State of Louisiana v. Keith C. Kisack
236 So. 3d 1201
| La. | 2017Background
- Defendant Keith Kisack was convicted by jury of possession of contraband (a cell phone) in a penal institution after cell phone found hidden in prison day room.
- The State filed a habitual-offender bill alleging Kisack was a fourth-felony offender based on a 2001 federal felon-in-possession conviction (96 months + 3 years supervised release).
- At the habitual-offender hearing the trial court adjudicated Kisack a fourth-felony offender and sentenced him to life at hard labor; the court denied his motion for new trial immediately before sentencing.
- The Fourth Circuit affirmed, finding (1) the cell-phone search was constitutional given reduced prison privacy expectations, (2) the State proved the 10-year ‘‘cleansing’’ period had not elapsed, and (3) defense counsel implicitly waived the 24-hour sentencing delay by participating in sentencing.
- The Louisiana Supreme Court granted review and held (a) the State must prove beyond a reasonable doubt that the 10-year period has not elapsed and the absence of that proof is an error patent on appeal, (b) the statutory 24-hour sentencing delay requires an express waiver and cannot be satisfied by mere implicit participation, and (c) because the habitual adjudication immediately followed the sentencing-delay violation, the habitual adjudication was vacated and the case remanded.
Issues
| Issue | State's Argument | Kisack's Argument | Held |
|---|---|---|---|
| Whether State proved cleansing period under La. R.S. 15:529.1(C) | State presented conviction and sentence history; argued records show supervised release and timing that preclude a lapsed 10-year period | Argued State failed to prove date correctional supervision expired; record insufficient | State carried its burden here, but Court requires State to prove the element beyond a reasonable doubt and treats lack of proof as error patent on appeal |
| Whether failure to observe La. C.Cr.P. art. 873 24-hour delay was waived | Argued defense counsel’s participation/argument at sentencing implicitly waived the delay | Argued no express waiver occurred; mere participation insufficient | Court held Article 873 requires an express waiver; implicit waiver is not permitted; error not harmless here and mandates vacatur of the habitual adjudication |
| Constitutionality of warrantless search of cell phone in prison | State: prisoners have a reduced expectation of privacy; Riley inapplicable | Kisack: Riley should require suppression of phone contents | Court agreed prisoners have reduced privacy; declined to extend Riley to this prison-contraband context; search upheld |
| Whether sentencing error was harmless given maximum sentence imposed | State: sentencing error harmless because evidence supported habitual adjudication and sentence | Kisack: error prejudicial given maximum sentence and immediate sentencing after denial of new trial | Court found difficult to conclude error harmless and vacated habitual adjudication and remanded |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (2014) (warrant requirement for cell-phone searches incident to arrest; considered but not extended to prison-contraband context)
- Hudson v. Palmer, 468 U.S. 517 (1984) (prisoners lack reasonable expectation of privacy in cells)
- State v. Williams, 490 So.2d 255 (La. 1986) (reaffirms reduced privacy expectations for inmates)
- State v. Anderson, 349 So.2d 311 (La. 1977) (interpreting ‘‘expiration of the maximum sentence’’ for cleansing-period calculations)
- State v. Baker, 452 So.2d 737 (La. App. 1 Cir. 1984) (reviewing cleansing-period proof as error patent)