State v. MallettState v. Mallett
On July 9, 1986, appellant, Wilfred J. Mallett, was indicted for simple burglary of a chemical warehouse, a violation of
ASSIGNMENT OF ERROR NO. 1
By this assignment of error appellant contends the trial court erred in accepting evidence of prior felony convictions because the trial judge failed to advise appellant of his privilege against self-incrimination prior to his admission of being the same individual previously convicted of the prior felonies alleged in the bill.
On original appeal, a panel of this court reviewed as an error patent on the face of the record the essential merit of appellant‘s assertion. The court referred to State v. Johnson, 432 So.2d 815 (La.1983) where the state Supreme Court emphasized that an individual‘s privilege against self-incrimination was not dependent on the nature of a proceeding, acknowledged
At the habitual offender hearing, the court advised appellant of his right to be tried as to the truth of the allegations according to law and further advised appellant that should he choose to deny the allegations, the State would be required to prove all allegations. The trial judge did not advise appellant of his privilege against self-incrimination or that by acknowledging his predicate offenses he would be waiving the privilege. Appellant acknowledged that he was the same individual convicted in the predicate felonies listed on the multiple offender bill.
In light of the jurisprudence cited above, the failure of the trial judge to advise appellant of his right to remain silent during the habitual offender hearing seemingly appears to warrant a reversal. However, in addition to an admission, habitual offender status may be established by compliance with
ASSIGNMENT OF ERROR NO. 2
By this assignment of error, appellant insists
In State v. Simmons, 422 So.2d 138 (La. 1982), the court reversed an adjudication of fourth offender status because the third felony used for enhancement was committed before the date of conviction for the second predicate felony. The court ruled that
Subsequent to Simmons, the Louisiana legislature modified
It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.
Despite this modification, the court in State v. Franklin, 501 So.2d 881 (La.App. 5th Cir.1987) stated the substance of the law did not change. In State v. Harris, 510 So.2d 439 (La.App. 1st Cir.), writ, denied, 516 So.2d 129 (La.1987), the court followed the Simmons rationale and reversed an adjudication of a third felony status because the second offense was committed before the guilty plea which constituted the first conviction.
At the habitual offender hearing in the instant case, the prosecution presented evidence of four prior convictions to be used for enhancement, excluding the instant offense
(1) May 17, 1971, conviction for five counts charging sale of mortgaged property and making false statements;
(2) May 7, 1981, conviction for interstate transportation of stolen property committed on August 24, 1980;
(3) October 15, 1981, convictions for four counts of felony theft committed in July and August, 1980;
(4) June 25, 1982, conviction for felony theft committed June 18, 1980.
Under the holdings of Simmons and Harris it would appear that only one of the final three convictions may be used for enhancement because each was committed before the conviction of any one of the crimes. Under such an analysis, the State could use only two of the four predicate felonies for enhancement of sentence.
However, we decline to follow the First Circuit‘s holding in Harris, finding that the 1982 amendment to
For the reasons stated, this assignment of error lacks merit.
ASSIGNMENTS OF ERROR NOS. 3 AND 4
By these assigned errors, appellant contests the admissibility of the evidence introduced to establish the third and fourth predicate felonies. Appellant also argues the first predicate felony which was a federal offense should not have been used for enhancement because the analogous state offense constitutes a misdemeanor in Louisiana and because the five year cleansing period had elapsed prior to the commission of the instant offense.
In order for a federal conviction to be used to enhance a conviction, the activity which gave rise to the defendant‘s federal conviction must constitute a felony under the most analogous Louisiana statute. State ex rel Wilson v. Maggio, 422 So.2d 1121 (La.1982); State v. Brown, 452 So.2d 326 (La.App. 4th Cir.1984). Additionally, to use the prior felony there must have not intervened, before the commission of another felony, five years between the end of the previous sentence and the commission of another felony. The date of the defendant‘s actual discharge from supervision determines the expiration of a given sentence. State ex rel Wilson v. Maggio, supra.
Initially, it should be noted that the prosecution successfully demonstrated that five years had not intervened between discharge from supervision on the initial predicate offense and the commission of the next predicate felony. The federal probation officer, who identified appellant as the individual convicted in May 1971, testified that appellant was not discharged from supervision until May 16, 1981. This day is clearly within five years of the commission of any of the other predicate felonies as well as within five years of the commission of the principal offense. Therefore, this argument is meritless.
Appellant places much emphasis on State v. Molinario, 383 So.2d 345 (La. 1980), cert. denied, 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106 (1980) in arguing the initial federal conviction would not constitute a felony under the analogous Louisiana law and should not be used for enhancement of sentence. In Molinario, the court ruled the State could not use a prior federal felony conviction for making false statements in an application for a firearm as enhancement because the most analogous Louisiana statute, false swearing in violation of
Appellant also contests the admissibility of the documentation introduced to establish the 1981 and 1982 felony theft convictions. At hearing on the habitual offender bill, appellant objected to use of each of the predicate felonies on the grounds that they were legally invalid, but he failed to object to the introduction of the documents supporting these convictions. Because appellant failed to object to the admissibility of the documentary proof of habitual offender status for failure to certify, the issue is not properly before this court for review.
For the reasons stated, these assignments of error have no merit.
ASSIGNMENT OF ERROR NO. 5
Appellant asserts that imposition of the maximum permissible sentence under the habitual offender statute is unconstitutionally excessive. Appellant argues that because his prior felony convictions were nonviolent crimes, the imposition of a life term is unconstitutionally excessive and constitutes an abuse of the trial court‘s sentencing discretion.4
Prior to sentencing, a hearing was held at which appellant was allowed to rebut and to explain the contents of the presentence investigation report. At sentencing, the trial judge noted that he had considered the presentence investigation report and discussed the potential penalties under the habitual offender law. In imposing the maximum term of natural life, the judge noted appellant‘s lengthy criminal record, that appellant at various times had state and federal parole revoked, and that the present crime was committed while appellant was on parole. The judge emphasized the loss incurred by the victim in the instant offense and the fact that the appellant solicited others to aid him in carrying out the burglary.
The trial court found no factors in mitigation of appellant‘s conduct. The judge emphasized society‘s need for protection and appellant‘s need for correctional treatment in a custodial environment. The sentencing judge, in finding appellant to be the “worst kind of offender,” stated that any sentence less than the maximum would deprecate the severity of the offense and would engender disrespect for the law.
In sentencing, the trial judge complied with art. 894.1(C) by stating the considerations used and the factual basis for the sentence. The judge made a reference to appellant‘s prior criminal record, to the severity of the instant offense, and to the liklihood of recidivism. In noting these factors, the judge relied upon a presentence investigation report, which was the subject of a hearing and which was made part of the record.
In asserting the excessiveness of his life sentence, appellant cites two cases. In State v. Clements, 433 So.2d 143 (La.1983), the court remanded for resentencing because the sentencing judge failed to articulate reasons for imposing a life sentence. Unlike Clements, in the instant case, the trial judge did not leave a “barren record;” he clearly enunciated justifications for the maximum sentence.
In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the trial court found a life sentence without benefit of parole imposed upon a criminal defendant convicted of issuing a “no account” check for $100.00 and adjudicated a habitual offender constituted an unconstitutionally excessive sentence. The court noted that the defendant was not a professional criminal, that the principal offense was a passive felony representing a minor amount of money and that the prior felonies were all relatively minor. The court recognized the ability of states to treat habitual offenders more severely than first offenders and acknowledged that economic crimes resulting in substantial losses can be treated more severely than those resulting in losses of a less severe magnitude. Finally, the court chose to distinguish, rather than to overrule, its previous decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). In that case the court upheld a life sentence imposed upon a third felony offender under a Texas recidivist statute. The defendant‘s principal offense in Rummel was obtaining $120.75 by false pretenses. The predicate felonies were convictions for passing a forged check in the amount of $28.36 and fraudulent use of a credit card to obtain $80.00. The Solem court ruled the sentence
In the instant case, the record exhibits that appellant, unlike the defendant in Solem, was a career criminal. Also, the principal offense did not constitute a passive felony but involved organizing, planning and executing a complex criminal conspiracy to deprive the rightful owner of over $143,000.00 of chemicals. Over $16,000.00 of the loss was not covered by the insurance company which also refused to cover the victim after the burglary. In addition to the crimes specified in his habitual offender bill, the presentence investigation demonstrates appellant has several other convictions and numerous arrests dealing with firearms and force against victims. Because the sentence was imposed prior to amendment of
In emphasizing the need for protection of the public, the trial judge noted at the sentencing hearing that appellant had outstanding felony charges in three other parishes. The desire to protect the public from future criminal activity is a legitimate sentencing concern. State v. Thomas, 447 So.2d 1053 (La.1984). Appellant‘s criminal activity has been regular and systematic. The trial judge‘s finding that appellant is among the most blameworthy offenders is not manifestly erroneous.
In State v. Siegel, 376 So.2d 492 (La. 1979), the court upheld a life sentence imposed on a fourth offender convicted of simple burglary. Like the instant case, none of the prior felonies in Siegel consisted of crimes of violence against an individual. As in this case, the defendant had a significant prior criminal record and showed little inclination toward rehabilitation.
The sentence imposed in this case was not an abuse of the judge‘s wide discretion. While severe, the sentence is not so disproportionate to the crime or to the appellant as to shock our sense of justice. Nor does the penalty operate to inflict needless pain and suffering.
This assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 6
By this assignment of error, appellant asks this court to review the record for errors patent. Appellant also reurges arguments briefed in earlier assignments of error.
Finding no errors discoverable on the face of the pleadings and having discussed the issues raised in previous assignments of error, this assignment leaves nothing for review.
DECREE
For the above and foregoing reasons the conviction and sentence of appellant, Wilfred James Mallett, are affirmed.
AFFIRMED.