STATE of Louisiana v. David E. SMITH.
No. 2005-KA-0375.
Court of Appeal of Louisiana, Fourth Circuit.
July 20, 2005.
913 So.2d 836 (2005)
MICHAEL E. KIRBY, Judge.
Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE.
Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
MICHAEL E. KIRBY, Judge.
STATEMENT OF CASE:
On August 6, 2004, the defendant, David E. Smith, was charged by bill of information with one count of attempted first degree murder of a police officer in violation of
ERRORS PATENT
A review of the record for errors patent reveals none.
STATEMENT OF FACT
The Defendant‘s sole assignment of error relates to his adjudication as quadruple multiple offender. Therefore, we find it unnecessary to relate the details of the circumstances that led to his arrest and conviction for aggravated battery, possession of cocaine and simple escape.
DISCUSSION ASSIGNMENT OF ERROR NUMBER 1
While the defendant alleges only one assignment of error, he asserts five arguments in support of the assignment of error. The defendant claims that the State could not meet its burden of proving that he was a quadruple offender. His first argument in support of this allegation is that the multiple bill procedure and evidence were insufficient. The defendant contends that under
The concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of a state, and they guarantee a jury‘s finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres[ v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)] clearly authorizes a to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality, see Jones, supra, at 239, 119 S.Ct. 1215, therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea, just as Taylor constrained judicial findings about the generic implication of a jury‘s verdict.
We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.
The defendant contends that the Shepard, along with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that there be a jury trial on the issues of identity, ten year lapse, whether the predicate offenses occurred before the present offense, and whether the predicate offense fit the enumerated aggravating convictions. In Apprendi, the U.S. Supreme Court stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435. This rule was recently reiterated by the U.S. Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States Supreme Court clearly made an exception for prior convictions. Thus, under Apprendi the defendant‘s prior convictions were not required to be submitted to a jury. In addition, all the issues raised by the defendant concerning the predicate offenses can be determined by reviewing the documents submitted in support of the
The defendant further complains that the due process requirements of
Further, nothing in
The defendant complains that the trial court failed to issue written reasons for its judgment. As the defendant failed to object to the lack of written reasons, this argument is without merit.
Defendant‘s fourth argument concerns the State‘s alleged failure to prove the predicate offenses. He also suggests that the prior conviction for second offense marijuana conviction could not be used as a predicate offense. He also contends that the State failed to prove the sufficiency and validity of the prior guilty pleas.
The Louisiana Supreme Court set forth the burden of proof in habitual offender proceedings in State v. Shelton, 621 So.2d 769, 779-780 (La.1993):
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. [Footnote omitted]. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant‘s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin[ v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] rights.
The Court in Shelton minimized the burden on the state by requiring it only to produce a minute entry of a guilty plea which must also demonstrate that the defendant was represented by counsel.
However, although the State generally has the burden of proving that the ten-year period has not expired, the State need not prove the discharge date when less than ten years have elapsed between the last conviction and the subsequent conviction. Collins; State v. Tucker, 95-0030 (La.App. 4 Cir. 9/18/96), 682 So.2d 261.
Proof of identity can be established through a number of ways, including expert testimony matching the fingerprints of the accused with those in the record of the prior proceeding. State v. Isaac, 98-0182 (La.App. 4 Cir. 11/17/99), 762 So.2d 25. It is sufficient to match fingerprints on an arrest register to a defendant, and then match the arrest register to a bill of information and other documents evidencing conviction and sentence; this can done through a date of birth, social security number, bureau of identification number, case number, specifics and details of the offense charged, etc. See State v. Payton, 2000-2899 (La.3/15/02), 810 So.2d 1127; State v. Anderson, 99-1407 (La.App. 4 Cir. 1/26/00), 753 So.2d 321.
In the present case, the State alleged defendant had three prior convictions: possession of a stolen vehicle valued over five hundred dollars, attempted possession of cocaine and possession of marijuana, second offense. In regards to the conviction for possession of a stolen vehicle, the State produced the bill of information, the waiver of rights form, the docket master, the minute entry of the guilty plea and the arrest register. These documents show that the defendant was arrested on July 16, 1996, for possession of a stolen vehicle. He was charged with the offense on September 13, 1996, by bill of information. The defendant pled guilty as charged on September 19, 1996, and was sentenced to one year at hard labor. The sentence was suspended and the defendant was placed on probation for eighteen months. The waiver of rights form and minute entry indicate that the defendant was represented by counsel and fully advised of his rights prior to pleading guilty.
The State introduced the bill of information, the multiple bill of information, the docket master, the minute entry and the arrest register to prove the defendant‘s conviction for attempted possession of cocaine. The documents reveal that on September 28, 1998, the defendant was arrested for possession of cocaine. He was charged with possession of cocaine in a bill of information filed on October 1, 1998. The defendant was found guilty of attempted possession of cocaine after a bench trial on March 22, 2000. The State filed a multiple bill on the same date. The defendant admitted the prior conviction and was sentenced to fifteen months at hard labor. The docket master and minute entry indicate that the defendant was represented by counsel and advised of his rights.
At the multiple hearing, Officer Jon Steele took defendant‘s fingerprints and compared them to the fingerprints on the bills of information and arrest registers for the three prior convictions. He testified that the defendant‘s fingerprints matched the fingerprints found on the arrest registers and the bills of information.
These documents and the testimony of Officer Steele prove that the defendant was a quadruple offender. The State met its burden of proving the validity of the guilty pleas, the defendant‘s identity, and the fact that less than ten years elapsed between convictions.
Further, the defendant‘s argument that the conviction for possession of marijuana, second offense, cannot be used in the multiple bill is without merit. The defendant relies upon the jurisprudence set forth in State v. Hymes, 513 So.2d 371 (La.App. 4 Cir.1987) and State v. Harrison, 32,643 (La.App. 2 Cir. 10/27/99), 743 So.2d 883. In Hymes, this Court held that the use of both a
Defendant‘s argument is without merit.
Lastly, the defendant argues that his sentence is excessive. Under
CONCLUSION
For the reasons stated above the defendant‘s convictions and sentence as a multiple offender are affirmed.
AFFIRMED.
MICHAEL E. KIRBY
JUDGE