State v. BoltonState v. Bolton
Defendant, Robert Bolton, appeals his conviction and sentence for distribution of
The Jefferson Parish District Attorney filed a bill of information charging defendant, Robert Bolton, with distribution of marijuana, a violation of
The State filed a multiple offender bill of information alleging Bolton to be a third felony offender, allegations which he denied. A multiple offender hearing began on April 26, 2001, but the matter was held open. On July 19, 2001, the State amended the multiple bill to allege that Bolton was a second felony offender, which he admitted after being advised of his multiple offender rights. The trial judge accepted Bolton‘s admission, vacated the original sentence, and imposed an enhanced sentence of fifteen years of imprisonment at hard labor without benefit of probation or suspension of sentence.
On the night of September 3, 1999, Jefferson Parish Sheriff‘s Officers Kevin Guillot and Philip DeSalvo of the Street Crimes Division, were patrolling the Eastbank of Jefferson Parish. Deputy DeSalvo testified at trial that the Sheriff‘s Office had received numerous complaints of narcotics activity in the 200 block of Wilker Neal during the week. At approximately 10:00 p.m. Deputy DeSalvo was driving the unmarked white Crown Victoria down Wilker Neal Avenue when Deputy Guillot told Deputy DeSalvo that he had just seen some suspicious activity and to stop the car.
Deputy Guillot, an officer with eight years of law enforcement experience, testified that he saw a white truck that was parked on the side of the road facing them. As the officers drove past the truck, Deputy Guillot noticed a black male in the driver‘s seat of the truck and another black male, later identified as Bolton, standing in the open doorway of the passenger‘s side of the truck. As Deputy DeSalvo drove past the truck, Deputy Guillot made eye contact with Bolton. Deputy Guillot said that Bolton appeared startled, as if he were a “deer in a headlight.” Deputy Guillot looked over his shoulder as they drove passed the truck and saw Bolton turn his body away from the officer‘s view. According to Deputy Guillot, Bolton was holding a brown bag with a clear bag protruding from the brown bag.
After driving past the truck, Deputy DeSalvo pulled on to the side of the road about 25 to 30 feet away from the white truck. The officers exited their vehicle and crept up to the white truck, with Deputy DeSalvo approaching the truck‘s driver‘s side and Deputy Guillot approaching the passenger‘s side where Bolton was standing. Deputy Guillot testified that
At that point, Deputy DeSalvo opened the driver‘s side door and removed Shannon from the truck. After patting down Shannon and Bolton, the officers returned to the truck and retrieved the bag Shannon had discarded upon the truck‘s seat. The matter in the bag was identified at trial by the State‘s expert as 12.3 grams of marijuana.
The officers found a brown paper bag containing a scale and small, empty plastic bag on the passenger‘s side of the truck. Deputy DeSalvo testified that the small bag was commonly known as a “dime bag” that is used for packaging marijuana. According to Deputy DeSalvo, scales such as the one found in the brown paper bag were commonly used to measure grams of marijuana. According to Deputy Guillot, Bolton had $40.00 in cash in his pocket.
Bolton was arrested for distribution of marijuana and Shannon was arrested for possession of marijuana, a charge to which Shannon later pled guilty. Michael Shannon testified on behalf of the defense that he and Bolton had known each other for about three years and “smoked the same drugs.” According to Shannon, he had driven to Bolton‘s house that night and parked the truck on the street. He and Bolton shook hands, and then Bolton entered the truck. Shannon said that he and Bolton were planning to go to a night club, and Bolton asked if Shannon would bring him to fill a prescription before going out. Shannon said he saw the car pass by, but did not know its occupants were police officers until the officers showed up next to the truck. According to Shannon, the officers yelled, “Don‘t move.” Shannon said he remained in the seat until one of the officers opened the door, grabbed him and placed handcuffs on him. The other officer, whom Shannon described as the “tall police officer,” “grabbed” Bolton. Then, the officers searched the truck.
Shannon denied that he had attempted to purchase marijuana from Bolton. Instead, Shannon explained that he had purchased the bag of marijuana in the Fisher housing project before going to the defendant‘s house. Shannon also claimed ownership of the scale. Further, Shannon claimed that he planned to smoke the bag of marijuana with Bolton that night.
The defendant‘s wife, Theresa Bolton, testified that Bolton had a job and received a paycheck. Mrs. Bolton explained that it was not unusual for each of them to carry cash because the couple did not have a checking account. Mrs. Bolton admitted, however, that she did not know her husband‘s whereabouts at 10:00 p.m. on the night in question.
Bolton contends in his first assignment that the State‘s evidence presented at trial is legally insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that he distributed marijuana to Michael Shannon. The State responds that it proved beyond a reasonable doubt that Bolton committed the offense.
The bill of information in the present case charges Bolton with distribution of marijuana, a violation of
A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I;
In this assignment, Bolton claims the evidence was insufficient because the police officers’ testimony did not prove beyond a reasonable doubt that he distributed marijuana to Shannon. Further, Bolton asserts that he should not have been found guilty, since Shannon claimed responsibility for the drugs. However, Deputy Guillot‘s testimony established that he saw Bolton in the process of exchanging a bag of marijuana for money with Michael Shannon. Also, the physical evidence supports the officer‘s version of the events. Deputy Guillot testified that when he first saw Bolton, he was holding a brown paper bag with a clear bag protruding, which he tried to conceal from view. A brown paper bag containing a scale and an empty plastic bag were seized from the passenger‘s side of the truck where Bolton was standing.
Although Shannon testified that he brought the marijuana to Bolton‘s house for their use that night, the jury obviously discounted that testimony. The jury heard this evidence, and in returning the guilty verdict, the jury obviously found Deputy Guillot‘s testimony to be more credible than Mr. Shannon‘s. Where there is conflicting testimony as to factual matters, the question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of witnesses will not be re-weighed on appeal.5 Viewing the evidence in the light most favorable to the prosecution, it appears that a rational trier of fact could have found beyond
In his second assignment, Bolton contends that the evidence should have been suppressed because police lacked reasonable suspicion for an investigatory stop and because he was arrested without probable cause. The State responds that the trial judge properly denied the motion to suppress because defendant was lawfully arrested.
An investigatory stop, authorized by
Probable cause to arrest exists when the facts and circumstances within an officer‘s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime.11 An officer may make a warrantless arrest when
Bolton finally contends that his fifteen-year sentence as a second felony offender is constitutionally excessive because he was not proven to be a drug dealer at trial and because he was a hard working husband when he was arrested. The State responds that, based on
Under
The record reflects that the State amended the multiple bill to allege that Bolton was a second felony offender instead of a third, and Bolton admitted that he was a second felony offender. However, the record does not reveal any agreement regarding the enhanced sentence. Rather, the trial judge merely advised Bolton that sentencing range as a second felony offender convicted of distribution of marijuana was between fifteen and sixty years of imprisonment. The only indication in the record that the sentence could have been part of an agreement between the State and Bolton is in the trial judge‘s remarks when sentencing Bolton:
THE COURT:
Mr. Bolton, in connection with your guilty plea, the Court is going to vacate the original sentence rendered in case number 99-6389, and resentence you to a period of fifteen years in the Custody of the Department of Corrections, without benefit of probation or suspension of sentence....
Conceivably, the court‘s remark that the sentence was in connection with the defendant‘s guilty plea, could indicate there was an agreement for sentencing. However, because such an agreement is not disclosed by the record, we find that Bolton is not precluded from challenging his sentence as constitutionally excessive.
The record does not reflect that Bolton made or filed a motion to reconsider his sentence pursuant to
It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional.18 In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature‘s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.”19
When a trial court determines the minimum sentence mandated by
Further, the trial court cannot impose whatever sentence it may feel is appropriate. Rather, the court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive.22 However, “[a] sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Statute only under rare circumstances.”23
As a second felony offender, Bolton was subject to a sentence of not less than onehalf the longest term and not more than twice the longest term for the underlying felony, which is distribution of marijuana.
As discussed above, mandatory minimum sentences under the habitual offender statute may be found to be unconstitutional as to a defendant if he meets the guidelines set out in State v. Johnson and State v. Lindsey, supra. However, Bolton does not even acknowledge on appeal that
The record was reviewed for errors patent, according to
The record reflects that the trial court failed to completely advise Bolton of the prescriptive period for filing post-conviction relief pursuant to
Bolton‘s motion for appeal was premature when it was filed after conviction and sentence on the offense but before he was adjudicated a multiple offender. However, that procedural defect was cured by the subsequent resentencing.27
For the foregoing reasons, the defendant‘s sentence and conviction are affirmed, and the case is remanded.
AFFIRMED; REMANDED.