Preview:

STATE OF LOUISIANA VERSUS GEORGE KELLY

* * *

NO. 2008-KA-0200 COURT OF APPEAL FOURTH CIRCUIT

STATE OF LOUISIANA * ******* APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 465-111, SECTION "F" Honorable Dennis J. Waldron, Judge ****** Charles R. Jones Judge ****** (Court composed of Judge Charles R. Jones, Judge James F. McKay, III, and Judge David S. Gorbaty)

Keva Landrum-Johnson, District Attorney Battle Bell IV, Assistant District Attorney 1340 Poydras Street, 7th Floor New Orleans, LA 70112-1221

COUNSEL FOR STATE OF LOUISIANA

Sherry Watters LOUISIANA APPELLATE PROJECT P. O. Box 58769 New Orleans, LA 70158-8769

COUNSEL FOR GEORGE KELLY AFFIRMED

The Appellant, George Kelly, appeals his sentence for possession of cocaine. We affirm. On March 15, 2006, Officer Francis Jarrott and his partner, Officer Robert Hurst, were assigned to the Task Force in the New Orleans Police Department's Second District. The officers were driving south on Foucher Street when they observed Kelly and an unidentified man having a close conversation in front of The Other Place, a bar located at the corner of Foucher and S. Saratoga Streets. The officers then observed what appeared to be the exchange of an unknown object for money. When Kelly and the unidentified man realized they were being

observed by the officers, the unidentified man ran up S. Saratoga Street towards uptown, and Kelly turned to enter the bar. The officers beckoned Kelly and he stopped. When the officers approached Kelly, they noticed he had a plastic bag in his right hand. The officers instructed Kelly to open his hand. When Kelly complied, the officers observed that he was holding a plastic bag with various small rock-like substances. The officers arrested Kelly. A search incident to arrest produced $525.00 in cash. Accordingly, Kelly was informed that he was being arrested for possession with the intent to distribute

1

cocaine. Officer Jarrott testified that Kelly became very upset and made verbal threats. Kelly was issued a municipal citation for disturbing the peace as a result of his reaction. Kelly was charged by bill of information with one count of possession with the intent to distribute a cocaine, in violation of La. R.S. 40:967(A)(1). Kelly was tried in front of a jury in the Criminal District Court for the Parish of Orleans and found guilty of possession of cocaine in violation of La. R.S. 40:967(C). The State filed a Multiple Offender Bill of Information seeking enhanced sentencing under La. R.S. 15:529.1, to which Kelly pled not guilty. A Motion to Quash the Multiple Bill was denied. Kelly was adjudicated a second felony offender and sentenced to eight years at hard labor without the benefit of probation or the possibility of earning good time. His Motion to Reconsider the Sentence was denied. Kelly filed and was granted a Motion for Appeal. A review of the record for errors patent reveals none. In his first assignment of error, Kelly argues the sentence imposed under the multiple offender bill is excessive. After the multiple bill hearing, Kelly was adjudicated a second felony offender. The same day, he was sentenced to eight years of imprisonment at hard labor without the benefit of probation or the possibility of earning good time, pursuant to La. R.S. 15:529.1(A)(1)(a), which provides in pertinent part: (a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. In State v. Smith, 2001-2574, p. 7 (La. 1/14/03), 839 So.2d 1, 4, the Supreme Court set forth the standard for evaluating a claim of excessive sentence:
2

Louisiana Constitution of 1974, art. I,

Download 209468.pdf

Louisiana Law