State v. FrazierState v. Frazier
This is a criminal appeal by the State of Louisiana contending the trial court imposed an illegally lenient sentence on the defendant. La.C.Cr.P. art. 882.
FACTS
On March 11, 1985, Willie Frazier was charged in a bill of information with committing simple kidnapping of Donna M. Frazier on January 13, 1985, in violation of
A trial by jury was commenced on June 25,1985, and a jury was selected. On June 26, 1985, before the presentation of evidence commenced, counsel for Frazier advised the court that Frazier wished to change his plea to guilty. During the following Boykin proceedings, Donna Frazier was called to testify. She advised the court that she was married to Frazier, but they were legally separated. On January 13, 1985, she and Frazier were not living
Q. Mr. Frazier have you been promised anything?
A. No sir.
Q. Do you understand that nobody but the court, and I represent the court, can promise you a sentence?
A. Yes sir.
Q. Do you understand that? Only the court can sentence you and nobody else can promise you what the sentence is going to be ... understand that?
A. Yes sir.
The guilty plea was accepted and sentencing was set for September 4, 1985. No mention of
On or about July 27, 1985, Frazier was arrested and charged with simple kidnapping and second degree battery of Deborah Garret. Garret was hospitalized as a result of this incident.
Frazier appeared for sentencing on September 4, 1985. At the beginning of the proceedings, the trial judge advised the parties he learned of the new charges on the previous day. The judge then stated for the record that if Frazier pled guilty to the new charges, he would run all sentences concurrently and that the sentences would comprise of suspended eight years of penitentiary time with five years of active probation. Conditions of probation would be one year in the parish jail which would be deferred for sixty days for Frazier to be admitted to a mental hospital. Frazier would get two days jail credit for every day he spent in the hospital. Additional conditions would be confinement to the limits of his house and no association with females, except for business purposes. At this point, the State called the court’s attention to the fact a firearm was used in the commission of the offense against Donna Frazier and
Prior to sentencing Frazier, the trial court set forth his criminal history (in addition to the three charges described above) as follows:
(1) 1968 — charges of disturbing the peace and aggravated assault by his then wife, Minnie Mae Frazier — withdrawn;
(2) 1969 — contributing to the delinquency of a juvenile — no disposition;
(3) April 12, 1970 — aggravated battery— no disposition;
(4) 1976 — aggravated battery of Janet W alker — dismissed;
(5) October 16,1976 — aggravated assault on Elizabeth Smith and battery upon Charles Alexander with a pistol — dismissed;
*159 (6) April 20, 1977 — battery on Janet Walker — charges dropped;
(7) July 1977 — battery on Kenneth Ray Walker with a dangerous weapon— charge dropped; and
(8) June 3, 1985 — aggravated kidnapping and aggravated assault of Deborah Garret — dismissed.
Frazier was sentenced to five years in the custody of the Louisiana Department of Corrections for the simple kidnapping of Donna Frazier, three years for second degree battery on Deborah Garret and five years for simple kidnapping of Deborah Garret. The three years for second degree battery of Garret were to run consecutively to the five years for simple kidnapping of Frazier. The five years for simple kidnapping of Garret were to run concurrently with the other two sentences. All three sentences were suspended, and Frazier was placed on active probation for five years with the special condition that he serve one year in the parish jail, which condition was deferred provided (1) he have no verbal, physical or written contact with a member of the opposite sex for a period of five years, except for the necessary course of business; (2) he stay confined in his home, except when he goes to work; and (3) within sixty days he must be committed to a mental institution for treatment, receiving two days credit on his parish jail time for each day spent in the mental institution. In addition, Frazier was fined $2,000. He was cast for the following costs: (1) court costs of $34.50; (2) all jury costs; (3) subpoena costs of $25 per day for each police officer called to testify; and (4) $20 per month for probation supervision. Frazier was also ordered to make restitution to Donna Frazier and Garret for all medical expenses.
On September 6, 1985, the State filed a motion to resentence Frazier in conformity with
This appeal by the State followed.
APPLICABILITY OF LA.R.S. 14:95.2
The State contends the sentencing requirement of
In State v. Jackson,
This assignment of error is without merit.
APPLICABILITY OF LA.C.CR.P. ART. 893.1
The State contends the trial court committed error by failing to apply La.C.Cr.P. art. 893.1 when Frazier was sentenced for the Donna Frazier kidnapping. The State contends it timely moved for sentencing enhancement under this statute by oral motion before sentencing and by written mo
In Jackson, the Louisiana Supreme Court held Article 893.1 was a sentencing statute (not a statute defining criminal activity as
However, although there is no procedural bar to the application of Article 893.1 herein, there may be a substantive (fundamental fairness) bar to its application. In State v. Harris,
Although we concluded that our notice requirement with regard to art. 893.1 would be only prospective in application, we recognized that the absence of actual knowledge of either evidence of - firearm use or of the impending application of art. 893.1 might, in some instances preceding rendition of our Jackson opinion, warrant nullification of a sentence imposed under the provisions of art. 893.1. [Underscoring added.]
The Court then observed that “[t]he prospective rule devised in Jackson affords this defendant no relief unless he can demonstrate some particular prejudice from the lack of notice.” Harris,
In Jackson, the defendant was initially charged with second degree murder. After a preliminary examination, the trial court ruled there was only probable cause to charge manslaughter. The defendant then waived his right to trial by jury and submitted the matter for a bench trial on the evidence adduced at the preliminary examination. The trial court then found him guilty of manslaughter. Jackson received no pretrial notice of intent to apply Article 893.1. In nullifying the enhancement under Article 893.1, the Court in Jackson,
At first glance it might seem that Jackson was not prejudiced by the absence of notice pre-trial, inasmuch as he was aware before trial from evidence adduced at the preliminary hearing that the state’s case of manslaughter rested upon evidence that the defendant killed Tyrone Scott by firing a pistol.
This, of course, is true. Defendant knew before trial of the state’s evidence of firearm use; and in fact through counsel he stipulated for use at trial the entirety of the preliminary examination evidence. Nonetheless, defendant was not notified in any fashion of the state’s or the judge’s intention to invoke art. 893.1. Yet he virtually pled guilty to manslaughter when he so stipulated and presented no other evidence. This decision came immediately after the same trial judge had found the same evidence*161 sufficient to establish probable cause and to hold defendant on a manslaughter charge.
Had defendant been advised of the forthcoming invocation of art. 893.1, with the potential of a sentence from five to twenty-one years, all without benefit of probation, parole or suspension of sentence (roughly comparable to a sentence from 15 to 63 years, with benefit of parole), his defense strategy might well have been different from that which he employed. Facing an effective 15 to 63 year sentence on conviction for manslaughter, and had he been so advised pre-trial by the district attorney, he quite likely would have tried his case to a jury, or even to a judge, more aggressively than he did. The fact situation was pregnant with the possibility of a self-defense acquittal or conviction of a lesser offense than manslaughter. (Defendant intervened in an argument between defendant’s girl friend and the victim, was struck several times by the victim, whereupon he fired his pistol.) [Footnote omitted.]
In the instant case, Frazier had no notice of record to show that prior to entering his plea the State intended to apply Article 893.1. However, no notice of record was required. The trial judge in the Boykin did not discuss sentencing exposure and had no plea bargain with Frazier. A jury had been picked and the State was ready to go to trial when the plea was entered. However, as indicated in Jackson, would the defendant’s tactics have been the same had he possessed actual knowledge of his Article 893.1 sentencing exposure? As indicated in Harris, where a defendant has no actual knowledge of the impending application of Article 893.1, he can avoid its application if he can show some particular prejudice from the lack of notice. The record before us does not show or negate actual knowledge because, immediately after the State moved to apply Article 893.1 at the sentencing, the trial court ruled it was procedurally inapplicable. In this posture, Frazier had no need to demonstrate prejudice or even respond. Accordingly, we believe that fundamental fairness dicates that an evidentiary hearing be held in the trial court to determine if Frazier had actual knowledge of the impending application of Article 893.1 at the time his plea was entered and, if he did not, that he be given an opportunity to show he suffered some particular prejudice from the lack of notice. If Frazier had actual knowledge prior to his plea that the State intended to invoke Article 893.1 in the sentencing, but, nevertheless, pled guilty, he has suffered no prejudice. State v. Kennedy,
DECREE
For the foregoing reasons, (1) the judgment of the trial court ruling
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.