State v. MonetteState v. Monette
Defendant, Walter Gregory Monette, was arrested on March 28,1993, when a search of the vehicle he was driving revealed a bottle containing 25 rocks of crack cocaine. He was convicted under
Dеfendant appealed, and in an unpublished opinion, the Third Circuit Court of Appeal found that the defendant had not been informed of his right to remain silent prior to the habitual offender proceeding. Although his conviction was affirmed, the defendant was remanded to the district court for resen-tencing.
|2On remand, the State introduced the testimony of the defendant’s probation officer, the minute entry and bill of information from the prior conviction, and a photograph taken from the probation officer’s file for the prior cоnviction. The trial court concluded that the defendant was in fact the same Walter Gregory Monette that had been convicted for the prior offense, and on May 15,1995, again sentenced him to eighteen (18) years under the provisions of
The defendant now appeals, assigning the following errors: (1) that the evidence adduced at the habitual offendеr hearing was insufficient for a finding that the defendant was a second felony offender under the terms of
• For reasons which follow, we find the assignments of error without merit. Nevertheless, since we note errors patent in the sentencing of the defendant, we remand this case to the district court so thаt defendant’s sentence may be amended.
HABITUAL OFFENDER
The defendant asserts that the evidence adduced prior to his sentencing under
In order to prove that the defendant is a habitual offender, the State must establish by competent evidence that there is a prior felony сonviction and that the defendant is the person convicted of the prior felony. State v. Yarbrough,
In the case sub judice, the State introduced the minute entry and the bill of information from case # 232,943, entitled State v. Walter Gregory Monette, in which a defendant named Walter Gregory Monette pled guilty on July 15, 1992, to possession with intent to distribute crack cocaine. The defendant in case #232,943 received a suspended sentence of five years at hard labor and was placed on supervised probation for three years. The State also offered the identification testimony of the defendаnt’s probation officer, Ms. Martha King.
Ms. King admitted that she was not present at the defendant’s prior conviction and that she inherited the case in March of 1993. Nevertheless, she stated that she had been present when the defendant’s probation for #232,943 was revoked and that she made numerous visits to the Rapides Parish Jail to discuss the defendant’s case with him. She statеd that he never denied that he was the same Walter Gregory Monette convicted on the prior charge. She further stated that she had been to the defendant’s home and had discussed his case with his mother. She affirmatively identified the defendant as the individual convicted under #232,943. Ms. King also produced a photograph from her ease record for # 232,943, and shе identified the photograph as that of the defendant.
The trial court stated that it was satisfied that both felonies had been committed by the defendant. We agree. The bill of informаtion and the minute entry from the predicate offense in addition to the identification testimony of the defendant’s parole officer was sufficient to establish that defendant wаs convicted of both felonies. See State v. Jarvis,
EXCESSIVE SENTENCE
Defendant asserts that his sentence is constitutionally excessive. He was sentenced to eighteen (18) years at hard labor. Pursuant to
The penalty for distribution of cocaine under
Excessive sentences are prohibited by both the Eighth Amendment of the United States Constitution and Art. 1, § 20 of the Louisiana Constitution of 1974. Under State v. Sepulvado,
The Louisiana Supreme Court addressed the issue of excessiveness of sentence in State v. Lobato,
A sentence is constitutionally excessive if it is grossly out of proportion to the seriousnеss of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonanno,384 So.2d 355 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan,480 So.2d 288 (La.1985). Thejgsentence imposed will not be set aside absent a showing of manifest abuse of the triаl court’s wide discretion to sentence within the statutory limits. State v. Square,433 So.2d 104 (La.1983).
Lobato,
The record reflects that the sentencing judge gave careful consideration to the defendant’s prior history of criminal activity in imposing sentence. A sentencing court may consider criminal activity that did not lead to a conviction. State v. Brown,
We note that the sentence imposed is within the low range of possible sentences. Considering the extensive criminal background of the defendant as well as his tendency to continue to commit crimes, even while on probation, we find that the sentence imposed does not shock our sense of justice.
ERRORS PATENT
We have reviewed the record for errors discoverable by a mere inspection of the pleadings and proсeedings in accordance with La.Code Crim.P. art. 920. We have discovered three errors patent on the face of the record. First, the sentencing court did not inform the defеndant of the prescriptive period for post-conviction relief as provided by La.Code Crim.P. art. 930.8. Also, the sentencing court neglected to grant the defendant credit for time served. Finally, the sentencing court did not inform the defendant of his right to remain silent during the habitual offender proceeding.
Failure to inform defendant of prescriptive periоd for post-conviction relief has no bearing on the excessiveness of sentence and is not grounds to reverse the | ¡¡sentence or remand the case for resentеncing. The trial court is directed to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant and to file written proоf in the record that defendant received the no
Defendant is entitled to credit for time served under La.Code Crim.P. art. 880. Therefore the case is remanded so that the defendаnt’s commitment and minute entry can be amended to reflect a credit for time served.
The sentencing court in the case sub judice did not inform the defendant of his right to remain silent during the habitual offender proceeding. Neverthеless, the record reflects that the defendant was certainly aware of this right since his prior sentence under the habitual offender statute had been overturned for this very reаson. Furthermore, the record reflects that the defendant remained silent throughout the proceedings and that the State introduced competent evidence of the defendant’s prior conviction. We therefore conclude that this error is harmless. See State v. Hodges, 94-898 (La. App. 3 Cir. 3/1/95);
For the foregoing reasons, the defendant’s sentence and conviction are аffirmed. This case is remanded to the sentencing court with instructions to amend the commitment and minute entries to reflect a credit for time served and to provide the defendant with written notice of the prescriptive period for post-conviction relief.
AFFIRMED AND REMANDED.