State v. ClesiState v. Clesi
- Reporters:
- ,
- Before:
- Pettigrew
The defendant, Ronald O. Clesi, was charged by bill of information with possession of a schedule II controlled dangerous substance (cocaine), a violation of
FACTS
On December 12, 2001, at about 11:00 p.m., based on an anonymous citizen‘s complaint about narcotics at the defendant‘s residence in Slidell, Detective Kevin Swan of the Slidell Police Department, along with three other police officers, including Sergeant Danny Fonte of the St. Tammany Parish Sheriff‘s Office, went to the Chamale Condominiums where the defendant lived. Prior to going to defendant‘s residence, the police officers determined the defendant had an outstanding warrant for
Detective Swan produced a consent to search form. After going over the form with the defendant, the defendant signed the form. The defendant also gave verbal consent to search his residence. Following the consent of the defendant, all three occupants of the residence were advised of their Miranda rights.2 Sergeant Fonte found rocks of crack cocaine in the garbage disposal of the kitchen sink.3 Detective Swan found $3,944.00 in the defendant‘s bedroom closet. The defendant told Detective Swan that he had purchased $1,000.00 worth of crack cocaine and that they had been ingesting it. He also told Detective Swan that when the police knocked on the door, July Driebe, one of the female occupants, ran to the kitchen and placed crack cocaine in the kitchen sink. The defendant was arrested and, before being placed into a police unit, was patted down thoroughly. A bag containing small rocks of crack cocaine was found in the defendant‘s right front pocket.4
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the defendant argues that his sentence imposed is illegal. Specifically, the defendant contends that the trial court failed to specify that the sentence is not subject to probation or suspension of sentence, as required by
The trial court should have imposed the sentence without benefit of probation or suspension of sentence. However, no corrective action is necessary, as
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE
In these assignments of error, the defendant argues that the sentence imposed is excessive. Because we must reverse the habitual offender adjudication and vacate the sentence, we do not reach the merits of these assignments of error.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, the defendant argues the trial court failed
The trial court did not advise the defendant of the time limits for filing for postconviction relief pursuant to
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
In his second pro se assignment of error, the defendant argues that the evidence presented at the multiple offender hearing was insufficient to prove that the defendant was a fourth felony offender. Specifically, the defendant contends that the State failed to prove the identity of the defendant as the same person convicted of the previous convictions.
In order to obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. In attempting to do so, the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical driver‘s license number, sex, race, and date of birth. State v. Payton, 2000-2899, p. 6 (La.3/15/02), 810 So.2d 1127, 1130-1131.
At the habitual offender hearing, the State submitted into evidence exhibits and testimony that established five prior felony convictions of the defendant. The five prior convictions, all by guilty pleas, are as follows: (1) 1975 conviction for possession of preludin, a violation of
For each of the defendant‘s convictions, the State submitted into evidence certified copies of the bills of information (indictment for the Mississippi conviction), guilty pleas, and arrest registers containing the defendant‘s fingerprints. The bills of information for the forgeries, the theft, and the attempted possession of cocaine contain the defendant‘s fingerprints. The bill of information for the possession of preludin, which does not contain the defendant‘s fingerprints, was submitted into evidence with the corresponding arrest register, which contains the defendant‘s fingerprints. The (Mississippi) bill of indictment for the unlawful touching is part of a “pen pack,”6 which contains the defendant‘s fingerprints.
We find that the State proved through expert testimony and the aforementioned exhibits submitted into evidence that the defendant was the same person convicted of the five predicate felony convictions. This assignment is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
In his third pro se assignment of error, the defendant argues that the trial court erred when it failed to quash the habitual offender bill. Specifically, the defendant contends that at several of his prior guilty pleas, he was not properly Boykinized.8 The defendant further contends that the State failed to prove that the “cleansing period”9 for one or more of his convictions had not expired. This argument has merit.
In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. If the defendant denies the allegations of the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, i.e., either the transcript of the plea or the minute entry. State v. Henry, 2000-2250, p. 8 (La.App. 1 Cir. 5/11/01), 788 So.2d 535, 541, writ denied, 2001-2299 (La.6/21/02), 818 So.2d 791. While a colloquy between the judge and defendant is the preferred method of proof of a free and voluntary waiver, the
At the habitual offender hearing, following the State‘s presentation of its evidence, the defendant objected to the first four prior guilty pleas in evidence as inadequate because he was not advised of his Boykin rights.10 The defendant met his burden in showing an infringement of his rights in the taking of the pleas. Instead of the State pointing out, however, that the guilty pleas were constitutional because perhaps the defendant had, indeed, been informed of each of his Boykin rights, the prosecutor stated:
Your Honor, at this point we‘re simply on the issue of admissibility. These are certified copies. I don‘t think the issue defense raises relates to the issue of admissibility, perhaps an appropriate argument as to whether, in fact, these are constitutionally valid convictions that could be used to enhance his sentence.
Notwithstanding the State‘s analysis of the burden-shifting principles involved in a habitual offender hearing, the trial court indicated that it was going to review all of the submitted evidence and that it was going to take the matter under advisement. The trial court found the defendant to be a fourth felony habitual offender upon proof of five prior felony convictions.
For proof of the defendant‘s 1975 conviction for possession of preludin (docket number 247635), the State submitted into evidence the minute entry of the guilty plea. The minute entry does not indicate that the defendant was informed of each of his Boykin rights.11 Because this minute entry does not reflect a valid guilty plea, it cannot be used to enhance the defendant‘s sentence for the instant offense.
For proof of the defendant‘s 1982 conviction for theft of property valued over $500.00 (docket number 69543), the State submitted into evidence the minute entry of the guilty plea. The minute entry does not indicate that the defendant was informed of each of his Boykin rights.12 Because this minute entry does not reflect a valid guilty plea, it cannot be used to enhance the defendant‘s sentence for the instant offense.
For proof of the defendant‘s 1992 Mississippi conviction for unlawful touching (docket number 7584), the State submitted into evidence a pen pack, which contained the court‘s order of the defendant‘s sentence.
Based on the record before us, we find that three of the defendant‘s prior convictions cannot be used to enhance his sentence for the instant offense.14 Since two prior convictions, at most,15 could be used to adjudicate the defendant a third felony habitual offender, the trial court erred in adjudicating the defendant a fourth felony habitual offender. Accordingly, we must reverse the defendant‘s fourth felony habitual offender adjudication, vacate his sentence and remand this matter for further proceedings. The defendant is not protected by principles of double jeopardy from being tried again under the Habitual Offender Law. See State v. Young, 99-1310, p. 5 (La.App. 1 Cir. 4/17/00), 769 So.2d 12, 14.
CONVICTION AFFIRMED. ADJUDICATION OF DEFENDANT AS FOURTH OR SUBSEQUENT FELONY HABITUAL OFFENDER REVERSED AND SENTENCE VACATED. REMANDED FOR FURTHER PROCEEDINGS.
Notes
The Defendant, RONALD O‘DELL CLESI, having filed a petition to enter a plea [of] Guilty in which RONALD O‘DELL CLESI, was advised of his legal and constitutional rights in the premises and being further advised of the consequences of such a plea, did then and there enter his plea of Guilty to said charge. The Court thereupon found that the Defendant knowingly and voluntarily waived his constitutional rights to trial; that the plea of Guilty was freely and voluntarily made; that the Defendant is Guilty based upon the facts offered to the Court and the Court adjudicates the Defendant to be Guilty of the charges of UNLAWFUL TOUCHING in cause number 7584.