STATE of Louisiana v. Cedric EVANS
No. 2008 KA 0417
Court of Appeal of Louisiana, First Circuit
October 31, 2008
998 So. 2d 197
Before: KUHN, GUIDRY, and GAIDRY, JJ.
Cedric Evans, Angola, LA, Pro Se.
GUIDRY, J.
The defendant, Cedric E. Evans, was charged by bill of information with one count of possession of 28 grams or more, but less than 200 grams of cocaine, a violation of
ASSIGNMENTS OF ERROR
Counseled
- The trial judge erred in denying the defense motion to quash.
- The trial court erred in adjudicating the defendant to be a third-felony habitual offender.
- The trial court erred in sentencing the defendant to life imprisonment as a third-felony habitual offender.
- The trial court erred in failing to vacate the defendant‘s original sentence before sentencing him as a multiple offender.
Pro se
- The prosecution fаiled to present sufficient evidence to support the adjudication of the defendant as a habitual offender.
For the following reasons, we affirm the conviction, the habitual offender adjudication, and the sentence.
FACTS
On December 30, 1996, at approximately 9:30 p.m., Louisiana State Police Trooper Kurt Vorhoff observed a vehicle veering off the roadway as it traveled on Interstate 12 between Hammond and Covington. Trooper Vorhoff activatеd his blue lights and siren, and the vehicle pulled over. Carolyn Travis was driving the vehicle and the defendant was a passenger.
The defendant was still moving around in the car as Trooper Vorhoff approached the vehicle and asked him to retrieve the rental contract from the glove compartment. The defendant‘s hands shook as he retrieved the rental contract, and he did not make eye contact with Trooper Vorhoff. The defendant indicated that Travis was his wife and they were travelling from Texas to the casino boats in Biloxi and would be staying for about a week before possibly continuing to Hattiesburg.
Another Trooper arrived on the scene and Trooper Vorhoff returned to Travis and issued her a warning citation. In response to Trooper Vorhoff s inquiry, Travis stated she did not have anything illegal and did not know of anything illegal in the car. She also gave Trooper Vorhoff permission to search the vehicle.
Trooper Vorhoff аpproached the vehicle again, explained to the defendant that Travis had given him consent to search the vehicle, and asked the defendant to step out of the car while it was being searched. As the defendant stepped out of the car, he dropped a clear, plastic object with his left hand. Trooper Vorhoff also noticed that the defendant had a large, abnormal bulge at his midsection. Trooper Vorhoff was concerned that the defendant might have a weapon and instructed him to put his hands on top of his head. While performing an outer-clothing pat down of the defendant, Trooper Vorhoff observed a medium-sized, clear, plastic bag containing a white substance, which Trooper Vorhoff suspected was cocaine.
Trooper Vorhoff told the defendant to put his hands on the car. The defendant briefly complied, but then spun around, struck Trooper Vorhoff, and attemptеd to flee. Trooper Vorhoff grabbed the defendant‘s arm, but the defendant struggled loose and began running away. During the ensuing chase, the defendant threw down several packages of suspected cocaine before being tackled by Trooper Vorhoff. Trooper Vorhoff subsequently recovered nine bags, containing a total net weight of 139 grams of cocaine, and one bag containing approximately 11 grams of marijuana. The bags were locatеd either where Trooper Vorhoff had seen the defendant throw them down or directly along the path that Trooper Vorhoff had chased the defendant.
The defendant was advised of his Miranda2 rights and stated that “the dope” belonged to him, and Travis did not have anything to do with the drugs. After signing an advice of rights/waiver form at the narcotics office, he also stated that he had been carrying approximately eight ounces of crack on his person, had purchased the drugs in Houston for $3500, and had planned to sеll the drugs in Hattiesburg.
UNTIMELY PROSECUTION
In counseled assignment of error number 1, the defendant argues the State failed to prosecute him within one year from the reversal of his conviction by this court, and thus, the motion to quash should have been granted.
The period of limitation established by Article 578 shall be interrupted if the defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
Except as otherwise provided in Louisiana Code of Criminal Procеdure, Title XVII, Chapter 2, no trial shall be commenced in non-capital felony cases after two years from the date of institution of the prosecution.
On December 20, 2000, the defendant appeared in court and indicated he had retained Frank Sloan as counsel. The court assigned the matter for jury trial on February 12, 2001.
On February 12, 2001, the defendant appeared in court, but Sloan was absent after having advised the court and the State that he had a conflict with the date, but could be present on February 13, 2001. The court instructed the defendant to return on February 13, 2001.
On February 13, 2001, the defendant failed to appear in court and the court issued an attachment for his arrest.
The defendant next appeared in court on April 16, 2003. His counsel was also present. The court reset the jury trial for June 16, 2003 and rescinded and recalled the attachment.
On May 27, 2003, the defendant appeared in court with counsel for pretrial conference. On motion of the defense, and over objection by the State, the matter was continued to September 8, 2003.
On August 8, 2003, the defendant failed to appear for pretrial conference. The court issued an attachment for his arrest.
On November 3, 2003, the matter on assignment for trial, the defendant appeared in court with counsel. On motion of the defense, the matter was continued to February 9, 2004, when trial commenced, and the defense made an oral motion to quash on the basis of prescription. The court denied the motion to quash, noting the record indicated the defendant had failed to appear between 2001 and 2003.
The trial court correctly denied the motion to quash. Prescription was interrupted by the defendant‘s failure to appear on February 13, 2001, after receiving actual notice on February 12, 2001, in open court. See
This assignment of error is without merit.
HABITUAL OFFENDER ADJUDICATION
In counseled assignment of error number 2, the defendant argues the State failed to meet its burden of proof in regard to the use of predicate # 1 in the habitual offender proceeding. In pro se assignment of error number 1, the defendant also challenges the sufficiency of the State‘s proof concerning the use of predicate # 3 in the habitual offender proceeding.
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were 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. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between the judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidеnce submitted by the defendant and by the State to determine whether the State has met its burden
of proving that the defendant‘s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.[4]
State v. Shelton, 621 So.2d 769, 779-80 (La.1993)(footnotes omitted).
The purpose of the rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea, in which the appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction used in a subsequent recidivist proceeding, as to which a presumption of regularity attaches to promote the interests of finality. See State v. Deville, 04-1401, p. 4 (La.7/2/04), 879 So.2d 689, 691 (per curiam).
At the habitual offender hearing, in connection with predicate # 1, the State introduced into evidence a certified true copy of an indictment charging “Cedric Russell”5 and three other persons with possession of 90.9 grams of marijuana with intent to deliver and a certified true copy of “ENTRY OF GUILTY PLEA AND JUDGMENT OF COURT[,]” indicating that the defendant aрpeared in court with counsel Rex Jones, was lawfully arraigned on the indictment, and after “being duly advised of all his Constitutional rights in the premises and being further advised of the consequences of such a plea,” entered a plea of guilty, which the court accepted.
In connection with predicate # 3 the State introduced into evidence a certified true copy of an indictment charging “Cedrick [sic] Russell” and Adrian Wilson with possession with intent to distribute cocaine аnd a certified true copy of an “ORDER[,]” indicating that the defendant appeared in court with counsel Richard Rehfeldt, was lawfully arraigned on the indictment, and after being “duly advised... of all of [his] legal and constitutional rights on the premises,” and after “freely, voluntarily and intelligently” waiving those rights upon being advised of the consequences of such a plea of guilty, pled guilty to “C/S POSS[.]” The defendant did not present any evidence.
The defendant argues that the documents introduced by the State in connection with predicates # 1 and # 3 were insufficient under State v. Allen, 00-0013 (La.App. 4th Cir.1/10/01), 777 So.2d 1252, writ denied, 01-0703 (La.5/3/02), 815 So.2d 92. In Allen, the court found that the State failed to sufficiently establish the predicate offense because it presented only a certified copy of the defendant‘s birth certificate, a fingerprint card, and a probation order judgment, and the jurisprudence required “that State had to prove the conviction and its date by a certified copy of a minute entry (or an equivalent contemporaneously recorded or executed
This case must be decided under Shelton, rather than under Allen. Allen was decided under the pre-Shelton jurisprudence, which placed the entire burden on the prosecution in a recidivism proceeding. In Shelton, the court revised its previous scheme allocating burdens of proof in habitual offender proceedings. Shelton, 621 So.2d at 779.
A careful review of the documentation introduced by the State in support of the use of predicates # 1 and # 3 to establish the defendant‘s habitual offender status convinces us that the State met its initial burden under Shelton. Thereafter, the defendant failed to produce any affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Accordingly, the State had no burden to prove the constitutionality of predicates # 1 and # 3 by “perfect” transcript or otherwise. See Shelton, 621 So.2d at 779-80.
These assignments of error are without merit.
APPLICABLE HABITUAL OFFENDER LAW
In counseled assignment of error number 3, the defendant argues that under
Section 308 of title 15 of the Louisiana Revised Statutes, in pertinent part, provides:
A. (1) The legislature hereby declares that the provisions of Act No. 403 of the 2001 Regular Session of the Legislature provided for more lenient penalty provisions for certain enumerated crimes and that these penalty provisions were to be applied prospectively.
(2) The legislature hereby further declares that Act No. 45 of the 2002 First Extraordinary Session of the Legislature revised errors in penalty provisions for certain statutes which were amended by Act No. 403 of the 2001 Regular Session of the Legislature and that these revisions were to be applied retroactively to June 15, 2001, and applied to any crime committed subject to such revised penalties on and after such date.
B. In the interest of fairness in sentencing, the legislature hereby further declares that the more lenient penalty provisions provided for in Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced according to the following provisions: ...
R.S. 15:529.1(A)(1)(b)(ii) ...967 ... (F)(1),... prior to June 15, 2001, provided that such application ameliorates the person‘s circumstances.C. Such persons shall be entitled to apply to the Louisiana Risk Review Panel pursuant to
R.S. 15:574.22 .
Section 308 of title 15 of the Louisiana Revised Statutes does not authorize courts to resentence offenders after their sentences have become final, but rather provides an exclusive remedy of applying to the Louisiana Risk Review Panel. State v. Dick, 06-2223, pp. 10-11 (La.1/26/07), 951 So.2d 124, 131.
The defendant argues that because he committed the instant offense prior to June 15, 2001, Act No. 403 of the 2001 Regular Session of the Legislature, and Act No. 45 of the 2002 First Extraordinary
At the time of the commission of the instant offense, and prior to amendment by 2001 La. Acts No. 403, § 2,
The instant offense and predicate # 1 are violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years.
In State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, the Louisiana Supreme Court examined whethеr 2001 La. Acts, No. 403, § 4‘s reduction in penalty for violation of
Similarly, in the instant case, the trial court correctly sentenced the defendant under
This assignment of error is without merit.
FAILURE TO VACATE ORIGINAL SENTENCE
In counseled assignment of error number 4, the defendant argues that although the October 11, 2007 minutes indicate that the court vacated the sentence previously imposed on March 3, 2006, the transcript fails to show that the March 3, 2006 sentence was vacated.
The defendant is correct. Although it is аpparent from the court‘s actions that it
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to
The trial court failed to impose the mandatory fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars. See
CONCLUSION
Based on the foregoing review, we find the law and evidence supports the rulings of the trial court in this matter and therefore affirm.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.