Opinion
NO. 2012 KA 1081
02-22-2013
STATE OF LOUISIANA v. JASON ALEXANDER MULLIGAN
Walter P. Reed District Attorney Covington, Louisiana and Kathryn W. Landry Special Appeals Counsel Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana Lieu T. Vo Clark Mandeville, Louisiana Attorney for Appellant, Jason Alexander Mulligan Jason Alexander Mulligan Covington, Louisiana In Proper Person
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court
In and For the Parish of St. Tammany
State of Louisiana
Trial Court No. 509,631
The Honorable Allison H. Penzato, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
and
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Attorneys for Appellee,
State of Louisiana
Lieu T. Vo Clark
Mandeville, Louisiana
Attorney for Appellant,
Jason Alexander Mulligan
Jason Alexander Mulligan
Covington, Louisiana
In Proper Person
BEFORE: PARRO, WELCH, AND KLINE, J J.
Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
KLINE , J.
The defendant, Jason Alexander Mulligan, was charged by bill of information with possession of hydromorphone, a violation of La. R.S. 40:967(C). He pled not guilty and, following a jury trial, was found guilty as charged. The State then filed a multiple offender bill of information. Following a hearing on the matter, the defendant was adjudicated a second-felony habitual offender and sentenced to five years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating two counseled assignments of error and three pro se assignments of error. We affirm the conviction and sentence.
FACTS
On the evening of July 12, 2011, Sergeant Jeremy Hutchison, with the Folsom Police Department, was patrolling in his unit on Louisiana Highway 40. Sergeant Hutchison observed the defendant driving a pickup truck with only one working headlight. The sergeant effected a traffic stop at South Morgan Road and asked the defendant, who was alone, for his driver's license, registration, and proof of insurance. The defendant did not possess a driver's license. It was suspended, and he did not have insurance or registration. The sergeant ran the license plate on the truck and learned that the plate belonged to a different vehicle. He also learned the defendant had a warrant for his arrest. Sergeant Hutchison read the defendant his Miranda rights and asked him if he had any weapons or narcotics in his vehicle. The defendant told him there might be a pocketknife and used syringes in his truck. At that point, Sergeant Hutchison patted down the defendant and found a syringe in his pants pocket. He then asked the defendant if he could search his vehicle, and the defendant consented to the search. The sergeant searched the truck and found three syringes, which appeared to be used, in the driver's door panel. The defendant informed Sergeant Hutchison that he used the syringes to inject Dilaudid (hydromorphone) and that he did not have a prescription for the drug. The syringes were sent to the St. Tammany Parish Sheriff's Office Crime Laboratory. It was determined the syringes contained hydromorphone residue.
Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct 1602, 1612, 16 L.Ed.2d 694 (1966).
--------
COUNSELED ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related assignments of error, the defendant argues, respectively, that the trial court erred in denying the motion to reconsider sentence and that his sentence is excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1 Cir. 5/5/95), 655 So. 2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So. 2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. See State v. Brown, 2002-2231 (La. App. 1 Cir. 5/9/03), 849 So. 2d 566, 569.
The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. See State v. Lanclos, 419 So. 2d 475, 478 (La. 1982). The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So. 2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Colvin, 2011-1040 (La. 3/13/12), 85 So. 3d 663, 667-68 (per curiam) (quoting State v. Humphrey, 445 So. 2d 1155, 1165 (La. 1984).
In the instant matter, the defendant, as a second-felony habitual offender, faced a maximum sentence of ten years imprisonment at hard labor and was sentenced to five years imprisonment at hard labor. See La. R.S. 40:967(C)(2) and La. R.S. 15:529.1(A)(1). The defendant argues in his brief that the trial court should have considered that he had a drug problem, since his predicate conviction over five years ago was also for drug possession (hydromorphone). Other than mere assertion of a drug problem, there were no facts adduced at trial or at the sentencing hearing to substantiate this claim. In any event, it is clear in its following reasons for the sentence that the trial court considered La. Code Crim. P. art. 894.1 in arriving at an appropriate sentence:
The Court in imposing the herein [five-year] sentence considers both aggravating and mitigating circumstances under Code of Criminal Procedure Article 894.1, and the Court finds the following:
There is an undue risk that during a period of suspended sentence of probation the defendant will commit another crime and a lesser sentence will deprecate the seriousness of the defendant's crime.
The Court will recommend that the defendant will be allowed to participate in drug treatment at the facility where he is being housed[.]
Considering the trial court's review of the circumstances and the fact that the defendant was sentenced to only half of the maximum sentence, we find no abuse of discretion by the trial court. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The trial court did not err in denying the motion to reconsider sentence.
These counseled assignments of error are without merit.
PRO SE ASSIGNMENTS OF ERROR
In what can be loosely described as three related assignments of error, the defendant argues he was denied the right to effective assistance of counsel for various reasons during trial and at the habitual offender hearing.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
In evaluating the performance of counsel, the inquiry must be whether counsel's assistance was reasonable, considering all the circumstances. State v. Morgan, 472 So. 2d 934, 937 (La. App. 1st Cir. 1985). In making the determination of whether the performance resulted in reversible error, the inquiry must be directed to whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Morgan, 472 So. 2d at 937. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So. 2d 1035, 1038-39 (La. App. 1st Cir.), writ denied, 476 So. 2d 350 (La. 1985).
A claim of ineffective assistance of counsel is generally raised in an application for postconviction relief in the district court, where a full evidentiary hearing may be conducted. See State v. Hamilton, 92-2639 (La. 7/1/97), 699 So. 2d 29, 31, cert. denied, 522 U.S. 1124, 18 S.Ct. 1070, 140 L.Ed.2d 129 (1998); State v. Carter, 96-0337 (La. App. 1 Cir. 11/8/96), 684 So. 2d 432, 438. 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. Carter, 684 So. 2d at 438.
The defendant contends that defense counsel was ineffective for several reasons. Our review of the record, which provides sufficient evidence to address the issues, reveals that every claim of ineffective assistance of counsel is baseless. We address each claim separately.
The defendant alleges that defense counsel, David Sirera, stood before the jury and conceded that his client was guilty. Specifically, the defendant suggests that Sirera stipulated to the defendant's possession of the syringes. Sirera made no such stipulation. The only stipulation Sirera made at trial was that the syringes that were seized by Sergeant Hutchison contained hydromorphone. Furthermore, in his opening statement, Sirera remarked "that you will find that justice requires a verdict of not guilty in this case." In his closing argument, Sirera made no admission that the defendant possessed the syringes, and stated that the issue in the case was whether there was reasonable doubt as to whether the defendant possessed hydromorphone; and again stated that "justice in this case requires returning a verdict of not guilty."
The defendant next alleges Sirera failed to file a motion to quash on the theory that residual amounts of a controlled substance do not constitute a crime in this state. Nothing could have been gained from such a motion because the jurisprudence has consistently and repeatedly found that conviction for possession of a controlled dangerous substance may rest on the possession of mere traces or residue of that substance. See State v. Sylvia, 2001-1406 (La. 4/9/03), 845 So. 2d 358, 361-62; State v. McMooain, 95-2103 (La. App. 1 Cir. 9/27/96), 680 So. 2d 1370, 1373-74; State v. Jones, 94-1261 (La. App. 3 Cir. 5/17/95), 657 So. 2d 262, 268-69; State v. Spates, 588 So. 2d 398, 401 (La. App. 2d Cir. 1991).
The defendant next alleges that Sirera failed to object to the prosecutor's call in his closing argument "for passions of the jury to do justice." The defendant provides no argument in his brief for this assertion and, as such, the issue is abandoned and will not be considered by this court. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4. The issue being abandoned notwithstanding, we note that in his closing argument, the prosecutor made no appeal to the passions of the jury, but rather several times reminded the jurors that they were not to consider sympathy and that their oath was to apply the law, as given by the trial court, to the evidence they heard in the case. Regarding the specific reference to justice, the prosecutor stated:
I asked each of you whether if when you got to the back somebody asked you to ignore your oath whether you would be disturbed about it. I'm going to call you on your oath again because it's something very important. We are not a court of sympathy, we are a court of law. We are a court of justice.
The defendant next alleges that Sirera failed to object "to the presumptive jury instruction." Specifically, the defendant argues Sirera should have objected to the trial court's jury charge about constructive possession. This argument is groundless. The jury charge regarding constructive possession was appropriate, indeed necessary, since it was precisely this type of possession that was at issue in this case, i .e., three syringes were found in the defendant's truck, not on his person. See State v. Gallow, 452 So. 2d 227, 233-34 (La. App. 1 Cir.), writ denied, 456 So. 2d 1016 (La. 1984).
The defendant next alleges that Sirera failed to object to deficiencies at the habitual offender hearing. Specifically, the defendant argues that the "record does not reflect that [he] was informed as to compulsory self-incrimination, the right to the compulsory process, the right to present evidence and, or appeal." The defendant further contends Sirera was unreasonable in failing to make the "prerequisite investigations" into whether his predicate conviction could be used to enhance his sentence.
The validity of the defendant's predicate conviction was not traversed by Sirera because it was the defendant, himself, after discussing the issue with his counsel, who waived the reading of the habitual offender bill of information and stipulated to the allegations in the bill. Sirera informed the trial court that he and the defendant agreed to admit to the allegations in the bill in exchange for the prosecutor's not filing a "quad bill." See State v. Cook, 2011-2223 (La. 3/23/12), 82 So. 3d 1239 (per curiam).
Prior to accepting a defendant's admission to the allegations of the habitual offender bill, the trial court must advise the defendant of the right to remain silent and of the right to a formal hearing wherein the State would have to prove the allegations of the habitual offender bill. See State v. Gonsoulin, 2003-2473 (La. App. 1 Cir. 6/25/04), 886 So. 2d 499, 501 (en banc), writ denied, 2004-1917 (La. 12/10/04), 888 So. 2d 835; La. R.S. 15:529.1(D)(1)(a).
In this matter, the trial court stated at the habitual offender hearing:
At this time, I will inform the defendant that he has the
following rights: A right to a hearing to be tried as to the truth of the allegations contained in the Bill according to law. At that hearing, the State must prove the allegation contained in the Multiple Bill, and the defendant has the right to remain silent at that hearing.
Because of a clerical error regarding a date on the habitual offender bill of information, the bill was amended and the defendant was again informed of his rights. Following is the relevant colloquy among the trial court, Sirera, and the defendant:
BY THE COURT: Okay. In connection with the amended bill, I'm going to inform the defendant of his rights. He has the right to a hearing to be tried as to the truth of the allegations contained in the Bill according to law. At that hearing, the State must prove the allegations contained in the multiple bill, and the defendant has the right to remain silent at that hearing. Does the defendant wish to admit, deny or stand moot in connection with the allegations of the Multiple Bill? BY MR. SIRERA: We are going to admit, Your Honor. BY THE COURT: So let me go further and ask this question—ask these questions to the defendant: Mr. Mulligan, do you desire to waive your rights that I have explained to you and enter a plea admitting the allegations contained in the bill? BY MR. MULLIGAN: Yes, ma'am. BY THE COURT: Has anyone forced or coerced you to admit the allegations contained in the bill? BY MR. MULLIGAN: No, ma'am.
Thus, the defendant was clearly informed of his rights, including the right to remain silent (or the right against self-incrimination). The trial court was under no obligation to inform the defendant of any other rights, such as those noted above of which the defendant alleged he was not informed. There were no deficiencies at the habitual offender hearing on the part of either Sirera or the trial court, and any such claim by the defendant to the contrary is unfounded.
Finally, the defendant alleges that Sirera failed to waive the delays. There were no applicable posttrial motions filed (such as a motion for new trial, in arrest of judgment, or postverdict judgment of acquittal), which would have triggered the waiver issue. Further, the defendant was convicted on January 24, 2012, and sentenced on April 5, 2012. See La. Code Crim. P. art. 873. There were no sentencing delays at issue in this matter and, as such, the argument is baseless.
Based on the foregoing, the defendant has not made the required showing of deficient performance by Sirera and, as such, Sirera's performance did not prejudice the defendant's case. Accordingly, having failed to satisfy either prong of the ineffectiveness claim inquiry, the defendant's claim of ineffective assistance of counsel must fall. See Robinson, 471 So. 2d at 1038-39.
These pro se assignments of error are without merit.
CONVICTION AND SENTENCE AFFIRMED.