After his conviction for manslaughter, the State of Louisiana (state) charged the defendant, Deandre Johnson, as a habitual offender. Subsequently, the trial court adjudicated the defendant as a fourth felony offender and sentenced him to life imprisonment without the benefit of parole, probation, or suspension of sentence. The defendant appealed his adjudication and
DISCUSSION OF THE RECORD
This matter is before this court for the second time. The state initially charged the defendant with, and a jury convicted him of, second degree murder, a violation of La.R.S. 14:30.1. On appeal, this court reversed the conviction, vacated the sentence, and entered a conviction for the offense of manslaughter, a violation of La. R.S. 14:31. This court then remanded the matter to the trial court for resentencing. See State v. Johnson, 06-1263 (La.App. 3 Cir. 2/7/07), 948 So.2d 1229, writs denied, 07-467, 07-509 (La.10/12/07), 965 So.2d 398, 399. However, before the defendant could be sentenced on the manslaughter conviction, the state filed a bill of information charging him as a multiple offender under the Louisiana Habitual Offender Law, La.R.S. 15:529.1. The bill of information, which was filed on December 6, 2007, listed the prior felonies as simple burglary of which he was convicted April 14, 1992; carnal knowledge of a juvenile of which he was convicted on August 16, 1994; illegal possession of stolen things of which he was convicted on March 18, 2002; and carnal knowledge of a juvenile of which he was convicted on August 5, 2002. The trial court set the multiple offender hearing for January 15, 2008.
On January 2, 2008, the defendant filed a motion to quash the multiple offender bill of information. In that motion, the defendant alleged that the only reason for the filing of the bill of information was the state's desire to "exert vindictiveness" because he was successful in his appeal of the second degree murder conviction. Despite having the multiple offender hearing already fixed for January 15, 2008, the trial court set this motion for hearing on January 31, 2008. On February 4, 2008, the defendant filed a second motion to quash the bill of information. In this second motion, the defendant asserted that because the minute entries evidencing the prior convictions did not establish that he waived his constitutional rights before entering guilty pleas to the charges or that he was even explained his rights in the plea proceedings, he should only be sentenced to the manslaughter offense without any enhancement thereof. The trial court set this motion for hearing on March 20, 2008. Although the defendant was represented by counsel, both of these motions were filed in proper person.
Despite the existence of the pending motion to quash, the trial court held the hearing scheduled for January 15, 2008. At the beginning of the hearing, the defendant's counsel requested a continuance based on the assertion that he had only received the motion to quash on that date. The trial court rejected the request for continuance and proceeded with the multiple offender hearing.
In support of its position, the state introduced the bills of information and court minutes associated with the four prior convictions listed on the multiple offender bill of information as well as testimony and fingerprint evidence to establish that the defendant was the same person who committed those offenses. At the end of the hearing, the trial court did not dispose of the issues before it. Instead, on February 19, 2008, it held a second hearing.
At the February 19 hearing, the defendant again raised his motions to quash. To support his position, he requested copies of the colloquies in his prior convictions, but the trial court rejected these requests. The trial court then adjudicated the defendant a multiple felony offender and, on the same day as the hearing, filed written reasons for judgment wherein it
On March 19, 2008, the trial court sentenced the defendant to life in prison without the benefit of probation, parole, or suspension of sentence. In his appeal, the defendant asserts three assignments of error: (1) that the multiple offender proceedings against him were flawed; (2) that the trial court erred in denying his pro se motion to quash the bill of information charging him as a multiple offender; and (3) that the trial court erred in not considering his second pro se motion to quash the bill of information and in overruling his counsel's objection to the filing of the said bill of information.
Assignment of Error Number One
In his first assignment of error, the defendant contends that the multiple offender proceedings against him were flawed (1) because he was not charged as a fourth felony offender by a grand jury indictment, and (2) because he was denied a jury trial in the habitual offender proceedings. In considering these arguments, we first note that the defendant raised no objection with regard to either issue in the trial court proceedings. The defendant acknowledges that La.Code Crim.P. art. 841(A) provides that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence," but asserts that this Article is not applicable to the issues now before us because these issues are jurisdictional and can be raised at any time. Rather than addressing the jurisdictional issue, we will dispose of these issues on the merits.
Grand Jury Issue
In support of his position, the defendant cites this court to the case of State v. Donahue, 355 So.2d 247 (La.1978), wherein the supreme court concluded that a prosecution for second-degree murder, brought by bill of information rather than by a grand jury indictment, was an absolute nullity.
While the defendant raises a number of arguments to suggest that the decision in Alexander is incorrect and should be revisited,
Jury Trial and Other Elements Issues
The defendant also asserts that federal jurisprudence requires that he be tried by jury in the habitual offender proceedings — that a jury trial is mandated anytime there exists external matters or issues that do not appear on the face of the documents admitted as proof of the state's position — and that such elements exist (and remain unproven) in this case. In support of this position, he points this court to the holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Thus, the defendant argues, failure to afford him a jury trial violates U.S. Const. amend. VI granting the right to a jury trial, as well as the Due Process Clause of U.S. Const. amend. XIV.
We find these cases to be distinguishable from the matter now before us. In Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, the Supreme Court stated that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Shepard, the Supreme Court held that inquiry under the Armed Career Criminal Act to determine whether a guilty plea to burglary under a non-generic statute necessarily admitted elements of the generic offense was limited to the terms of the charging document, to the terms of a plea agreement or transcript of colloquy between the trial judge and the defendant in which the defendant confirmed the factual basis for the plea, or to some comparable judicial record of this information. Thus, the federal trial court could not consider police reports or complaint
In the matter now before us, there exists no unproven fact that would increase the penalty imposed. Additionally, this issue has been directly addressed by the courts of this state and those decisions have consistently rejected a defendant's right to a jury trial in habitual offender proceedings. See State v. Washington, 05-1006 (La.App. 4 Cir. 5/10/06), 931 So.2d 1120, writ denied, 06-1483 (La.12/15/06), 944 So.2d 1272, cert. denied, ___ U.S. ___, 127 S.Ct. 2115, 167 L.Ed.2d 827 (2007); State v. Gauthier, 07-743 (La.App. 4 Cir. 3/12/08), 978 So.2d 1161; Smith, 913 So.2d 836; Wilson, 956 So.2d 41; State v. Dozier, 06-621 (La.App. 4 Cir. 12/20/06), 949 So.2d 502, writ denied, 07-140 (La.9/28/07), 964 So.2d 350; State v. Dunbar, 06-1030 (La.App. 4 Cir. 3/19/08), 981 So.2d 51. We find no merit in this assignment of error.
Assignment of Error Number Two
In this assignment of error, the defendant asserts that the trial court erred in rejecting his argument raised, by the January 2, 2008 pro se motion, to quash the habitual offender bill of information because of the state's desire to punish him for his success in having his second degree murder conviction set aside. This issue was discussed thoroughly in State v. Howard, 02-2435, pp. 6-7 (La.App. 4 Cir. 3/19/03), 843 So.2d 439, 443, wherein the court stated the following:
The defendant argues that although the holding in North Carolina v. Pearce was directed at judges, its rationale is applicable to the prosecution. He asserts that because the state has discretion in charging a defendant under the habitual offender laws, it should lose that ability if it treats a defendant, who chose to exercise certain constitutional rights, unfairly. He argues that the burden is on the state to prove that its actions were not vindictive and to give its reasons for seeking the enhancement of sentence, and in this case, the state failed to do so.
When this issue was first addressed,
We reject the defendant's assignment on this issue, finding nothing in the record to establish proof of his claim of vindictiveness.
Assignment of Error Number Three
In his final assignment of error, the defendant asserts that the trial court erred in rejecting his second pro se motion to quash the habitual offender bill of information and erred in rejecting his defense counsel's objection to the filing of the multiple bill. He bases this on the argument that the court minutes, introduced to establish the prior convictions, failed to establish whether he was informed of his Constitutional rights as well as the penalties for subsequent offenses or that he understood his rights and the impact of subsequent criminal activity when he entered his guilty pleas to the prior charges.
In considering this assignment of error, we are guided by the supreme court decision in State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. In that opinion, the supreme court concluded that the state's initial burden in habitual offender proceedings, where a defendant denies the allegations contained in the bill of information concerning the validity and or existence of prior conviction, is "to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken." Id. at 559. The burden then shifts to the defendant to "produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea." Id. If the defendant is successful in this regard, the burden then shifts back to the state "to prove the constitutionality of the plea." Id. The supreme court concluded that in order to meet this burden, the state must
At the February 19, 2008 hearing, the defendant's trial counsel informed the trial court that his client had requested that he obtain the transcripts of the plea colloquies of the prior convictions, but he had failed to do so. Although acknowledging that he had failed to seek the transcripts, he objected to the trial court proceeding without requiring the state to produce the transcripts. In the hearing, the defendant's counsel again requested "copies of the colloquy to reserve our right with regard to the constitutionality of each and every one of the convictions and [B]oykins that serve the basis of the multiple offender ruling." The trial court denied the request, suggesting that the request was untimely in that the defendant could have requested the documents sooner than he had, but did not do so. The trial court eventually denied the motion to quash, and defense counsel reserved his right to assign error as to "each and every prior multiple bill element." In his brief to this court, the defendant asserts that he should have been provided with the requested transcripts. We need not consider whether the defendant's request was timely, because we find merit in the defendant's argument that the trial court erred in not providing him transcripts of the prior proceedings. However, that error does not reach the level of requiring the reversal of the conviction.
All four sets of court minutes filed by the state as part of the proof of the prior convictions read, word for word, as follows:
Because the referenced colloquies were not filed with the minutes despite being made a part thereof by reference, this court ordered that the record be supplemented with these colloquies, and the same are now a part of the appellate record.
Our review of all transcripts of the prior proceedings wherein the defendant entered his guilty plea reflects that the defendant was clearly advised of his rights pertaining to trial on each offense, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was advised of the penalties associated with each offense, and was provided with all other requirements of law. Based on our review of the transcripts, we find nothing to suggest that his prior pleas were anything other than free and voluntary. Thus, although we do find merit in the defendant's argument that the trial court erred in not providing him transcripts
For the foregoing reasons, we affirm the defendant's adjudication as a multiple offender in all respects.