State v. Marchiafava

300 So.3d 529

STATE of Louisiana

v.Nickolos MARCHIAFAVA

NO. 19-KA-581

Court of Appeal of Louisiana, Fifth Circuit.

July 29, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Gail D. Schlosser, Joshua K. Vanderhooft, Lindsay L. Truhe

COUNSEL FOR DEFENDANT/APPELLANT, NICKOLOS MARCHIAFAVA, Jane L. Beebe

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

WINDHORST, J.

Defendant, Nickolos Marchiafava, appeals his conviction and sentence for possession of methamphetamine weighing twenty-eight grams or greater. For the following reasons, we affirm defendant's conviction and sentence.

Procedural History

On December 3, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant, Nickolos Marchiafava, with one count of possession with intent to distribute methamphetamine weighing twenty-eight grams or greater in violation of La. R.S. 40:967(A), which occurred on October 1, 2018 (count one). Defendant was arraigned the same day and pled not guilty. On April 8, 2019, the State filed a superseding bill of information to add a second count of possession with intent to distribute methamphetamine weighing twenty-eight grams or greater in violation of La. R.S. 40:967(A), which occurred on March 12, 2019 (count two). Defendant was re-arraigned on the superseding bill of information that same day and pled not guilty. The two counts were severed on July 16, 2019.

On July 16, 2019, defendant was tried as to count two before a twelve-person jury and was convicted of the lesser offense of possession of methamphetamine weighing twenty-eight grams or greater. On July 29, 2019, the trial court sentenced defendant as to count two to twenty years imprisonment at hard labor. On August 16, 2019, defendant filed a motion to reconsider sentence and a motion for appeal regarding the trial verdict on count two rendered on July 16, 2019, and the sentence imposed on July 29, 2019. The trial court granted the appeal on August 20, 2019 and denied the motion to reconsider on September 16, 2019.

After the appeal was granted, the State filed a multiple offender bill of information alleging defendant to be a third-felony offender using count two as the underlying offense. Defendant was subsequently adjudicated a second-felony offender. The trial court vacated defendant's original sentence and resentenced him to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant appeals his original sentence for count two. Defendant's multiple offender finding and sentence are not before this Court in the present appeal, since they occurred after this appeal was instituted.

Law and Analysis

Defendant argues in this appeal that the trial court imposed an excessive sentence. Specifically, defendant argues that the trial court failed to justify the imposed maximum sentence and that imposition of the sentence to run concurrent with the sentence for count one is also unjustified. Defendant asserts that his admission to possessing methamphetamine should mitigate his sentence, not justify the maximum sentence permitted, as well as that his prior criminal history should not have...