State of Louisiana v. Mickel Brisco

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-797

STATE OF LOUISIANA

VERSUS

MICKEL BRISCO

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 01-682
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion, and
Elizabeth A. Pickett, Judges.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

Hon. J. Phillip Haney
District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
Counsel for Plaintiff/Appellee:
State of Louisiana

Walter James Senette, Jr.
Assistant District Attorney
Sixteenth Judicial District Court
St. Mary Parish Courthouse
Franklin, LA 70538
(337) 828-4100
Counsel for Plaintiff/Appellee:
State of Louisiana

Richard Allen Spears
Attorney At Law
P. O. Box 11858
New Iberia, LA 70562-1858
(337) 367-1960
Counsel for Defendant/Appellant:
Mickel Brisco

PICKETT, J.

FACTS

Nedra Brisco was married to Mickel Brisco. They separated on November 26,

2000. On December 26, 2000, Mr. Brisco fired approximately four shots into the

home where Ms. Brisco and her children were staying. Bullets recovered from the

crime scene were matched to a handgun owned by Mr. Brisco.

Mr. Brisco was charged by bill of information on May 18, 2001, with assault

by drive-by shooting, a violation of La.R.S.14:37.1. The defendant entered a plea of

not guilty on May 29, 2001. On October 16, 2002, the State filed a Motion to Invoke

Firearm Sentencing Provisions. The trial in this matter began on September 16, 2003

and the jury returned a verdict of guilty of assault by drive-by shooting on September

17, 2003. On October 22, 2003, the defendant filed a Motion to Quash Firearm

Sentencing Enhancements. On December 16, 2003, the trial court denied the

defendant’s motion and sentenced him to five years at hard labor without benefit of

probation, parole, or suspension of sentence. An oral motion to reconsider was made

by defense counsel, but was denied by the trial court. An oral motion for appeal was

made and granted at the sentencing hearing and a written Motion for Appeal was filed

on December 22, 2003.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the trial court

erroneously held that the firearm sentencing enhancements could be used to enhance

his conviction for assault by drive-by shooting.

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DISCUSSION

The defendant alleges that he is being punished doubly for possessing a

handgun. He argues as follows:

Because the statute requires possession of a handgun (or use), it is clear
that the legislature set forth the penalty for the use of a handgun during
the commission [sic] of the crime. Laws on the same subject matter
must be interpreted in referenced to each other. La.C.C. art. 13.

Why would the legislature pass a law stating that if one shoots a
handgun from a moving vehicle that he be given a sentence from one to
five years for that act, while another statute reads that you must get the
maximum sentence for the same crime.

The state contends that the issue is whether the Louisiana legislature intended

to authorize cumulative punishment under both La.R.S. 14:37.1 and La.Code Crim.P.

art. 893.3. The state cites Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673 (1983),

and State v. Street, 480 So.2d 309 (La.1985), in support of this argument.

In Street, the defendant was convicted of illegal use of a weapon. The

defendant was sentenced to two years imprisonment at hard labor, with credit for time

served. The unserved portion of the sentence was suspended and the defendant was

placed on two years supervised probation. The state objected to the suspension of

sentence on the ground that the trial court’s action conflicted with La.Code Crim.P.

art. 893.1. The state brought a supervisory writ and the first circuit remanded the

matter for resentencing in compliance with La.Code Crim.P. art. 893.1. Therefore,

the trial court resentenced the defendant to two years at hard labor without benefit of

probation, parole, or suspension of sentence. The supreme court granted writs.

Ultimately, the court concluded that La.Code Crim.P. art. 893.1 was not applicable

where the felony was illegal use of a weapon. In reaching that conclusion, the court

noted:

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The Louisiana Legislature could have clearly expressed its intent, if that
were the case, to make Art. 893.1 (use of a firearm in a commission of
a felony) applicable to R.S. 14:94, illegal use of a weapon. The
counterpart Idaho statute did so, for the Idaho Legislature clearly
expressed that “this section shall apply even in those cases where the use
of a firearm is an element of the offense.” The Louisiana Legislature did
not do so.

At best the legislative intent is unclear. On the one hand we could
presume that the Legislature meant to specify in one statute harsher
punishment for the commission of all felonies where a firearm is used.
On the other hand it is just as reasonable to presume that the Legislature
did not specifically consider whether Art. 893.1 should be used with
R.S. 14:94, or that having considered, they opted not to make it
applicable to R.S. 14:94. Id., 480 So.2d at 311 (footnote omitted).

The court went on to find that “since the Legislature in passing R.S. 14:94 has

in that very statute prescribed a punishment for use of a weapon, . . . we presume that

it must not have intended that the identical conduct . . . should trigger a more harsh

punishment than that prescribed for the same act.” Id at 312.

At the time Street was decided, La.Code Crim.P. art. 893.1 provided as follows:

When the court makes a finding that a firearm was used in the
commission of a felony and when suspension of sentence is not
otherwise prohibited, the court shall impose a sentence which is not less
than:

(1) The maximum sentence provided by law, in the same manner as
provided in the offense, if the maximum sentence is less than five years,
or

(2) Five years, in the same manner as provided in the offense, if the
maximum sentence is five years or more.

Imposition or execution of sentence shall not be suspended and the
offender shall not be eligible for probation or parole.

Louisiana Code of Criminal Procedure Articles 893.2 and 893.3 did not exist

at that time. They were subsequently enacted in 1988, at which time, Article 893.1

was amended. All three articles were amended in 1999.

At the time of the commission of the offense at issue, La.Code Crim.P. art.

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893.1 provided that:

A. If the district attorney intends to move for imposition of sentence
under the provisions of Article 893.3, he shall file a motion within a
reasonable period of time prior to commencement of trial of the felony
or specifically enumerated misdemeanor in which the firearm was used.

B. The motion shall contain a plain, concise, and definite written
statement of the essential facts constituting the basis for the motion and
shall specify the provisions of this Chapter under which the district
attorney intends to proceed.

Louisiana Code of Criminal Procedure article 893.2 provided, in pertinent part:

A. If a motion was filed by the state in compliance with Article 893.1,
the court may conduct a contradictory hearing following conviction to
determine whether a firearm was discharged, or used during the
commission of the felony or specifically enumerated misdemeanor, or
actually possessed during the commission of a felony which is a crime
of violence as defined by R.S. 14:2(13), felony theft, production,
manufacturing, distribution, dispensing, or possession with intent to. .
. distribute, or dispense a controlled dangerous substance in violation of
the Uniform Controlled Dangerous Substances Law, or specifically
enumerated misdemeanor and whether the mandatory minimum
sentencing provisions of Article 893.3 have been shown to be
applicable.

....

D. If at any time during or at the completion of the trial, the court finds
by clear and convincing evidence that the state has established that a
firearm was discharged or used during the commission of the felony or
specifically enumerated misdemeanor . . . and that the mandatory
minimum sentencing provisions of Article 893.3 have been shown to be
applicable, the court may dispense with the hearing provided for in
Paragraph A of this Article.

The state filed a timely motion as required by Article 893.1, moving for

imposition of sentence under the provisions of Article 893.3. It was established by

clear and convincing evidence at trial that a firearm was actually discharged during

the commission of the felony at issue. The issue to be determined, therefore, is

whether the mandatory minimum sentencing provisions of Article 893.3 are

applicable.

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Louisiana Code of Criminal Procedure Article 893.3, in pertinent part, provides

as follows:

C. If the court finds by clear and convincing evidence that the offender
actually discharged a firearm in the commission of the felony or
specifically enumerated misdemeanor for which he was convicted, the
court shall impose a term of imprisonment of ten years; however, if the
maximum sentence for the underlying offense is less than ten years, the
court shall impose the maximum sentence.

....

E.(2) A sentence imposed under this Paragraph shall be without benefit
of parole, probation or suspension of sentence.

There is no indication that the legislature intended to overrule Street. As noted

by our supreme court in Street, the legislature could have included language that the

sentencing enhancements of Article 893.3 are to apply even in those cases were the

use of a firearm is an element of the offense. There is no such language in Article

893.3.

Louisiana Code of Criminal Procedure Article 893.2 does include language

pertaining to “the commission of a felony which is a crime of violence as defined by

R.S. 14:2(13).” Assault by drive-by shooting is listed as a crime of violence in

La.R.S. 14:2(13). However, Article 893.2 limits the applicability of the portion of the

article regarding crimes of violence to only those instances where the state alleges,

and the court finds, that the defendant possessed the firearm during the commission

of a crime of violence. Louisiana Code of Criminal Procedure Article 893.2 is not the

sentencing article but, instead, is the article which sets forth the procedure for

determining whether the sentencing provisions of Article 893.3 are applicable.

Louisiana Code of Criminal Procedure Article 893.3(C), under which the

defendant was sentenced, contains no language which would make the enhanced

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sentencing provisions applicable to crimes of violence as set forth in La.R.S. 14:2.

We find the supreme court’s reasoning in Street is applicable to the instant

case. Because assault by drive-by shooting is defined as an “assault committed with

a firearm,” and possession of a firearm is an element of the offense, for the reasons

set forth in Street, the firearm enhancements set out in La.Code Crim.P. art. 893.1, et

seq. do not apply in this case. The trial court was not required to impose the

maximum sentence as mandated by Article 893.3(C). The sentence is, therefore,

vacated and set aside. This matter is remanded to the trial court for re-sentencing.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record we find no errors

patent.

DECREE

The sentence is vacated and this matter is remanded to the trial court for re-

sentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

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