STATE of Louisiana, Appellee,
v.
Clarence Eugene WARFIELD, Appellant.
Court of Appeal of Louisiana, Second Circuit.
*308 Lоuisiana Appellate Project, Peggy J. Sullivan, Monroe, for Appellant.
Paul J. Carmouche, District Attorney, J. Thomas Butler, Assistant District Attorney, Edward M. Brossette, Assistant District Attorney, for Appellee.
Before CARAWAY, DREW and MOORE, JJ.
DREW, J.
Clarence Eugene Warfield was convicted of simplе burglary, adjudicated as a fourth felony habitual offender, and sentenced to life imprisonment without benefits. Defendant appealed his conviction, adjudication and sentence. We affirm.
FACTS
On or about August 16, 2001, Shreveport police offiсers responded to a silent alarm at the Thrifty Liquor Store located on North Market in Shreveport. The defendant ran out of the building and was apprehended while in flight. He was later charged with simple burglary, in violation of La. R.S. 14:62, for which offense a six-person jury found him guilty as charged.
Thereafter, the state filed a fourth felony habitual offender bill of information. The bill charged as previous felonies the following district court docket numbers: 125,024; 153,877; 177,859A; and 204,146, all from Caddo Parish. The instant offense was chargеd as Warfield's fifth felony. At the habitual offender adjudication hearing, the state qualified Lieutenant Garry Bass of the Caddo Parish Sheriff's Department as an expert in fingerprint identification. In court, Bass took the defendant's fingerprints, which were introduced into evidence as Exhibit S-1.
The state then presented the following evidence:
1. Exhibit S-2, a certified copy of the bill of information, filed October 5, 1983, in docket number 125,024, charging the defendant with simple burglary and bearing the defendant's fingerprints on the reverse side of the bill; Exhibit S-3, a certified copy of the clerk оf court's minutes in docket number 125,024, reflecting that the defendant was advised of his rights per Boykin v. Alabama,[1] and that he pled guilty to the charge of simple burglary.
2. Exhibit S-6, a certified copy of a bill of information in docket number 153,877, charging the defendant with simple burglary and bearing the defendant's fingerprints, dated July 5, 1991, on the reverse side of the bill; Exhibit S-7, a certified copy of the clerk of court's minutes in docket number 153,877, showing that the defendant was advised of his rights per Boykin v. Alabama, and that he pled guilty to the charge of simple burglary.
*309 3. Exhibit S-8, a certified copy of the bill of information in docket number 177,859A, charging the defendant with possession of a schedule II сontrolled dangerous substance, cocaine, and bearing the defendant's fingerprints, dated February 8, 1996, on the reverse side of the bill; Exhibit S-9, a certified copy of the clerk of court's minutes in docket number 177,859A, showing that the defendant was advised of his rights per Boykin v. Alabama, and that he pled guilty to the charge of possession of a schedule II controlled dangerous substance, cocaine.
4. Exhibit S-10, a certified copy of the bill of information in docket number 204,146, charging the defendant with driving while intoxicated third offense, and bearing the defendant's fingerprints, dated December 1, 1999, on the reverse side; Exhibit S-11, a certified copy of the clerk of court's minutes in docket number 204,146, showing that the defendant was advised of his rights per Boykin v. Alabama, and that he pled guilty to the charge оf driving while intoxicated third offense.
The defense made no objections to the introduction into evidence of the exhibits listed above. The state also attempted to introduce evidence of another simple burglary conviction, docket number 148,702 (Exhibits S-4 and S-5), but the evidence was objected to and withdrawn because that offense was not listed as a prior conviction in the multiple offender bill of information. The trial court found the defendant to be a fourth felony habitual offender.
Subsequently, the defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. He filed a written motion to reconsider sentence, which was denied without a hearing. This appeal followed.
DISCUSSION
I. The Adjudication
The defendant argues that the state failed to meet its burden of proof regarding district court docket numbers 125,024, 148,702, 153,877 and 204,146. Specifically, the defendant argues that the state did not meet its burden under State v. Shelton,
The defense is confused on this point. Specifically, the state did attempt to introduce evidence of another simple burglary conviсtion (docket number 148,702), marked as exhibits S-4 and S-5, but they were actually withdrawn because docket number 148,702 was not one of the convictions listed in the multiple offender bill of information at issue during the instant adjudication hearing.
Four prior felonies other thаn docket number 148,702 were proven. The evidence introduced was clearly sufficient to meet the state's initial burden of proof for an habitual offender proceeding. The defendant failed to present any opposing *310 evidence of any defects in the prior guilty pleas.
In State v. Wade, 36,295 (La.App.2d Cir.10/23/02),
The State's burden of proof in habitual offender proceedings under R.S. 15:529.1 is stated in State v. Shelton,621 So.2d 769 (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 аnd 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 рlea. 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 refleсts 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 prоving that the defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.621 So.2d at 779 (footnotes omitted).
In the instant case, the State offered certified copies of the amended bill of information charging Wade with committing armed robbery on August 15, 1994, and the bill of information charging him with possessing a Schedule II CDS, cocaine, on May 22, 1997. A fingerprint expert, Sgt. McConnell, confirmed that the fingerprints on both bills belonged to Wade. The State also offered certified copies of the court minutes of May 8, 1995, when he pled guilty to armed robbery, and of February 22, 1999, when he pled guilty to possession of a Schedule II CDS. Both sets of court minutes recited, "The court informed the defendant of his constitutional rights per Boykin v. Alabama (see court reportеr's transcript)." Wade did not object to the introduction of the court minutes, thus distinguishing the case from State v. Jeffers, supra. Instead, Wade offered no affirmative evidence showing any infringement of his rights or procedural irregularity. State v. O'Neal, 34,814 (La.App.2d Cir.10/12/01),795 So.2d 1292 . Thus the court was entitled to find that the State met thе initial burden under State v. Shelton, supra, and that Wade failed to meet his.
The State proved, beyond a reasonable doubt, every essential element of the habitual offender bill under R.S. 15:529.1. State v. Shelton, supra; State v. O'Neal, supra.
State v. Wade,
*311 A review of the record supports the conclusion that the state proved, beyond a reasonable dоubt, every essential element of the habitual offender bill under R.S. 15:529.1. State v. Shelton, supra; State v. Wade, supra. Certified copies of the bills of information from the four prior felonies charged in the habitual offender bill were introduced into evidence, and a fingerprint expert confirmеd that the fingerprints on all four bills belonged to the defendant. The state also offered certified copies of the court minutes of all four prior felonies. All four sets of court minutes reflected that the defendant was represented by counsel when each guilty plea was taken, with the judge acknowledging that the pleas were taken as per Boykin v. Alabama. At no time did the defendant object to the introduction of the court minutes. The defendant offered no affirmative evidence rеflecting any infringement of his rights or procedural irregularity. The court properly found that the state met the initial burden under State v. Shelton, supra, and that the defendant failed to meet his burden.
II. Cruel and Unusual Punishment
The defendant argues the record does not reflect that certain factors were adequately considered in particularizing his sentence. Specifically, he contends that the following factors should have been considered:
personal history,
prior criminal record,
seriousness of the offense,
likelihood that he will commit another crime, and
his potential for rehabilitation through correctional services other than confinement.
He further complains thаt no pre-sentence investigation report was ordered and there was no compliance with La. C. Cr. P. art. 894.1, contending that no effort was made to particularize this sentence to him, or to indicate any basis for a life sentence. He argues that the trial court erred in determining that it had no discretion in imposing the mandatory life imprisonment sentence. He concludes that his sentence is excessive and the matter should be remanded for imposition of a particulаrized, and presumably, lesser, sentence.
The state is correct that the defendant did not properly raise his argument regarding non-compliance with La. C. Cr. P. art. 894.1, in that he alleged mere excessiveness of sentence in his timely-filed motion tо reconsider sentence.
When a defendant's motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims,
Furthermore, because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court's compliance with La. C. Cr. P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.4/4/01),
Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense *312 or shocking to the sense of justice. State v. Lobato,
In this case, La. R.S. 15:529.1(A)(1)(c)(ii) mandated a life sentence without benefits fоr defendant: he is a fourth felony offender, two of the predicate felonies, as well as this instant crime, are for simple burglary.
Although, in State v. Dorthey,
Since the habitual offender law in its entirеty is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98),
The defendant's burden was to rebut the presumption that a mandatory minimum sentence is constitutional. He had to clearly and convincingly show that he is exceptional, i.e., because of unusual circumstances, he is а victim of the legislature's failure to assign sentences meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson,
The defendant's claim of constitutional excessiveness is not supported in this record. The sentence is neither grossly disproportionate to the severity of the offense, nor does it shock the sense of justice.
DECREE
The defendant's conviction, habitual offender adjudication, and sentence are AFFIRMED.
NOTES
Notes
[1] Boykin v. Alabama,