State v. TaylorState v. Taylor
The defendant, Charles Taylor, was indicted on two counts of distribution of cocaine, in violation of
The State thereafter filed a multiple offender bill of information pursuant to the provisions of
On April 28, 1992, defendant filed a Motion for New Trial based on newly discovered
In our jurisdictional review of the record lodged in this case, we note that the defendant has not yet been re-sentenced in this case as previously ordered. This appeal is therefore premature. Accordingly,
IT IS ORDERED, that this matter be removed from the docket of Thursday, July 8, 1993, and that all proceedings in this Court be stayed pending the re-sentencing of the defendant.
IT IS FURTHER ORDERED, that Charles Taylor be re-sentenced on or before May 28, 1993, and, that following the imposition of sentence, the appeal record is to be supplemented with the transcript of the proceeding.
IT IS FURTHER ORDERED, following supplementation of the record, that new briefing dates be assigned and the matter be redocketed for argument.
On May 19, 1993, defendant appeared in court for re-sentencing pursuant to the mandate of this court. Despite the fact that defendant was unrepresented by counsel, the trial judge proceeded with the sentencing. The court read the multiple offender bill and advised defendant of his rights. Specifically, the trial judge advised defendant of his right to remain silent and his right to a formal hearing. At this hearing, defendant indicated that he did not need the judge to appoint an attorney and ultimately admitted, pursuant to questioning by the court, that he was the same person who pled guilty on April 11, 1983, to robbery and was sentenced to fifteen years with the Mississippi Department of Corrections. After defendant admitted the allegations contained in the multiple bill, the judge re-sentenced defendant on the multiple offender bill to fifteen years at hard labor.
Since defendant was unrepresented at the May 19, 1993 hearing, the court, pursuant to a request by the state, re-sentenced defendant in the presence of counsel on July 28, 1993. The judge indicated that he was going to re-sentence defendant to correct any possible illegal sentence that might have been imposed previously as a result of his attorney not being present. On that date, the court read the allegations contained in the multiple offender bill. This time, the defendant denied the allegations contained in the multiple offender bill of information. After the state offered into evidence the certified records from Mississippi, the matter was set for an evidentiary hearing.
On September 29, 1993, the court conducted a hearing on the allegations contained in the multiple offender bill of information. At this hearing, after being accepted as an expert in fingerprint identification, Lieutenant Luis Mungia of the St. Charles Parish Sheriff‘s Office, was asked to compare the fingerprints of the defendant with the fingerprints on the copy of the fingerprint card contained in the certified pen packet from Mississippi, which was introduced into evidence. He testified that the fingerprints were made by the same individual. After considering the evidence, the judge adjudicated defendant to be a multiple offender and sentenced him to fifteen years at hard labor.
In February of 1994, defendant filed a writ of habeas corpus to vacate an illegal multiple bill sentence, alleging that the state failed to prove that he was properly “boykinized” in the predicate offense. On June 1, 1994, the trial judge signed an order setting the matter for yet another multiple offender hearing.
In July of 1994, defendant filed what he called a “Supplement to Amend Motion to Quash to Original Writ of Habeas Corpus to Vacate an Illegal Multiple Bill Sentence.” In that document, defendant requested that the multiple offender bill of information be quashed.
On September 21, 1994, the court conducted another hearing to address the issues of whether defendant was represented by counsel
I understand. It was reduced to robbery. This judge in Mississippi painstakingly boykinized this individual, some 11 pages worth, went through his personal life with him, made sure he understood all of his rights, had a colloquy with him to determine that in fact this man was guilty, that he wanted to plead guilty. This judge in Mississippi did an exemplary job. And it‘s obvious from the face of this record that this offense of robbery is a felony which can be used to enhance this individual‘s penalty. The Court will accept this Multiple Offender Hearing Exhibit B as the proof that is shows—It shows that he was represented by his attorney, who was present; his name was Honorable John Jackson, attorney at law, McComb, Mississippi. His right forms, which he signs, and certified to by the attorney, John Jackson, indicated that this individual knew exactly what he was doing. All right. The Court finds that the State has satisfied its hearing in this particular case; that the—all requisites for sentencing him as a multiple offender has been conducted and carried out; and there is no further relief to which Mr. Taylor is entitled to, in this Court‘s opinion, other than to go and finish serving his time.
The judge thereafter re-sentenced defendant to fifteen years at hard labor with credit given for time served. At the conclusion of these proceedings, defendant filed an appeal.
ASSIGNMENT OF ERROR
The trial court failed to re-sentence the defendant properly in accordance with Louisiana Revised Statute 15:529.1.
DISCUSSION
In this assignment of error, defendant alleges that the trial court failed to re-sentence him properly in accordance with the provisions of
In a multiple offender proceeding, the State must prove by competent evidence the existence of a prior felony and that the defendant is the person who was convicted of that prior felony. State v. Chaney, 423 So.2d 1092 (La.1982); State v. Jenkins, 595 So.2d 780 (La.App. 5 Cir.1992).
In State v. Shelton, 621 So.2d 769 (La. 1993), the Louisiana Supreme Court revised the scheme of allocating burdens of proof in habitual offender proceedings. The court, in Shelton, stated:
In light of the fact that Parke, holds Boykin does not require that the entire burden be placed on the prosecution in a recidivism proceeding and because our present system of placing the entire burden on the State fails to give any presumption of regularity to a final conviction used in an habitual offender hearing, we today revise our previous scheme allocating burdens of proof in habitual offender proceedings.
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. 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 from, 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 rights. (footnote omitted)
State v. Shelton, supra at pp. 779-780.
See also
Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of Louisiana or the Constitution of the United States of America shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
The question which must now be answered is whether the state met its initial burden of proof as set forth in State v. Shelton, supra, and
At the July 28, 1993 hearing, defendant denied the allegations contained in the multiple offender bill of information, and the court in accordance with the mandate of
As part of this assignment, defendant also argues that after the trial court re-sentenced him on September 29, 1993, it lost jurisdiction to later set aside the sentence and re-sentence him. However, defendant does not set forth any statutory or jurisprudential authority in his brief to support his
Accordingly, the defendant‘s assignment is without merit.
AFFIRMED.