State of Louisiana v. Ezikel Ruben, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-362

STATE OF LOUISIANA

VERSUS

EZIKEL RUBEN, JR.

**********

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 95378
HONORABLE TONY ALAN BENNETT, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT-APPELLANT:
Ezikel Ruben, Jr.

Terry W. Lambright
District Attorney, Thirtieth Judicial District
William R. Thornton
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

On May 4, 2020, the defendant, Ezikel Ruben, Jr., was charged by bill of

information with one count of possession of cocaine, in violation of La.R.S.

40:967(C), and one count of possession with intent to distribute cocaine, in

violation of La.R.S. 40:967(A). The district court docket number was 95378.

On December 8, 2020, he entered into a plea agreement in which count two

was dismissed in exchange for a guilty plea to one count of possession of cocaine

not less than 2 grams and not more than 28 grams. As part of the plea agreement,

the defendant also entered a guilty plea to two counts of possession of stolen

firearms in docket number 93882. All other remaining charges were dismissed by

the state.

On February 4, 2021, the trial court sentenced the defendant to serve four

years at hard labor on each count of illegal possession of stolen firearms in docket

number 93882, and four years at hard labor for possession of cocaine in docket

number 95378. The court ordered that the two sentences for illegal possession of

stolen firearms be served concurrently with each other, but consecutively to his

sentence for possession of cocaine.

On February 5, 2021, the defendant filed a motion to reconsider the

sentences, but the trial court denied this motion on February 9, 2021, without a

hearing. On February 12, 2021, the defendant filed a timely motion for appeal,

which the trial court granted on February 25, 2021. The defendant is now before

this court asserting one assignment of error regarding his sentence for possession

of cocaine.

FACTS

The facts of the case were presented by the state during the defendant’s plea

entry proceeding. Both the state and defense counsel accepted the factual

recitation as follows:

Yes, sir, Judge, under Docket Number 93,882, the State would
contend that on or about January the 4th, 2019 that this defendant
committed the offense of illegal possession of stolen firearms in that
he did intentionally possess, procure, receive, or conceal firearms
which had been the subject of a misappropriation or theft.

Also, in Count Number 2 of that Bill of Information, the State
would contend the same thing, that on or about that same date, the
defendant committed the offense of illegal possession of stolen
firearms in that he did intentionally possess, procure, receive, or
conceal firearms which had been the subject of a misappropriation or
theft. A burglary had occurred, Judge, out at the E-Z Pawn Shop, uh,
back on that date. A warrant was issued by the A.T.F. and Vernon
Parish Sheriff’s Office, uh, at 1250 Maple Street here in Leesville,
Louisiana. While executing the search warrant, officers came into
contact with the defendant, who identified himself as Ezikel Ruben,
Jr., uh, who resided in that – the residence, I believe with his wife.
While executing the search warrant, several firearms were located in
the bedroom belonging to Ruben. The firearms were located, they
were identified as firearms that were stolen from the E-Z Pawn Shop.
Uh, this defendant indicated that he was holding the firearms for
someone but he didn’t know their names.

Uh, in Bill of Information 95,378, the State would contend that
on or about February the 10th, 2020 that this defendant did
intentionally and knowingly possess a controlled dangerous substance
classified as Schedule II, to wit, cocaine. Uh, back on that date, Agent
Black was doing criminal patrol, stopped a vehicle in which this
defendant was a passenger. And due to the nervousness of the driver,
this officer asked whether or not he could search the vehicle, which he
was given permission. Uh, as he searched the vehicle, he located a
pack of Kool cigarettes on the passenger seat, asked the passenger - -
who was this defendant - - if they were his. He indicated that they
were. Inside the pack of cigarettes was a short straw and a plastic bag
containing a white powder, which was subsequently submitted to the
Crime Lab, that tested positive as cocaine, Judge. All of this occurred
in Vernon Parish, State of Louisiana.

ASSIGNMENTS OF ERROR

The four-year sentence imposed for possession of a small amount of
cocaine is excessive for this offender and offense. The trial court

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failed to sufficiently individualize the sentence to this offender and
offense.

ERRORS PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant asserts that “Error patent

requires remand for resentencing as the court sentenced [Defendant] for possession

of cocaine greater than 28 grams, when the plea of guilty was for an amount

between 2 grams and 28 grams.” Upon inspection of the entire record, we note that

the bill of information indicates the defendant was charged with La.R.S. 40:967(C)

which is the provision proscribing possession of two grams or more but less than

twenty-eight grams, whereas possession for greater than twenty-grams is under

40:967(D); the commitment order indicates the defendant was charged with La.R.S.

40:967(C); during the plea colloquy the court asked the defendant if he was

pleading guilty to possession over two grams and then the court read from La.R.S.

40:967(C) as well as (C)(2). The record also shows that during sentencing, the trial

court, when initially reading out the defendant’s charges, read the correct charge

and sentencing range corresponding to La.R.S. 40:967(C)(2). However, the

transcript also shows that the trial court stated the defendant “pled guilty to

possession of Schedule II over twenty-eight grams” and during imposition of

sentence, the court stated “possession of Schedule II over twenty-eight grams [and]

that you serve four years at hard labor.” At that time, the defendant attempted to

interject by saying, “Your Honor, I didn’t have but - -”, but the trial judge stated

that he already gave the defendant an opportunity to speak.

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While the court may have said possession “over twenty-eight grams,” the

record reflects the trial court read the correct statute and sentencing range from

La.R.S. 40:967(C) both during the plea colloquy and sentencing and at no point

mentioned subsection D, which discusses the amount greater than twenty-eight

grams. The actual sentence imposed, four years, is consistent with the sentencing

range found in La.R.S. 40:967(C)(2) and is less than the maximum sentence.

In State v. Diggins, 12-15, pp. 5-7 (La.App. 4 Cir. 10/23/13), 126 So.3d 770,

779-80, writ denied, 13-2742 (La. 5/23/14), 140 So.3d 723, the fourth circuit held:

A review of the record for errors patent reveals error in the trial
court’s imposition of sentence. At the sentencing hearing, the trial
court referenced the incorrect subsection and paragraph of the
Habitual Offender Law under which defendant’s sentence was
imposed, but the minutes and sentencing order reflect a proper
sentence in conformity with the correct provisions of the statute. The
trial court also failed to restrict defendant’s eligibility for parole in
accordance with the relevant sentencing statutes. Although La. R.S.
15:530.1 self-activates the correction to the parole eligibility
restriction, we clarify the specific provision of the statute by which
defendant’s sentence was imposed.

....

The sentencing hearing transcript, minutes, and order to the
Department of Corrections reflect that the trial court imposed a
sentence conforming to La. R.S. 15:529.1(A)(4)(a), despite
referencing paragraph (b) during the sentencing hearing.

Similar to Diggins, the trial judge in the present case referenced the incorrect

offense when he said, “greater than twenty-eight grams,” but the trial court’s initial

statement during sentencing, the charges discussed during the plea colloquy, the

commitment order, the plea agreement, and bill of information, indicate that the

trial court misspoke and meant to say “greater than two grams but less than twenty-

grams” as La.R.S. 40:967(C)(2) states.

In State v. Session, 04-1325, pp. 4-5 (La.App. 5 Cir. 4/26/05), 902 So.2d

506, 507–08 (footnote omitted), the fifth circuit held:

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By this assignment of error the Defendant argues that his
sentence to three and one half years for the offense of attempted
simple robbery is excessive. He points out that three and one half
years is the maximum sentence for the offense and that he is not the
worst offender since he was only trying to collect a debt. Further, the
Defendant points out that the trial judge referred to the wrong offense
when he sentenced him, stating that he had been convicted of attempt
armed robbery, rather than attempted simple robbery.

The State argues that, since the sentence imposed was proper
for the convicted offense, attempted simple robbery, it should not be
set aside because of the trial court’s reference to the wrong offense.
We disagree.

In reviewing the entire record, we find that the trial court, in
sentencing the Defendant, stated that the Defendant had been found
guilty of attempted armed robbery, when the Defendant had in fact
been found guilty of attempted simple robbery. We find nothing in the
remainder of the sentencing transcript to indicate whether this was an
inadvertent error in reference or an actual mistaken belief by the trial
court. The imposed sentence of three and one half years falls within
the sentencing range for both offenses.

However, if the trial judge believed he was sentencing the
Defendant for a conviction of attempted armed robbery, a three and
one-half year sentence would have been minimal since the maximum
sentence for attempted armed robbery is forty-nine and one-half years.
La. R.S. 14:27 and 14:64; State v. Robicheaux, 03–1063 (La.App. 5th
Cir.12/30/03), 865 So.2d 149, 153, writ denied, 04–0381 (La.6/25/04),
876 So.2d 830. Whereas, a three and one-half year sentence for
attempted simple robbery is the maximum sentence. La. R.S. 14:27
and 14:65. Since it is impossible to determine that the sentence was
not imposed in error for the wrong offense, it must be vacated.

Similar to Session, the trial court in the present case referred to the wrong

offense when sentencing the defendant by stating “greater than twenty-eight

grams”; however, this case is distinguishable from Session in that the sentenced

imposed here was not the maximum sentence for either possession of cocaine with

an aggregate weight of twenty-eight grams or more or possession of cocaine with

an aggregate weight of two or more grams but less than twenty-eight grams. The

sentencing range for La.R.S. 40:967(D) for greater than twenty-eight grams is

imprisonment “at hard labor for not less than one year nor more than twenty years

and may, in addition, be fined not more than fifty thousand dollars.” Whereas the
5

sentencing range for La.R.S 40:967(C)(2) is imprisonment “with or without hard

labor, for not less than one year nor more than five years and, in addition, may be

sentenced to pay a fine of not more than five thousand dollars.” The sentence here

was four years which falls below the maximum sentence in either subsection (C) or

(D), and thus is distinguishable from Session. Furthermore, unlike in Session,

during the sentencing hearing the trial court initially read the correct statutory

provision before stating the incorrect weight amount. Therefore, we find that the

trial court misspoke rather than imposed an illegal sentence or made a mistake of

law.

ASSIGNMENT OF ERROR NUMBER TWO

In the defendant’s second assignment of error, he asserts that he possessed a

very small amount of cocaine, .397 grams of powder. “The small amount of drugs

possessed supports a sentence in the low end of the sentencing range, not a four-

year sentence near the maximum allowed.” The defendant asserts the trial court

failed to sufficiently individualize the sentences to him and failed to consider

applicable mitigating factors.

The state filed a brief asserting the trial court properly considered

aggravating and mitigating factors in the defendant’s case, and the court did not

abuse its discretion in sentencing the defendant.

Before addressing the defendant’s excessive sentence claim, this court will

first look to the defendant’s motion to reconsider sentence. In this motion, the

defendant asserted the following:

[Defendant] pled guilty to two (2) counts of Illegal Possession
of a Firearm and one (1) count of Possession of Schedule II CDS.
Appellant was sentenced on February 4, 2021, to four (4) years for
each count. Two (2) counts are to run consecutive with each other and
the other count is to run concurrent with all charges. This shall be a
total of eight (8) years.

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The sentence imposed is excessive as applied to this defendant,
in violation of Louisiana Constitution Article 1, Section 20, because
the sentence imposed is grossly disproportionate to the seriousness of
the offense, makes no measurable contribution to acceptable goals of
punishment, and is nothing more that [sic] the purposeless imposition
of pain and suffering.

....

The sentence imposed, although within the statutory limits, is a
manifest abuse of discretion.
....

The trial court failed to adequately consider applicable
mitigating circumstances in determining the appropriate sentence to
be imposed.

The defendant incorrectly described the sentence, as he was sentenced to

four years on each count of possession of a stolen firearm to run concurrently with

each other but consecutively to his four years for possession of cocaine.

Additionally, the defendant raises an additional claim in his brief which was not

included in the motion to reconsider sentence, arguing that statements made by the

judge during sentencing do not comply with La.Code Crim.P. art. 894.1.

In State v. Abshire, 18-717, p. 4 (La.App. 3 Cir. 3/13/19), 269 So.3d 1020,

1024, this court held:

Under La.Code Crim.P. art. 881.1(E), the failure to make or timely
file a motion to reconsider sentence or to include a specific ground for
reconsideration precludes a defendant from raising an objection to the
sentence or urging any ground not raised in the motion on
appeal. See State v. Barling, 00-1241, 01-1591 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d
331. In State v. Mims, 619 So.2d 1059, 1059-60 (La. 1993), the
supreme court explained:

If the defendant does not allege any specific ground for
excessiveness or present any argument or evidence not
previously considered by the court at original sentencing,
then the defendant does not lose the right to appeal the
sentence; the defendant is simply relegated to having the
appellate court consider the bare claim of excessiveness.
Article 881.1 only precludes the defendant from
presenting arguments to the court of appeal which were
not presented to the trial court at a point in the
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proceedings when the trial court was in a position to
correct the deficiency.

Given Defendant’s failure to raise, in either his motion to reconsider
or in the proffer he offered at the hearing on that motion, the issue of
whether the trial court made improper and unsubstantiated
assumptions in fashioning Defendant’s sentence, we conclude that
Defendant is barred from making those arguments on appeal.
Nevertheless, we will consider Defendant’s claim that his ten-year
sentence is excessive in our discussion of his first assigned error.

Based on the above case law, the defendant is relegated to having this court

consider a bare claim of excessiveness. Therefore, the other claims which were not

raised in his motion to reconsider sentence are not considered by this court.

Regarding appellate review of an excessive sentence claim, the general analysis is

well-settled:

Both the United States and Louisiana constitutions guarantee
that no person shall be subject to cruel and unusual punishment. U.S.
Const. amend. VIII; La. Const. art. I, § 20. A sentence is excessive
when a reviewing court finds that the penalty is “so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering.” State v. Barling, 00-1241, 00-1591,
p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-
838 (La. 2/1/02), 808 So.2d 331. The trial court has broad sentencing
discretion, and a sentence within statutory limits will not be set aside
absent a manifest abuse of that discretion. State v. Etienne, 99-192
(La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-165 (La.
6/30/00), 765 So.2d 1067. However, sentences within the statutory
sentencing range can be reviewed for constitutional excessiveness.
State v. Sepulvado, 367 So.2d 762 (La.1979).

In reviewing the defendant’s sentences, the appellate court
should consider the nature of the crime, the nature and background of
the offender, and the sentences imposed for similar crimes. State v.
Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State
v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433
(La.6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562
(La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular
offender and to the particular offense committed.” State
8

v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991).
Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge
“remains in the best position to assess the aggravating
and mitigating circumstances presented by each case.”
State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957,
958[, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996)].

State v. Soileau, 13-772, pp. 3-4 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 1011,

writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

The only relevant question to consider on review is not whether another

sentence would be more appropriate but whether the trial court abused its broad

discretion in sentencing a defendant. State v. Cook, 674 So.2d 957.

The defendant’s sentence is not problematic per the three-prong test outlined

in State v. Lisotta, 98-648, p. 2 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58.

The first prong of the Lisotta analysis requires consideration of the nature of

the offense. The sentencing range for possession of cocaine with an aggregate

weight of two grams or more but less than twenty-eight grams under La.R.S.

40:967(C), requires imprisonment, with or without hard labor, for not less than one

year nor more than five years and, in addition, may be sentenced to pay a fine of

not more than five thousand dollars. During the sentencing hearing, the trial court

found that “[t]here is always significant economic harm or impact on society in

general in the use of distribution of illegal drugs.

The second prong of the Lisotta analysis requires an examination of the

nature of the offender. The record indicates that the trial court reviewed the

sentencing guidelines and the presentence investigation report (PSI) and found the

following information: The defendant was forty-three years of age and has three

children “with another on the way.” The defendant is in good health; he attended

Leesville High School through tenth grade; he enrolled in Gary Jobs Corps in San

Marcos, Texas and obtained his G.E.D. in 1996; has a history of alcohol or drug
9

abuse; has received drug or alcohol treatment in the past; the defendant is not

eligible for probation as this was his third felony; and that there was undue risk the

defendant will commit another crime. The trial court then read into the record the

defendant’s prior crimes which included: in 1999, the defendant was charged with

possession with intent to distribute or manufacture marijuana and contributing to

the delinquency of a juvenile, but he ended up pleading guilty to misdemeanors. In

2002, the defendant was convicted of possession with intent to distribute cocaine

and was sentenced to six years, suspended with five-years’ probation. In 2003, the

defendant was convicted of distribution of cocaine, and was sentenced to nine

years in prison, but was released early on good time. “[A]s part of that, in 2003,

there was battery of a police officer . . . resisting . . . [w]hen he got out on good

time, he had to serve . . . time on the misdemeanor. He was released early, and he

did not pay the fees on that.” The trial court noted that the defendant is a third

felony offender. “Clearly, Mr. Ruben cannot be habilitated [sic]. He’s been

committing the same types of crimes. In 2002 and ’03, he was involved with

cocaine. And 2003, that included an aggravated battery with a dangerous weapon.

He was given six years probated sentence and that was revoked because he

committed another charge dealing with cocaine.” “[B]ased on the charges and

your . . . prior criminal history, I do not have any hope of safety for the citizens of

Vernon Parish if you’re on the street.” The record shows the trial court considered

the defendant’s nature and criminal history and also considered the defendant’s

personal statement made for the presentencing investigation report. The record

indicates that the trial judge was made aware of potentially mitigating factors

concerning the defendant through his personal statement, but in light of his

criminal history, ordered the defendant to serve four years for the possession of

10

cocaine to run consecutively with the four-year concurrent sentences for

possession of stolen firearms.

Sentences imposed for similar crimes are analyzed under the third prong of

Lisotta. A review of comparative cases reveals that similar sentences have been

imposed for similar cases and offenders.

In State v. Gilmore, 10-709, p. 8 (La.App. 3 Cir. 12/8/10), 54 So.3d 146,

151–52, this court affirmed a maximum five-year sentence for possession of

cocaine and held:

Defendant was twenty-eight years of age at the time of sentencing and
had already had four felony convictions. Defendant’s presentence
investigation report revealed that he had an extensive arrest record,
starting in 1998, which included arrests for drug offenses, theft,
violent crimes against persons, and attempted sex crimes. He received
a significant benefit from his plea agreement in that a serious offense,
aggravated battery, was dismissed, and the State agreed not to file an
habitual offender bill against him. Considering the record before this
court, we do not find that the trial court abused its vast discretion
when it sentenced Defendant to five years imprisonment [sic].
Accordingly, we find no merit in either of Defendant’s assignments of
error.

In State v. Fairley, 02–168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, the

defendant received five years at hard labor on a conviction for possession of

cocaine. He alleged that the trial court abused its discretion in sentencing him to a

maximum sentence. However, the fifth circuit held that “Defendant did not receive

the maximum sentence, since the trial judge did not impose a fine. Under all of the

circumstances in this case, particularly defendant’s criminal history, we find that

the trial judge did not abuse his sentencing discretion.” Id. at 815-16.

In State v. Williams, 07-490, p. 4 (La.App. 3 Cir. 10/31/07), 969 So.2d 744,

747, this court affirmed a defendant’s five-year sentence and a fifteen hundred

dollar fine for possession of cocaine. This court held:

After reviewing the record, we find that the defendant’s
sentences are not excessive. This is the defendant’s third drug
11

conviction. He was originally charged with possession with intent to
distribute cocaine, for which the penalty is a sentence of up to thirty
years, with the first two years being served without benefit of parole,
probation, or suspension of sentence, and a possible fine of up to fifty
thousand dollars. La.R.S. 40:967(B)(4)(b). By entering into a plea
agreement, the defendant’s potential maximum sentence was reduced
significantly, and the State agreed not to file a habitual offender bill.
Given the circumstances, we find that the trial court did not abuse its
discretion in imposing its sentence.

The defendant’s sentence of four years for possession of cocaine is less than

the maximum term of incarceration, and the maximum sentence has consistently

been upheld for other defendants in similar circumstances. Additionally, the only

fine or fee that was imposed was $150 to be paid for the presentence investigation.

In this case, the trial court was troubled by the defendant’s criminal history and

imposed the four-year sentence. The record indicates the trial court was aware of

all sentencing factors present in the instant case, and the record supports the

sentences imposed. Thus, we find the defendant’s sentence is not

unconstitutionally excessive and that the trial court did not abuse its discretion.

In conclusion, we do not find that the trial court failed to take adequate

notice of potential mitigating factors when the court fashioned its four-year

sentence to run consecutively with his other possession of stolen firearms

sentences.

While not raised directly in the defendant’s motion to reconsider sentence,

we deem it appropriate to address the consecutive nature of the sentence. This

court has held the consecutive nature of the sentences will be included in a bare

claim of excessiveness analysis. State v. Fowler, 12-1380 (La.App. 3 Cir. 6/5/13),

114 So.3d 650. Louisiana Code of Criminal Procedure Article 883 states:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
12

the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which
the sentences are to run concurrently.

This court’s ruling in State v. Coleman, 12-372, p. 2 (La.App. 3 Cir.

11/7/12), 101 So.3d 612, 613, is directly applicable to this case:

Defendant argues that the trial judge erred in ordering that
his sentences be served consecutively rather than concurrently. We
disagree. Louisiana Code of Criminal Procedure Article 883 states
that if a defendant is convicted of two or more crimes based on “the
same act or transaction” or “constituting parts of a common scheme or
plan,” then the sentences shall be served concurrently unless the judge
unambiguously states that they are to run consecutively. Other
sentences “shall be served consecutively unless the court expressly
directs that some or all of them be served concurrently.” La.Code
Crim.P. art. 883. Moreover, imposing consecutive sentences for
crimes occurring on separate dates and under different
circumstances is not an abuse of discretion. [State v.] Patterson, [11-
892 (La.App. 3 Cir. 2/1/12),] 83 So.3d 1209, [writ denied, 12-526
(La. 6/1/12), 90 So.3d 435.]

The crimes at issue in this case were separate offenses that took
place on different dates and at different locations; these offenses did
not involve a “common scheme or plan.” Pursuant to Article 883,
the sentences for these crimes were to be served consecutively, unless
the trial court explicitly ordered them to be served concurrently. See
also State v. Granger, 08–1479 (La.App. 3 Cir. 6/3/09), 11 So.3d 666.
The trial judge did not abuse his discretion by directing Defendant to
serve consecutive sentences.

Like in Coleman, the crimes at issue in this case were separate offenses that

took place on different dates and did not involve a “common scheme or plan.” As

accepted by both the defense and the state, the factual basis shows that the

defendant committed the offense of possession of stolen firearms on January 4,

2019, when the police executed a search warrant on a home and located the

firearms in the defendant’s bedroom. The possession of cocaine charge was a

completely separate offense that occurred on February 10, 2020, as a result of a

traffic stop. Therefore, under La.Code Crim.P. art. 883, the sentences for these

13

crimes were to be served consecutively, unless the trial court explicitly ordered that

the sentences run concurrently. See also Fowler, 114 So.3d at 657-59.

Accordingly, the trial court did not err in imposing the defendant’s

possession of cocaine sentence to run consecutively with his possession of stolen

firearms sentence.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

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