STATE OF LOUISIANA v. DOMINIC FRANK WEBER (2026)

The defendant, Dominic Frank Weber, was charged by an amended bill of information with the following offenses: possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies ¹ (count I), a violation of La. R.S. 14:95.1; illegal carrying of a weapon while in the possession of a controlled dangerous substance (“CDS”) (alprazolam, a Schedule IV CDS) (count II), a violation of La. R.S. 14:95(E); violation of protective orders, second or subsequent offense (count III), a violation of La. R.S. 14:79(A) & (B)(2); and introduction or attempted introduction of contraband into a correctional facility (cocaine, a Schedule II CDS) (count IV), a violation of La. R.S. 14:402(A) & (D)(1).² He pled not guilty on each count and filed a motion to suppress, which the trial court granted in part and denied in part. He was tried by a jury, found guilty as charged on counts I through III, and a mistrial was declared on count IV.³

The State filed a habitual offender bill of information, alleging three predicate convictions ⁴ and seeking to enhance the sentence on count II, pursuant to La. R.S. 15:529.1. The defendant admitted to the allegations therein and was adjudicated a fourth felony habitual offender on count II. The trial court sentenced the defendant as follows: on count I, twelve years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence; on count II, an enhanced sentence of twelve years imprisonment at hard labor without the benefit of probation or suspension of sentence; and on count III, two years imprisonment at hard labor. The trial court ordered that the sentences be served concurrently. The State filed a motion to reconsider sentence, which was denied by the trial court.

The defendant now appeals, assigning as error the trial court's partial denial of his motion to suppress. The State also appeals, assigning as error the trial court's downward departure from the mandatory minimum in imposing the enhanced sentence on count II, pursuant to La. R.S. 15:529.1. For reasons that follow, we affirm the convictions, affirm the sentences on counts I and II, vacate the sentence on count III, and remand for resentencing on count III.

FACTS

The morning of December 3, 2023, Deputy Earl Thomas, III, with the St. Tammany Parish Sheriff's Office (“STPSO”), responded to a 911 call reporting a suspicious individual on Pine Crest Street, in a residential subdivision in Slidell. Deputy Thomas arrived on the scene and made contact with a male subject, later identified as the defendant, as he was sitting on the ground, in the driveway of the residence referenced in the 911 call.

Deputy Thomas asked the defendant if he had any identification on him, and the defendant repeatedly put his hand in his shorts pocket, but did not pull out any identification. The defendant appeared to be disoriented and sluggish. Deputy Thomas instructed the defendant to remove his hand from his pocket, and told him to place his hands on the top of his head. As the defendant failed to place both hands on his head, Deputy Thomas placed the defendant's hands behind his back and handcuffed them. Deputy Thomas then conducted a pat-down frisk of the defendant's clothing. According to Deputy Thomas, after the pat-down, he saw what appeared to be an extended magazine from a pistol sticking out of the defendant's partially unzipped jacket. Deputy Thomas reached into the armpit area of the defendant's jacket and seized the pistol.

Deputy Thomas then escorted the defendant to his police unit, where he was assisted by Deputy Walker Ray of the STPSO. The defendant was informed of his Miranda ⁵ rights and additional items were seized from his person, including narcotics. The defendant provided his name and date of birth, and he made several statements. The entire encounter was recorded on Deputy Thomas’ body camera, and Deputy Ray's involvement was recorded by his body camera.⁶ The defendant was transported to the St. Tammany Parish jail where additional narcotics were recovered during his intake.

DEFENDANT'S APPEAL: MOTION TO SUPPRESS

In the defendant's sole assignment of error, he argues the trial court erred in denying his motion to suppress the firearm seized at the scene. The defendant argues Deputy Thomas’ body camera footage contradicts his testimony that he saw the magazine of the firearm in plain view before retrieving it from the defendant's jacket. He argues that Deputy Thomas did not say anything or react in a way that would indicate that he knew the weapon was in the defendant's jacket until he opened the jacket, undermining the trial court's finding that the firearm was in plain view. He contends Deputy Thomas exceeded the scope of a protective search. The State argues there was no abuse of discretion, contending the trial court correctly concluded Deputy Thomas’ field of vision differed from the body camera's field of view.

The Fourth Amendment to the United States Constitution and Article I, Section 5, of the Louisiana Constitution protect people against unreasonable searches and seizures. It is well-settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the State can affirmatively show that the warrantless search and seizure was justified by one of the narrowly drawn exceptions to the warrant requirement. See La. Code Crim. P. art. 703(D); State v. Thompson, 2002-033 3 (La. 4/9/03), 842 So.2d 3 3 0, 3 3 5. Any evidence recovered as a result of an unconstitutional search or seizure is inadmissible. State v. Hamilton, 2009-2205 (La. 5/11/10), 3 6 So.3d 209, 212.

A defendant adversely affected may move to suppress any evidence from use at a trial on the merits on the ground that it was unconstitutionally obtained. La. Crim. P. art. 703(A). When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress, the State bears the burden of proving the admissibility of any evidence seized without a warrant. La. Code Crim. P. art. 703(D). Thus, once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to prove the admissibility of any evidence seized without a warrant. La. Code Crim. P. art. 703(D).

Law enforcement officers enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980). Police officers do not need probable cause or reasonable suspicion each time they attempt to converse with a citizen. State v. Neyrey, 3 83 So.2d 1222, 1224 (La. 1979); State v. Harris, 2011-0779 (La. App. 1st Cir. 11/9/11), 79 So.3d 1037, 1041. The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by both federal and state jurisprudence. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Bell, 2014-1046 (La. App. 1st Cir. 1/15/15), 169 So.3d 417, 421.

In making a brief investigatory stop on less than probable cause to arrest, the police must have a particularized and objective basis for suspecting the person stopped of criminal activity. The police must therefore articulate something more than an inchoate and unparticularized suspicion or hunch. This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need only have some minimal level of objective justification. State v. Spann, 2010-1073 (La. App. 1st Cir. 12/22/10), 2010 WL 5442014, *3 (unpublished), writ denied, 2011-0142 (La. 6/3/11), 63 So.3d 1008.

Pursuant to La. Code Crim. P. art. 215.1(B), law enforcement officers are allowed to conduct a pat-down frisk for weapons if the police officer reasonably believes he is in danger or that the suspect is armed. It is sufficient that an officer establish a “substantial possibility” of danger by pointing to particular facts that support such a reasonable inference. State v. Bolden, 380 So.2d 40, 42 (La.), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980). Pursuant to La. Code Crim. P. art. 215.1(C), if the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La. 3/13/98), 708 So.2d 1048, 1049 (per curiam). The detaining officer must have knowledge of specific, articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop. State v. Flowers, 441 So.2d 707, 714 (La. 1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984); State v. Matthews, 2015-1281 (La. App. 1st Cir. 2/26/16), 191 So.3d 1080, 1083-84. The officer's past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, and deference should be given to the experience of the officers present at the time of the incident. State v. Anderson, 2020-0473 (La. App. 1st Cir. 2/19/21), 320 So.3d 443, 447.

On appellate review, 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. Parker, 2023-0941 (La. App. 1st Cir. 6/27/24), 392 So.3d 652, 658. 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. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 281; Anderson, 320 So.3d at 448. 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 a 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); Parker, 392 So.3d at 658.

Herein, a resident in the area called 911 after seeing a suspicious person, the defendant, lying in her neighbor's driveway. The caller was unsure of whether or not the defendant was conscious. Deputy Thomas testified that as he approached the defendant, he observed the defendant appeared disoriented. The defendant was wearing a black hooded jacket, shorts, and exposed compression boxers. As Deputy Thomas conversed with the defendant, initially asking him if he was aware of his whereabouts and whether he had identification, the defendant spoke in a “sluggish” and slow manner, stumbled as he stood up off of the ground, had “pinpoint pupils,” and his speech was slurred. He was unable to name the street he was on, naming the street on the opposite side of the block, and though he was continuously digging in his pocket, he did not produce any identification when requested. Deputy Thomas believed the defendant was under an intoxicated state, stepped behind the defendant, began conducting a pat-down frisk ⁷ , and handcuffed the defendant as he failed to put his hands on his head.

After locking the handcuffs on the defendant's wrists, Deputy Thomas stepped in front of the defendant, and they stood face to face. Specifically, Deputy Thomas testified as follows,

After he was being placed in handcuffs, I noticed he was still pointing his left arm. I walked around to the front of him. He had a jacket on that was not all the way zipped.

When I stepped into the front of him, I could see inside of the jacket. And when I looked inside of the jacket under his left armpit, I could see a magazine, an extended magazine, from a pistol.

Deputy Thomas patted the exterior pocket areas of the defendant's jacket before opening the left side of the jacket and looking inside. He then felt the interior of the right, chest area portion of the jacket, told the defendant to stop moving, reached into the armpit area of the left side of the defendant's jacket, and removed the gun. Deputy Thomas reiterated that he saw the pistol magazine sticking out when he stepped in front of the defendant. Deputy Thomas noted he told the defendant to stop moving and to “let it go” because the defendant was clinching his left arm, making it more difficult to remove the gun. The defendant was then taken to the unit where he was advised of his rights, further searched, and further questioned before being transported to the jail.

In partially ⁸ denying the defendant's motion to suppress, specifically as to the recovered firearm, the trial court judge stated in part, “I've seen enough videos to know that you can't see all the nuances on a video that you can see up close in person[.]” The trial court judge further stated he had no reason to believe Deputy Thomas was lying when he repeatedly stated he saw the butt of the extended magazine before retrieving it.

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. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990); State v. Leger, 2005-0011 (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). A seizure is reasonable under the plain view doctrine if the officer has probable cause to believe the item seized was associated with criminal activity. State v. Barnes, 2012-0615 (La. App. 1st Cir. 11/2/12), 2012 WL 5387692, *6 (unpublished), writ denied sub nom., State ex rel. Barnes v. State, 2013-0634 (La. 8/30/13), 120 So.3d 264.

Seizures of contraband may be warranted under the “plain feel” exception to the warrant requirement recognized by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In that case, the U.S. Supreme Court ruled that officers may seize contraband detected by touch during a pat-down search if the search remains within the bounds of a Terry pat-down search. As to tactile discoveries of contraband, the court found that if an officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. Dickerson, 508 U.S. at 375-76, 113 S.Ct. at 2137.

The Supreme Court in Dickerson found that the pat-down search exceeded its lawful bounds since the small amount of drugs was not immediately identifiable by the officer's sense of touch. The court noted that when the officer felt a lump in the defendant's jacket, the officer never thought it was a weapon and did not immediately recognize it as cocaine. It was only after squeezing, sliding and otherwise manipulating the pocket's contents that the officer determined the lump was cocaine. Dickerson, 508 U.S. at 378, 113 S.Ct. at 2138; see also State v. Boyer, 2007-0476 (La. 10/16/07), 967 So.2d 458, 472-73 (where an officer exceeded scope of Terry pat down where he could not identify two small objects he felt in the defendant's pocket, but reached into the pocket to remove and visually inspect the objects).

Herein, the defendant was suspiciously lying and sitting in someone else's driveway long enough to alarm a neighbor who called 911. The defendant was still on the ground of the driveway when Deputy Thomas arrived at the scene. The defendant was dressed in a jacket, shorts, and exposed underwear, and appeared to be under the influence of an intoxicating substance. We find the circumstances of the instant encounter supported a reasonable suspicion that the defendant may have been involved in criminal activity, and thus, a brief intrusion for questioning was not unreasonable. It is well settled that drug traffickers and users have a violent lifestyle and are generally armed due to the nature of their illicit business. Thus, a police officer should be permitted to frisk a suspect who reasonably appears to be using or dealing drugs. See Spann, 2010 WL 5442014 at *3. Further, as provided by La. Code Crim. P. art. 215.1(B), “[i]f the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.” Considering his observations at the scene and the nature of the encounter, including the defendant's appearance and behavior, we find Deputy Thomas had reasonable circumstances to justify a protective frisk for weapons.

Based on our review, we find reasonable circumstances existed for Deputy Thomas to conduct a protective frisk for weapons. Deputy Thomas repeatedly testified that he saw the gun sticking out before retrieving it. This court finds that the video footage does not refute Deputy Thomas’ claim. While Deputy Thomas opened the left side of the defendant's jacket before retrieving the gun, we note the defendant's jacket was nearly completely unzipped, loose fitting, and had visible gaps in the chest area that further opened as he moved. This court cannot say that Deputy Thomas did not see a portion of the gun sticking out before he opened the jacket or reached into the jacket to grab the gun. Further, considering the size of the gun, had Deputy Thomas felt the object at any point during the pat-down frisk, its nature would have been immediately apparent. See State v. Boyles, 2014-1126 (La. App. 4th Cir. 2/4/15), 157 So.3d 1170, 1176, writ denied, 2015-0733 (La. 3/4/16), 187 So.3d 1007. Accordingly, the trial court did not abuse its discretion in denying the defendant's motion to suppress the firearm. The defendant's sole assignment of error lacks merit.

STATE'S APPEAL: DOWNWARD DEVIATION FROM HABITUAL OFFENDER MANDATORY MIMNIMUM SENTENCE

In the State's sole assignment of error on appeal, the State argues the trial court abused its discretion in imposing less than the minimum sentence mandated by the Habitual Offender Law on count II. The State objected to the defendant's reduced sentence and filed a motion to reconsider sentence. On appeal, the State attempts to distinguish the instant case from cases in which a downward departure from the mandatory minimum sentence was authorized. Essentially, the State contends this defendant's prior crimes cannot be categorized as petty, and that the circumstances of the instant case do not make this defendant “exceptional” so as to warrant a downward sentencing deviation. In response, the defendant contends the trial court gave adequate reasons to justify the downward departure and that the sentence is constitutional.

The Eighth Amendment to the United States Constitution and Article I, section 20, of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 3 67 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. State v. Andrews, 94-0842 (La. App. 1st 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). 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. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam) (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La. 1984)).

Courts are charged with applying a statutorily mandated punishment unless it is unconstitutional. State v. Dorthey, 623 So.2d 1276, 1278 (La. 1993). In Dorthey, 623 So.2d at 1280-81, the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.

In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences under the Habitual Offender Law. A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. A trial judge may not rely solely upon the nonviolent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as nonviolent should not be discounted, this factor has already been considered under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So.2d at 676.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of particular or unusual circumstances, the defendant is being improperly subjected to 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. See State v. Alexander, 2021-1346 (La. App. 1st Cir. 7/13/22), 344 So.3d 705, 725, writ denied, 2022-01262 (La. 11/8/23), 373 So.3d 62. Given the legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Downward departures from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So.2d at 676-77.

In this case, the trial court adjudicated the defendant a fourth felony habitual offender on count II, illegal carrying of weapons while in possession of a controlled dangerous substance. Pursuant to La. R.S. 14:95(E), the longest possible sentence that could be imposed on the underlying offense was ten years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. As the underlying offense is not a crime of violence, pursuant to La. R.S. 15:529.1(A)(4)(a), the defendant was subject to term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life. Thus, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence was the minimum applicable sentence on count II in this case.

At the sentencing hearing, after the defendant stipulated to the allegations of the habitual offender bill of information and was adjudicated a fourth felony offender, defense counsel informed the trial court that it had the authority to deviate downward from the statutory minimum. Defense counsel noted the State offered the defendant a plea bargain of five years “to clear all of his cases.” Defense counsel noted the defendant turned down the plea offer, because it included an unrelated sexual battery charge alleged to have taken place in jail, though video footage of the incident, according to defense counsel, showed the offense did not occur. As defense counsel further noted, part of the sentence in that case would require the defendant to register as a sex offender.

Defense counsel argued the State's willingness to offer a much lower sentence than the statutory minimum was a key factor that was undermined by its attempt to require a guilty plea to an offense that the defendant did not commit as a condition of the plea agreement. In addition to noting that its office did not have a written memorialization of the bargain referenced by the defendant, the State noted the defendant did not want to take responsibility for possessing a firearm and drugs in this case and that his criminal record shows he does not follow, respect, or adhere to the law.

In concluding a downward departure was warranted in this case, the trial court judge noted he remembered discussing the plea bargain with the defendant, noting it was initially a five-year agreement, then a ten-year agreement, either on the habitual offender bill or all of the charges, but included a plea to the sexual battery charge. The trial court stated the particular alleged victim of sexual battery, a female deputy at the jail, had a relationship with the defendant before the incident and that video footage showed she backed into the defendant rather than him rubbing up against her as alleged. The trial court further considered the facts of the instant case and the defendant's trial testimony in which he was notably inarticulate but took responsibility for some of his conduct. The trial court noted its doubt as to the State's ability to prove sexual battery and concluded it was unfair to include that offense in the plea bargain. The trial court then imposed twelve years imprisonment, eight years less than the twenty-year minimum under the Habitual Offender Law.

Initially, we note there is little value in making sentencing comparisons. It is well-settled that sentences must be individualized to the particular offender and to the particular offense committed. State v. Lascari, 2024-0631 (La. App. 1st Cir. 7/11/25), 2025 WL 1911842, *8 (unpublished), writ denied, 2025-01052 (La. 3/18/26), 427 So.3d 123 8. While this court might have ruled differently in this particular case if we had been the sentencing court, we are unable to say the trial court abused its discretion in finding the defendant proved by clear and convincing evidence that he is exceptional and/or these particular circumstances are exceptional such that a longer sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676; State v. Negron, 2009-1204 (La. App. 1st Cir. 12/23/09), 2009 WL 5647228, *6 (unpublished), writ denied, 2010-0266 (La. 9/17/10), 45 So.3d 1040. Thus, we find no abuse of discretion by the trial court in deviating downward from the minimum term of imprisonment under the Habitual Offender Law. We find no merit in the State's sole assignment of error.

PATENT ERROR REVIEW

On appeal, this court routinely reviews the record for error patent. Pursuant to La. Code Crim. 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, La. Code Crim. P. art. 920(2) authorizes consideration of such an error on appeal. Moreover, La. Code Crim. P. art. 882(A) authorizes the appellate court to correct an illegal sentence on review.

We note the following as to the sentence imposed on count I. Pursuant to La. R.S. 14:95.1(B), on count I the defendant was subject to imprisonment at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and a fine ⁹ of not less than one thousand dollars nor more than five thousand dollars. The trial court did not impose a fine on count I. Thus, the sentence imposed on count I is illegally lenient. However, we decline to correct or remand for the imposition of a fine.¹⁰ See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 124-125 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.

On count II, as previously stated, La. R.S. 14:95(E) required the trial court to restrict parole for the entirety of the sentence. Any sentence imposed under the provisions of the Habitual Offender Law shall be at hard labor without benefit of probation or suspension of sentence. La. R.S. 15:529.1(G). Additionally, a sentence enhanced under the Habitual Offender Law is computed by referring to the underlying offense. Therefore, a defendant's enhanced sentences are required to contain the appropriate restrictions of parole from their underlying statute. See State v. Carvin, 2014-1017 (La. App. 1st Cir. 1/15/15), 2015 WL 224063, *8 (unpublished).

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of a sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence. La. R.S. 15.-301.1(A). Accordingly, the parole restriction on count II is self-activating, eliminating the need to remand for a ministerial correction. See State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 799; State v. Mack, 2024-0469 (La. App. 1st Cir. 6/24/25), 2025 WL 1739294, *8 (unpublished), writ denied, 2025-00932 (La. 12/16/25), 422 So.3d 785.

Finally, on count III, violation of protective orders, second or subsequent offense, La. R.S. 14:79(B)(2) requires “[a]t least fourteen days” of the sentence be served without parole. Thus, the correction of this sentence requires the exercise of discretion. Had the trial court realized there was a mandatory minimum parole restriction it may have restricted parole on the entire sentence or some portion more than the minimum. Further, the trial court failed to require the defendant to participate in a court-monitored domestic abuse intervention program as defined by La. R.S. 14:35.3. Therefore, we must vacate the defendant's sentence on count III, and remand for resentencing only as to count III. See State v. Grimmer, 2017-0338 (La. App. 1st Cir. 9/21/18), 2018 WL 4520276, *6 (unpublished).¹¹

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS I AND II AFFIRMED; SENTENCE ON COUNT III VACATED; REMANDED FOR RESENTENCING ON COUNT III AND CORRECTION OF THE MINUTES AND COMMITMENT ORDER.

FOOTNOTES

1.   As the parties stipulated, the defendant's predicate offense on count I consists of a simple burglary conviction on September 20, 2018.

2.   See also La. R.S. 40:964, Schedule IV(B)(2) (as to count II) and Schedule 11(A)(4) (as to count IV).

3.   While the defendant was unanimously found guilty as charged on counts I, II, and III, the jury concurrence on count IV was eight “guilty” votes to four “not guilty” votes. Thus, the trial court declared a mistrial on count IV.

4.   The predicate offenses for the defendant's habitual offender adjudication include convictions of possession of cocaine on August 10, 2017, possession with intent to distribute methamphetamine on March 30, 2017, and simple burglary on September 20, 2018.

5.   Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

6.   Deputy Thomas learned the defendant had an active protective order in place from Orleans Parish.

7.   Deputy Thomas testified a frisk is “basically a pat down of the outer clothing to ensure that the defendant didn't have any weapons or anything on him.” However, the body cam footage shows Deputy Thomas searched the defendant's shorts pockets while conducting the pat-down frisk, positioned behind the defendant.

8.   The trial court granted the motion as to the narcotics recovered and seized in this case finding Deputy Thomas had no justification for reaching into the defendant's shorts pockets. Neither party has raised or contested that ruling on appeal.

9.   The trial court would have to hold a financial hardship hearing in compliance with the provisions of La. Code Crim. P. art. 875.1, prior to the imposition of such a fine. We note the record does not indicate that a financial hardship hearing was held, or that the mandatory fine was waived as a result of a determination that it would cause substantial financial hardship to the defendant or his dependents.

10.   We note that the lack of a fine is not inherently prejudicial to the defendant and neither the State nor the defendant raised this issue on appeal.

11.   We note after sentencing, the trial court advised the defendant that under La. Code Crim. P. art. 930.8(A), any application for post-conviction relief “must be filed within two years of your sentence becoming final.” However, Article 930.8(A) generally provides that “[n]o application for post conviction relief․ 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 Article 914 or 922[.]” (Emphasis added). Thus, the trial court's language did not track the language of Article 930.8(A) verbatim. Under La. Code Crim. P. art. 930.8(D), the trial court must “inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing.” While it was not verbatim, we find that the trial court's instruction satisfied the requirements of Article 930.8(D), as the defendant's sentence could not become final until there was a final judgment of conviction. Thus, we do not find that the trial court's advice constituted patent error. Further, the trial court's advice has no bearing on the sentences. See State v. McCarty, 2024-1155 (La. App. 1st Cir. 12/2/25), ____ So.3d ____, 2025 WL 3635498, *6 n.8, writ denied, 2025-01576 (La. 5/27/26), 432 So.3d 184.

STROMBERG, J.