State of Louisiana v. George Earl White, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1500

STATE OF LOUISIANA

VERSUS

GEORGE EARL WHITE, JR.

**********
APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT,
PARISH OF GRANT, NO. 08-079
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Hon. James P. Lemoine, District Attorney
Thirty-Fifth Judicial District
P.O. Box 309
Colfax, LA 71417
Counsel for Appellee:
State of Louisiana

George L. Higgins, III, Attorney at Law
P.O. Box 3370
Pineville, LA 71361
Counsel for Defendant/Appellant:
George Earl White, Jr.

PAINTER, Judge.

Following a plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976),

Defendant, George Earl White, Jr., was convicted of the charge of possession of

cocaine with the intent to distribute and sentenced to ten years at hard labor, fined

$10,000.00, and ordered to pay court costs. Defendant now appeals the denial of his

motion to suppress and also argues that his sentence is excessive. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 6, 2008, Defendant was charged by bill of information with

possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A).

A motion to suppress was filed by Defendant. At the hearing, Preston Durr, the

Chief of Police of the City of Colfax, testified that on December 20, 2007, he was

working with the U.S. Marshal Task Force. The marshals were in Colfax looking for

Tredell Terrel Williams, a black male, who had an outstanding arrest warrant. Chief

Durr testified an informant advised them that Williams was at Defendant’s residence.

Chief Durr explained that, as he went to Defendant’s residence, he encountered a

vehicle blocking the two-lane street in front of Defendant’s residence. Chief Durr

testified that a black male, later identified as Defendant, was “leaned in the car.”

Chief Durr explained that it was nighttime when he approached the location, and he

testified, in pertinent part, that:

I just eased up behind him because my lights was [sic] off trying
to be undetected, and the subject saw me and I got out of the vehicle
when he was walking away at a fast pace and I advised him to stop. He
took off running, so I took off running, hollering at him several time
[sic], while I chased him, to stop and he never would stop [sic].

Chief Durr further testified that during the chase, he did not know the identity of

Defendant.

Chief Durr also testified that with the help of the U.S. Marshals, Defendant was

caught three blocks from the initial location. When Chief Durr reached Defendant,

the marshals had Defendant on the ground, and the Chief handcuffed him. Chief Durr

explained that at this point, he recognized that Defendant was not the suspect wanted

on the outstanding warrant. Chief Durr testified that he advised Defendant of his

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Miranda rights and that he was under arrest for flight from an officer. Chief Durr

testified that a search incident to the arrest was conducted and that a Crown Royal

bag was found in Defendant’s pocket. Inside the bag were “two large-sized cookies

of crack cocaine.”

Following the hearing and submission of briefs by the parties, the trial court

denied the motion to suppress in written reasons, stating, in pertinent part:

A. Officer Dunn had probable cause to stop the defendant.

An arrest, whether made with or without a warrant, is lawful when
based on probable cause. U.S. Const. Amend. 4; La. Const. Art. 1 § 5.
Probable cause for a warrantless arrest sufficient to permit a warrantless
search incident to arrest exists if the facts and circumstances known to
the officer are sufficient to justify a man of ordinary caution in believing
that the person to be arrested has committed a crime. Henry v. United
States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). See, also, La.
C.Cr.P. art. 215.1, which recognizes the right of law enforcement
officers to stop and interrogate those reasonably suspected of engaging
in criminal activity. In this case, the defendant was leaning into a car
that was obstructing the flow of traffic in violation of La. R.S. 14:100.1.
The car was located in front of the home at which officials were advised
that Tredell Williams was located. Thus, Chief Durr had the right - if
not an obligation - to question Mr. White under La. C.Cr.P. art. 215.1 to
ascertain whether he was Mr. Williams.1 Additionally, Chief Durr had
the right to assess the situation, including identifying the party leaning
into an illegally parked vehicle. The circumstances gave Chief Durr
probable cause to believe, at the very least, that the defendant had
illegally obstructed the roadway in violation of La. R.S. 14:100.1.2
Moreover, rather than cooperate with Chief Durr’s efforts to investigate
the scene, the defendant fled, thereby providing Chief Durr with
probable cause to arrest the defendant for resisting an officer by flight
under La. R.S. 14:108B(1)(a). Accordingly, the arrest of Mr. White was
based upon probable cause that he had engaged in criminal conduct.

B. Search of the defendant was proper.

A defendant lawfully seized may be searched incident to his
arrest. Particularly, in a search incident to a lawful arrest, an officer may
search the suspect’s person and as well as the area within his immediate
control. State v. Wright, supra. As discussed above, the defendant’s
seizure was based upon probable cause that the defendant had engaged
in criminal conduct, including, but not limited to, obstruction of
roadway. That the defendant was arrested for flight from an officer, as
versus obstruction of a roadway, does not invalidate the search
conducted by the officers. Where the police have probably [sic] cause
to effect a lawful custodial arrest, and conduct a search of the person
incident to arrest, the fruits of that search may not be suppressed merely
because the police did not intend to arrest the suspect for the offense for
which probable cause existed. State v. Sherman, 05-0779 (La. 2006),
931 So.2d 286, 297. Therefore, search of the defendant’s person subject
to his lawful arrest was, therefore, proper under both federal and state
constitutions. Given that the seizure and the search of the defendant

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were proper, the contraband seized from the defendant’s person should
not be suppressed.

Ruling

Based upon the forgoing facts, this Court finds that the
warrantless seizure of the narcotics, incident to a lawful arrest of the
defendant for flight from an officer, is legal. Therefore, use of the
seized narcotics as evidence at trial is permitted. The defendant’s
Motion to Suppress is denied.
____________________
1
Mr. Durr did not identify the defendant until he was apprehended by United
States Marshalls [sic].
2
By leaning into the driver’s window, Mr. White was a principal to the
obstruction of the roadway.

On July 13, 2009, Defendant entered a Crosby plea to the charge of possession

of cocaine with intent to distribute and reserved his right to seek appellate review of

the denial of his motion to suppress. In exchange, the State agreed to recommend a

fifteen year sentencing cap, to dismiss the misdemeanor charges in district court

docket number 08-78, and to not file a habitual offender bill.

On August 13, 2009, Defendant was sentenced to ten years at hard labor, fined

$10,000.00, and ordered to pay court costs.

DISCUSSION

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 that there

are no errors patent.

Motion to Suppress

Defendant first argues that the trial court erred in denying his motion to

suppress when it found probable cause to arrest based upon Defendant’s obstructing

a public highway and resisting an officer by flight.

When a trial court rules on a defendant’s motion to suppress, the
appellate court must look at the totality of the evidence presented at the
hearing on the motion to suppress. The appellate court should not
overturn a trial court’s ruling, unless the trial court’s conclusions are not
supported by the evidence, or there exists an internal inconsistency in
the testimony of the witnesses, or there was a palpable or obvious abuse
of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State
v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213.

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State v. Cummings, 07-1304, p. 8 (La.App. 3 Cir. 4/30/08), 983 So.2d 246, 251-52,

writ denied, 08-1187 (La. 2/20/09), 1 So.3d 489 (quoting State v. Bargeman, 98-617

(La.App. 3 Cir. 10/28/98), 721 So.2d 964, writ denied, 99-33 (La. 5/28/99), 743

So.2d 658).

Louisiana Code of Criminal Procedure Article 201 provides:

Arrest is the taking of one person into custody by another. To
constitute arrest there must be an actual restraint of the person. The
restraint may be imposed by force or may result from the submission of
the person arrested to the custody of the one arresting him.

In State v. Slaydon, 05-794 (La.App. 3 Cir. 2/1/06), 921 So.2d 1199, this court

explained, in pertinent part:

In State v. Anthony, 98-406, pp. 19-20 (La.4/11/00), 776 So.2d
376, 389-90 (alteration in original), the Louisiana Supreme Court stated:

A custodial arrest must be supported by probable
cause, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248,
60 L.Ed.2d 824 (1979), and as to any evidence seized
pursuant to that arrest, the State bears the burden of
establishing its admissibility. Brown v. Illinois, 422 U.S.
590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). A warrantless
arrest in a public place is not “illegal” if based on probable
cause. United States v. Watson, 423 U.S. 411, 96 S.Ct.
820, 46 L.Ed.2d 598 (1976). Generally, probable cause for
a warrantless arrest exists when facts and circumstances
known to an arresting officer are sufficient to justify a man
of ordinary caution in believing that the person to be
arrested has committed a crime. Beck v. Ohio, 379 U.S. 89,
91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v.
Scales, 93-2003, p. 6 (La.5/22/95), 655 So.2d 1326, 1331;
State v. Marks, 337 So.2d 1177, 1181 (La.1976); La.Code
Crim. Proc. art. 213. Moreover, a warrantless search of a
person and the immediate area within such person’s control
is justified following a lawful arrest. See Chimel v.
California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685
(1969); State v. Wilson, 467 So.2d 503, 515-18 (La.1985).

This Court has made clear that “the determination of
reasonable grounds for an investigatory stop, or probable
cause for an arrest, does not rest on the officer’s subjective
beliefs or attitudes but turns on a completely objective
evaluation of all of [the] circumstances known to the
officer at the time of his challenged action.” State v. Kalie,
96-2650, p. 1 (La.9/19/97), 699 So.2d 879, 880 (emphasis
in original) (citing Whren v. United States, 517 U.S. 806,
116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and State v.
Wilkens, 364 So.2d 934, 937 (La.1978)).

Id. at 1204.

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In State v. Simms, 571 So.2d 145 (La.1990), the court explained, in pertinent

part:

The determination of probable cause, although requiring something
more than bare suspicion, does not require evidence sufficient to support
a conviction. Probable cause, as the very name implies, deals with
probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302,
93 L.Ed. 1879 (1949). The determination of probable cause, unlike the
determination of guilt at trial, does not require the fine resolution of
conflicting evidence that a reasonable doubt or even a preponderance
standard demands, and credibility determinations are seldom crucial in
deciding whether the available evidence supports a reasonable belief
that the person to be arrested has committed a crime. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Rodrigue,
437 So.2d 830 (La.1983). The determination of probable cause involves
factual and practical considerations of everyday life on which average
men, and particularly average police officers, can be expected to act.
State v. Ogden and Geraghty, 391 So.2d 434 (La.1980).

Id. at 148-49.

Additionally, as noted by the trial court, in State v. Sherman, 05-779 pp. 17-18

(La. 4/4/06), 931 So.2d 286, 297, the court held: “Where the police have probable

cause to effect a lawful custodial arrest, and conduct a search of that person incident

to arrest, the fruits of that search may not be suppressed merely because the police did

not intend to arrest the suspect for the offense for which probable cause existed.”

Obstruction of Public Street:

Defendant argues that law enforcement believed the act of fleeing constituted

probable cause to arrest and that at the hearing on the motion to suppress, the State

attempted to justify law enforcement’s action by claiming that Defendant was

obstructing the road. Defendant points out that Chief Durr testified that he advised

Defendant that he was under arrest for flight from an officer. Defendant explains that

Chief Durr’s testimony merely suggests that “the only thing the Defendant was

observed doing was leaning into the car that was stopped in the roadway.” Defendant

continues, stating that Chief Durr recalled the brake lights of the vehicle were

illuminated which indicates that there was a driver of the vehicle and that Defendant

was not the driver. Defendant asserts that the State’s assertion that law enforcement

had probable cause because Defendant was obstructing a public roadway is without

merit.

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The State counters that Defendant’s standing in the middle of the road was

clearly a violation of La.R.S. 14:100.1, as both a principal to the driver of the car

blocking the street and in regard to his own position in the roadway. The State

concludes that Chief Durr had “reasonable suspicion and probable cause to believe

a crime was being committed by Mr. White upon the officer’s initial observance of

him standing in the middle of the road with the vehicle.”

Additionally, in rebutting Defendant’s assertion that the officer came up with

the justification to arrest after the incident, the State points to Kalie, 699 So.2d at 880,

where the court explained:

[D]etermination of reasonable grounds for an investigatory stop,
or probable cause for an arrest, does not rest on the officer’s subjective
beliefs or attitudes but turns on a completely objective evaluation of all
of circumstances known to the officer at the time of his challenged
action. Whren v. United States, [517] U.S. [806], 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996); State v. Wilkens, 364 So.2d 934, 937 (La.1978).

Louisiana Revised Statutes 14:100.1 provides, in pertinent part:

No person shall wilfully obstruct the free, convenient and normal
use of any public sidewalk, street, highway, bridge, alley, road, or other
passageway, or the entrance, corridor or passage of any public building,
structure, water craft or ferry, by impeding, hindering, stifling, retarding
or restraining traffic or passage thereon or therein.

Louisiana Revised Statutes 14:24 provides:

All persons concerned in the commission of a crime, whether
present or absent, and whether they directly commit the act constituting
the offense, aid and abet in its commission, or directly or indirectly
counsel or procure another to commit the crime, are principals.

Chief Durr testified then when he drove up, he saw Defendant standing in the

middle of the city street, leaning into the window of a vehicle parked in the middle

of the street. He stated that at some point, he turned on his headlights. Chief Durr

further explained that the vehicle was parked in the middle of the street which had

two lanes. When asked if the vehicle was in a position to block both lanes of travel,

Chief Durr responded: “That’s correct.” During his testimony, the following

pertinent exchange occurred:

Q Okay. Now, at the time you initially saw him, you described or, --
you indicated there was vehicle present?

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A That’s correct.

Q Do you remember what kind or what type of vehicle it was?

A No, sir.

Q Okay. Can you describe for me the - - where the vehicle was
located in regard to the roadway?

A Directly in the middle of the street. Directly in front of Mr.
White’s residence.

Q And the vehicle - - could you tell if the break [sic] lights were on
or could you tell?

A Yeah. The break [sic] lights were on. It was not moving. It was
sitting still.

Q Okay. Could you have been able to get by that particular vehicle
had you had the occasion to want to get around it?

A Without going . . .

Q Would you have had to drive off of the roadway?

A Yeah. Without going through somebody’s property, no.

Q Okay. So, it completely obstructed the roadway?

A That’s correct.

On cross-examination, Chief Durr stated that there was no traffic when he

pulled up.

In State v. Barnard, 37,032 (La.App. 2 Cir. 5/14/03), 847 So.2d 99, the

defendant stopped his vehicle in the middle of his lane of traffic and, after one

minute, the passenger exited the vehicle. The defendant then drove away. He was

subsequently stopped by police. The officer testified that he saw the defendant stop

and obstruct the public passage. The second circuit found that this was sufficient to

establish probable cause for a traffic violation. The defendant argued that since no

traffic was actually impeded, no crime was committed. The court stated that such

argument concerning the interpretation of the criminal statute, even if correct, did not

detract from the existence of probable cause for arrest. The court stated that “[w]hile

we do not interpret the traffic statute so narrowly, the evidence indicates that Officer

Dean had probable cause to make the traffic stop in this case.” Id. at 102.

7

In State v. Scott, 561 So.2d 170 (La.App. 1 Cir.), writ denied, 566 So.2d 394

(La.1990), police noticed the defendant standing in the middle of the street

conversing with another male. As police approached, one of the men signaled their

arrival. The defendant’s companion ran into a nearby grocery store and the defendant

began to walk away. Police stopped the defendant and initiated an “informal

conversation.” Id. at 172. During a frisk for weapons, police found a .357 handgun.

Upon being questioned, the defendant admitted that he had another gun on his person.

The defendant was then arrested for a weapons charge. During a search incident to

arrest, police found several baggies of suspected cocaine.

In its ruling, the second circuit stated:

Although defendant characterizes his conduct as innocuous and
innocent, his behavior was, in fact, sufficiently notorious to draw the
attention of these patrolling officers, and, it likely constituted an illegal
obstruction of a public street. See LSA-R.S. 14:100.1. In any event, by
conversing in the middle of a street after dusk, defendant and his
companion created a significant risk to themselves as well as to
vehicular traffic. We note that, in any area of the city, such conduct
could give rise to grounds for police officers to determine the reasons
for the activity, to determine if assistance was necessary, or to request
that the pedestrians leave the roadway to converse.

Id. at 173.

In this case, as in Barnard, 847 So.2d 99, and Scott, 561 So.2d 170, the officer

testified that Defendant, along with the vehicle into which he was leaning, was

obstructing both lanes of travel on a public street. Consequently, this court finds that

the testimony given by Chief Durr at the motion to suppress hearing supports that

there was probable cause to arrest Defendant, either individually or as a principal to

the driver in the vehicle, for obstruction of a public street.

Defendant also asserts that suspicion of criminal activity is not established

merely because he chose not to confer with law enforcement. Defendant argues that

since he was not engaged in criminal activity, he was within his constitutional right

to avoid contact with law enforcement because a citizen may avoid unlawful arrest.

8

The State counters that at the time Defendant fled from Chief Durr, Defendant

“provided both reasonable suspicion and probable cause to believe a second crime

was being committed.”

At the time of the commission of the offense in 2007, La. R.S. 14:108, which

was amended effective August 15, 2006, provided, in pertinent part:

A. Resisting an officer is the intentional interference with,
opposition or resistance to, or obstruction of an individual acting in his
official capacity and authorized by law to make a lawful arrest, lawful
detention, or seizure of property or to serve any lawful process or court
order when the offender knows or has reason to know that the person
arresting, detaining, seizing property, or serving process is acting in his
official capacity.

B. (1) The phrase “obstruction of” as used herein shall, in addition
to its common meaning, signification, and connotation mean the
following:

(a) Flight by one sought to be arrested before the
arresting officer can restrain him and after notice is given
that he is under arrest.

(b) Any violence toward or any resistance or
opposition to the arresting officer after the arrested party is
actually placed under arrest and before he is incarcerated
in jail.

(c) Refusal by the arrested or detained party to give
his name and make his identity known to the arresting or
detaining officer or providing false information regarding
the identity of such party to the officer.

(d) Congregation with others on a public street and
refusal to move on when ordered by the officer.

The introduction to Acts 2006, No.132, section 1, which amended La.R.S.

14:108, stated, in pertinent part:

AN ACT to amend and reenact R.S. 14:108(A) and (B)(1)(c)
relative to the crime of resisting an officer; to provide that resisting an
officer making a lawful detention is an element of the crime of resisting
an officer; and to provide for related matters.

In State v. Manuel, 06-486, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 245, 248,

writ denied, 06-2981 (La. 9/14/07), 963 So.2d 994, the court explained, in pertinent

part:

[T]he version of La. R.S. 14:108 was amended by Act 132, Acts 2006
to add “lawful detention” to paragraph A and to paragraph B(1)(c).
Prior to the 2006 amendment, the statute did not include resisting

9

“detention” as part of the offense. Arguably, by adding lawful detention
to the resisting arrest statute, a person now has the right to “resist” an
unlawful detention just as he can an illegal arrest; if he can be charged
for resisting lawful detention the inference is that he may resist unlawful
detention.

Louisiana Revised Statute14:108, as amended, made it a criminal offense for

a person being lawfully detained by an officer to resist.

In State v. Malveaux, 03-276 (La.App. 3 Cir. 6/4/03), 852 So.2d 463, this court

explained, in pertinent part:

Both the Fourth Amendment to the United States Constitution and
Article 1, § 5 of the Louisiana Constitution prohibit unreasonable
searches and seizures. Law enforcement officers illegally detaining a
person may constitute an unreasonable seizure. [State v.] Lewis,
97-1244 [(La.App. 3 Cir. 3/6/98)]; 728 So.2d 1[, writ denied, 98-977
(La.9/18/98), 724 So.2d 752]. However, the Louisiana Code of
Criminal Procedure authorizes investigatory stops in certain
circumstances. Specifically, La.Code Crim.P. art. 215.1(A) provides:

A law enforcement officer may stop a person in a
public place whom he reasonably suspects is committing,
has committed, or is about to commit an offense and may
demand of him his name, address, and an explanation of
his actions.

An investigatory stop is no less a restriction on a person’s liberty
of movement than an arrest. State v. Senegal, 95-0796 (La.App. 3 Cir.
12/6/95); 664 So.2d 832. Yet, an investigatory stop is considered less
of an intrusion because it is briefer than an arrest. Id. Consequently,
unlike an arrest which requires probable cause to believe that a crime
has been committed, an investigatory stop may be made under a more
relaxed reasonable suspicion standard. [State v.] Purvis, 96-787
[(La.App. 3 Cir. 12/11/96)]; 684 So.2d 567.

An evaluation of whether a police officer had a reasonable basis
for an investigatory stop requires looking objectively at the totality of
the circumstances known to the officer at the time of the challenged
action. [State v.] Bargeman, 98-617 [(La.App. 3 Cir. 10/28/98)]; 721
So.2d 964 [, writ denied, 99-33 (La.5/28/99); 743 So.2d 658]. A law
enforcement officer cannot stop a person upon a generalized suspicion
or hunch. Lewis, 97-1244; 728 So.2d 1; see also Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Instead, the officer must
be able to articulate objective facts to support his suspicion of criminal
activity. Id. Thereafter, deference must be given to the reasonable
inferences drawn by the law enforcement officer in light of his
experience. Id.

Thomas, 02-471 at pp. 4-5; 829 So.2d at 1140.

Id. at 467-68.

10

In State v. Corry, 610 So.2d 142 (La.App. 5 Cir. 1992), the court explained, in

pertinent part:

When the officer making the stop knows a crime has been
committed, he has only to determine whether the additional trustworthy
information justifies a man of ordinary caution to suspect the detained
person of the offense. State v. Bickham, 404 So.2d 929 (La.1981).

Id. at 145.

The unrebutted testimony at the hearing on the motion to suppress indicates

that Chief Durr received information from an informant that Tredell Williams, a black

male, for whom there was an outstanding warrant, was at Defendant’s residence.

When he arrived at Defendant’s residence, Chief Durr saw a black male in front of

the residence leaning into a window of a vehicle which was obstructing the roadway,

and Chief Durr was initially unable to identify the male. This court finds that Chief

Durr articulated objective facts to support his suspicion of criminal activity to initiate

an investigatory stop of Defendant. See State v. Thomas, 02-471 (La.App. 3 Cir.

10/30/02), 829 So.2d 1137, writ denied, 02-2920 (La. 4/21/03), 841 So.2d 789.

Therefore, Chief Durr had reasonable suspicion to lawfully detain Defendant, and

when he attempted to do so, Defendant fled. Consequently, we find that the record

before this court reflects that Chief Durr had probable cause to arrest Defendant for

a violation of La.R.S. 14:108.

Excessiveness of Sentence

Defendant asserts the trial court failed to consider and articulate the appropriate

mitigating factors in sentencing and that, as a result, the trial court imposed an

excessive sentence.

Louisiana Code of Criminal Procedure Article 881.2 (2) provides that “The

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.”

In State v. Young, 96-195 (La. 10/15/96), 680 So.2d 1171, the court held that

La.Code Crim.P. art. 881.2(A)(2) applied to plea agreements involving both specific

sentences and sentencing caps.

11

In this case, the State and Defendant agreed to a sentencing cap of fifteen years,

and the trial court imposed a ten year sentence. Consequently, Defendant is

precluded from seeking review of his sentence; thus, this assignment of error is

precluded from review.

DECREE

For all of the foregoing reasons, we find no error in the trial court’s denial of

the motion to suppress and find that the sentence imposed is not excessive.

Therefore, we affirm the defendant’s conviction and sentence.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts
of Appeal, Rule 2-16.3.

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