State v. TerraseState v. Terrase
The Defendant, Karen Terrase, appeals from her conviction of theft of over $500 and sentence as a habitual offender to five years imprisonment at hard labor. We conditionally affirm the conviction and finding as a second felony offender, vacate the enhanced sentence, and remand for evidentiary hearing, re-sentencing, amendment of commitments and notice.
On September 27, 2000 the Defendant was charged with a violation of
At trial, Judy Velasquez (Velasquez) testified that her family owns and runs Meineke Discount Mufflers (Meineke) in Harvey. She was working there on September 5, 2000 with the Defendant, an employee, and friend. Velasquez testified that the shop has no cash register, so money is kept in drawers behind the counter. Velasquez regularly begins each business day with fifty dollars in a cash drawer. Another drawer, termed the “drop box,” holds the shop‘s bank deposits, and might contain up to five thousand dollars at any given time. The drop box is kept locked at all times and the key hangs on a rack behind the counter. Velasquez testified that anyone working with her has access to the key.
When the theft occurred, Velasquez was standing in the doorway between the garage area and the customer service area, talking on the telephone with a friend, Donna Davis (Davis). She saw the Defendant take money from the lock box and leave the premises. Velasquez told Davis that “Karen just ripped off the drawer and she‘s leaving in her car.” Davis testified that, during the conversation, Velasquez said “Donna, Karen just took my money.”
According to Velasquez‘s calculations, the Defendant stole one thousand dollars. Afterwards, Velasquez telephoned the Defendant and asked her to return the money. The Defendant made no effort to repay the money and Velasquez never heard from the Defendant again. Velasquez testified that she was required to replace the missing money herself.
Deputy Chad Gautreaux of the Jefferson Parish Sheriff‘s Office testified that, on September 7, 2000, he received the report of a theft at Meineke that had occurred on September 5, 2000. The deputy stated that Velasquez told him that she saw the Defendant close the money drawer and leave the shop in a hurry. Velasquez told him that one thousand dollars was stolen. The deputy did not recall Velasquez telling him that she actually saw the Defendant take the money from the drawer.
The Defendant denied stealing the money. She testified that she was working at Meineke on September 5, 2000 and that her job was to perform personal and business errands for Velasquez. She claimed that she did not leave the shop
On appeal, the Defendant contends that the trial judge erred in allowing her to proceed to a bench trial without first obtaining from her a waiver of her right to trial by jury and that her sentence is excessive. She also requests a patent error review.
Prior to the commencement of trial, the following exchange took place:
Mr. Credo [prosecutor]:
Your Honor, State would then ask that Counsel could waive jury in this matter? Is that correct?
Mr. Fleming [defense counsel]:
Yes, we would in fact elect a bench trial in this matter, Judge.
The record contains no further discussion of Defendant‘s jury rights.
The State argues that defense counsel‘s statement constitutes sufficient evidence that the Defendant knowingly and intelligently waived her right to trial by jury. We disagree. In State v. Pierre, 98-1123, p. 8 (La.App. 5th Cir.4/14/99), 733 So.2d 674, 679, we held that the defense attorney‘s statement that, “we‘re going to waive the jury, Your Honor” did not, on its own, constitute a valid waiver of the defendant‘s right to a trial by jury. The facts here are comparable to those in Pierre.
Where no valid jury waiver is found in the record, Louisiana appellate courts have traditionally set aside the defendant‘s conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5th Cir.1987), writ denied, 523 So.2d 1335 (La. 1988). However, the Louisiana Supreme Court, in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, 964, set out a procedure by which the case is initially remanded to the trial court for an evidentiary hearing on the question of whether the defendant validly waived the right to a jury trial. The Nanlal Court held that, if the evidence shows the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. The Supreme Court reserved the defendant‘s right to appeal any adverse ruling of the waiver issue. Id. This Court has followed the procedure set out in Nanlal. See: State v. Hampton, 00-1002, p. 12 (La.App. 5th Cir.1/24/01), 782 So.2d 1045, 1054; State v. Vortisch, 00-67, p. 9 (La. App. 5th Cir.5/30/00), 763 So.2d 765, 770; Pierre, 98-1123 at p. 8, 733 So.2d at 679.
Based on the foregoing, we will remand for an evidentiary hearing on the question of whether the Defendant in this case validly waived her right to a jury trial. If she did not, the trial judge must set aside the conviction and sentence. If she did, then the trial judge should rule that she did and this Court affirms the conviction and enhanced sentence. In this last instance, we reserve the Defendant‘s right to appeal the adverse ruling of the waiver issued.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5th Cir.1991), writ denied, 577 So.2d 1009 (La.1991).
The Defendant‘s sentence of five years imprisonment at hard labor as a second felony offender was the minimum allowed under
A trial judge may only depart from the mandatory sentence if he finds clear and convincing evidence that would rebut the presumption of constitutionality. Williams, 01-1007 at p. 11, 811 So.2d at 1032; State v. Johnson, 97-1906, p. 8 (La. App. 5th Cir.3/4/98), 709 So.2d 672, 676. However, the burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional because of unusual circumstances and that the sentence is not meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 97-1906 at p. 8, 709 So.2d at 676, quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223. The Louisiana Supreme Court has cautioned that downward departures from the mandatory minimum sentences should be made only in rare cases. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343.
Here, the Defendant failed to show any unusual or special circumstances that might serve to rebut the presumption of constitutionality. After our review, we find that the sentence was not excessive.
The record was reviewed for errors patent.
First, both the original and habitual offender commitments indicate that the Defendant was found guilty of “theft $300+,” rather than theft valued at over five hundred dollars. The two offenses involve different sections of the statute and different penalties. Thus, we will order the commitments corrected.
Second, both the original and habitual offender commitments show that the Defendant‘s sentence is to be served at
Third, although the commitments reflect otherwise, the sentencing transcripts indicate that the trial court did not advise the Defendant of the two-year prescriptive period for applying for postconviction relief pursuant to
Accordingly, we hereby conditionally affirm the Defendant‘s conviction and finding as a second felony offender. We vacate and set aside her enhanced sentence and order her to be re-sentenced. We remand for an evidentiary hearing on the question of whether the Defendant validly waived her right to a jury trial and for further proceedings, if necessary, pursuant to Nanlal. We further order the commitments to be corrected to show that the Defendant was convicted of theft of goods of over five hundred dollars. Also, we remand the case with an order to the trial judge to send to the Defendant written notice within 10 days from the rendering of this opinion informing the Defendant that she has two years from the date the conviction and sentence become final to file her application for post-conviction relief, then to file written proof in the record that the Defendant received the notice.
CONVICTION AND FINDING AS A SECOND FELONY OFFENDER CONDITIONALLY AFFIRMED. CASE REMANDED FOR EVIDENTIARY HEARING, RE-SENTENCING, CORRECTION OF COMMITMENTS AND NOTICE OF POST-CONVICTION PRESCRIPTIVE PERIOD.