State v. HuntState v. Hunt
We amend and correct an illegal sentencе in this appeal which is a sequel to State v. Hunt, 568 So.2d 1104 (La.App. 2d Cir.1990). There we affirmed Hunt‘s convictions for three drug offenses committed in 1988 and his consecutive hard labor sentences of 10, 10 and 20 years.
After those sentences were imposed, Hunt was adjudicated and sentenced as a second felony offender under
Hunt now challenges the sufficiency and competency of the evidence of his habitual offender status, contending that he was not advised of his right against self-incrimination when he pleaded guilty to the 1981 offense and that some of the State‘s exhibits at the habitual offender hearing were not properly certified or authenticated. He also argues the 10-year enhancement of
We find no merit in Hunt‘s assignments, but note, on our own motion, and correct an error in the manner in which the trial court imposed the enhanced sentence.
The court, perhaps overlooking the statutory requirement directing it tо vacate the original 10-year sentence for the 1988 marijuana offense and to impose a single enhanced sentence for that offense, sentenced Hunt to “an additional 10 years at hard labor consecutive.” This rеsults in Hunt‘s receiving four sentences for the three 1988 offenses.
Under
The trial court‘s imposition of an additional 10-year sentence without vacating the original 10-year sentence is thus illegal. Because the court obviously intended to increase the substantive sentence from 10 to 20 years, and the correction of the illegal sentenсe does not involve the exercise of sentencing discretion, we amend to correct, without remanding for resentencing. CCrP Art. 882; State v. Fraser, 484 So.2d 122 (La.1986); State v. Trahan, 520 So.2d 789 (La.App. 3d Cir. 1987), writ denied.
In all other respects, we affirm.
SUFFICIENCY AND COMPETENCY OF EVIDENCE
At the habitual offender hearing, two deputy sheriffs who had separately arrested Hunt on the 1981 and 1988 marijuana charges identified him as the person they had arrested. Another deputy, a fingerprint expert, testified that the fingerprints on the 1981 bill of information against Hunt matched those taken by the deputy from Hunt in the parish jail on June 5, 1989, the day his trial began on the 1988 drug charges. The State introduced, without objection, the 1989 fingerprint card, a certified copy of the 1981 bill of information containing Hunt‘s fingerprints, and certified copies of the court minutes reflecting Hunt‘s 1981 conviction and 1982 sentenсing for cultivation of marijuana.
Other exhibits, admitted over Hunt‘s objections and complained of here, are the transcript of Hunt‘s 1981 guilty plea, a certified copy of the penitentiary packet showing the date of Hunt‘s discharge from custody for the 1981 offense as January 13, 1984, less than five years before the 1988 drug offenses were committed, and certified copies of the 1988 bill of information and the 1989 judgment sentencing Hunt for the 1988 offenses.
Hunt claimed his 1981 guilty plea was defеctive and could not be used for sentencing enhancement because he was not advised that he had the right to remain silent at the Boykin examination itself. He does not dispute that he was advised of his right to remain silent at trial when he entered the guilty plea. Boykin requires nothing more.
In order to effectively waive the constitutional right against self-incrimination, a defendant who pleads guilty must be advised of his right to remain silent at trial. A defendant does not have to be advised that he has a right “to stand mute and refuse to enter a plea of any nature at the Boykin examination.” State v. Richard, 550 So.2d 300 (La.App. 2d Cir.1989);
Hunt relies on State v. Robicheaux, 412 So.2d 1313 (La.1982) and State v. Martin, 382 So.2d 933 (La.1980), overruled in part on other grounds in State v. Williams, 392 So.2d 448 (La.1980). These cases do not avail Hunt, as they involved the failure to advise of the right to remain silent at trial. Hunt was advised of that right.
On appeal, Hunt argues for the first time that the guilty plea transcript was not properly certified or authenticated. His failure to object to the transcriрt on this basis in the trial court precludes our review of this contention. CCrP Art. 841; State v. Lozier, 375 So.2d 1333 (La.1979).
Hunt also contends the trial court erred in overruling his objections to the admissibility of certified copies of three documents: the penitentiary packet frоm the Louisiana Department of Public Safety and Corrections, the 1988 bill of information, and the 1989 judgment sentencing Hunt for the 1988 offenses. He contends these exhibits “were not properly certified by the custodian or other person authorized to make the certification [under
The penitentiary packet was certified as a “true and correct [copy] of the records of the Louisiana Department of Public Safety and Corrections regarding Terrance Keith Hunt” by the “Records Custodian fоr the Louisiana Department of Public Safety and Corrections, Correction Services.” The bill of information and the judgment were certified as true copies by a deputy clerk of the district court.
Section 529.1 F provides that cеrtain documents “shall be prima facie evidence of the imprisonment and of the discharge” of the person charged as a habitual offender. These documents include
The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state ... or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the сourt in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary ...
This statute provides one method of proving prior convictions, but does not preclude proof by other competent evidence. State v. Blackwell, 377 So.2d 110 (La.1979).
A copy of a penitentiary packet certified by the officer with legal custody of the documents has been held to comply with
The certified copy of Hunt‘s penitentiary packet was also admissible without extrinsic evidence of authenticity under
The certified copy of Hunt‘s penitentiary packet was admissible, competent evidence under
The copies of the bill of informatiоn and judgment, certified as true copies of the originals by the deputy clerk of the district court, were also self-authenticating under
EXCESSIVENESS OF SENTENCE
Hunt‘s conviction of possession of marijuana with intent to distribute exposed him to 5-30 years without enhancement and to 10-60 years with enhancement.
In this appeal of the enhanced 20-year sentence for the marijuana offense, Hunt again contends the “three sentences ... are unjustified and are grossly out of proportion to the severity of the offenses that he was convicted of ... [and that] the trial court failed to adequately comply with ...
In Hunt‘s prior appeal, we noted his age (41 in 1988), his extensive criminal record (18 arrests between 1965 and 1988), including the prior Louisiana felony conviction and a 1976 felony conviction in Texas for aggravated assault with serious bodily injury, and his lengthy involvement with illegal drugs. Hunt‘s first drug arrest, for possession of marijuana, was in 1975. After his release from prison on the 1981 conviction for cultivation of marijuana, Hunt sold marijuana and began “cooking, packaging and distributing” methamphetamine, notwithstanding his inheritance of about $60,000 in cash and a house from his mother. When he pleaded guilty to the 1981 marijuana offensе, other charges of attempted murder of a police officer and resisting arrest were nolle prossed. From these incidents and the fact that Hunt kept an “arsenal of weapons and ammo” at his house, where he mаde and sold drugs, we found that he showed “a dangerous willingness to resort to firepower in defense of his [drug] `business.‘” 568 So.2d at 1110.
When the trial court imposed the enhanced sentence, it reiterated the aggravating factors of Hunt‘s age, criminal history, аnd seriousness of his conduct in introducing drugs into the community. The court again mentioned in mitigation that Hunt had attended college and was honorably discharged from the Air Force.
The court adequately articulated the factual basis for the sentence under
DECREE
We affirm Hunt‘s adjudication as a second felony offender under
As amended, the 20-year hard labor sentence is
AFFIRMED.