WELCH, J.
Defendant, John Harley Cook, was charged by bill of information with one count of creation or operation of a clandestine laboratory (methamphetamine), a violation of La. R.S. 40:983 (count one), and one count of possession of a Schedule III controlled dangerous substance (hydrocodone), a violation of La. R.S. 40:968(C) (count two). Defendant pled not guilty to both charges. The state nol-prossed count two and proceeded to trial on count one only. After a trial by jury, defendant was found guilty as charged on count one. Defendant filed motions for new trial and postverdict judgment acquittal, but these motions were denied by the trial court. Defendant also filed a motion for reconsideration of sentence, but the trial court dismissed this motion as premature because defendant had not been sentenced at the time of its filing. Defendant was subsequently adjudicated a second-felony habitual offender
On March 23, 2011, James Planche, Jr., contacted a friend in hopes of purchasing painkillers. Planche's friend asked him to meet defendant at the Wal-Mart on Gause Boulevard in Slidell, and to buy a box of Sudafed for defendant in exchange for four hydrocodone pills. Upon his arrival at Wal-Mart, Planche met defendant in the electronics section, and defendant gave him $5.00 in cash, a card used to purchase Sudafed from the pharmacy counter, and an empty cigarette pack containing four hydrocodone pills.
Brandon Brown, the loss prevention officer for the Slidell Wal-Mart, observed defendant in the electronics section prior to Planche's arrival at the store. Brown recognized defendant as a person who he had previously seen in the store buying Sudafed and other precursors to the manufacture of methamphetamine. Brown observed as defendant spoke to someone on his cell phone, retrieved cash from his wallet, and met with Planche. Defendant and Planche walked together to the pharmacy area, but defendant continued walking, and he exited the store before Planche bought a box of Sudafed. Brown telephoned Officer Bradley Hoopes of the Slidell Police Department to inform him that he suspected Planche's purchase of Sudafed was related to methamphetamine production. Officer Hoopes received Brown's call as he was pulling into the Wal-Mart parking lot to begin his detail assignment at the store.
After Planche purchased the Sudafed, he exited the store and began looking for defendant. Planche entered his vehicle, started to drive around the parking lot, and called defendant to let him know that he had bought the Sudafed. Planche spotted defendant and pulled into a parking space near the front of the store.
As defendant approached the driver's side of Planche's vehicle, Officer Hoopes parked his vehicle behind Planche's, and he observed Planche handing defendant a Wal-Mart bag. Upon seeing Officer Hoopes, Planche threw the hydrocodone pills into his back seat. Officer Hoopes exited his vehicle and instructed defendant and Planche to show him their hands. Defendant showed his hands to be empty. Officer Hoopes observed Planche begin to reach behind the front passenger's seat. He asked again to see Planche's hands, and Planche complied, showing Officer Hoopes that they were empty. Officer Hoopes asked the men where the box of Sudafed was located, and while Planche immediately admitted that he had purchased it for and had given it to defendant, defendant immediately denied any knowledge of the Sudafed and allowed Officer Hoopes to pat him down. During defendant's pat down, Planche again reached into his backseat area, and Officer Hoopes again asked to see Planche's hands. Planche opened up his hand to reveal at least three hydrocodone pills. When Officer Hoopes had Planche exit his vehicle, the Wal-Mart bag containing Sudafed fell out onto the ground. Officer Hoopes placed both men under arrest. After defendant was read his
In his sole assignment of error, defendant argues that his habitual offender sentence of ten years at hard labor, without benefit of probation or suspension of sentence, is constitutionally excessive.
Herein, defendant was sentenced as a habitual offender on September 29, 2011.
Defendant's failure to timely make or file a motion to reconsider sentence precludes him from arguing that his sentence was excessive for the first time on appeal. Thus, defendant is procedurally barred from having the sole assignment of error reviewed.
Even if we consider defendant's prematurely filed motion to reconsider sentence sufficient to preserve this issue for review, we would still find that defendant's sentence is not excessive. For a first-offense conviction of creation or operation of a clandestine laboratory, defendant could have received a sentence of not less than five nor more than fifteen years at hard labor.
For the foregoing reasons, the defendant's conviction, habitual offender adjudication, and sentence are affirmed.