STATE OF LOUISIANA v. JERMAINE DEON AUGUSTINE (2025)

The defendant, Jermaine Deon Augustine, was charged by bill of information as follows: possession with intent to distribute fentanyl, a Schedule II controlled dangerous substance (CDS), in violation of LSA-R.S. 40:967(A)(1) and (B)(4) (count one); illegal carrying of weapons while in possession of a CDS, in violation of LSA-R.S. 14:95(E) (count two); possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, in violation of LSA-R.S. 14:95.1(A) (count three)¹ ; transactions involving proceeds from drug offenses, a violation of LSA-R.S. 40:1041(D) and (E) (count four); and possession of methamphetamine, a Schedule II CDS, with an aggregate weight of less than two grams, in violation of LSA-R.S. 40:967(C)(1) (count five).² As to each count, the defendant entered a plea of not guilty. After the trial court denied his motion to quash and motion to suppress, the defendant proceeded to a trial by jury and was found guilty as charged on each count. The trial court denied the defendants motion for new trial.

Thereafter, the trial court sentenced the defendant as follows: forty years’ imprisonment at hard labor on count one; ten years’ imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two; twenty years’ imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence and a $1,000.00 fine on count three; ten years’ imprisonment at hard labor on count four; and two years’ imprisonment at hard labor on count five. The sentences are to be served concurrently. The defendant now appeals, assigning error to the trial court's denial of his motion to suppress, motion to quash, and motion for new trial, to the sufficiency of the evidence, and to the constitutionality of the sentences. For the following reasons, we affirm the convictions; affirm the sentences on counts one, two, four, and five; affirm in part and vacate in part the sentence on count three; and remand to the trial court in accordance herewith.

STATEMENT OF FACTS

On January 31, 2022, officers with the St. Tammany Parish Sheriff's Office (STPSO) conducted a “knock and talk” at the defendant's residence, located on DeSoto Street in Slidell. Deja Buckhalter, the defendant's girlfriend, answered the door, and the officers entered the living room. Upon entry, they observed suspected drug paraphernalia on the counter, consisting of a clear plastic baggy with a white powdery residue. As they escorted Buckhalter to the master bedroom to get her identification, they saw a firearm on a dresser and a large amount of cash on a nightstand. They performed a protective sweep of the home, during which they saw another firearm in the master bedroom closet, as well as a scale with additional residue of a white powdery substance in a closet in the second bedroom.

The officers obtained a search warrant for the residence, executed the warrant, and found two pounds of suspected cocaine, suspected heroin, and additional suspected drug paraphernalia. After the defendant arrived home, the officers searched his person and recovered additional currency and two cell phones from his pants pocket. An amount slightly in excess of $6,000.00 was recovered from the scene. The defendant and Buckhalter were transported to the STPSO in Covington.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number three, the defendant argues that the evidence was insufficient to support the convictions. He argues that the State failed to prove he had actual or constructive possession over the seized drugs, firearms, paraphernalia, and other contraband.³

When issues are raised on appeal contesting the sufficiency of the evidence and alleging trial error, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Duhon, 2018-0593 (La.App. 1 Cir. 12/28/18), 270 So.3d 597, 609, writ denied, 2019-0124 (La. 5/28/19), 273 So.3d 315. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 LEd.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the State, could not reasonably conclude that the essential elements of the offense have been proven beyond a reasonable doubt. Hearold, 603 So.2d at 734; Duhon, 270 So.3d at 609.

When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged of that crime, and any discussion of trial error would be pure dicta, as those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the reviewing court must then consider the other assignments of error. Hearold, 603 So.2d at 734; Duhon, 270 So.3d at 609.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. See LSAC.Cr.P. art. 821(B); Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mellion, 2021-1116 (La.App. 1 Cir. 4/8/22), 342 So.3d 41, 45, writ denied, 2022-00732 (La. 6/22/22), 339 So.3d 1186, cert. denied, ___ U.S. ___, 143 S.Ct. 319, 214 L.Ed.2d 141 (2022).

The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Welch, 2019-0826 (La.App. 1 Cir. 2/21/20), 297 So.3d 23, 27, writ denied, 2020-00554 (La. 9/29/20), 301 So.3d 1193. When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Currie, 2020-0467 (La.App. 1 Cir. 2/22/21), 321 So.3d 978, 982.

When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Southall, 2022-0746 (La.App. 1 Cir. 6/2/23), 369 So.3d 925, 930, writ denied, 2023-00875 (La. 2/6/24), 378 So.3d 750.

On count one, pursuant to LSA-R.S. 40:967(A)(1), the State was required to prove a knowing and intentional possession of a Schedule II CDS and specific intent to distribute the substance. See State v. Taylor, 2016-1124 (La. 12/1/16), 217 So.3d 283, 295. As to count two, LSA-R.S. 14:95(E), in pertinent part, prohibits the carrying of weapons if the offender possesses or has under his immediate control any firearm while unlawfully in the possession of a CDS. On count three, pursuant to LSA-R.S. 14:95.1, the State had to prove: (1) the defendant's status as a convicted felon and (2) that the defendant was in possession of a firearm.⁴ As to count four, LSA-R.S. 40:1041(A) prohibits knowing or intentional financial transactions involving proceeds known to be derived from a violation of LSA-R.S. 40:966, et seq. 5 Finally, as to count five, LSA-R.S. 40:967(C) prohibits the knowing or intentional possession of a Schedule II CDS.

Herein, the defendant argues that the State presented no evidence he had possession, dominion, or control over the seized drugs, firearms, paraphernalia, and other contraband. Thus, the issue on appeal is whether, viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that the State proved beyond a reasonable doubt that the narcotics, guns, and money recovered during the search belonged to the defendant.

The element of possession includes both “actual” and “constructive” possession. A person who is not in physical possession may have constructive possession when the contraband is under that person's dominion and control. State v. Becnel, 2016-1297 (La.App. 1 Cir. 4/20/17), 220 So.3d 27, 30, writ denied, 2017-1023 (La. 3/9/18), 238 So.3d 451. Mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. See State v. Johnson, 2003-1228 (La. 4/14/04), 870 So.2d 995, 999.

In determining whether a defendant exercised dominion and control sufficient to constitute constructive possession, the factfinder may consider, among other factors, the defendant's knowledge of the contraband and his access to the area where the contraband is found. Guilty knowledge may be inferred from the circumstances of the case. A person may be in joint possession of contraband if he willfully and knowingly shares with another the right to control the contraband. Becnel, 220 So.3d at 30-31.

Detective Michael Liberto of the STPSO was one of the officers who conducted the knock and talk investigation in this case. At the trial, Detective Liberto indicated that he had worked with the Sheriff's Office for five years and had extensive training in narcotics related violations, drug trends, and undercover work. He stated that he performed background research prior to the knock and talk investigation, conducted along with two other detectives, to confirm or disprove a complaint received involving the defendant. Detective Liberto testified that after allowing the officers to enter the home, Buckhalter informed the officers that she had been staying at the residence for the past three days, had free access to the home while the defendant was away from home, was doing her laundry there at the time, and had previously stayed at the home.

Detective Liberto further testified that the plastic baggy of white powdery residue located on the counter upon entry was consistent with cocaine, packaged either for personal use or distribution. He stated that Buckhalter claimed ownership of the firearm located on the dresser in the master bedroom, but said the large amount of cash located on the nightstand belonged to the defendant. Detective Liberto also testified that the “trifecta” of evidence in the home, consisting of guns, money, and narcotics, commonly exists among drug dealers because they need to protect their drugs with firearms, and they make money selling drugs but cannot put the proceeds in banks.

According to Detective Liberto, the officers found mail addressed to the defendant in both bedrooms. He further testified that the second firearm, located in plain view in the defendant's master closet, was surrounded by male shoes and clothing. Additional male clothing was located in the master bedroom and scattered in the house. Further, Detective Liberto explained that stacks of currency wrapped in black rubber bands were recovered, and additional black rubber bands were scattered in the master bedroom.

Detective Liberto testified that Buckhalter gave the officers consent to search her purse, which contained unprescribed drugs. He stated that the drug paraphernalia located in the second bedroom in a dresser drawer was associated with the packaging, weighing, and cutting of narcotics for sale, including empty baggies. He noted that some of the baggies had residue on them, indicating they had been previously used and were being reused. Further noting that some of the baggies had a cut to the side or corner, Detective Liberto testified that plastic baggies used for drug packaging typically have the corners cut off, where they will be tied after drugs are placed inside of them. Specifically, in order to quickly package a large number of filled baggies for distribution, the baggy is wrapped, flipped, and tied at the corner.

In addition to the baggies located in the second bedroom, digital scales with drug residue on them were located in the same dresser. Detective Liberto testified that the residue indicated the digital scales had been used for the weighing of narcotics. The officers also recovered a spoon with residue on it, which Detective Liberto noted was typically used to cook or to use cocaine. He further stated that during the cooking process, the substance turns into a liquid form and is mixed with a cutting agent to increase the weight. Baking soda, a common cocaine cutting agent, was located in the same bedroom in another dresser, near the other dresser. The officers also located a knife with residue on it.

Detective Liberto noted that they did not find any property belonging to Buckhalter in the second bedroom, as only the defendant's property was located in that room. He further testified that the slab of drugs located in the second bedroom along with unused baggies, from his investigations, appeared to be waiting to be packaged and sold or distributed.

Detective Liberto and STPSO Sergeant Scott Maitrejean, who secured the scene, testified regarding the defendant's arrival at the residence. When the defendant arrived home, prior to the search of his person, he was advised of his Miranda 6 rights, informed of the investigation, shown a copy of and told of the execution of the search warrant, and informed of the recovery of illegal narcotics. At that point, the defendant said, “It's all mine.”

Detective Liberto further testified that he sent the drugs to the lab to be tested, applied for a search warrant for the phones, and seized a Lexus vehicle and a motorcycle believed to be purchased with money from narcotics sales. After the defendant was transported to the Sheriff's Office, a seizure and disclosure form was reviewed with him, as the officers concluded that the seized currency was likely proceeds obtained from the sale of illegal narcotics. The defendant again claimed ownership of the seized currency, but claimed the vehicle was purchased with the use of income from his auto sales business.

Along with the defendant, Buckhalter was charged with possession of the evidence found in the home, but based on the investigation, she was not believed to be involved in the distribution of narcotics. Detective Liberto noted that the police obtained and executed a search warrant for the security DVR system for the residence and did not find any indication that Buckhalter was involved in bringing narcotics into the residence. They also obtained and executed a search warrant for her phone, which further allowed them to rule out any involvement by Buckhalter in distributing narcotics of the quantity in this case. Based on her cell phone communications, the officers concluded that she was a drug user and purchased drugs for personal use.

Detective Liberto testified that the recovered drugs had a street market value of “anywhere from $80,000.” The defendant's assets included a trailer worth approximately $20,000.00, a motorcycle, a Lexus valued at around $90,000.00, which was completely paid for, and a business account.

Detective Paul Tullier, with the STPSO narcotics division, conducted cell phone extractions of the defendant's cell phones, an I-Phone 7 and an I-Phone SE. One of the messages extracted from the I-Phone 7 and read to the jury was a message sent by the defendant, as follows: “I'm going to have to give you 37 more grams.” A message extracted from the I-Phone SE stated: “I'm selling powdered bags. LOL. I have more of that like Tuesday or Wednesday. But I have some good head. They love it. And some good ass boi.” Other messages included an exchange indicating the cost of “the half” was “750” in comparison to the cost of “the whole thing” which was indicated as “1500.” An incoming message inquired: “What good you have soft?”

Detective Tullier testified that when conducting extractions, he looks for key words that are indicative of “drug talk” based on his experience in narcotics, such as “soft”, which usually means cocaine, and “boi”, which means heroin. He concluded the defendant's phone messages were indicative of someone selling narcotics.

Britney Graham, a forensic scientist with the STPSO Crime Laboratory, analyzed the evidence in this case and testified as an expert in CDS examination and analysis. Her testing showed that one plastic bag contained 863.95 grams of fentanyl, another plastic bag contained 3.019 grams of fentanyl, and a third plastic bag contained 0.155 grams of fentanyl. One sealed envelope containing a clear plastic Ziplock bag containing two and one-half peach-colored round-shaped tablets were determined to be 1.042 grams counterfeit methamphetamine. Another clear Ziplock plastic bag containing one red-colored round-shaped tablet was determined to consist of methamphetamine and caffeine. She testified that the caffeine was used to make the “product go further.”

In this matter, the defendant presented the hypothesis of innocence that he was not in constructive possession of the seized contraband. In finding the defendant guilty on all counts, the jury rejected the defense's claim, necessarily finding the defendant had dominion and control over the items found in his own home. After reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 660.

According to testimony at trial, Buckhalter, who was cooperative with the police, openly claimed ownership of certain items, including drugs recovered after she consented to the search of her purse and a firearm on the dresser in the master bedroom. The defendant was not charged in relation to those items. In relation to the other evidence recovered in this case, paraphernalia was located in open view on the counter. Mail addressed to the defendant and a large amount of cash were located in the master bedroom, along with the charged firearm, which was located in plain view in the defendant's closet, surrounded by his clothes and shoes. The second bedroom, where a large amount of drugs and more drug paraphernalia were located, contained mail addressed to the defendant and items that did not belong to the only other known occupant of the home, Buckhalter. When the defendant arrived home, an unspecified amount of money was located on his person, and he admitted the evidence belonged to him. Further, based on incriminating messages extracted from the defendant's cell phones, the jury could have reasonably inferred the defendant possessed and distributed narcotics.

Considering the foregoing, the record supports the finding of constructive possession in this case. See State v. Plain, 99-1112 (La.App. 1 Cir. 2/18/00), 752 So.2d 337, 340-41 (constructive possession found where the defendant admitted to having the weapon underneath the mattress in his bedroom; the defendant then led officers to his bed and pointed out the location of the weapon, and the police recovered a weapon from the area the defendant had pointed out); State v. Mose, 412 So.2d 584, 585 (La. 1982) (gun located in the defendant's bedroom sufficient for constructive possession); State v. Lewis, 535 So.2d 943, 950 (La.App. 2 Cir. 1988), writ denied, 538 So.2d 608 (La. 1989) (presence of firearms in the defendant's home, statement by the defendant that one gun belonged to his wife, and discovery of shoulder holster in the master bedroom indicated the defendant's awareness, dominion, and control over the firearms). An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

Viewing the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of the offenses. Accordingly, assignment of error number three lacks merit.

MOTION TO SUPPRESS

In assignment of error number one, the defendant argues that the trial court erred in denying his motion to suppress.⁷ He contends that the State failed to prove the warrantless entry of his home fell within a valid exception to the warrant requirement. He further argues that the search warrant was tainted by information gathered after an unconstitutional entry of his home. In assignment of error number four, the defendant asserts that the trial court erred in denying his motion for new trial on this basis, contending he was deprived of his constitutional right to due process and a fair trial.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. LSA-C.Cr.P. art. 703(A). The State bears the burden of proving admissibility when a defendant files a motion to suppress evidence seized without a warrant. LSA-C.Cr.P. art. 703(D).

A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the trial court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La.App. 1 Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La. 4/21/03), 841 So.2d 791. When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. State v. Wesley, 2010-2066 (La.App. 1 Cir. 9/14/11), 77 So.3d 55, 57-58, writ denied, 2011-2311 (La. 9/21/12), 98 So.3d 322. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. In determining whether the ruling on the defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).

A “knock and talk” investigation involves officers knocking on the door, identifying themselves as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission to search the house. If successful, it allows police officers who lack probable cause to gain access to a house and conduct a search. Federal and state appellate courts that have considered the question have concluded that a “knock and talk” procedure does not, per se, violate the Fourth Amendment. State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215, 1221-22.

Though the “knock and talk” procedure is not automatically violative of the Fourth Amendment, it can become so. The constitutional analysis begins with the knock on the door. The prevailing rule is that, absent a clear expression by the owner to the contrary, police officers, in the course of their official business, are permitted to approach one's dwelling and seek permission to question an occupant. Warren, 949 So.2d at 1222. However, in order to prevent suppression of the fruits of this warrantless search, the State has the burden of proving an exception to the warrant requirement. State v. Brite, 2016-1528 (La.App. 1 Cir. 7/12/17), 2017 WL 2982913, *4 (unpublished), writ denied, 2017-1406 (La. 5/18/18), 242 So.3d 1218.

It is well settled that a search conducted pursuant to consent is an exception to warrant and probable cause requirements. See State v. Johnson, 98-0264 (La.App. 1 Cir. 12/28/98), 728 So.2d 885, 887. A consent to search is only valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. See United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). The State bears the burden of proving that the consent has been freely and voluntarily given. State V. Owen, 453 So.2d 1202, 1206 (La. 1984). In United States v. Taylor, 248 F.3d 506, 510 (6th Cir. 2001), investigating officers were given consent to enter a home and once lawfully inside, they observed in plain view a marijuana stem on a coffee table. The court in Taylor held that investigating officers lawfully inside a home based on consent must first observe incriminating evidence in plain view that rises to the level of probable cause in order to justify a protective sweep. Taylor, 248 F.3d at 514.

Consent may be given by one having “common authority” over the premises sought to be searched. Common authority is based on “mutual use of the property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 172 n.7, 94 S.Ct. at 993. A warrantless search may be valid even if consent was given by one without authority, if facts available to officers at the time of entry justified the officers’ reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 185-89, 110 S.Ct. 2793, 2799-2801, 111 L.Ed.2d 148 (1990); State v. Robertson, 2014-0252 (La.App. 1 Cir. 9/19/14), 2014 WL 4668685, *4 (unpublished).

Herein, Detective Liberto testified at the initial and reopened hearings on the motion to suppress. As he noted, in April and December of 2021, the STPSO received complaints providing the defendant's name and address and referencing alleged distribution of narcotics. Thereafter, on January 31, 2022, he and two other detectives conducted the knock and talk investigation at the defendant's residence. When Buckhalter answered the door, they informed her of the narcotics complaints, and Buckhalter stated that the defendant was not home at the time. The officers inquired as to her status at the home, and she stated that she stayed there “off and on” and had a “boyfriend and girlfriend” relationship with the defendant. She informed them she had been staying there for the past weekend, approximately three days, and explained the residence was left in her care, as it had been in the past on multiple occasions. Buckhalter also had a suitcase in the home, clothes in the master bedroom, and was washing a load of her clothes in the washing machine. Based on this information, the officers requested and were granted consent to enter the home.

The living room was located at the point of entry, and the counter, where they saw in plain view the clear plastic baggy with residue, was approximately ten feet from the point of entry. Based on Detective Liberto's experience, he concluded the item on the counter was drug paraphernalia.⁸ Thereafter, the officers asked Buckhalter for identification and escorted her to the master bedroom where additional items were observed in plain view, including a firearm on top of the dresser and a large amount of currency on the nightstand next to the bed. A protective sweep of the home was then performed. During the protective sweep, drug paraphernalia and suspected powder cocaine residue were observed in the second bedroom. The search warrant was then obtained. The additional evidence was recovered pursuant to the search warrant and from the defendant's person (cash and cell phones) when he arrived home.

Herein, the officers received repeated tips, months apart, concerning the possible drug transactions at the defendant's residence and decided to conduct a knock and talk investigation. Buckhalter was alone in the residence when the police arrived, had been staying there for days, had a suitcase and clothes there, was doing her laundry there, and had a gun on the dresser in the master bedroom. Considering the foregoing, we find the officers reasonably concluded that Buckhalter had shared authority to consent to their entry of the home. They were lawfully in the home once the consent was given. Upon entering the home, they saw suspected drug paraphernalia on the counter. At that point, the officers had probable cause to conduct the protective sweep. Given that reasonableness is the cornerstone of the Fourth Amendment and the totality of the circumstances, we find no error in the trial court's denial of the motion to suppress. Accordingly, assignment of error number one and assignment of error number four, in part, insofar as it raises the denial of the motion for new trial on this basis, lack merit.

MOTION TO QUASH

In assignment of error number two, the defendant argues that the trial court erred in denying his motion to quash the charges on counts two and three, illegal carrying of weapons while in possession of a Schedule II CDS, fentanyl, and possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies. He argues that the statutes establishing those offenses, LSA-R.S. 14:95 and LSA-R.S. 14:95.1, violate the Second Amendment of the United States Constitution and Article I, § 11 of the Louisiana Constitution. In assignment of error number four, the defendant argues that the trial court erred in denying his motion for new trial on this basis.⁹

Louisiana Revised Statutes 14:95.1 (as enumerated at the time of the offenses) provides, in pertinent part:

A. It is unlawful for any person who has been convicted of․ a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

* * *

C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of ․ certain felonies shall not apply to any person who has not been convicted of․ any felony for a period of ten years from the date of completion of sentence, probation, parole, suspension of sentence ․

It was first made illegal for felons convicted of certain crimes to possess a firearm by 1975 La. Acts No. 492, § 2 (which became LSA-R.S. 14:95.1). The Louisiana Supreme Court upheld the constitutionality of the statute in State v. Amos, 343 So.2d 166, 168 (La. 1977). Pursuant to 1980 La. Acts No. 279, § 1, the Legislature amended LSA-R.S. 14:95.1 by adding crimes to the list of enumerated felony convictions.

Louisiana Revised Statutes 14:95, provides, in pertinent part:

E. If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while unlawfully in the possession of a controlled dangerous substance except the possession of fourteen grams or less of marijuana, or during the unlawful sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

It was first made illegal for certain offenders to carry a weapon by 1956 La. Acts, No. 345, § 1. The Louisiana Supreme Court upheld the constitutionality of LSA-R.S. 14:95(E) in State v. Webb, 2013-1681 (La. 5/7/14), 144 So.3d 971, 974.

Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. However, in Louisiana, the standard of strict scrutiny is applied to review state action that imposes a burden on a fundamental right. State v. Wiggins, 2013-0649 (La.App. 1 Cir. 1/31/14), 139 So.3d 1, 6-7. Under the standard of strict scrutiny, state action “may be justified only by a compelling state interest, and the state action must be narrowly confined so as to further only that compelling interest.” Accordingly, fundamental rights are not absolute, and state action may be justified, subject to strict scrutiny. Wiggins, 139 So.3d 7.

The Second Amendment to the United States Constitution provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This guaranteed right is applicable to the various states through the Fourteenth Amendment's Due Process Clause as are other fundamental rights reserved via the Bill of Rights. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 791, 130 S.Ct. 3020, 3050, 177 L.Ed.2d 894 (2010); Ramos v. Louisiana, 590 U.S. 83, 93, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583 (2020); Timbs v. Indiana, 586 U.S. 146, 150, 139 S.Ct. 682, 687, 203 L.Ed.2d 11 (2019). The Louisiana Legislature enacted 2012 La. Acts, No. 874, § 1 to amend Louisiana Constitution Article I, § 11, which, as a result, specifically states that the right of each citizen to keep and bear arms is “fundamental and shall not be infringed.” The amended version of Section 11 further states, “[a]ny restriction on this right shall be subject to strict scrutiny.”

In District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 2821-22, 171 L.Ed.2d 637 (2008), the United States Supreme Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. As noted by the United States Supreme Court in McDonald, 561 U.S. at 777-78, 130 S.Ct. at 3042, a clear majority of the states in 1868 recognized the right to keep and bear arms as being among the foundational rights necessary to our system of government, and the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. Accordingly, the right to bear arms was always fundamental. See also State v. Draughter, 2013-0914 (La. 12/10/13), 130 So.3d 855, 861.

Nonetheless, this court upheld the constitutionality of LSA-R.S. 14:95.1 in Wiggins. As this court noted, under LSA-R.S. 14:95.1, it is not the possession or concealment of a weapon standing alone that is a felony. Possession or carrying a concealed weapon is made a felony only when the person committing the act has previously been convicted of one of the enumerated offenses. The act of possessing or concealing a weapon becomes a felony only because the offender has the status of a convicted felon. Moreover, based upon the language of LSA-R.S. 14:95.1, the legislature has limited the application of the statute to certain specified serious felony offenses, has further limited the applicability of the statute to within ten years following the date of completion of sentence, probation, parole, or suspension of sentence, and has specifically defined “firearm.” Wiggins, 139 So.3d at 8; see also State v. Williams, 358 So.2d 943, 947 (La. 1978).

Likewise, LSA-R.S. 14:95(E), prohibits carrying a weapon only while committing or attempting to commit a crime of violence, or while unlawfully in the possession of a CDS. As noted, the constitutionality of LSA-R.S. 14:95(E) was upheld in Webb, 144 So.3d at 974, wherein the court stated, “Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.” The court went on to state:

Under longstanding constitutional authorities, on its face, the challenged statute does not restrict the legitimate exercise of the fundamental right to bear arms. Instead, the statute enhances the penalty for possessing illegal drugs while in carrying a firearm. When a defendant carries a firearm while possessing illegal drugs, [LSA-]R.S. 14:95(E) is facially constructed such that the possession of a firearm under those circumstances is illicit and is made illicit as a result of defendant's own illegal activities. Further, the illicit possession of a firearm may be used to enhance the penalty for possessing illegal drugs. Our own jurisprudence, and that of the United States Supreme Court, demonstrates the existence in [LSA-]R.S. 14:95(E) of a compelling state interest, which is narrowly tailored to restrict firearm possession by those who possess illegal drugs.

Id.

The defendant relies on a recent test of the depth and breadth of the right to bear arms in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Therein, the Supreme Court held, consistent with Heller and McDonald, “that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” Bruen, 597 U.S. at 10, 142 S.Ct. at 2122. The Court stated:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's “unqualified command.”

Bruen, 597 U.S. at 24, 142 S.Ct. at 2129-30 (citation omitted).

However, the Supreme Court's holding in Bruen does not, in general, declare laws making it unlawful for convicted felons to own or possess firearms, unconstitutional. The opinion explicitly states:

To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check ․ [A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

Consider, for example, Heller's discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U.S. at 626, 128 S.Ct. 2783. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited-e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions ․ We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in wand analogous sensitive places are constitutionally permissible.

Bruen, 597 U.S. at 30, 142 S.Ct. at 2133. The Court itself in Bruen further cited some of the historical examples where the government was justified in prohibiting certain persons, including felons, from possessing or owning firearms, “demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Bruen, 597 U.S. at 24, 142 S.Ct. at 2130.

In the instant case, the defendant demonstrated a dangerous disregard for the law in committing successive, life-threatening criminal activities. Considering the stated limitations of the Supreme Court's opinion in Bruen, with the historical examples cited therein, we find no error in the decision of the trial court denying the defendant's motion to quash or the motion for new trial on this basis. Accordingly, we find no merit in assignments of error numbers two and four.

EXCESSIVE SENTENCES/INEFFECTIVE ASSISTANCE OF COUNSEL

In assignment of error number five, the defendant contends his counsel was ineffective for failing to file a motion to reconsider sentence. He argues the trial court erred in imposing the maximum sentence on all five counts because his criminal history does not place him in the worst possible offender category and his offenses are not the worst offenses. Thus, he argues the sentences are excessive.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the district court rather than on appeal. This is because post-conviction relief provides the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Miller, 2015-1031 (La.App. 1 Cir. 12/23/15), 185 So.3d 811, 815, writ denied, 2016-0152 (La. 1/23/17), 215 So.3d 681.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, § 13 of the Louisiana Constitution. State v. LaCaze, 99-0584 (La. 1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance actually prejudiced him by showing that the errors were so serious that the defendant was deprived of a fair trial. Miller, 185 So.3d at 815.

The failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. Miller, 185 So.3d at 816. We note in this case, defense counsel orally objected to the “severity of the sentence” at the time of sentencing. While the basis of defense counsel's objection could have been better articulated, it arguably was sufficient to meet the requirements for an oral motion to reconsider sentence under LSA-C.Cr.P. art. 881.1 on the grounds of excessiveness. See State v. Mims, 619 So.2d 1059, 1059-60 (La. 1993) (per curiam); State v. Bryant, 2010-1393 (La.App. 1 Cir. 3/25/11), 2011 WL 1259837, *5 (unpublished), writ denied, 2011-0881 (La. 3/23/12), 84 So.3d 564.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel 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 one's sense of justice. The trial court has great discretion in imposing a sentence within the statutory limits, and this court will not set aside such a sentence as excessive in the absence of a manifest abuse of discretion. State v. Scott, 2017-0209 (La.App. 1 Cir. 9/15/17), 228 So.3d 207, 211, writ denied, 2017-1743 (La. 8/31/18), 251 So.3d 410.

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 LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Scott, 228 So.3d at 2011. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.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 LSA-C.Cr.P. art. 894.1. Id. 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. State v. Harris, 2022-1190 (La.App. 1 Cir. 6/2/23), 369 So.3d 447, 451.

In the instant matter, the defendant was sentenced to the maximum term of imprisonment on each count. See LSA-R.S. 40:967(B)(4) (as enumerated at the time of the offense); LSA-R.S. 14:95(E); LSA-R.S. 14:95.1(B) (as enumerated at the time of the offense); LSA-R.S. 40:1041(E); and LSA-R.S. 40:967(C)(1). As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. James, 2002-2079 (La.App. 1 Cir. 5/9/03), 849 So.2d 574, 586. Also, maximum sentences permitted under a statute may be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Hilton, 99-1239 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113.

Before imposing the sentences in this case, the trial court recited the defendant's prior convictions: in 2005, accessory to armed robbery, four counts; in 2006, domestic violence assault; and in 2012, possession of cocaine, two counts. The trial court further noted the instant case involves the intent to distribute fentanyl, a dangerous drug intended to be distributed to the community. The trial court stated, “The sheer amount and volume of this drug was enough to inflict injury, illness, and fatality, on a number of persons that this Court simply can not calculate.” The trial court noted the defendant was in the possession of a firearm during the periods of time in which the offenses took place.

Citing Article 894.1, the trial court found there was an undue risk that during any period of probation or a suspended sentence, the defendant would commit another crime. The trial court further found lesser sentences would deprecate the seriousness of the offenses. The trial court stated it attempted, but did not find any mitigating circumstances. As stated, maximum sentences are warranted when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality.

As noted, defense counsel in this case orally objected on the grounds of the severity of the sentencing and, arguably, preserved an excessive sentence review on appeal. Thus, it appears the defendant has failed to show his counsel's performance was deficient. Moreover, considering the defendant's past criminal conduct, the nature of the instant offenses, and the trial court's expressed reasons for the sentencing, we find the maximum sentences are not so grossly disproportionate to the severity of the crimes as to shock the sense of justice, nor is it needless infliction of pain and suffering. We cannot say that the trial court abused its discretion in imposing maximum sentences in this case. Accordingly, we find that the sentences are not constitutionally excessive. Thus, there is no indication that a written motion would have resulted in a different sentence on any of the counts. We find no merit in assignment of error number five.

PATENT ERROR REVIEW

On appeal, this court routinely reviews the record for error patent. Pursuant to LSA-C.Cr.P. art. 920(2), in conducting a patent error review, this court shall consider “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, LSA-C.Cr.P. art. 920(2) authorizes consideration of such an error on appeal. Moreover, LSA-C.Cr.P. art. 882(A) authorizes the appellate court to correct an illegal sentence on review. State v. Parker, 2023-0941 (La.App. 1 Cir. 6/27/24), 392 So.3d 652, 662.

The record reflects that prior to ordering the defendant to pay a $1,000.00 fine on count three, the trial court did not conduct a hearing under LSA-C.Cr.P. art. 875.1(C)(1), to determine whether the financial obligation would cause substantial financial hardship to the defendant or his dependents, nor did it waive judicial determination of such. Further, the defendant did not explicitly waive his right to a hearing. Pursuant to LSA-C.Cr.P. art. 875.1, in the absence of a waiver by the trial court or the defendant, it is clear that a trial court must conduct a hearing prior to imposing any fine, fee, cost, restitution, or other monetary obligation as part of the defendant's sentence. Because the trial court failed to comply with LSA-C.Cr.P. art. 875.1, we hereby vacate the fine imposed on the defendant. See State v. McKnight, 2023-0886 (La.App. 1 Cir. 7/24/24), 395 So.3d 897, 905-06, writ denied, 2024-01069 (La. 12/11/24), 396 So.3d 969.

We vacate the sentence on count three only insofar as it included the imposition of a fine without a hearing to determine if the financial obligations would impose a substantial hardship. We otherwise affirm the sentence on count three and the sentences imposed on the remaining counts. We remand this matter to the trial court for a hearing in compliance with LSA-C.Cr.P. art. 875.1.

CONCLUSION

Accordingly, we affirm the defendant's convictions on counts one through five; affirm the defendant's sentences on counts one, two, four and five; and affirm in part and vacate in part the defendant's sentence on count three. The matter is remanded for a hearing in compliance with LSA-C.Cr.P. art. 875.1.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS ONE, TWO, FOUR, AND FIVE AFFIRMED; SENTENCE AFFIRMED IN PART AND VACATED IN PART ON COUNT THREE; REMANDED IN ACCORDANCE HEREWITH.

FOOTNOTES

1.   As to the predicate offense on count three, based on the bill of information and the certified packet introduced by the State at trial, the defendant was previously charged with possession with intent to distribute cocaine and pleaded guilty on September 12, 2012, to possession of cocaine.

2.   The bill of information also contains charges against Deja Buckhalter. However, the defendants were not tried together.

3.   As the defendant notes in his brief, his trial counsel failed to file a motion for post-verdict judgment of acquittal, the proper procedural mechanism for raising the issue of sufficiency of the evidence pursuant to LSA-C.Cr.P. art. 821. However, it is well settled such failure does not preclude appellate review of the sufficiency of the evidence. See State v. Allen, 440 So.2d 1330 (La. 1983); State v. Edwards, 591 So.2d 748, 756 (La.App. 1 Cir. 1991), writ denied, 94-0452 (La. 6/21/96), 675 So.2d 1072.

4.   The State must also prove that ten years have not elapsed since the date of completion of the punishment for the prior enumerated felony. LSA-R.S. 14:95.1(C). State v. St. Cyre, 2019-0034 (La.App. 1 Cir. 12/19/19), 292 So.3d 88, 113, writ denied, 2020-00142 (La. 5/26/20), 296 So.3d 1063. As noted, the defendant only raises the issue of possession on appeal.

5.   The State must prove the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or the control of the proceeds known to be derived from such violation or to avoid a transaction reporting requirement under state or federal law and that the involved money was from drug proceeds. See State v. Edwards, 2006-850 (La.App. 3 Cir. 6/13/07), 963 So.2d 419, 426. Again, as noted, the defendant only raises the issue of possession on appeal.

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

7.   The defendant concedes that he did not file a written motion to suppress but notes that the request was made by oral motion. As recognized by this court, although LSA-C.Cr.P. arts. 521 and 703 imply that a motion to suppress should be in writing, in several cases, an oral motion to suppress has been reviewed without comment. State v. Schiber, 2022-0676 (La.App. 1 Cir. 1/11/23), 2023 WL 209767, *1 n.1 (unpublished); see also State v. Arvel, 481 So.2d 691, 695 n.4 (La.App. 1 Cir. 1985) (citing State v. Beals, 410 So.2d 745 (La. 1982)).

8.   In addition to his years of experience in narcotics, Detective Liberto testified he previously worked criminal patrol for the Covington Police Department, and in that capacity, conducted traffic stops that led to illegal narcotics being confiscated.

9.   Pursuant to LSA-R.S. 13:4448, on October 1, 2024, this court notified the Louisiana Attorney General that a constitutionality issue had been raised in this matter and gave her an opportunity to file a brief. Accord State v. Thomas, 2019-0409 (La.App. 1 Cir. 10/25/19), 289 So.3d 1030, 1042.

McCLENDON, C.J.