State v. RuizState v. Ruiz
- Reporters:
- ,
- Before:
- John D. Saunders, Glenn B. Gremillion, Elizabeth A. Pickett
On July 11, 2002, the State filed a bill of information charging Defendant, Gregory Ruiz of New Iberia, with possession of cocaine, second offense, in violation of
Subsequently, Defendant was billed and adjudicated to be a second habitual offender. The court sentenced him to five years at hard labor for possession of cocaine, second offense, and to thirty years for distribution of cocaine, pursuant to his adjudication as a habitual offender.
Defendant now seeks review of his convictions. His appellate counsel assigns a single error on appeal. We observe that the appeal has been consolidated with two pro se writs, in which Defendant argues a combined total of five errors.
Based on our analysis of Defendant‘s arguments, both counsel-filed and pro se, we vacate only the second-offense portions of Defendant‘s convictions and order the entry of convictions for the underlying offenses.
FACTS:
Defendant sold cocaine to an undercover officer in Iberia Parish.
ERRORS PATENT:
In accordance with
ASSIGNMENTS OF ERROR:
As already noted, two pro se writs have been consolidated with Defendant‘s counsel-filed appeal. We will address the counsel-filed assignment first, then proceed to the pro se assignments.
ASSIGNMENT OF ERROR (Appeal, 06-30):
Defendant argues that the “ends of justice require the granting of a new trial” due to the supreme court‘s ruling in State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399. The Skipper court held that allegations of prior offenses must not appear in charging instruments of subsequent offenses. Id.
In the present case, the State charged Defendant with second-offense possession of cocaine and second-offense distribution of cocaine, both in violation of
Unlike criminal statutes which contain their own enhancement provisions for multiple violations of the same criminal act, La.R.S. 40:982 is a completely separate statute which does not in and of itself define a crime. In addition, La.R.S. 40:982, like La.R.S. 15:529.1, is applicable to numerous different and unrelated felonies. Although all of the felonies must be prohibited under the Uniform Controlled Substances Law in order for La.R.S. 40:982 to be applicable for sentence enhancement, the felonies are not required to be violations of the same criminal act. La.R.S. 40:982 does not transform the prior felonies into an element of the most recently committed offense, nor does the statute effect the grade of the offense, the trial procedure for the adjudication of that offense or the consequences, except to allow enhancement of sentence.
In Louisiana, sentencing is strictly a function performed by the trial judge. See La.C.Cr.P. art. 871(A) (“A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty or upon a judgment of guilt.“)(emphasis supplied). Thus, we find no rational basis or compelling state interest for a jury to be apprised of a defendant‘s prior conviction during the trial of the second or subsequent drugrelated offense for purposes of sentence enhancement under La.R.S. 40:982. This sentence enhancement provision can still be enforced without presenting the allegations of a defendant‘s prior convictions to the jury before a determination of guilt for the instant offense is made.
CONCLUSION
For the foregoing reasons, we hold that La.R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, like La. R.S. 15:529.1, and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drugrelated offense nor may evidence of the prior offense be presented to the jury determining the defendant‘s guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement under La.R.S. 40:982.
State v. Murray, 357 So.2d 1121 (La. 1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under La.R.S. 40:982, are hereby overruled.
So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied La.R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.
Id. at 416-17, (footnotes omitted) (emphasis added).
We observe that Skipper‘s language raises the possibility that Defendant‘s convictions for second offenses under
(b) Paragraph A states the time for filing a motion to quash on fundamental grounds that are not waived by failure to urge them by a motion to quash. These grounds are:
(1) The offense is not punishable under a valid statute.
This is Ground (1) of Art. 532. It may also be urged as a ground for a motion in arrest of judgment under Art. 859(2), and is within the scope of appellate review without prior objection, under Art. 920(2), since it is an error discoverable by a mere inspection of the pleadings and proceedings and without the inspection of evidence.
Therefore, we will proceed with the analysis. However, to definitively state whether Defendant has been convicted of a non-crime, it is necessary to decide whether Skipper applies retroactively to the present case. When the Skipper ruling was issued, Defendant had been convicted and was waiting to be sentenced. The State argues Skipper should not apply retroactively, citing State v. Beer, 252 La. 756, 214 So.2d 133 (1968).
Our research has located no cases in which this aspect of Skipper has been discussed. In an unpublished case, State v. Butler, an opinion bearing docket number 05-297 (La.App. 3 Cir. 11/2/05), 914 So.2d 146, we recently discussed Skipper, although we did not address the retroactivity issue, or
Thus, we found error, conducted a harmless error analysis, and affirmed the defendant‘s conviction for possession of a controlled dangerous substance, second offense. As previously mentioned, the opinion did not address retroactivity. In view of the information presented, we now find that the omission of that issue, and thus, the decision to affirm the defendant‘s conviction for second-offense possession of a controlled dangerous substance, was in error. We note that a writ application is pending before the supreme court in Butler; however, no action had been taken at the time this opinion was written.
In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the supreme court traced the evolution of United States Supreme Court cases addressing the retroactivity of new rulings to cases final at the time the new ruling was rendered, as well as those that were pending on direct review at the time the new ruling was issued.1 In doing so, the
In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court‘s decisions in this area. The Court began from the premise that the “federal constitution has no voice upon the subject” of retroactivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court concluded “that the Constitution neither prohibits nor requires” that retroactive application be given to any new constitutional rule, and proceeded to hold that its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 61[6] L.Ed.2d 1081 (1961), did not require retroactive application. In doing so, the Linkletter Court set forth a three-pronged analysis to determine retroactivity: (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Linkletter test was applied to final convictions, and convictions at various stages of trial and direct review. Nonetheless, the application of the Linkletter test led to confusion, and was criticized as creating “incompatible rules and inconsistent principles.” Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1968)[ (1969) ] (Harlan, J. dissenting). In an attempt to resolve this problem, Justice Harlan suggested a new test in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1970)[(1971)] (separate opinion of Harlan, J.).
. . . .
Accordingly, he proposed a general principle whereby “all constitutional errors not waived or harmless are correctable on habeas and by defining such errors according to the law in effect when a conviction became final.” Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under this general principle, new rules would not be given retroactive effect on collateral review, although they would be applied to cases pending on direct review. However, Justice Harlan created two exceptions in which he would give retroactive effect to new rules on collateral review. The first exception involved new substantive due process rules—i.e., rules placing certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. The second exception referred to new rules which required observance of “those procedures that. . . are implicit in the concept of ordered liberty” and altered our understanding of the “bedrock procedural elements” of a fair trial.
. . . .
In the next several years, the Court began to gradually move away from Linkletter and toward the analysis suggested by Justice Harlan. The Court began by adopting Justice Harlan‘s view that a new rule should be applied retroactively to all cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).
The Supreme Court, in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), held, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rules constitutes a `clear break’ with the past.”
The Taylor court also discussed pertinent Louisiana court rulings on retroactivity:
Turning now to our state law decisions on retroactivity, we find they have also recognized the principle that the constitution does not prohibit nor require courts to give retroactive application to criminal law decisions. State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Our cases decided after Linkletter reflect the confused state of the law under that case.
. . . .
Subsequently, our cases have followed Griffith v. Kentucky, supra, and have applied new rules to cases pending on direct review or not yet final. See State v. Sanders, 523 So.2d 209 (La.1988); State v. St. Pierre, 515 So.2d 769 (La. 1987). In fact, we recently applied the State v. Cage [583 So.2d 1125 (La.1991), cert.denied, 502 U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991)] rule to a case pending on direct appeal at the time Cage was rendered. State v. Smith, 600 So.2d 1319, 1326 n. 5 (La.1992).
Taylor, 606 So.2d at 1296 (emphasis added).
The conviction in Taylor was final, and the rule at issue was not retroactively applied. However, we note two more recent cases in which the supreme court and second circuit, relying on Griffith, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, applied a new ruling to a case pending on appeal. See State v. Naquin, 00-291, 00-296 (La.9/29/00), 769 So.2d 1170 and State v. Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293. We find the State‘s reliance on Beer is misplaced, since Beer, 252 La. 756, 214 So.2d at 133, belongs to the earlier Linkletter and Stovall line of jurisprudence. Beer, 214 So.2d at 135-36.
In light of the foregoing jurisprudence, we find that Skipper retroactively applies to Defendant‘s case. When Skipper was decided, Defendant had been tried and convicted and was awaiting sentencing. Clearly, his conviction was not yet final and the foregoing jurisprudence supports the retroactive application of Skipper to his case. Thus, we find that it was error for the State to charge the prior offense in the bill of information.
We note that in Skipper, the defendant was originally charged by bill of information with violating
Thus, we choose to vacate only the second-offense portions of the convictions. One reason is that
A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B), R.S. 40:967(B), R.S. 40:968(B) or R.S. 40:969(B), and if it is the offender‘s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.
B. For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the commission of such offense, the offender had at any time been convicted of any violation of this state, the United States, any other state of or any foreign country, relating to the unlawful use, possession, production, manufacturing, distribution, or dispensation of any narcotic drug, marijuana, depressant, stimulant, or hallucinogenic drugs.
Thus,
It is well-settled that in cases where Louisiana courts have reversed convictions for insufficiency of the evidence, they have authority to order the entry of convictions for lesser-included offenses where the records support such lesser convictions. Similarly, we vacate the second-offense portions of the convictions, but order the entry of convictions for the more recent conduct, under
We note State v. Wells, 01-1276 (La. App. 5 Cir. 3/26/02), 815 So.2d 1063, a pre-Skipper case that concluded that
The Wells decision suggests that the
If the provisions are severable, then a conviction for the second-offense portion of such a conviction could be vacated, but the invalidity of the second-offense portion of the conviction would not prevent us from ordering the entry of convictions under
We also note another fifth circuit case which discussed a situation analogous to the present case:
The defendant was originally charged with violating LSA-R.S. 14:84(1) and (4) and was subsequently convicted under both sections. As the constitutionally deficient provision of LSA-R.S. 14:84 is clearly severable from the remaining sections of the statute, the finding that one portion of the statute was unconstitutional did not affect the validity of the section of the statute under which the defendant was convicted. The Louisiana Supreme Court held in State v. Williams, 400 So.2d 575, 580 (La.1981) “[t]he unconstitutionality of one portion of the statute, however, does not necessarily render the entire statute unenforceable. If the remaining portion of the statute is severable from the offending portion, this Court often strikes only the offending portion and leaves the remainder intact.” When a section of a law is stricken and the remaining sections are complete in themselves, and capable of being executed, wholly independent of the section which was rejected; and where there is no conflict in the penalties imposed and no confusion, the conviction of a defendant under a valid section will stand. State v. Taylor, 396 So.2d 1278 (La.1981); State v. McCoy, 395 So.2d 319 (La.1980); City of New Orleans v. White, 78 So. 745, 143 La. 487 (La.1918). Thus, it is only necessary for this court to determine if the evidence presented by the state was sufficient to prove the elements of LSA-R.S. 14:84(1) in order to affirm Tuscano‘s conviction in this matter.
State v. Tuscano, 492 So.2d 67, 68 (La. App. 5 Cir.), writ granted, 494 So.2d 1165 (La.1986), on remand, 520 So.2d 1311 (La. App. 5 Cir.1988) (footnote omitted).2
A footnote in Tuscano observed that the legislation enacting
Further, we find that Tuscano and Wells are sufficiently analogous to the present case to indicate that we may view the
Because we have elected to affirm the convictions as
Here, Defendant sold cocaine to an undercover police officer. Thus, we find that in the present case, as in Wells, the State presented strong evidence regarding the violation of
PRO SE ASSIGNMENTS (CONSOLIDATED WRITS):
As noted earlier, Defendant has submitted two pro se writs, bearing docket numbers 05-1098 and 05-1261, for review. Both writs have been consolidated with his appeal.
05-1098
ASSIGNMENTS OF ERROR NOS. 1 & 2, & SUPPLEMENTAL ASSIGNMENT:
In his first assignment of error, Defendant complains that appointed trial counsel was substituted, so that he received new counsel three weeks before trial. He argues that counsel did not have sufficient time to prepare for trial, in contrast to the prosecutor, whom Defendant alleges had three years to prepare. In a supplement to this writ, Defendant asks this court to order a copy of a “Faretta hearing” held on March 14, 2005, to help in the evaluation of his arguments. Defendant observes that the hearing was held because he was nervous that his trial counsel was not prepared for trial. Further, he states, “The main issue is she lied to me, telling me she was an experienced trial attorney.” Defendant alleges a number of deficiencies in trial counsel‘s performance or conduct, including incompetence, lack of diligence, and misrepresentation. Thus, the crux of his argument appears to focus upon counsel‘s actions, rather than upon any desire to have represented himself. We find Defendant‘s arguments are in the nature of an ineffective assistance of counsel claim, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Also, arguments that an attorney has lied to his client invariably involve conversations or statements that would not typically appear in a trial record. Therefore, we hold that these arguments are to be deferred to the post-conviction process, where Defendant will have an opportunity to develop the record regarding trial counsel‘s actions.
If Defendant does have concerns more directly related to Faretta, we hold that
ASSIGNMENT OF ERROR NO. 3:
In the third assignment in this writ, Defendant complains that a pro se motion to suppress filed by him was never heard. When a defendant proceeds to trial without obtaining rulings on his pre-trial motions, such motions are considered waived. State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, writ denied, 03-409 (La.10/10/03), 855 So.2d 334; State v. Pratt, 32,302 (La.App. 2 Cir. 9/22/99), 748 So.2d 25.
In the present case, the record reflects that Defendant‘s motion to suppress was continued without date, on motion of his counsel, on February 24, 2005. Our review of the record indicates that Defendant did not attempt to raise the motion again until the hearing on his motion for new trial on August 8, 2005. At said hearing, the trial court stated that there was no basis for the motion to suppress because police had obtained cocaine directly from Defendant in a drug transaction, thus supporting the distribution charge, and that police obtained other cocaine evidence when Defendant abandoned it at the time of his arrest.
We find that there is no need to conduct a review of the trial court‘s cursory assessment of the merits. For the purposes of appellate review, the motion was waived when Defendant proceeded to trial without obtaining a ruling. Therefore, this assignment lacks merit.
05-1261:
In this writ, Defendant sets out three assignments of error.
ASSIGNMENTS OF ERROR NOS. 1-3:
Because the first and third assignments focus upon Defendant‘s arraignment, we will discuss them together. The second assignment is a claim that his Due Process rights were violated. The writ does not clearly allege the manner of the violation. However, we find the assignment also relates to Defendant‘s arraignment, since the body of Defendant‘s “conclusion” focuses upon that proceeding.
Defendant claims he was never arraigned. He acknowledges that the minutes reflect that he was arraigned, but states he is “unaware of such a hearing.” He claims that the transcript would show that no arraignment occurred, but that he has been unable to obtain a copy of the transcript.
The relevant provision,
Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.
As noted above, the minutes of court show that Defendant was arraigned via audio-visual telecommunication, as authorized by
MR. RUIZ:
A Because a lot of the proceeding hearings, I didn‘t hear what went on. When they arraigned me, I never got a subpoena to be arraigned. I didn‘t know I was being arraigned until after I was arraigned. I didn‘t know what I was charged with. I had to send my daughter to the courthouse to get a copy of the Bill of Information. Okay. If they wouldn‘t have told me after I was out of here that I was arraigned, I wouldn‘t have know what happened.
THE COURT: All right. So on the Motion to Dismiss, your complaint is that you weren‘t informed as to what was going on?
We observe that Defendant‘s written “Petition to Dismiss” also acknowledged that an arraignment was conducted, but argued that he did not understand the proceedings. The trial court denied the motion, finding that Defendant had not been prejudiced, as a not guilty plea was entered on his behalf, Defendant went to trial, and obtained a mistrial.
In an earlier, unsigned, “Motion to Dismiss,” filed on November 31, 2003, Defendant complained, “I haven‘t been brought upon [sic] my said case since my Arraignment on said date of August 13, 2002.” (Emphasis added).
We note another acknowledgment by Defendant that an arraignment occurred. In a writ application to this court, Defendant sought review of the denial of his Motion to Dismiss. He implicitly acknowledged that an arraignment had occurred when he argued that because of his poor hearing, he could not understand the proceedings. We denied the writ, stating, “The Defendant fails to prove he is entitled to relief.” State v. Ruiz, an unpublished opinion bearing docket number 04-1587 (La.App. 3 Cir. 12/10/04).
We find that the argument that no arraignment occurred is different than the argument that one was held, but Defendant did not understand the proceedings. The record contains multiple motions attacking the arraignment on one of these grounds or the other, and at times conflating the two. However, the language of Defendant‘s current assignments contend that no arraignment occurred. He asks this court to order a transcript of the proceedings for the arraignment date, August 13, 2002, but it is not clear how he expects such a transcript to further his argument. He does not allege any prejudice; the minutes indicate that he was represented by counsel at arraignment, that a not guilty plea was entered, and that his right to trial by jury was reserved. He was represented by counsel at both of his trials, and was able to secure a mistrial in the first. Thus, even if there was some defect in the arraignment, we find that Defendant has failed to show that any prejudice resulted.
For the reasons listed above, we find that contrary to Defendant‘s current assertions, the lower court held an arraignment. The argument that he did not understand the arraignment proceedings is not before this court.
For the reasons discussed, these assignments lack merit.
CONCLUSION:
Pursuant to Skipper,
Therefore, Defendant‘s convictions for second-offense possession and second-offense distribution of cocaine and the attendant sentences, including the adjudication and sentence under
AFFIRMED AND REMANDED WITH INSTRUCTIONS.