State of Louisiana Versus Brett H Elmer

STATE OF LOUISIANA NO. 24-KA-152

VERSUS FIFTH CIRCUIT

BRETT H ELMER COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 23-5774, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

December 18, 2024

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel

AFFIRMED
SMC
JJM
SUS

COUNSEL FOR DEFENDANT/APPELLANT,
BRETT H. ELMER
Sherry A. Watters

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Monique D. Nolan
Leo M. Aaron
Molly Love

CHEHARDY, C.J.

Defendant, Brett H. Elmer, appeals his sentences for possession of cocaine

and possession of heroin. For the reasons that follow, we affirm defendant’s

conviction and sentences.

FACTS AND PROCEDURAL HISTORY

On December 13, 2023, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Brett H. Elmer, with possession of cocaine

weighing less than two grams, in violation of La. R.S. 40:967(C) (count one), and

possession of methamphetamine weighing less than two grams, in violation of La.

R.S. 40:967(C) (count two). At his December 14, 2023 arraignment, defendant

pled not guilty.

On January 24, 2024, the State filed a superseding bill of information in

which count one remained the same, but in count two, the State charged defendant

with possession of heroin weighing less than two grams, in violation of La. R.S.

40:966(C). On February 22, 2024, defendant waived a reading of the bill and

entered a plea of not guilty. With no objection from defendant, the case proceeded

to trial on the same date.

At trial, Deputy James McAllister testified that he was a patrol deputy with

the Jefferson Parish Sheriff’s Office (JPSO). On November 23, 2023, he and

Deputy Steven Carter were working the night shift patrol in Avondale, where there

had been recent “car break-in burglaries.” Deputy McAllister explained that at

approximately 1:00 or 2:00 a.m., defendant, Brett Elmer, was observed wearing all

black clothing and a black backpack. He stopped defendant, who told the officer

his name, and the authorities checked for any outstanding warrants or attachments.

Deputy McAllister then called Deputy Steven Carter for assistance. Deputy Carter

and Deputy Daryl Julien arrived to assist. Defendant was not under arrest at this

time, and Deputy McAllister testified that he asked defendant if he could search his

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backpack. Defendant consented to the search. Deputy McAllister testified that the

search was done for officer safety, and he conducted only a “quick glance” search

of the backpack to see if there were any weapons. He did not see anything, and

returned the backpack to defendant.

The search of defendant’s name resulted in outstanding attachments for him.

Deputy McAllister asked defendant if he could search his backpack again, and

defendant consented. Deputy McAllister found a Styrofoam pouch that contained a

dollar bill with a white powder substance on it, a white piece of paper that had a

white powder substance on it, and a clear bag that had brown powder in it. He also

found syringes, crack pipes, Narcan, a digital scale, counterfeit one hundred dollar

bills, and multiple IDs in the backpack. None of the IDs found in defendant’s

backpack belonged to defendant, and he could not explain why he had them.

Deputy McAllister photographed the evidence.

The drugs were field-tested by crime scene investigators. The white

substance on the dollar bill tested positive for cocaine, and the other white

substance tested positive for methamphetamine. The brown substance did not come

back positive for anything. Deputy McAllister testified that because of the color,

he assumed it was some type of heroin. All of the substances were tested again at

the lab, and both white substances tested positive for cocaine. The brown substance

tested positive for heroin and fentanyl. Deputy McAllister testified that defendant

admitted that the cocaine in the dollar bill in the backpack and the Narcan were his,

but he did not admit to anything else belonging to him.

Video footage from the deputy’s body camera was played for the jury. As

the footage played, Deputy McAllister explained that he and the other officers

were asking defendant what he was doing in the area at that hour. He testified that

defendant stated he had been picked up from New Orleans earlier that day and was

in Avondale to meet his friend, who lived down the street on “Ursula.” Deputy

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McAllister testified that defendant’s story did not add up. Defendant did not know

the house number but stated the house was four houses down. Deputy McAllister

testified that this house was known for drugs and known as a “trap house.” When

Deputy McAllister asked defendant if he got the drugs in the area, defendant did

not respond.

Deputy Steven Carter testified that he was a patrol officer with JPSO. On

November 23, 2023, at approximately 2:30 to 3:00 a.m., he responded as a backup

officer to Deputy McAllister, who had stopped defendant. He testified that

defendant matched a description of burglary suspects in that area. Deputy Carter’s

testimony regarding defendant’s apprehension and the discovery of the narcotics

largely corroborated Deputy McAllister’s testimony. Deputy Carter read defendant

his Miranda1 rights from a physical card issued by the JPSO. Defendant

acknowledged that he understood his rights and indicated that he wanted to talk.

Deputy Carter testified that initially defendant admitted to the backpack and the

items in it being his.

Deputy Carter testified that when defendant was asked about the narcotics

found in his backpack, he admitted that the powder inside the dollar was his and

knew that it was cocaine; he stated that he put it in his backpack and forgot about

it. He further stated that the other narcotics were not his but were for Steven

Pertuit. Deputy Carter testified that Mr. Pertuit was an individual at the home on

Ursula about whom the police had common knowledge.

Video footage from Deputy Carter’s body camera was played for the jury.

The footage showed him asking defendant questions as to why he was in the area

at 2:50 a.m. Deputy Carter testified that after he read defendant his rights,

defendant stated that a phone and the scale in his backpack belonged to his brother.

1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

24-KA-152 3

Deputy Carter testified that after defendant was placed in handcuffs, advised he

was under arrest, and placed in the back of Deputy McAllister’s vehicle, he told

him that he had knowledge of the narcotics in his bag.

The State and defense counsel stipulated that if called to testify, Justin

Mourain would qualify as an expert in the identification and analysis of controlled

dangerous substances. The parties also stipulated that Mr. Mourain would testify in

conformity with his January 24, 2024 report, which states: “JPSO Item 001A was

found to contain cocaine, Item 001B was found to contain cocaine, and Item 001C

was found to contain heroin and fentanyl with a gross weight of 1.18 grams plus or

minus .04 grams.”

At the conclusion of trial, a six-person jury returned a verdict of guilty as

charged on both counts. On February 26, 2024, the trial court sentenced defendant

to two years imprisonment at hard labor on each count, with credit for all time

served. Immediately thereafter, the State filed a multiple offender bill of

information on count one, alleging that defendant was a second-felony offender,

given his 2014 conviction for violation of La. R.S. 14:62.8, home invasion.

Defendant pled guilty to the multiple bill, thereby acknowledging the prior felony

conviction, and completed a waiver of rights form indicating that he understood he

would receive a sentence of two years imprisonment, concurrent with any other

sentence.

After accepting defendant’s stipulation to the multiple bill on count one, the

trial court vacated defendant’s original sentence on count one and again sentenced

defendant to two years imprisonment with the Department of Corrections,

“concurrent with any other sentence.”

ANALYSIS

In a single assignment of error, defendant contends that his sentences on

both counts were excessive, stating that the district court erred in imposing an

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unconstitutionally excessive, maximum sentence on count two, and an excessive,

mid-range sentence on count one as a multiple offender, which sentences were not

commensurate with the small amount of drugs or the circumstances of the

offender.

As to count one, defendant states that while the two-year enhanced sentence

is mid-range, it is without parole. He argues that the cocaine was only powder

residue on a folded paper and a dollar bill, and claims that he deserved a downward

departure. As to count two, defendant claims that he received the maximum

sentence, which is constitutionally excessive. He argues that the heroin was visible

but was miniscule, and that the aggregate weight of 1.18 grams included the weight

of the packaging and did not consider purity. Defendant argues that although the

sentences are concurrent, they are excessive in these circumstances.

Defendant further argues that while it may seem frivolous to consider the

excessiveness of concurrent two-year sentences, they must be examined in the

context of the sentencing ranges, his circumstances, and his cooperation at his

arrest. Defendant contends that maximum sentences are not favored, and those at

or near the maximum ordinarily apply to the most blameworthy offenders. He

argues that the trial court provided no basis for the sentences and cited no factors to

justify them, or show that these were the worst violations, or that he was the most

egregious of offenders. Defendant points out that he was only 34 years old at the

time of his arrest and not beyond rehabilitation. Defendant contends the trial

court’s failure to consider mitigating factors, and failure to provide a factual basis

for the maximum sentences, requires that the sentences be vacated and the case

remanded for re-sentencing.

As to count one, the State responds that defendant is precluded from seeking

review of his enhanced sentence because he agreed to the enhancement pursuant to

a plea agreement, and he was made aware of the sentencing range. Regardless, the

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State contends that he is not entitled to relief. The State further notes that defendant

did not file a motion to reconsider sentence; his failure to do so limits him to a

review for constitutional excessiveness only.

The State also contends that defendant did not receive maximum sentences

for either of his convictions, and he received only a mid-range sentence for the

habitual offender conviction on count one and the minimum sentence for count

two. The State argues that drug crimes, even for small quantities, pose a danger to

the welfare of the population. The State notes that defendant’s criminal record

shows he is a repeat offender and career criminal with a disregard for the law. The

State avers that there is no merit to defendant’s argument.

After the jury returned a guilty verdict, the trial court sentenced defendant to

two years imprisonment at hard labor on each count. Defendant did not object to

either sentence and did not file a motion to reconsider sentence. Furthermore,

defendant completed a waiver of rights form acknowledging that he was a second-

felony offender, that the sentencing range was six months to four years, and that he

understood he would receive a sentence of two years imprisonment “concurrent

with any other sentence.”

The failure to file a motion to reconsider sentence, or to state the specific

grounds upon which the motion is based, limits a defendant to a review of the

sentence for constitutional excessiveness only. State v. Harmon, 19-570 (La. App.

5 Cir. 9/9/20), 301 So.3d 1278, 1288, writ denied, 20-1160 (La. 10/14/20), 303

So.3d 306. When the grounds for objection to the sentences, including alleged non-

compliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court,

these issues are not included in the bare review for constitutional excessiveness,

and the defendant is precluded from raising these issues on appeal. State v. Clark,

19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281, 1291, writ denied, 21-62 (La.

24-KA-152 6

3/9/21), 312 So.3d 585. Here, defendant did not file a motion to reconsider

sentence.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the

Louisiana Constitution prohibit the imposition of excessive punishment. A

sentence is considered excessive, even if it is within the statutory limits, if it is

grossly disproportionate to the severity of the offense, or imposes needless and

purposeless pain and suffering. State v. Adams, 23-427 (La. App. 5 Cir. 4/24/24),

386 So.3d 676, 683.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside

a sentence for excessiveness if the record supports the sentence imposed. In

reviewing a sentence for excessiveness, the reviewing court shall consider the

crime and the punishment in light of the harm to society and gauge whether the

penalty is so disproportionate as to shock the court’s sense of justice, while

recognizing the trial court’s wide discretion. Adams, 386 So.3d at 683. In

reviewing a trial court’s sentencing discretion, three factors are considered: 1) the

nature of the crime; 2) the nature and background of the offender; and 3) the

sentence imposed for similar crimes by the same court and other courts. State v.

Kelson, 23-274 (La. App. 5 Cir. 12/27/23), 379 So.3d 779, 784-85. However, there

is no requirement that specific matters be given any particular weight at

sentencing. Id. at 785. A trial court should consider the defendant’s personal

history such as age, family ties, marital status, health, and employment record, as

well as his prior criminal record, seriousness of the offense, and the likelihood of

rehabilitation when determining an appropriate sentence. Adams, 386 So.3d at 686.

A trial judge is in the best position to consider the aggravating and mitigating

circumstances of a particular case and, therefore, is given broad discretion when

imposing a sentence. State v. Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379 So.3d

196, 204, writ denied, 24-136 (La. 9/24/24), 392 So.3d 1141.

24-KA-152 7

As to the enhanced sentence on count one, we find defendant is precluded

from seeking review, because defendant agreed to the enhanced sentence. La.

C.Cr.P. art. 881.2(A)(2) provides that a defendant “cannot appeal or seek review of

a sentence imposed in conformity with a plea agreement which was set forth in the

record at the time of the plea.” See also State v. Hunter, 22-498 (La. App. 5 Cir.

4/26/23), 362 So.3d 993, 996. Because defendant received a sentence imposed in

conformity with a plea agreement that was set forth in the record at the time of the

plea, he is barred from challenging his enhanced sentence on count one as

excessive.

As to count two, possession of heroin weighing less than two grams, La.

R.S. 40:966(C)(4)(a) provides a range of two to four years imprisonment.2 The trial

court sentenced defendant to two years imprisonment at hard labor. Although the

trial court alternatively could have sentenced defendant without hard labor,

defendant’s two-year sentence was the minimum term that defendant could have

received for his conviction. Defendant’s reference in his brief to the sentencing

provision of La. R.S. 40:966(C)(1)(a) is in error, because the more specific

provision dealing with heroin applies here.

This Court has determined that it is difficult to overstate the serious nature of

any crime involving heroin, given the danger the substance poses to public health.

See State v. Williams, 16-600 (La. App. 5 Cir. 6/29/17), 224 So.3d 1194, 1198, writ

2
La. R.S. 40:966(C)(4)(a) states:

(4) A substance classified in Schedule I that is the narcotic drug heroin or a
mixture or substance containing a detectable amount of heroin or of its analogues,
upon conviction for an amount:
(a) An aggregate weight of less than two grams, shall be sentenced to a
term of imprisonment, with or without hard labor, for not less than two
years nor more than four years.

(Emphasis added).

24-KA-152 8

denied, 17-1332 (La. 4/27/18), 241 So.3d 306.3 We disagree with defendant’s

contention that the small aggregate weight of the drugs found in his possession

negates the seriousness of the offense, especially when considering the fact that

defendant’s backpack contained multiple IDs that did not belong to him, syringes,

pipes, a digital scale, Narcan, and fake currency. The crime lab report also

indicated that the bag contained both fentanyl and heroin.

As to the background and nature of defendant, the record reflects that

defendant was 34 years old at the time of his arrest, and he pled guilty to home

invasion in 2014. The officers found defendant walking in the street after 2:00 a.m.

in an area with a recent string of car break-ins.

The third factor requires consideration of sentences imposed for similar

crimes by this Court and other courts. As to count two, defendant references

several cases in which the defendant was sentenced to the maximum sentence for

various crimes to support his argument that he is not the worst type of offender

deserving of a maximum sentence. However, as seen above, defendant received the

minimum sentence, not the maximum sentence, on count two. See La. R.S.

40:966(C)(4)(a). A mandatory minimum sentence is presumed to be

constitutional. State v. Sly, 23-60 (La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1092,

writ denied, 23-1588 (La. 4/23/24), 383 So.3d 608.

Nevertheless, courts have the power to declare a sentence excessive under

Louisiana Constitution Article 1, § 20, even if the sentence falls within statutory

limits. To rebut the presumption of constitutionality, the defendant must clearly

and convincingly show that he is “exceptional, which ... means that because of the

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,

3
In Williams, we acknowledged at the time that according to the Centers for Disease Control and
Prevention: “Heroin-related overdose deaths [in the United States] have more than quadrupled
since 2010.”

24-KA-152 9

the gravity of the offense and circumstances.” Id. (citing State v. Vedol, 12-376

(La. App. 5 Cir. 3/13/13), 113 So.3d 1119, 1125, writ denied, 13-811 (La.

11/1/13), 125 So.3d 419). However, the trial court should exercise its authority to

declare a mandatory minimum sentence excessive only under rare

circumstances. State v. Johnson, 22-300 (La. App. 5 Cir. 8/9/23), 370 So.3d 140,

147. We find no such circumstances here. The trial court did not abuse its

discretion when imposing the minimum two-year sentence on count two, and the

sentence is not excessive.

ERRORS PATENT

We review the record for errors patent according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990).

Enhanced Sentence on Count One - Statutory Restrictions

La. R.S. 15:529.1(G) requires all multiple-offender sentences to be imposed

without benefit of probation or suspension of sentence.4 The transcript does not

reflect that the trial court restricted probation or suspension of sentence when

resentencing defendant on count one. Nevertheless, when a trial court does not

mention the restriction of benefits, such conditions are deemed to exist by

operation of law under La. R.S. 15:301.1. See State v. Williams, 00-1725 (La.

11/28/01), 800 So.2d 790. Accordingly, no corrective action is necessary.

Enhanced Sentence on Count One – Indeterminacy

After accepting defendant’s stipulation to the multiple bill on count one, the

trial court vacated defendant’s original sentence as to count one and again

sentenced defendant to two years imprisonment with the Department of

4
When a defendant is sentenced as a multiple offender, it is the penalty provision for the
underlying offense that imposes a parole restriction. State v. Luckett, 17-432 (La. App. 5 Cir.
12/27/17), 236 So.3d 1278, 1280. Here, La. R.S. 40:967 (C)(1) does not impose a parole
restriction.

24-KA-152 10

Corrections, “concurrent with any other sentence.” The re-sentencing minute entry

also indicates that the court ordered the sentences “on count 1 & 2 [to] run

concurrent with one another and any or every sentence the offender is now

serving.”5 Where there is a discrepancy between the transcript and the minute

entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Thus,

the trial court’s statement re-sentencing defendant on count one to two years

imprisonment with the Department of Corrections, “concurrent with any other

sentence,” prevails.

La. C.Cr.P. art. 879 provides: “If a defendant who has been convicted of an

offense is sentenced to imprisonment, the court shall impose a determinate

sentence.” This Court previously has indicated that where the trial court did not

specify whether a sentence was ordered to run concurrently with specific sentences

imposed, but instead ordered the sentence to run concurrently “with any other

sentences,” the sentence is indeterminate. See State v. Nellon, 18-385 (La. App. 5

Cir. 12/19/18), 262 So.3d 441, 445; State v. Wiley, 16-645 (La. App. 5 Cir.

4/12/17), 216 So.3d 393, 400.

Nevertheless, we decline to engage in error patent review on this issue. See

State v. Campbell, 01-329 (La. 11/2/01), 799 So.2d 1136 (stating that an appellate

court should refrain from employing error patent review to set aside a guilty plea

about which the defendant makes no complaint, and which results in a disposition

of the case favorable to the defendant (citing State v. Guzman, 99-1528 (La.

5/16/00), 769 So.2d 1158, 1162)).6 Here, the defendant knowingly pled guilty as a

5
Additionally, the multiple offender UCO provides: “This sentence shall be concurrent with any
or every sentence the offender is now serving,” and “Count 1 & 2 are to run concurrent with one
another.”
6
In different circumstances, this Court would vacate an indeterminate sentence and remand to
the trial court for resentencing, thereby pretermitting an analysis of defendant’s assignments of
error. See, e.g., State v. Dixon, 17-422 (La. App. 5 Cir. 3/14/18), 241 So.3d 514, writ denied, 18-
542 (La. 2/11/19), 263 So.3d 415. Given defendant’s acquiescence to the enhanced sentence on
count one, his failure to raise the issue on appeal, and the Supreme Court’s directions in
Campbell, we have determined that addressing the merits of defendant’s appeal on both count

24-KA-152 11

multiple offender on count one, acknowledging that he would be resentenced to

two years imprisonment, to run concurrently “with any other sentences.” Neither

defendant nor the State raised the indeterminate-sentence issue on appeal.

Original Sentence on Count Two - Concurrent Nature

Although the original sentencing minute entry states that the (initial)

sentence on count one and the sentence on count two were to “run concurrent with

one another and any or every sentence the offender is now serving,” the transcript

does not indicate that the sentences were ordered to run concurrently, and the

transcript prevails. See Lynch, 441 So.2d at 734. Thus, no corrective action is

necessary as to the sentence for count two.

DECREE

Finding no merit to the arguments on appeal, defendant’s conviction and

sentences are affirmed.

AFFIRMED

one and count two is prudent, rather than remanding for resentencing on count one. Furthermore,
defendant has an adequate remedy should he choose to pursue post-conviction relief.

24-KA-152 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 18, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-152
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
SHERRY A. WATTERS (APPELLANT) JULIET L. CLARK (APPELLEE) MONIQUE D. NOLAN (APPELLEE)
THOMAS J. BUTLER (APPELLEE)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
LEO M. AARON (APPELLEE)
DISTRICT ATTORNEY
MOLLY LOVE (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053