL HISTORY

On August 19, 2008, a Grand Jury for St. John the Baptist Parish returned a true bill of information charging defendant, Jermaine Weber, with one count of first degree murder, a violation of La. R.S. 14:30A(3). Defendant was arraigned on August 20, 2008, and pled not guilty. Defendant filed several pre-trial motions, including a motion to appoint a sanity commission, which was denied by the trial court on April 15, 2009. On August 18, 2011, the District Attorney for the Parish of St. John filed a Motion To Amend Indictment to the lesser charge of second degree murder, a violation of La. R.S. 14:30.1A(1). On September 6, 2011, the District Attorney again amended the charge against defendant to manslaughter, a violation of La. R.S. 14:31, to which the defendant pled guilty the same day. Defendant was sentenced on December 14, 2011, to 35 years with the Department of Corrections with credit for time served. On January 4, 2012, defendant filed a pro se Motion for Change of Plea, which was denied on July 11, 2012. Defendant also filed a Motion For Reconsideration of Sentence, which was granted on July |sll, 2012. The trial court vacated the original sentence on that same date and defendant was re-sentenced to 29.5 years. Defendant now appeals.

FACTS

Because this conviction is the result of a guilty plea, the underlying facts were not developed. However, the true bill of information on the third amended charge of manslaughter states that on June 26, 2008, defendant violated La. R.S. 14:31 in that he murdered Michael Taylor.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests permission to withdraw as counsel of record.

DISCUSSION

In Anders supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability,” and to assist the reviewing court |4“in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion, and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that there is no ruling of the trial court to be challenged, and that the issue of the trial court’s denial of defendant’s request for a sanity commission has already been [ ¡¡reviewed by this Court. Furthermore, defendant’s plea was not made pursuant to State v. Crosby, 338 So.2d 584 (La.1976), and no rulings have been reserved for appellate review. Counsel also indicates that defendant was informed of the original sentence that he would receive, as well as the reasons for the reconsidered sentence.

Along with her brief, appellate counsel has filed a motion to withdraw as attorney of record which states she has mailed defendant a copy of his brief. She further states that she notified the defendant of the filing of the motion to withdraw and that she advised defendant of his right to file a pro se brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until April 21, 2013, to file a pro se supplemental brief. No pro se brief was filed.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of information properly charged defendant. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged, and cites the statute that defendant violated. It also sufficiently identifies defendant and the crimes charged. Further, defendant was advised of the amended charge of manslaughter on the record. Also, as reflected by the minute entries and commitment, defendant appeared at his arraignment, guilty plea proceedings, and sentencing. Moreover, defendant pled guilty to the amended charge. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant is sentenced, only those guilty pleas that are constitutionally defective may be withdrawn by appeal or post-_Jconviction6 relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally defective if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. State v. Dixon, 449 So.2d 463, 464 (La.1984).

The record shows that defendant was aware he was pleading guilty to one count of manslaughter. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial court, defendant indicated that he understood that he was waiving these rights. Defendant stated that he was aware of the penalty and legal consequences of pleading guilty and wanted to plead guilty. Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea.

Additionally, the waiver of rights form and colloquy with the court reveal that defendant understood the sentencing range for his crime was zero to 40 years at hard labor and that he would be sentenced following a pre-sentence investigation. Defendant was advised of the trial court’s reasons for his original sentence and the reasons for reconsideration of sentence. Furthermore, defendant’s reconsidered sentence of 29.5 years falls within the sentencing range set forth in the respective statute and does not present any non-frivolous issues for appeal.

^Considering the above stated reasons, we find that defendant’s guilty plea and sentence do not present any issues for appeal. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review finds only one error patent that requires corrective action.

The sentencing transcript and the commitment do not indicate that the trial court informed defendant of the two-year delay period for applying for post-conviction relief under La.C.Cr.P. art. 930.8. We advise defendant, by this opinion, that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 and 922. State v. Morris, 40, 322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed, and the motion to withdraw as counsel for defendant is granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . Defendant applied to this Court for writs following the district court’s denial of his motion to appoint a sanity commission. The defendant's writ application was denied. State of Louisiana v. Jermaine Weber, 09-649 (La.App. 5 Cir. 6/29/09) (unpublished writ disposition).

      . The sentence was also ordered to run concurrent with a "sentence out of Georgia,” which is not specified.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terrence L. DANIELS.
    No. 13-KA-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J.
    Butler, Douglas W. Freese, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

| ^Defendant, Terrence Daniels, appeals his convictions for felon in possession of a firearm, second offense possession of marijuana and possession of cocaine. He contends the trial court erred in denying his motion for new trial, which was based on newly discovered evidence that allegedly easted serious doubt on the credibility of the officer who provided the probable cause affidavit for the search warrant that led to the discovery of the evidence against Defendant. We find we cannot reach the merits of Defendant’s argument because of the procedural posture of the case. As such, we must vacate the denial of the motion for new trial and remand the matter for further proceedings.

On June 22, 2010, Defendant was charged with two counts of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (counts one and two), one count of second offense possession of marijuana in violation of La. R.S. |S40:966(C) (count three), and one count of possession of cocaine in violation of La. R.S. 40:967(C) (count four). He pled not guilty and filed several pre-trial motions, including motions to suppress the evidence and his statement which were denied after a hearing on January 3, 2012. Defendant subsequently waived his right to counsel and requested to represent himself. After a sanity hearing in which the trial court found Defendant competent to stand trial, Defendant’s request for self-representation was granted.

Defendant proceeded to trial, with “shadow” counsel, on May 1, 2012. Defendant waived his right to a jury trial and opted for a trial by the judge. After a two-day trial, the judge found Defendant guilty as charged on all four counts. On May 7, 2012, the trial judge sentenced Defendant to 12 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence and a $1,000 fine on each count one and two, and five years imprisonment at hard labor on each count three and four. The judge ordered the sentences to run concurrently with each other. Also on May 7, 2012, Defendant filed a motion for appeal, which was granted the same day.

On June 1, 2012, after the appeal was granted, the trial court issued an order on its own motion. The judge explained that the order was being issued upon representations from the Jefferson Parish District Attorney’s Office that grounds existed which may entitle Defendant to a new trial. The judge specifically explained that one or more of the witnesses may be the subject of a federal criminal investigation relating to potential public corruption. Accordingly, the judge ordered that Defendant’s right to file a motion for new trial be preserved and set the matter for hearing. Thereafter, on August 21, 2012, Defendant filed a motion for post-verdict judgment of acquittal or, alternatively, a motion for new trial. The basis for the motion was the possible investigation by the Federal | ¿Bureau of Investigations of members of the Westbank Major Crimes Task Force. A hearing was held on January 28, 2013. After arguments by Defendant and the State, the trial court denied Defendant’s motion for new trial.

On appeal, Defendant challenges the trial court’s denial of his motion for new trial. We find the trial court lacked jurisdiction in ruling on the motion for new trial.

Defendant’s motion for appeal was granted on May 7, 2012. Defendant filed his motion for new trial on August 21, 2012, based on information that was discovered after he was sentenced.

Louisiana Code of Criminal Procedure article 851(3) provides that a motion for new trial shall be granted when

[n]ew 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 the trial it would probably have changed the verdict or judgment of guilty.

The time for filing a motion for new trial is governed by La. C.Cr.P. art. 853, which provides:

A motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.
When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case. [Emphasis added.]

Since Defendant’s motion for new trial was based on Article 851(3), we find it was timely filed, within one year after the judgment of the trial court even though sentence had been imposed. However, because an appeal was pending at 1 Bthe time the motion was filed, the trial court could only hear the motion on remand of the case.

La.C.Cr.P. art. 916 provides that “[t]he jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal.” Thereafter, the trial court had no jurisdiction except for certain listed exceptions in Article 916 that are not applicable here. Once the trial court entered the order of appeal on May 7, 2012, it was without jurisdiction to entertain a motion for new trial except on remand of the case by this Court. See State v. Molinario, 383 So.2d 345, 353 (La.1980), cert. denied, 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106 (1980); State v. Brown, 451 So.2d 1074, 1078 (La.1984). Because the record does not reflect that this Court remanded the case to the trial court to hear the motion for new trial, the trial court did not have jurisdiction to rule on the motion and its actions with reference to the motion were null and void. See State v. Vampran, 491 So.2d 1356, 1367 (La.App. 1st Cir.1986), writ denied, 496 So.2d 347 (La.1986).

While we recognize the Fourth Circuit found the denial of a motion for new trial after an order of appeal had been entered in State v. Robinson, 98-0005 (La.App. 4 Cir. 9/29/99); 743 So.2d 814, 815-16, to be harmless error, we cannot say the same in this case. In Robinson, the court first found the defendant’s motion for new trial was untimely because it was made after the defendant was sentenced and no basis was given for the motion, and then noted that the defendant did not raise the denial of his motion for new trial on appeal. Here, Defendant’s motion for new trial was timely and the denial of the motion is the sole issue on appeal.

DECREE

For the foregoing reasons, the trial court’s January 28, 2013 ruling on Defendant’s motion for new trial is vacated and the matter is remanded to the trial | ficourt for a new hearing on Defendant’s motion. Defendant’s right to appeal an adverse judgment on his motion for new trial is reserved.

VACATED AND REMANDED.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Steven P. ALBERTI.
    No. 13-KA-205.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Myles Ranier, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    John J. Finckbeiner, Jr., Renee L. Swanson, Attorneys at Law, Chalmette, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

12Pefendant, Steven P. Alberti, pled guilty to and was sentenced for one count of possession with intent to distribute marijuana in violation of La. R.S. 40:966A, one count of possession of a firearm while in possession of marijuana in violation of La. R.S. 14:95E, and one count of possession of cocaine in violation of La. R.S. 40:967C. Defendant appeals the trial court’s July 24, 2012 ruling denying his motion to suppress evidence and statements. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

On March 15, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Steven P. Alberti, with possession with intent to distribute marijuana in violation of La. R.S. 40:966A (count one); possession of a firearm while in possession of marijuana in violation of La. R.S. 14:95E (count two); and possession of cocaine in violation of La. R.S. 40:967C (count three). Defendant was arraigned on March 28, 2012, and pled not guilty. On July 17, 2012, a hearing was held on defendant’s motions to suppress statements and 1 ...evidence, and the matter was submitted. The trial judge denied the motions to suppress on July 24, 2012.

On September 17, 2012, defendant withdrew his not guilty pleas and pled guilty as charged, reserving his rights pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Afterward, the trial judge sentenced defendant to imprisonment at hard labor for five years on each count to run concurrently, and he ordered the sentence on count two to be served without benefit of parole, probation, or suspension of sentence. Defendant now appeals the trial court’s July 24, 2012 denial of his motions to suppress.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends that the trial court erred in denying his motions to suppress evidence and statements resulting from an illegal investigatory stop in violation of the Fourth Amendment.

LAW AND ANALYSIS

Defendant argues that the trial judge erred by denying his motion to suppress evidence. He contends that the arresting detectives did not have reasonable suspicion that he was committing, had committed, or was about to commit a crime because the detectives did not see him act suspiciously, and the confidential informant’s tip did not provide sufficient information about his alleged illegal activities. Therefore, defendant asserts that the investigatory stop by the detectives was unreasonable, and any evidence and statements obtained after the detectives’ initial stop must be suppressed.

In opposition, the State argues that defendant was free to disregard the officers when they asked him if he had anything illegal on him and walk away, but instead, defendant voluntarily answered the question to his legal detriment. The State contends that the police did not need reasonable suspicion to merely speak |4with defendant, and defendant was not seized under either the Fourth Amendment or the Louisiana Constitution. As such, the State maintains that the voluntary encounter that yielded contraband and incriminating statements was lawful.

At the suppression hearing, Detective Joshua Bermudez of the Jefferson Parish Sheriffs Office (JPSO) testified that they received information from a confidential informant that a man named “Steven,” who was later identified as defendant, was possibly involved in narcotics sales and lived near the intersection of Cleveland and Ithaca in Metairie. The confidential informant described defendant as being in his thirties with brown hair and a medium build. He also stated that defendant drove a blue Jeep that was raised up on “big wheels.”

On February 7, 2012, Detective Bermu-dez and his team went to the location provided by the informant, and when they arrived, Detective Bermudez saw someone matching that description standing by the sidewalk in front of the house with a raised-up Jeep. The detectives parked their vehicles on the sidewalk and walked up to defendant. They told defendant they were with the JPSO and asked him “if he had anything illegal on him.” Defendant voluntarily said that all he had was a “bag of weed” in his pocket. Detectives Bermudez and Clogher removed the bag from defendant’s pocket and arrested defendant.

JPSO Detective Julio Alvarado arrived on the scene and was advised that defendant had been found in possession of marijuana. Detective Alvarado advised defendant of his Miranda rights, after which he asked defendant if he had any more marijuana in the house. Defendant voluntarily responded that he had about a quarter of a pound of marijuana inside the house. Detective Alvarado asked defendant for his consent to search the house, but defendant refused.

Detective Alvarado subsequently reviewed a rights of arrestee form with defendant. Defendant initialed next to each of his rights and signed the form, [ 5thereby indicating that he had been read his rights and was waiving them. Afterward, defendant gave a taped statement wherein he advised that he was holding the marijuana for his friend, “Justin,” that “Justin” allowed him to sell the marijuana, and that defendant would have to repay whatever amount of marijuana he sold.

Detective Bermudez applied for a search warrant for defendant’s residence, had it signed, and relocated back to the residence. When Detective Bermudez gave defendant a copy of the search warrant, defendant pointed out that it contained a wrong number. Detective Bermudez had them hold the search, after which he went back to the First District Station where he corrected the search warrant. Thereafter, Detective Bermudez returned to the commissioner, got the search warrant signed, and then went back to defendant’s house. During the search, detectives retrieved 1100 grams of green vegetable matter, a white powdered substance, a digital scale, a vacuum bag sealer, sandwich bags, multiple firearms (one of which was recovered from the Jeep), and assorted magazines and ammunition.

At the hearing on defendant’s motions to suppress evidence and statements, the State presented defense counsel and the trial judge with its memorandum in opposition to defendant’s motions. Afterward, the trial judge said he had read it and then asked defense counsel if he had any argument. A private bench conference was subsequently held, after which the trial judge denied the motion to suppress evidence without providing reasons.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D). The trial court’s decision relative to the suppression of evidence is |fiafforded great weight and will not be set aside unless there has been an abuse of that discretion. State v. Wells, 08-2262 (La.7/6/10), 45 So.3d 577, 581.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765. However, not all encounters between law enforcement and individual citizens constitute “seizures.” State v. Martin, 11-82 (La.10/25/11), 79 So.3d 951, 955. Federal jurisprudence has concluded that a “seizure” occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. The Louisiana Supreme Court has held that “[ujnder Louisiana’s slightly broader definition of the term, a seizure may also occur ‘when the police come upon an individual with such force that, regardless of the individual’s attempt to flee or elude the encounter, an actual stop of the individual is virtually certain [to occur].’ ” State v. Sylvester, 01-607 (La.9/20/02), 826 So.2d 1106, 1108.

In State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1183, the Louisiana Supreme Court recognized a three-tiered analysis of interactions between citizens and the police. In the first tier, there is no seizure or Fourth Amendment concern during mere communication with police officers and citizens where there is no coercion or detention. The second tier consists of brief seizures of a person, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal activity. State v. Fisher, 720 So.2d at 1183. The third tier is custodial arrest where 17an officer needs probable cause to believe that the person has committed a crime. Id.

Within the first tier, officers have “the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a ei'ime.” State v. Dobard, 01-2629 (La.6/21/02), 824 So.2d 1127, 1130. Further, the police do not need probable cause to arrest or reasonable suspicion to detain an individual each time they approach a citizen. Id. As long as the person approached by the officers remains free to disregard the encounter and walk away, there are no constitutional implications. Id.

“It is settled that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). (See also State v. Martin, 79 So.3d at 956 (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991)) (“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times.”))

The determination of whether a seizure has occurred is a fact-intensive analysis in which a reviewing court must consider the totality of the circumstances. Martin, 79 So.3d at 957. In examining the totality of the circumstances, a court must look to “numerous factors, including the time, place and purpose of the encounter, the words used by the officer, the officer’s tone of voice and general demeanor, the officer’s statements to others present during the encounter, the ^threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.” Id. at 958. “Police-citizen encounters do not become ‘seizures’ simply because citizens may feel an inherent social pressure to cooperate with police.” Id. Yet, “[w]hile most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” Id.

In Martin, supra, cited by the State, an officer encountered the defendant at a convenience store. The two men knew each other, and the officer asked the defendant how he was doing. Because the officer knew the defendant had previously been in trouble with law enforcement, he asked the defendant for his identification to check for outstanding warrants. The officer noticed the defendant was nervous and sweating, which the officer considered uncharacteristic of their previous encounters. Based on these observations, the officer asked the defendant whether he “had anything illegal on him.” The defendant replied that he had four Soma pills in his pocket. The officer retrieved the pills and placed the defendant under arrest. The defendant filed a motion to suppress that was denied. Id. at 953.

The appellate court reversed the trial court’s denial of the motion; however, the Louisiana Supreme Court reversed the appellate court and reinstated the trial court’s ruling. The Louisiana Supreme Court found that the record failed to support a finding that there was an unmistakable show of official authority in the police/citizen encounter that would have indicated to a reasonable person that he was not free to leave. The Court also found that the defendant voluntarily complied with the officer’s request for identification and voluntarily offered a response to the officer’s potentially incriminating question. Under the totality of the circumstances, the Louisiana Supreme Court found that the officer’s brief | ^retention of the defendant’s identification did not change the nature of this essentially consensual encounter and that the officer lawfully retrieved the Soma pills from the defendant’s pocket. Martin, 79 So.3d at 960.

In State v. Thomas, 08-390 (La.App. 5 Cir. 1/27/09), 8 So.3d 80, writ denied, 09-626 (La.11/25/09), 22 So.3d 170, also cited by the State, officers were conducting surveillance of a residence due to suspected illegal activity. The officers had received information that a black male was expected to arrive on a bicycle and distribute narcotics from the residence. At some point, a black male, later identified as the defendant, arrived on a bicycle. An officer exited his car, approached the defendant on foot, explained that he was conducting a narcotics investigation, and advised the defendant of his rights. The officer instructed the defendant to place his hands on the police vehicle, but the defendant did not comply. The officer then asked the defendant if he had any illegal narcotics on his person, and the defendant looked toward the ground and sighed. Based on this response, the officer asked the defendant if he had any drugs, and the defendant said he had crack cocaine in his pocket. The officer subsequently retrieved the substance and arrested the defendant. The defendant filed a motion to suppress that was denied. Id. at 82-83.

On appeal, we held that the trial court in Thomas did not err in its ruling. We held that the officer’s request for the defendant to place his hands on the police unit without the defendant’s compliance did not constitute a show of authority sufficient to raise the encounter to an investigatory stop under the second tier of Fisher. Notably, we also concluded that when the officer asked the defendant whether he had any narcotics, the defendant voluntarily answered that he had some in his pocket, which gave the officers probable cause to arrest the defendant and search him incident to arrest. Id. at 85.

|TnIn State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, cited by defendant in the instant case, officers received an anonymous tip from a concerned citizen that the defendant, Robertson, who was named and described, was selling drugs within the Magnolia Housing Development. The tip also described the defendant’s vehicle and provided an address where the vehicle would be parked when the defendant was not distributing narcotics. After going to the location, the officers saw the vehicle being driven away and followed the vehicle. When the defendant parked and exited the vehicle, the officers approached the defendant and asked his name. After the defendant identified himself, an officer informed him that he was under investigation for narcotics. A canine unit was called to the scene. When the dog indicated that an odor of narcotics was coming from inside the vehicle, the officer entered the vehicle and discovered a large plastic bag filled with crack cocaine. Thereafter, the defendant was placed under arrest.

The trial court denied the defendant’s motion to suppress the evidence, and the Fourth Circuit denied the defendant’s writ application. The Louisiana Supreme Court reversed, finding that there was no reasonable suspicion for the investigatory detention of the defendant. The Court noted that the officers did not observe any unusual or suspicious conduct on the defendant’s part. Furthermore, the Court also noted that the tip did not provide sufficiently particular information concerning the defendant’s future actions and, therefore, the officers lacked reasonable grounds to believe that the informant possessed reliable information about the defendant’s alleged illegal activities. Id. at 1270-71.

In the instant case, Detective Bermudez and his team, acting on a tip, went to the intersection of Cleveland and Ithaca in Metairie. When they arrived, Detective Bermudez observed defendant, who matched the description given, standing by a sidewalk in front of a residence at that location. The detectives parked their | Hvehicles on the sidewalk and walked up to defendant. They told him that they were with the JPSO and asked him “if he had anything illegal on him.” Defendant voluntarily answered that he had a “bag of weed” in his pocket.

Under the foregoing jurisprudence, we find that the detectives had the right to approach defendant in a public place and ask him a question, even without reasonable suspicion to believe that he had committed a crime. See Dobard, supra; Martin, supra; Thomas, supra. Defendant was free to disregard the encounter and walk away, given that he was standing in front of his home at the time of the encounter. However, he chose to voluntarily respond to the detectives’ potentially incriminating question by admitting that he was in possession of narcotics. Because of his admission, we find that the detectives had probable cause to arrest defendant and to retrieve the narcotics from defendant’s pocket during a search incident to arrest.

Furthermore, we find that defendant was not seized during this encounter as the record does not reflect that the detectives restrained defendant’s liberty by means of physical force or show of authority. The testimony at the suppression hearing reflects that only two detectives initially approached defendant and asked him a question. A third detective appeared after the first two detectives had already removed the bag from defendant’s pocket and placed defendant in handcuffs. Additionally, there is no evidence that the detectives displayed weapons, used a forceful tone of voice, or physically touched defendant during the encounter. Although defendant asserts that the detectives drove their vehicles onto the sidewalk, we do not find that this raises the encounter to an investigatory stop. See State v. Thomas, supra (holding that the officer’s request for the defendant to place his hands on the police unit without the defendant’s compliance did not | ^constitute a show of authority sufficient to raise the encounter to an investigatory stop under the second tier of Fisher).

We find defendant’s reliance upon Robertson, supra, to be misplaced. Robertson is factually distinguishable from the instant case and, therefore, inapplicable. In the instant case, the detectives approached defendant on foot, whereas in Robertson, the officers stopped a vehicle the defendant was driving. Detectives in the instant case asked defendant if he was in possession of anything illegal, unlike in Robertson, where the officers only asked the defendant his name and then advised the defendant he was under investigation for narcotics. Furthermore, in the instant case, defendant voluntarily admitted he was in possession of narcotics which gave the detectives probable cause to arrest and search him; however, in Robertson, the defendant was not asked if he possessed contraband, and the defendant did not voluntarily admit he possessed contraband; nevertheless, the officers in that case summoned the canine unit to search the defendant’s vehicle. ■

Accordingly, we find that the trial judge did not err by denying defendant’s motions to suppress evidence and statements. Therefore, defendant’s sole assignment of error is without merit.

Errors Patent Discussion

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were found.

CONCLUSION

11sFor the foregoing reasons, we affirm the trial court’s judgment denying defendant’s motions to suppress evidence and statements.

AFFIRMED.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Vershawn WILLIAMS.
    No. 12-KA-68.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

|2Vershawn Williams appeals his conviction for possession of cocaine and specifically seeks review of the trial court’s denial of his motion to suppress evidence and his motion to quash the multiple offender bill of information. For the reasons that follow, we find no error in the trial court’s rulings and accordingly affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On January 12, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Vershawn Williams, with possession of cocaine in violation of LSA-R.S. 40:967(C). At his arraignment, defendant pled not guilty. Defendant thereafter filed motions to suppress evidence and statement, which were denied after a hearing.

The case proceeded to trial on July 13, 2011, before a six-person jury that unanimously found defendant guilty as charged. On July 29, 2011, the trial court sentenced defendant to imprisonment at hard labor for five years. On that same |sdate, the State filed a multiple offender bill of information alleging that defendant was a fourth felony offender.

On November 10, 2011, the court conducted a hearing on the multiple offender bill. However, before the trial judge made his ruling, the State withdrew the multiple offender bill but said that it would refile it. The State subsequently refiled the multiple offender bill of information, and on January 14, 2013, defendant stipulated to being a third felony offender under State v. Crosby, 338 So.2d 584, 586 (La.1976). Thereafter, the trial judge vacated the original sentence and resentenced defendant under the multiple bill statute to imprisonment at hard labor for ten years without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

On the evening of December 20, 2010, Detectives Joshua Collins, Michael Tucker, and Roger Gorumba of the Jefferson Parish Sheriffs Office, along with other detectives, participated in an investigation involving narcotics distribution at 2124 Edenborn Avenue in Metairie. The targets of the investigation were Alecia and Craig Adams, who lived at that address.

At approximately 9:45 p.m., while conducting surveillance at that location, Detective Collins observed a black Nissan Maxima arrive at the house. He then observed two black males, later identified as defendant and Joseph Smith, exit the vehicle and go inside the residence. A gray vehicle then pulled up, and Alecia Adams exited that vehicle and went inside the residence. Shortly thereafter, defendant and Smith left the residence, got into their vehicle, and drove away.

Believing that a possible drug transaction had just occurred, the detectives decided to follow the Maxima. They observed it proceed to a gas station on Causeway Boulevard, less than a minute away from the Edenborn residence, and 14pull in front of the store. Defendant was in the passenger seat, and Smith was the driver. The detectives saw defendant exit the vehicle, go inside the store, purchase one single tobacco cigar, and then come out of the store and get back into the vehicle.

Once defendant got back into the car, the vehicle remained parked in front of the store. After 20 to 30 seconds, the detectives believed that defendant and Smith were probably sitting in the vehicle about to roll a cigar of marijuana. At that time, Detectives Collins and Tucker, who were in plain clothes, decided to approach the vehicle. Detective Collins approached the passenger side, while Detective Tucker approached the driver’s side. Upon approaching, the detectives could see that Smith, the driver, had cut open the cigar and was in the process of emptying the tobacco to replace it with marijuana. In addition, Detective Tucker observed a bag of marijuana in the driver’s door.

The detectives then identified themselves as officers. They opened the doors, identified themselves as officers again, escorted the occupants out of the vehicle, handcuffed them, and patted them down but did not find anything. Both defendant and Smith were advised of their Miranda rights, after which they admitted that they went to the gas station to buy a cigar and that they were sitting in the vehicle rolling a blunt and were about to smoke it. When asked where they had been, both occupants gave different locations, and neither said anything about the Edenborn address, even though the detectives knew that they had just been there. The detectives then took defendant and Smith back to 2124 Edenborn.

Detective Collins knocked on the front door and was met by Alecia Adams who was in the den with her husband, Craig. Detective Collins advised that he and | ¡¿Detective Tucker were narcotics agents with the Jefferson Parish Sheriffs Office. Alecia and Craig Adams were very cooperative and gave the officers consent to search their residence. While Detective Collins was obtaining this consent to search, Detective Tucker was talking to defendant and Smith. Detective Tucker continuously observed defendant’s hand go down to his groin area, where he was “shifting around.” Knowing that it was very common for narcotics suspects to hide drugs in and around the groin and rectal areas, Detective Tucker asked defendant to take a walk with him.

The two of them went to a bedroom, after which Detective Tucker told defendant that if he had anything on him he should consider getting rid of it. Detective Tucker advised defendant that jail personnel would search him when he arrived at the jail, and if they found any contraband, he would be facing five years imprisonment for introduction of contraband into the correctional facility. At this point, defendant acknowledged that he had something in his groin area. When Detective Tucker asked him what it was, defendant responded that it was cocaine. Defendant then unbuttoned his pants and pulled down his underwear, and a bag containing crack cocaine fell to the ground.

Marcelle Folse, who was qualified as an expert in the field of analysis and identification of controlled dangerous substances, testified that the substances recovered in this case tested positive for cocaine, marijuana, and heroin.

MOTION TO SUPPRESS EVIDENCE

In his first assigned error, defendant challenges the trial court’s denial of his motion to suppress evidence.

At the suppression hearing, Detective Mike Tucker testified that in December of 2012, he was assisting Detective Josh Collins in a narcotics 1 (Investigation relating to potential drug trafficking occurring out of a residence on Edenborn Avenue in Me-tairie. On December 20, 2012, while the detectives were conducting surveillance of the targeted residence, they observed two black males, subsequently identified as defendant and Joseph Smith, arrive in a black Nissan Maxima. The two males exited the vehicle, went inside the residence, stayed there about two or three minutes, and then exited the residence. Detective Tucker testified that given these circumstances, he believed that a possible narcotics transaction had taken place.

The surveillance team then followed the vehicle to a nearby gas station. According to Detective Tucker, the passenger exited the vehicle, went inside the store, and purchased a single cigar, which people commonly purchase to smoke marijuana. After the passenger returned to the car, the officers approached the vehicle to get a better look at what was going on inside. As he approached, Detective Tucker observed that the driver, whom he claimed was defendant, had the cigar in his hand and was removing the tobacco from the cigar. Detective Tucker further observed a clear bag of green vegetable matter in the driver’s side door. At this point, the detectives identified themselves as law enforcement officers, and the two occupants exited the vehicle. The officers advised the suspects of their rights, and Detective Collins questioned them individually about their whereabouts. Neither suspect admitted that they had come from the Eden-born address. Given this false information, the officers brought defendant and Smith back to the targeted residence.

As defendant was sitting on the sofa, Detective Tucker observed him “fooling around and making motions to his crotch area, groin area.” Knowing that people hide weapons, narcotics, and/or drug paraphernalia in their waistbands, Detective Tucker escorted defendant into a “hallway and bedroom where no one |7else was around.” After advising defendant of the penalty for bringing contraband into a correctional facility, defendant admitted that he had narcotics on him. When defendant’s pants were removed, a bag of crack cocaine fell to the floor.

Joseph Smith also testified at the suppression hearing. According to Smith, when the police approached his car on December 20, he immediately told them that there was a bag of marijuana in the arm rest of his car and that it belonged to him. Smith further testified that before they went to the gas station, they went to Aleda Adams’ residence to drop off her husband. They then went to the gas station to buy him a cigar for his marijuana. He further claimed that the police came to the car and put guns in their faces.

After listening to the evidence presented at the suppression hearing, the trial court took the matter under advisement and ultimately denied defendant’s motion to suppress evidence without assigning reasons. Defendant now challenges this ruling. He contends that he was arrested without probable cause when the officers approached the vehicle at the gas station, and therefore, the evidence should have been suppressed as “fruit of the poisonous tree.” Alternatively, defendant argues that the officers lacked reasonable suspicion to make an investigatory stop.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765.

In State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1183, the Louisiana Supreme Court recognized a three-tiered analysis of interactions between citizens and the police. In the first tier, there is no seizure or Fourth Amendment concern during mere communication with police officers and citizens | swhere there is no coercion or detention. Within this tier, officers have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime. Further, the police do not need probable cause to arrest or reasonable suspicion to detain an individual each time they approach a citizen. As long as the person approached by the officers remains free to disregard the encounter and walk away, there are no constitutional implications. State v. Dobard, 01-2629 (La.6/21/02), 824 So.2d 1127, 1130.

Under the second tier, it is well-established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion is something less than probable cause to arrest. Rather, it requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual’s right to be free of government interference. State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076.

The third tier is custodial arrest where an officer needs probable cause to believe that the person has committed a crime. State v. Fisher, 720 So.2d at 1183.

Based on our review of the applicable jurisprudence and the record, including the transcripts of the suppression hearing and the trial, we find that the officers were justified in their actions at the gas station. In the instant case, the ^officers clearly had the right to approach the vehicle to speak to the occupants even without reasonable suspicion of criminal activity. At the suppression hearing, Detective Tucker testified that as he approached the vehicle, he observed that the driver had the cigar in his hand and was removing the tobacco from the cigar. Detective Tucker further observed a clear bag containing marijuana in the driver’s side door in plain view.

Police may lawfully seize evidence without a warrant under the “plain view” doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate, 09-619 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300-301. Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. State v. Leger, 05-11 (La.7/10/06), 936 So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. State v. Tate, 33 So.3d at 301. Given that there was no unlawful intrusion prior to Detective Tucker seeing the marijuana in plain view, we find that the officers had probable cause to arrest the occupants and retrieve the marijuana.

We acknowledge that there was some testimony in the record indicating that Detective Tucker did not actually view the marijuana until he opened the door. Accepting this factual scenario as true, the officers were nonetheless justified in their actions because they had reasonable suspicion at the time they approached the car to believe that a crime had been or was about to be committed.

h nOnce Detective Tucker walked over to the vehicle, stood next to the driver’s side door, and saw the driver cutting the cigar open and removing the tobacco, he had reasonable suspicion that a crime was about to be committed, i.e., that the occupants were about to smoke marijuana. This reasonable suspicion arose from his knowledge and experience as a narcotics detective that individuals commonly smoke marijuana by buying a single cigar, removing the tobacco, and replacing it with marijuana. This reasonable suspicion also arose from the presence of the occupants at the Edenborn address that was under surveillance for narcotics violations, defendant’s purchase of only one single cigar at the store, and the fact that the occupants stayed in their vehicle and did not leave the parking lot after purchasing only one single cigar. Because Detective Tucker had reasonable suspicion that a crime was about to be committed, he and Detective Collins were justified in opening the doors of the vehicle. See State v. Cure, 11-2238 (La.7/2/12), 93 So.3d 1268, cert. denied, — U.S.-, 133 S.Ct. 549, 184 L.Ed.2d 357 (2012).

Once Detective Tucker opened the door and saw the marijuana, his reasonable suspicion to believe that a crime had been or was about to be committed ripened into probable cause to arrest the occupants. Having found that there was probable cause to arrest defendant and seize the marijuana, we find no merit to defendant’s argument that the subsequent seizure of the cocaine should be suppressed as “fruit of the poisonous tree.”

In this assignment, defendant also challenges Detective Tucker’s credibility and points to various inconsistencies in the testimony at the suppression hearing and at trial. The trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there has been an abuse of that discretion. State v. Wells, 08-2262 (La.7/6/10), 45 So.3d 577, 581. In determining whether the ruling on a motion to suppress was correct, the court is Innot limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at trial. State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859. Having considered the evidence adduced at the suppression hearing and at trial, and recognizing any inconsistencies therein, we find no reason to set aside the trial court’s determination. In fact, Detective Tucker clarified at trial that he made a mistake at the suppression hearing when he said that defendant was the driver of the vehicle. He admitted that he switched the identities of the driver and the passenger, but he was consistent in his testimony that the passenger got out of the car to buy a cigar and that the driver had the cigar in his lap and was removing the tobacco.

Based on the foregoing, we find that the arguments raised by defendant in this assigned error are without merit, and accordingly, we find no error in the trial court’s denial of defendant’s motion to suppress evidence.

MOTION TO QUASH MULTIPLE OFFENDER BILL OF INFORMATION

In his second assigned error, defendant contends that the trial court erred in denying the motion to quash the refiled multiple offender bill of information.

The record indicates that prior to trial, the State had offered defendant a plea bargain by which he could have pled guilty to being a second felony offender in exchange for a sentence of two and one-half years imprisonment. Defendant refused this offer, proceeded to trial, and was found guilty of possession of cocaine. The trial court sentenced defendant to five years imprisonment at hard labor, and the State thereafter filed a multiple offender bill of information alleging that defendant was a fourth felony offender.

The trial court conducted a hearing on the multiple offender bill on November 10, 2011. After the State presented its case, defense counsel, during 112argument, brought up some deficiencies in the State’s proof. The State then requested to supplement its case with additional documents. The trial court denied this request and indicated it would rule based on the evidence submitted. Prior to a ruling by the trial court, the State withdrew the multiple offender bill and said that it would refile it. Once the multiple offender bill was refilled, defendant moved to quash it based on prosecutorial vindictiveness. After a hearing on February 6, 2012, the trial court denied defendant’s motion to quash, finding that the State could refile the multiple offender bill of information. Defendant thereafter filed a writ application with this Court seeking review of the trial court’s ruling. On April 24, 2012, this Court denied defendant’s writ application finding no error in the trial court’s denial of defendant’s motion to quash. State v. Williams, 12-234 (La.App. 5 Cir. 4/24/12) (unpublished writ disposition). The Louisiana Supreme Court likewise denied defendant’s writ application on September 14, 2012. State v. Williams, 12-1170 (La.9/14/12), 97 So.3d 1008.

Defendant once again seeks review of the trial court’s denial of his motion to quash the multiple offender bill of information. He contends that the refiled multiple bill should have been quashed because the State’s actions constituted prosecutorial vindictiveness.

The prior denial of supervisory writs does not preclude reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, 755, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). However, under the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. The “law of the case” doctrine is discretionary. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was | ispatently erroneous and produced unjust results. State v. Pettus, 11-862 (La.App. 5 Cir. 5/22/12), 96 So.3d 1240, 1242-43.

In denying defendant’s previous writ application on this identical issue, this Court found no error in the trial court’s denial of defendant’s motion to quash, stating as follows:

The defendant bears the burden of proving prosecutorial vindictiveness. In determining whether there has been prosecutorial vindictiveness, the court examines the State’s actions in the context of the entire proceeding. If, to a reasonable mind, the filing of the habitual offender bill can only be explained by a desire to deter or punish the defendant’s exercise of legal rights, the events in the case will create a presumption of vindictiveness. State v. Darensbourg, 06-572 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128, 1132, writ denied sub nom., State ex rel. Darensbourg v. State, 07-0317 (La.11/9/07), 967 So.2d 495. But where the government’s conduct is equally attributable to legitimate reasons, a defendant must prove actual vindictiveness, for a presumption will not apply. State v. Stewart, 27,049, p. 4 (La.App. 2 Cir. 5/10/95), 656 So.2d 677, 680, writs denied, 95-1764, 95-1768 (La.12/8/95), 664 So.2d 420. A mere opportunity for vindictiveness does not suffice. Id. (citing U.S. v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
In the instant case, there is no evidence that the State’s pursuit of the multiple bill against Relator was vindictive or intended to punish him for going to trial. It appears that the State offered defendant a double bill prior to trial as an incentive to entice him to enter a guilty plea. An offer to a particular sentence or cap or to reduce the charge, when rejected, does not thereafter limit the breadth of the state’s case. A full prosecution of a case after a plea offer is rejected does not show prosecu-torial vindictiveness. See, State v. Sigers, 45,423 (La.App. 2 Cir. 6/23/10), 42 So.3d 446, 449.
Further, the record shows the State timely filed the multiple bill, and additionally, Relator had an extensive criminal record, giving the State legitimate reasons to pursue habitual offender proceedings. The district attorney’s use of the habitual offender laws “provides an ancillary sentencing factor designed to serve important and legitimate societal purposes.” State v. Dauzart, 07-15, p. 6 (La.App. 5 Cir. 5/15/07), 960 So.2d 1079, 1085.
Relator also argues that the State was being vindictive when it withdrew the first multiple bill and filed another multiple bill after realizing that there was insufficient evidence to prove one of the prior convictions. The district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. La. C.Cr. P. art. 61. Further, the district attorney has great discretionary power to file a habitual offender bill. State v. S.L.D., 08-549 (La.App. 8 Cir. 11/5/08), 997 Sogdu 759, 769-70, writ denied, 09-0245 (La.10/30/09), 21 So.Bd 272 (citing State v. Brisco, 04-8089, p. 13 (La.7/6/06), 933 So.2d 754, 762).
Moreover, since double jeopardy principles are inapplicable to sentence enhancement proceedings, the State may retry Relator as a multiple offender. State v. Raymond, 98-119, pp. 9-10 (La.App. 5 Cir. 8/25/98), 718 So.2d 1010, 1014. When the evidence is insufficient to prove the prior convictions on a multiple bill, the multiple offender finding may be vacated and remanded for further proceedings, noting that the State can retry defendant as a multiple offender. (See, e.g., State v. Mosley, 08-1319, p. 9 (La.App. 5 Cir. 5/26/09), 16 So.3d 398, 404; State v. Harris, 99-1288, p. 12 (La.App. 5 Cir. 1/24/01), 782 So.2d 1055, 1062, writ denied, 01-668 [2001-0485] (La.1/25/02), 806 So.2d 668.)
For the foregoing reasons, we find the trial court did not err in denying the motion to quash. Therefore, the writ is denied.

In the instant case, defendant has presented no new arguments, jurisprudence, or evidence to warrant reconsideration of this issue on appeal. Moreover, there is nothing to suggest that this Court’s prior determination on defendant’s writ application was patently erroneous or produced unjust results. Accordingly, this assigned error is without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review of the record reflects that the trial court failed to advise defendant of the two-year prescriptive period for filing an application for post-conviction relief under LSA-C.Cr.P. art. 930.8 either at the time of the original sentencing on July 29, 2011, or at the time of the enhanced sentencing on January 14, 2013. In accordance with this Court’s routine practice, we advise defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed 115more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

AFFIRMED.

      .At trial, Detective Collins testified that cigars were commonly used to smoke marijuana. He explained that an individual would purchase one cigar, or blunt, cut it open, dump the tobacco out, replace the tobacco with marijuana, and roll it back up.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Upon searching the residence, the detectives found heroin, which Alecia Adams admitted was hers.

      . While the July 29, 2011 commitment reflects that defendant was advised of the prescriptive period for filing an application for post-conviction relief, the transcripts from the sentencing proceedings do not reflect any such advice.