State of Louisiana v. Delon Quinell Swafford

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-687

STATE OF LOUISIANA

VERSUS

DELON QUINELL SWAFFORD

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 97316
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

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Court composed of Candyce G. Perret, Gary J. Ortego, and Guy E. Bradberry,
Judges.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER SENTENCES
VACATED; CASE REMANDED FOR RESENTENCING, WITH
INSTRUCTIONS.

Terry Wayne Lambright
District Attorney
William R. Thornton
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71496
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Delon Quinell Swafford

ORTEGO, Judge.

In this criminal appeal, Defendant, Delon Quinell Swafford, appeals his

convictions and habitual offender sentences. For the reasons discussed below, we

affirm Defendant’s convictions and Defendant’s sentence for count two,

possession of marijuana weighing less than fourteen grams, is affirmed.

Defendant’s remaining habitual offender sentences for counts one, three, four, and

five, however, are vacated and the matter remanded for a full resentencing hearing,

with instructions.

PROCEDURAL HISTORY

On March 13, 2023, Defendant, Delon Quinell Swafford, was charged by

amended bill of information1 with five different counts: Count 1—possession with

the intent to distribute methamphetamine weighing twenty-eight grams or more, a

violation of La.R.S. 40:967(A)(1) and (B)(1)(b); Count 2—possession with the

intent to distribute marijuana weighing less than two and one-half pounds, a

violation of La.R.S. 40:966(A)(1) and (B)(2)(a); Count 3—possession of fentanyl

weighing two grams or more but less than twenty-eight grams, a violation of

La.R.S. 40:967(C) and (C)(4)(b); Count 4—possession of cocaine weighing less

than two grams, a violation of La.R.S. 40:967(C) and (C)(1); and Count 5–

possession of morphine weighing less than two grams, a violation of La.R.S.

40:967(C) and (C)(1).

Following a two-day trial, a unanimous jury found Defendant guilty on

March 15, 2023, of the following: Count 1—possession with the intent to

1
The original bill of information was filed February 25, 2022. At trial, the State amended
the bill of information to correct an error in citation for possession with the intent to distribute
methamphetamine weighing more than twenty-eight grams. The State asserted that the original
bill cited La.R.S. 40:967(A)(2). The amended bill, the State asserted, changed the citation to
La.R.S. 40:967(A)(1).

distribute methamphetamine weighing twenty-eight grams or more; Count 2—

misdemeanor possession of marijuana weighing more than fourteen grams

(responsive verdict); Count 3—possession of fentanyl weighing less than two

grams (responsive verdict); Count 4—possession of cocaine weighing less than

two grams; and Count 5—possession of morphine weighing less than two grams.

On May 19, 2023, the State filed a habitual offender bill, charging

Defendant as a sixth habitual offender. At a hearing held on July 18, 2023, the trial

court adjudicated Defendant a sixth habitual offender and scheduled sentencing for

August 2, 2023. On that date, the trial court sentenced Defendant as a sixth felony

offender to twenty-five years at hard labor “without benefits” on counts one, three,

four and five, and to six months in parish jail on count two.2 On September 11,

2023, Defendant filed a motion to reconsider sentence that was denied without a

hearing, and the trial court granted Defendant’s motion for appeal.

On appeal, Defendant is alleging two assignments of error—one alleging the

felony sentences are illegal, and one alleging Defendant’s trial counsel was

ineffective. The State, in brief and oral argument, concedes Defendant’s claim of

illegally excessive felony sentences. As will be discussed, those sentences are

vacated, and the case remanded for resentencing as to the felony convictions. The

sentence for count two, the misdemeanor conviction, is upheld. Defendant’s claim

of ineffective assistance of counsel is relegated to post-conviction relief.

2
Immediately after the trial court stated that it was sentencing Defendant as a sixth felony
offender and then imposed the habitual offender sentences, the trial court stated: “The sentence
imposed was not enhanced pursuant to Revised Statute[s] 15:529.1 [.]” The trial court’s
statement was clearly a misstatement.

2

FACTS:

Based on suspected drug activity, a search warrant was issued for

Defendant’s home. A search warrant for Defendant’s vehicle was also obtained.

For safety reasons, agents with the Vernon Parish Sheriff’s Office decided to

initially approach Defendant away from his home or at his place of employment.

The agents followed Defendant and upon arrival at his place of employment, the

agents approached his vehicle, explained to him about the search warrant and

patted him down for weapons. In addition to a bulge in Defendant’s pocket, one

agent noticed suspected methamphetamine in plain view on the driver’s seat of

Defendant’s vehicle. Agents executed the search warrant, then used Defendant’s

key to enter his residence. As a result, narcotics were found in Defendant’s

residence, in his vehicle, and on his person.

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 several errors patent involving the sentences imposed.

Additionally, the minutes of sentencing require correction.

First, the habitual offender sentences imposed for counts three, four, and five

are illegally excessive and were erroneously imposed without the benefit of parole.

Defendant raises these errors in Assignment of Error Number One. Thus, we will

address these errors in that assignment.

Second, the minutes of the jury’s verdict require correction. According to

the jury’s written verdict, Defendant was convicted on count two of the responsive

verdict of possession of marijuana weighing more than fourteen grams. The

minutes, however, indicate that Defendant was convicted on count two of

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possession with the intent to distribute marijuana weighing more than fourteen

grams. Thus, on remand, the trial court is instructed to amend the minutes of the

jury’s verdict to correctly reflect the jury’s verdict on count two as possession of

marijuana weighing more than fourteen grams.

Third, there was a misstatement by the trial court at sentencing regarding

count three. As stated above, for count three, the jury found Defendant guilty of

the responsive verdict of possession of fentanyl weighing less than two grams. At

sentencing, however, the trial court stated Defendant was convicted of possession

of fentanyl, with an aggregate weight of two grams or more but less than twenty-

eight grams. This error is moot, however, by our finding in Assignment of Error

Number One, discussed below, that the sentence for count three is illegally

excessive, necessitating the sentence be vacated and the case remanded for

resentencing.

Fourth, there is an error in the minutes of sentencing regarding count two.

The error occurred because of a misstatement originally made by the trial court at

sentencing regarding count two. As stated above, for count two, the jury found

Defendant guilty of the responsive verdict of possession of marijuana weighing

more than fourteen grams, a misdemeanor. At sentencing, however, the trial court

stated Defendant was convicted of possession with intent to distribute marijuana,

with an aggregate weight of two and one-half pounds. The trial court then found

Defendant to be a sixth felony offender on all counts and ordered all counts to be

served at hard labor for twenty-five years, without benefit of probation, parole, or

suspension of sentence. After being alerted to the error, the trial court clarified the

sentence as follows:

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All right, let’s clarify for the record, four of these offenses were
felonies and there was one misdemeanor; count two was a
misdemeanor for marijuana. The felonies are twenty-five years
without benefit and count two, the misdemeanor, is six months in the
parish jail. All those counts are to run concurrent [sic] with one
another.

The minutes of sentencing, however, incorrectly refer to count two as possession

with the intent to distribute marijuana and incorrectly state the sentence for count

two was “twenty-five (25) years hard labor . . . without benefit.”

“[W]hen the minutes and the transcript conflict, the transcript prevails.”

State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ

denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Thus, on remand, we order the trial

court to amend the minutes of sentencing to correctly reflect the trial court’s

statement at sentencing that the sentence for count two was for a misdemeanor

marijuana conviction and was for six months in the parish jail.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant asserts the trial court’s application of the wrong habitual offender

sentencing range resulted in the imposition of illegally excessive sentences for

counts three, four, and five. Additionally, even though the sentence imposed for

count one is legal, Defendant argues the sentence should nonetheless be vacated

and the case remanded for resentencing because the trial court applied the wrong

sentencing range to that count as well.

The State in brief and at oral argument agreed that the trial court erred in

imposing illegally excessive sentences for counts three, four and five and concedes

the case should be remanded for resentencing on those counts. Thus, we vacate

the sentences imposed on Defendant on those counts and remand the matter to the

trial court for resentencing on counts three, four and five.

5

Habitual Offender Sentences

As to Defendant’s habitual offender sentences, specifically for count one

which was legal in its length, we note that there is authority for remanding all of

the sentences for resentencing in light of the trial court’s mistaken belief that the

sentencing range was twenty years to life. In State v. Green, 21-14, 21-15

(La.App. 3 Cir. 10/27/21), 329 So.3d 917, the defendant was convicted of multiple

controlled dangerous substance offenses, all violations of La.R.S. 40:967(A)(1).

When imposing the sentences, the trial court in Green mistakenly believed the

proper sentencing range for Green’s violations of La.R.S. 40:967 was two to thirty-

one years. Id. Prior to the occurrence of Green’s offenses, however, the legislature

had amended the applicable penalty range to one to ten years. Consequently, one

of Green’s sentences exceeded the maximum sentence, necessitating that it be

vacated, and the case remanded for resentencing. Id.

Although the remaining sentences for Green’s violations of La.R.S. 40:967

were within the new sentencing range, the panel in Green found the sentences

should nonetheless be vacated and the case remanded for resentencing. Id.

The court reasoned:

Although the other sentences for violations of La.R.S. 40:967
are within the sentencing range, as the record reflects that the trial
court made its sentencing decisions based upon an incorrect
sentencing range of two to thirty-one years, we choose to vacate all
the sentences under this statute and remand for resentencing. This
court has stated, “ ‘[A] sentence founded on an incorrect view of the
law should usually be set aside.’ State v. Spruell, 403 So.2d 63, 64
(La.1981).” State in the Interest of D.B., 14-85 [p. 16] (La.App. 3 Cir.
5/7/14), 141 So.3d 296, 306-07. In analyzing this issue, the second
circuit observed:

In State v. Spruell, 403 So.2d 63 (La.1981), the
defendant pled guilty to possession of marijuana with
intent to distribute and was sentenced to five years in
prison. The defendant appealed his sentence, arguing,

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inter alia, that the trial court failed to utilize the correct
penalty provisions during sentencing. The record
revealed that the court imposed the sentence, cited the
statute pertaining to distribution of Schedule II narcotics,
rather than a Schedule I narcotic, such as marijuana. The
court mistakenly believed that it was imposing the
minimum sentence allowable under the charged statute.
However, the correct sentencing range for the charged
statute was zero to 10 years. Id. The Louisiana Supreme
Court vacated the sentence, stating:

In reality, the cited penal provision, R.S.
40:967(B)(1), deals only with the intended
distribution of Schedule II narcotics, see
R.S. 40:964, a classification not including
marijuana, the distribution of which carries
no minimum penalty and a maximum of ten
rather than thirty years’ imprisonment.
Though the sentence actually imposed fell
within the statutorily-prescribed range, the
danger that such a mistake of law might
have affected the trial court’s attempt at
leniency appears significant. For this reason,
a sentence founded on an incorrect view of
the law should usually be set aside.

The trial court’s mistaken view of the
statutorily authorized penalty also resulted
in its unknowing imposition of a relatively
stiff sentence rather than a minimal one. The
imposition of such an apparently severe
sentence requires record justification by the
trial court, whose responsibility it is to
ensure that the sentence has a sufficient
informational basis to protect the accused’s
right of review on appeal. Such factual
justification is especially crucial where, as
here, the accused’s guilty plea leaves no
other evidence of record which clearly
illumines the trial court’s sentencing choice.

Id. at 64-65 (internal citations omitted).

State v. Preston, 47,273, pp. 14-15 (La.App. 2 Cir. 8/8/12), 103
So.3d 525, 533-34.

Although the second circuit distinguished Spruell because
“nothing in this record convinces us that the trial court intended to
impose a lenient sentence for this defendant[,]” it did not question

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Spruell’s reasoning. Id. at 535. In Mr. Green’s case, the trial court
incorrectly believed the sentencing range was two to thirty-one years.
Thus, the trial court gave Mr. Green sentences it believed to be in the
lower to middle range of possible sentences. However, under the
correct sentencing scheme, the trial court imposed two higher-range
sentences (seven years), a maximum sentence (ten years), and an
illegally excessive sentence (fourteen years).

Prior to trial, the state expressed their desire for maximum
sentences to the court. In determining the sentence, the trial court
went through each of the factors provided in La. C.Cr.P. art. 894.1.
Although the trial court found that there were no mitigating factors, it
chose to impose sentences it believed to be on the lower end of the
sentencing range. It does not appear from the record that the trial court
intended to impose such severe sentences, and undoubtedly, the
mistaken view of the statutorily authorized penalty directly influenced
the penalty received by Mr. Green. Accordingly, the sentences in case
numbers 17-4637, 17-4824, 17-4825, and 17-4826 are vacated and
remanded for resentencing. This does not affect the sentence for
illegal possession of weapons and controlled dangerous substances
and the sentence imposed in 17-4638 is affirmed.

Id. at 922–23 (alterations in original).

In the present case, the trial court specifically mentioned that it could have

given Defendant a life sentence but did not do so because neither the current

convictions nor Defendant’s previous convictions were crimes of violence. The

trial court further stated that Defendant had not harmed anyone but merely used

drugs and alcohol. We find that the trial court’s mistaken belief that it could have

imposed a life sentence could have influenced the sentences imposed by the trial

court. Accordingly, all of the habitual offender sentences, counts one, three, four,

and five, including the legal sentence imposed for count one, are vacated and the

case remanded for resentencing. Additionally, the trial court is instructed to use

the penalty provision set forth in La.R.S. 15:529.1(4)(b) for sentencing.

Parol Eligibility:

Defendant also argues, and the State agrees, that the trial court erroneously

restricted Defendant’s parole eligibility. As Defendant notes in brief, the trial

8

court initially ordered Defendant, as a sixth felony offender, to serve twenty-five

years at hard labor, without benefit of probation, parole, or suspension of sentence.

When the trial court subsequently clarified that the sentence on the misdemeanor

was six months in the parish jail, the trial court stated the felonies were twenty-five

years “without benefit.” Both Defendant and the State interpret the trial court’s

“without benefit” statement to mean without benefit of parole, probation, or

suspension of sentence.

Section G of La.R.S. 15:529.1 states that any habitual offender sentence

must be served at “hard labor without benefit of probation or suspension[.]” The

restriction of parole eligibility, however, is that which is provided for in the

reference statute. None of the reference statutes for the underlying felonies at issue

in the present case call for a restriction of parole benefits.

Accordingly, when the case is remanded for resentencing, the trial court is

instructed that it is not authorized to deny or restrict parole eligibility for any of the

habitual offender sentences.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant asserts his counsel was ineffective for failing to seek the

suppression of evidence prior to trial and failing to object to the admission of that

evidence introduced at trial. Defendant claims he was prejudiced by his counsel’s

ineffectiveness because he would not have been convicted if the evidence had been

suppressed, specifically:

Delon Swafford asserts that trial counsel rendered ineffective
assistance for the following reasons: 1) counsel failed to file a
motion to suppress evidence on the basis that the affidavit in support
of the search warrant was insufficient to provide the needed probable
cause for the issuance of the search warrant; 2) counsel failed to
contest the reasons and authority that the agents had to approach,
engage with, and detain Delon Swafford; 3) counsel failed to contest

9

the “plain-sight” assertions of Agent Fulks; and 4) counsel failed to
object to the admission of the seized evidence at trial.

In response, the State contends Defendant failed to prove his counsel erred.

Alternatively, the State contends Defendant’s ineffective assistance of counsel

claims should be raised via application for post-conviction relief. Finally, the State

contends defense counsel’s failure to seek suppression of evidence may have been

a strategic decision. The State suggests defense counsel may have agreed to waive

any attack of the search warrant in exchange for the State foregoing the

introduction of evidence pertaining to Defendant’s other crimes.

Evidence at Trial

At trial, Agent Misti Martin testified that the morning of October 4, 2021,

she and four other agents executed a search warrant of Defendant’s residence.

Before executing the warrant, Agent Martin explained, she wanted to initially

make contact with Defendant outside of his residence via a traffic stop or by

approaching him at work. Agent Martin explained the reason for making contact

with Defendant in this manner:

And the reason we do that is for officer safety. We’re not kicking in
front doors, we’re not drawing guns. It’s safe for us, it’s safe for the -
- the person that we’re trying to make contact with and it’s safe for
everybody around. If we walk up to somebody in plain clothes, you
know, but identifiable and make contact with somebody, it’s usually a
smoother process for everybody.

Agent Martin stationed herself near Defendant’s residence and watched for

Defendant to leave. When Defendant left the residence and headed toward work,

Agent Martin tried not to lose sight of him but eventually lost sight of Defendant in

traffic. At that point, Agent Martin positioned two other agents at the entrance of

Leesville Lumber, “Defendant’s place of work.” Agent Martin went back to

Defendant’s residence to maintain security of the scene.

10

A short time later, Agent Martin received word that the two other agents

made contact with Defendant at Leesville Lumber, Defendant’s place of work.

When the two agents returned to the residence, Agent Martin gained entry by using

keys found on Defendant’s person. On cross-examination, Agent Martin explained

that because of his behavior, Defendant did not return to the residence but was

transported to the Sheriff’s Office. According to Agent Martin, no one else was

found in Defendant’s residence. A separate key from Defendant’s key ring was

used to unlock a separate door in the residence. The bulk of illegal narcotics,

Agent Martin testified, was found in this room.

Because they lost sight of Defendant’s vehicle once it left the residence,

Agent Martin obtained an additional search warrant for Defendant’s vehicle.

Agent Martin agreed that narcotics were found in the vehicle. When asked if the

vehicle was searched at the lumberyard, Agent Martin responded:

It was not searched at the lumberyard; however, you will have
to check with Agent Burwell or Agent Fulks on exactly what all took
place there ‘cause like I said, I never made it there. But the
information that I was given was no, it was not searched, just him.

According to Agent Martin, Agent Fulks drove Defendant’s vehicle from the

lumberyard to Defendant’s residence.

During Agent Martin’s cross-examination, defense counsel asked her to

explain what is needed to obtain a search warrant. Agent Martin responded:

This particular case we - - we were receiving a lot of
information about Mr. Stafford, high traffic, the - - which normally is
illegal narcotic activity, sales. You know, somebody pulls in and
stays for a couple of minutes and then leaves. On this particular one
we did use - - are we good on this, Wayne?

Defendant’s attorney then asked: “In order to execute a search warrant, you

have to obtain a valid search warrant which is signed by a judge, correct?” Agent

11

Martin replied, “Yes, ma’am[,]” and then agreed such a search warrant was

obtained in this instance.

On re-direct, the State asked Agent Martin if anyone challenged the trial

judge’s authority to issue the search warrants in this case, and Agent Martin

replied, “No.”

The following colloquy occurred regarding the search of Defendant’s

vehicle:

Q. You didn’t just willy-nilly go through that car, did you?

A. No.

Q. You could have, Agent Fulks could have. Mr. Swafford was
caught with dope in his pockets, right?

A. Correct.

Q. You can search a car at that point, can’t you?

A. Correct.

Q. But instead, you went and got another warrant?

A. Correct.

Agent Martin testified that she executed the warrant in the present case the

same way she had executed narcotics warrants in the past. The procedure, Agent

Martin testified, was standard and had been accepted over and over again.

Finally, when Agent Martin was asked whether any civilians approached

Defendant’s residence during the execution of the search warrant, Agent Martin

responded:

There were two females, I believe, that tried to approach the
property. I did not make contact with them. I don’t know anything
about them. I know Agent Burwell spoke with them, so you’ll have to
speak with him in reference to that.

12

According to Agent Martin, no one is allowed on the property during the execution

of a search warrant.

Agent Dustin Fulks of the Vernon Parish Sheriff’s Office testified that he

was an agent with the Narcotics Task Force. Agent Fulks testified that he was the

officer that approached Defendant when he exited his vehicle at work. The agent

was in plain clothes and approached Defendant from the driver’s side. According

to Agent Fulks, Defendant was leaning into the backseat of his vehicle and

appeared to be putting stuff in his pockets. When Agent Fulks told Defendant that

he was with the Sheriff’s Office, Defendant became irate and was placed in

handcuffs. Defendant was advised of his Miranda rights and was detained. When

asked the difference between detention and arrest, Agent Fulks replied: “[A]t this

time there was no probable cause for arrest. Mr. Swafford was just detained due to

how he was acting.”

According to Agent Fulks, he saw a clear plastic baggie containing a crystal-

like substance in plain view on the front driver’s seat of Defendant’s vehicle.

Agent Fulk’s training and experience led him to believe the substance was

methamphetamine. Once he saw the substance in plain view, Agent Fulks

testified, he had probable cause to search Defendant’s person. During the pat

down of Defendant, Agent Fulks felt a bulge in one of Defendant’s front pockets.

Agent Fulks testified that the bulge was determined to be a clear plastic baggie of a

green leafy substance and a clear plastic baggie of a crystal-like substance.

Training and experience led Agent Fulks to believe the green leafy substance was

marijuana, and the crystal-like substance was methamphetamine. At this point,

Defendant was placed under arrest and transported to the Vernon Parish Sheriff’s

Office jail.

13

Agent Fulks drove Defendant’s vehicle to Defendant’s residence, where it

was searched pursuant to a search warrant. According to Agent Fulks, narcotics

were found in the vehicle. In the backseat of the vehicle, Agent Fulks found a

book bag containing methamphetamines and an unknown powder substance.

Agent Fulks further testified that the narcotics were packaged in small, individual

plastic bags. Agent Fulks found more than a dozen bags, which, in his training and

experience, indicated the selling of illegal narcotics.

On cross-examination, Agent Fulks explained that when he approached

Defendant, Defendant was standing outside of the vehicle, the back door was open,

and Defendant was leaning into the vehicle. Defendant turned around, the agents

identified themselves, and Defendant was detained. When asked if he frisked

Defendant, Agent Fulks replied, “He was patted down at that point to make sure he

did not have any weapons, yes, ma’am.” Although Agent Fulks recognized a

bulge during the pat down, Agent Fulks did not pull the bulge out at that time.

While explaining to Defendant that a search warrant was going to be conducted at

his residence, Agent Fulks “noticed in plain view sitting in the driver’s seat . . . a

crystal-like substance in a small gram size bag[.]” According to Agent Fulks, the

substance was in the driver’s seat. At that point, Agent Fulks testified, a search of

Defendant’s person was conducted. Later, after the vehicle was taken back to

Defendant’s residence and a search warrant for the vehicle was obtained, Agent

Fulks assisted in the search of the vehicle.

According to Agent Fulks, two females pulled up to Defendant’s residence

during the execution of the search warrant. When asked if he searched the women

or the vehicle being driven by the women, Agent Fulks replied, “No, ma’am.”

Agent Fulks could not answer whether another officer searched the women’s

14

vehicle, and Agent Fulks did not recall “a vehicle being searched other than the

vehicle that was on Allison, the Buick.” When asked if he recalled whether the

women were searched by any of the agents, Agent Fulks answered, “No, ma’am.”

On re-direct, Agent Fulks testified that he turned the women away, did not allow

them in the house, and did not allow them on the property.

The only witness to testify for Defendant was his cousin, Martina Davis.

According to Ms. Davis, she and another woman drove to Defendant’s residence

“during the execution of the search warrant” they were told that their vehicle had

to be searched. Ms. Davis recalled that two or three officers approached her when

she arrived. Ms. Davis testified that she got out of her vehicle and then the

following colloquy took place regarding what was searched in her car:

A. I - - they just really - - I have like a little wristlet, they looked in
there. I don’t carry a big purse. It was like a little small - - and they
looked in there and that was it. I think her purse was in the backseat
of the car, so they searched her purse, but it was in the car.

Q. Okay, and when you say “her purse,” you’re talking about the
individual you came with, - -

A. Yes, ma’am.

Q. And did they search the vehicle?

A. Yes, they opened the trunk, opened the doors.

When asked if she went into the residence, Ms. Davis testified that she went up to

the front door to ask what damage had been done to the residence.

On cross-examination, the following colloquy took place:

Q. You said that you were searched, right?

A. Yes, sir.

....

15

Q. And if two police officers testified that they didn’t search
anybody, they’d be lying?

A. Yes, sir.

Q. Okay.

A. They searched the vehicle.

Search of Residence

Defendant raises several issues regarding the affidavit in support of the

search warrant of his residence. First, Defendant claims the information set forth

in the search warrant affidavit was too general to be tested—the confidential

informant (CI) was not identified, the person receiving the information was not

identified, the time frame the information was provided was not stated, and

specific information about the alleged sales (including the quantities and packaging

sold) were not set forth. Additionally, Defendant asserts the affidavit lacked

sufficient information to determine if the affiant had any first-hand knowledge of

the controlled buys. Further, Defendant contends the affidavit does not state that

any drugs were retrieved from inside the home during the controlled buys, does not

indicate who owns the home, and does not indicate how the affiant determined that

Defendant lived at the home.

In addition to failing to identify the CI, Defendant asserts the affidavit failed

to contain any information regarding the CI’s reliability. As for the controlled

buys, Defendant contends the affidavit failed to give any specific information

regarding the controlled buys. Defendant concludes by arguing that the magistrate

and officers lacked good faith in their reliance on the affidavit and search warrant:

The lack of sufficient information concerning the confidential
informant’s reliability, lack of information concerning the controlled
buys, failure to confirm the proper address of the residence, and
failure to confirm the owner of the residence, should have been

16

sufficient indicators that further inquiry was necessary, both for the
magistrate before signing the warrant, and for defense counsel in
evaluating whether to seek suppression of the evidence. As the
federal court did in [U.S. v.] Brown[, 567 Fed. Appx. 272, 280-81 (5th
Cir. 2014)], this court should find the Affidavit in support of a search
warrant was “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable” as noted in
[United States v.] Leon[, 468 U.S. 897, 104 S.Ct. 3405 (1984)].

The State, citing a case from this court, contends that “virtually the same

grounds and format” used by Agent Martin in the affidavit at issue was determined

to provide the executing officers with reasonable grounds to believe the warrant

was properly issued. Thus, the State claims, the good-faith exception to the

warrant requirement should be applied. State v. Brown, 19-682 (La.App. 3 Cir.

6/17/20), 299 So.3d 661, writ denied, 20-927, 20-925 (La. 11/24/20), 305 So.3d

100, 105. As an alternative, the State argues Defendant’s ineffective assistance of

counsel claim should be raised via an application for post-conviction relief,

particularly since trial counsel’s decision to not file a motion to suppress may have

been strategical.

Jurisprudence and Analysis

“The Sixth Amendment, applicable to the States by the terms of
the Fourteenth Amendment, provides that the accused shall have the
assistance of counsel in all criminal prosecutions.” Missouri v. Frye, 566 U.S. 134, 138, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). See also
State v. Thomas, 12-1410, p. 5 (La. 9/4/13), 124 So.3d 1049, 1053.
The United States Supreme Court has long recognized that the right to
counsel is the right to the “effective assistance of counsel.” Frye, 566
U.S. at 138, 132 S.Ct. 1399. Claims of ineffective assistance of
counsel are generally governed by the standard set forth by the
Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v.
Washington, 491 So.2d 1337 (La. 1986).

To prevail on a claim of ineffective assistance, a defendant
must first show that “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687–88, 104 S.Ct.
2052. “An error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the

17

error has no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. See
also Buck v. Davis, [580] U.S. [100], 137 S.Ct. 759, 775–77, 197
L.Ed.2d 1 (2017) (explaining two prongs of Strickland). To satisfy the
second prong of Strickland, a litigant must also demonstrate prejudice.
“The purpose of the Sixth Amendment guarantee of counsel is to
ensure that a defendant has the assistance necessary to justify reliance
on the outcome of the proceeding. Accordingly, any deficiencies in
counsel’s performance must be prejudicial to the defense in order to
constitute ineffective assistance under the Constitution.” Strickland,
466 U.S. at 691–92, 104 S.Ct. 2052. Thus, the “defendant must [also]
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
The Strickland Court further explained that in making a determination
of ineffectiveness of counsel, “[i]n every case the Court should be
concerned with whether, despite the strong presumption of reliability,
the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to
produce just results.” Id. at 696, 104 S.Ct. 2052.

State v. Curley, 16-1708, pp. 7–8 (La. 6/27/18), 250 So.3d 236, 241–42 (first and

second alterations added).

A claim of ineffective assistance of counsel is properly raised in
an application for post-conviction relief. This allows the trial judge an
opportunity to order a full evidentiary hearing on the matter. State v.
Burkhalter, 428 So.2d 449 (La.1983). However, where the record
contains evidence sufficient to decide the issue and the issue is raised
by an assignment of error on appeal, it may be considered. State v.
James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

State v. Francis, 99-208, pp. 10–11 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491,

writ denied, 00-544 (La. 11/13/00), 773 So.2d 156.

Recently, this court found a similar ineffective assistance of counsel claim

should be relegated to post-conviction relief:

There are cases in which courts of appeal have reviewed claims
of ineffective assistance of counsel for failure to file a motion to
suppress. For example, in State (City of Ruston) v. Campos, 51,447,
51-448, p. 15 (La.App. 2 Cir. 6/21/17), 224 So.3d 480, 491, the
second circuit concluded:

[T]he testimony of Officer Castaneda makes clear that
the traffic stop was valid, and the subsequent arrest for

18

DWI, the recording of the stop, and the field sobriety
tests were also valid. Additionally, as stated earlier,
Campos was advised of his rights early on and
voluntarily submitted to the Breathalyzer test. There was
no basis for the motion to suppress and no likelihood that
it would have resulted in the exclusion of evidence.

However, there are situations wherein consideration of the issue
is not appropriate. In State v. Montejo, 06-1807, pp. 22-26 (La.
5/11/10), 40 So.3d 952, 968-70 (alterations in original) (footnotes
omitted), cert. denied, 562 U.S. 1082, 131 S.Ct. 656, 178 L.Ed.2d 513
(2010), which was on remand from the Supreme Court for
consideration of whether an apology letter should be suppressed
pursuant to Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981) (under which a defendant in custody cannot be
interrogated once he has asserted his right to counsel unless he
initiates further communications with police), the supreme court
stated the following:

We have previously considered the problems
arising when a party does not file a motion to suppress,
and then later testifies at trial as to facts that suggest the
evidence should have been suppressed. State v.
Lipscomb, 00-2836 (La. 1/25/02), 807 So.2d 218 and
State v. Watson, 00-1580 (La. 5/14/02), 817 So.2d 81. In
Lipscomb, the defendant alleged on appeal that his
attorney at trial provided ineffective assistance of counsel
by failing to file a motion to suppress evidence. This
Court found ineffective assistance claims are to be
considered in post-conviction proceedings and not on
appeal, and, in so holding, explained the reasons why
motions to suppress are required pre-trial:

[T]he constitutional validity of a seizure is
ordinarily a matter for the court to determine
in the context of a pre-trial motion to
suppress if counsel elects to file one.
La.C.Cr.P. art. 703. This requirement
insures that “all disputes over police conduct
unrelated to the guilt or innocence of the
accused are eliminated from the jury trial’
and thereby avoids unwarranted delay and
jury confusion.” State v. Christian, 26,589
(La.App. 2 Cir. 1/25/95), 649 So.2d 806,
808, writ denied, 95-0791 (La. 9/15/95), 660
So.2d 448.

807 So.2d at 219-20. The Court recognized that “with the
constitutional validity of the search not at issue, neither

19

the state nor the defense had any particular need to delve
in detail into the circumstances surrounding [the
officer’s] seizure of the evidence.” Id. at 221. In the
similar case of State v. Watson, supra, a police officer
testified at trial explaining the circumstances which led to
the seizure of drugs and defendant’s arrest. The
defendant then testified, in contrast to the officer’s
testimony, that the officers pulled him off his bike,
questioned him and beat him before arresting him. The
appellate court properly found the defendant was
estopped from raising the issue that the evidence should
have been suppressed as counsel did not raise the issue in
a motion to suppress; however, it reversed the conviction
on an ineffective assistance claim. State v. Watson, 99-
0243 (La.App. 4 Cir. 5/3/00), 763 So.2d 713. This Court
reversed, again finding an ineffective assistance claim
was better reserved for post-conviction. We explained
that a motion to suppress is required so that a full
evidentiary hearing can be held to address the issue and
that a defendant is not allowed to first bring these claims
up after the State has rested its case:

In this case, the question of the
constitutional validity of the seizure of [the
evidence] was not at issue in the trial court.
Thus, when the State tried this matter, its
witnesses were not required to elaborate on
why they stopped the defendant.
Accordingly, neither the State nor the
defendant had any need to scrutinize the
detailed circumstances surrounding the
seizure of [the evidence] and explore the
evidence attendant to that police action.
Therefore, the trial testimony of [the officer]
focused only on the State’s burden to
establish beyond a reasonable doubt that the
defendant possessed the heroin.

817 So.2d at 84.

That is similar to what happened in this case.
Defendant never raised the claim to the trial court in a
motion to suppress that the letter should have been
suppressed because he asserted his right to counsel when
approached by police on Sept. 10 or the police misled
him to thinking he did not have a lawyer. Although the
burden of proof was on the State on the trial of the
motion to prove its admissibility, the defendant must
raise all grounds for suppression of the evidence that are

20

knowable or available at that time. The defendant bears
this burden in order to give the State adequate notice so
that it may present evidence and address the issue at trial
on the motion. Because Montejo did not raise these
grounds in a motion to suppress or allege facts supporting
those grounds, the State had no need to put on evidence
tending to show that defendant never made a clear
assertion of his right to counsel or that the police never
misled him. It simply put on evidence at the motion
hearing as required by La.C.Cr.P. art. 703(D) and La.
R.S. 15:451 that the letter was admissible, and put on
evidence at trial as required by La.C.Cr.P. art. 703(G)
concerning the circumstances surrounding the making of
the confession or statement for the purpose of enabling
the jury to determine the weight to be given the
confession or statement. Thus, the officers only testified
at the suppression hearing and at trial that basically they
asked if he had a lawyer, he said no, and then they read
him his rights. It was not until the defendant testified at
trial that he told the police he thought he had a lawyer
and they told him he did not, that this potential Edwards
violation and waiver issue was ever even alluded to. The
State had no need, and was not required, to rebut this
testimony because the evidence had already been
admitted and it had never been claimed that the letter was
obtained illegally on those grounds. See State v. Joseph,
434 So.2d 1057, 1061, n. 3 (La.1983) (where defendant
testified at trial that confession was beaten out of him and
court had already ruled the statement was admissible in
motion to suppress, because that ruling was binding at
trial under La.C.Cr.P. art. 703, the state was not obligated
to present rebuttal evidence to “rehabilitate” the
confession).

As stated earlier, the Supreme Court recognized in
remanding the matter that “Montejo's testimony came not
at the suppression hearing, but rather only at trial, and we
are unsure whether under state law that testimony came
too late to affect the propriety of the admission of the
evidence.” The defendant argues under Louisiana law, in
reviewing the trial court’s ruling on a defendant’s motion
to suppress, this Court has stated that it will look to the
totality of the evidence presented at the motion to
suppress hearing and the trial. State v. Burkhalter, 428
So.2d 449, 455 (La.1983); State v. West, 408 So.2d 1302,
1308 (La.1982) (“Although the state put on no evidence
at the hearing on the motion to suppress, we look to the
totality of the evidence produced both at that hearing and
at trial when we assess whether the state has carried its

21

burden”). However, this jurisprudential rule will only be
applied where the defendant has filed a motion to
suppress alleging a statement was inadmissible on a
specific constitutional ground and later a reviewing court
looks to his trial testimony, in addition to the testimony
presented at the motion hearing, to determine whether the
motion to suppress should have been granted on those
grounds. The jurisprudential rule is not applied where the
grounds for suppression were not asserted in the motion
to suppress. We have never allowed a defendant to allege
facts for the first time in trial testimony which would
support a new argument for suppression of evidence, and
have a reviewing court consider those facts in
determining whether the district court should have
granted a motion to suppress on grounds that were never
argued to, or considered by, the district court. This is
prohibited by La.C.Cr.P. arts. 703 and 841 and would
allow rejection of the district court’s determinations at
the suppression hearing without any indication of abuse
of discretion.

In this case, no motion to suppress was presented to the trial
court. Thus, the trial court made no determination on the suppression
issues presented in this assignment of error, and the trier of fact was
not required to address the issues when determining Defendant’s guilt.
Conflicting testimony was presented at trial. Therefore, consideration
of whether the claims asserted by Defendant would have warranted
the granting of a motion to suppress would require this court to make
credibility determinations. Moreover, counsel has not been given the
opportunity to address or explain whether his failure to file a motion
to suppress was trial strategy. See State v. Bell, 51,312 (La.App. 2 Cir.
5/17/17), 222 So.3d 79 (consideration of ineffective assistance of
counsel arguments was pretermitted and could be raised via
application for post-conviction relief where an evidentiary hearing
giving counsel the opportunity to explain his trial strategy could be
had). For these reasons, we find the issue of ineffective assistance of
counsel should be relegated to post-conviction relief.

Defense counsel’s failure to object to the evidence presented
would not have compounded counsel’s ineffective representation as
La.Code Crim.P. art. 703(F) provides: “Failure to file a motion to
suppress evidence in accordance with this Article prevents the
defendant from objecting to its admissibility at the trial on the merits
on a ground assertable by a motion to suppress.”

State v. Bonier, 22-434, pp. 33–37 (La.App. 3 Cir. 3/1/23), 358 So.3d 966, 984–87

(alterations in original).

22

Likewise, in the present case, no motion to suppress was presented to the

trial court. Thus, the trial court made no determination on the suppression issues

presented in this assignment of error, and the trier of fact was not required to

address the issues when determining Defendant’s guilt. Furthermore, the State had

no need to put on evidence in support of the issuance of a warrant to search

Defendant’s residence and vehicle.

In fact, the search warrants and their supporting affidavits were included in

the record as part of the State’s discovery response but were not introduced at trial.

Moreover, there was very little testimony presented at trial as to the information

contained in the affidavits. Without such information, the record is insufficient to

evaluate the warrants. In State v. Wise, 05-221, p. 7 (La.App. 5 Cir. 10/6/05), 916

So.2d 290, 293, the fifth circuit found insufficient evidence in the record to review

Wise’s ineffective assistance of counsel claim even though there was some

testimony concerning the warrant:

There is insufficient evidence in the record to allow this Court
to address the merits of the Defendant’s ineffective assistance of
counsel claim. The search warrants are not part of the record and there
was very little testimony regarding the facts that formed the basis for
the warrants. Consequently, we find that this issue would be more
properly raised in an application for post-conviction relief in the
district court, where an evidentiary hearing can be held.

Further, conflicting testimony was presented at trial. Defendant’s witness,

Ms. Davis, testified that she arrived at Defendant’s residence during the execution

of the search warrant, and her vehicle was searched. Ms. Davis also testified that

she approached the door of the residence being searched. Agents Martin and

Fulks, however, did not recall searching Ms. Davis’s vehicle. In fact, both testified

that neither Ms. Davis nor the woman with her were allowed on the property.

Although this testimony did not directly relate to the search and seizure of

23

Defendant’s residence and vehicle, the testimony put the credibility of the State’s

witnesses at issue. Therefore, consideration of whether the claims asserted by

Defendant would have warranted the granting of a motion to suppress may require

this court to make credibility determinations.

Here, the trial counsel should have the opportunity to address or explain

whether her failure to file a motion to suppress was trial strategy. See State v. Bell,

51,312 (La.App. 2 Cir. 5/17/17), 222 So.3d 79, (consideration of ineffective

assistance of counsel arguments was pretermitted and could be raised via

application for post-conviction relief where an evidentiary hearing giving counsel

the opportunity to explain his trial strategy could be had). On March 7, 2023, the

State submitted a “Motion (and incorporated memorandum) to Determine

Admissibility of Evidence Pursuant to C.E. 404B[.]” The State asserted that it

intended to offer at trial evidence of various prior conduct committed by

Defendant. The motion was set for a hearing on March 10, 2023. The record does

not include a minute entry or transcript of that date, so it is not clear if the motion

was heard. As noted above, during defense counsel’s cross examination of Agent

Martin, the State indicated that Defendant agreed not to attack the search warrant

in exchange for the State’s agreement not to introduce other crimes evidence. As

the State argues in brief, Defendant’s trial counsel did not contest the State’s

assertion regarding the prior agreement. The State further argues that admission of

evidence pertaining to Defendant’s other crimes “would have been far more

damning to the defendant’s case than his current appellate claims based on

inconsequential alleged deficiencies in the search warrant.”

24

Considering the above, Defendant’s ineffective assistance of counsel claim

regarding his counsel’s failure to file a motion to suppress evidence recovered

during the search of his residence is best relegated to post-conviction relief where

all parties will be allowed to present evidence at that hearing.

Search of Vehicle

Defendant contends that his initial detention at his vehicle was improper

because the detention occurred beyond the immediate vicinity of the residence to

be searched. Defendant cites Bailey v. United States, 568 U.S. 186, 202, 133 S.Ct.

1031, 1043 (2013), which held that “[o]nce an individual has left the immediate

vicinity of a premises to be searched . . . detentions must be justified by some other

rationale.” Defendant further contends that the subsequent “plain-sight” discovery

was a direct result of the unlawful detention. Thus, Defendant asserts the agents

lacked probable cause to support the search warrant of his vehicle. “At issue,”

Defendant contends, “is whether the agents had an objective and credible reason to

approach the vehicle and detain Swafford.”

The State contends that this case is distinguishable from Bailey since the

agents in the present case did not stop Defendant’s vehicle. Defendant, the State

contends, “drove his vehicle to a parking spot in front of his place of employment

and exited of his own accord[.]” Except for his improper reliance on Bailey, the

State argues Defendant asserts no other arguments in support of his claim that his

detention was illegal.

As for the baggie seen in plain view, the State asserts Defendant presented

no facts or argument to show the baggie was illegally seized. Likewise, the State

claims Defendant failed to argue that the handcuffing of Defendant constituted an

illegal arrest or detention. The State concludes its argument by stating:

25

The defendant offered no proof that his detention by Agent
Fulks was illegal or that the evidence eventually obtained from
defendant’s pocket or subsequent vehicle search was illegally seized.
The defendant’s claims that his trial counsel was ineffective in failing
to contest the officers’ interactions with the defendant is unproven and
meritless and should be denied. As with his claim alleging that his
attorney was ineffective regarding the residence search affidavit, this
claim is also properly raised on post-conviction relief.

Analysis

As with the ineffective assistance of counsel claim regarding the search of

Defendant’s residence, the ineffective assistance of counsel claim regarding

Defendant’s initial detention at his vehicle is likewise relegated to post-conviction

relief. Because Defendant did not file a motion to suppress, the State’s witnesses

had no need to put on evidence regarding the justification for the initial detention

of Defendant, the appropriateness of Defendant’s pat down search, and the legality

of the agent’s subsequent plain-view discovery of narcotics. Moreover, as

discussed above, Defendant’s trial counsel should be given an opportunity to

address or explain whether her failure to file a motion to suppress was trial

strategy, and thus is best relegated to post-conviction relief where all parties will

be allowed to present evidence at that hearing.

Failure to Object - Ineffective Assistance of Counsel

As to appellate counsel’s claim that trial counsel’s failure to object to certain

evidence presented at trial resulted in ineffective assistance of counsel. Louisiana

Code of Criminal Procedure Article 703(F) provides: “Failure to file a motion to

suppress evidence in accordance with this Article prevents the defendant from

objecting to its admissibility at the trial on the merits on a ground assertable by a

motion to suppress.” Thus, this claim is without merit.

26

Conclusion

In summary, for the foregoing reasons Defendant’s claim of ineffective

assistance of counsel for failure to object to the admission of evidence at trial is

denied. However, Defendant’s remaining ineffective assistance of counsel claims

are best relegated to post-conviction relief where all parties will be allowed to

present evidence.

DECREE:

Defendant’s convictions are affirmed. Defendant’s claim of ineffective

assistance of counsel for failure to object to the admission of evidence at trial is

denied. Defendant’s remaining ineffective assistance of counsel claims are

relegated to post-conviction relief. Defendant’s sentence for count two,

misdemeanor possession of marijuana weighing less than fourteen grams, is

affirmed. Defendant’s remaining habitual offender sentences for counts one, three,

four, and five, however, are vacated and the matter remanded for a full

resentencing hearing. The trial court is instructed that the applicable penalty

provision is La.R.S. 15:529.1(4)(B), and that parole eligibility cannot be denied or

restricted for any of Defendant’s habitual offender sentences.

Finally, the trial court is instructed to amend the minutes of the jury’s

verdict to correctly reflect the jury’s verdict on count two as possession of

marijuana weighing more than fourteen grams, and instructed to amend the

minutes of sentencing to correctly reflect the sentence imposed for count two as six

months in the parish jail.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER SENTENCES
VACATED; CASE REMANDED FOR RESENTENCING, WITH
INSTRUCTIONS.

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