State v. YoungState v. Young
Bruce Young, Jr., was charged by bill of information with distribution of cocaine (count 1), a violation of
The court sentenced defendant on the distribution of cocaine charge to serve a term of ten years imprisonment at hard labor, consecutive to the sentence imposed for the aggravated battery conviction. Defendant filed a motion to reconsider the sentence, arguing the term imposed for the aggravated battery conviction, which apparently was ten years, should be reduced in light of the state‘s intent to charge defendant as a habitual offender. Subsequently, the state filed a bill of
Defendant has appealed his conviction for distribution of cocaine, urging six assignments of error. In these assignments of error and in the briefs filed in connection with the appeal, defendant appears to assume the aggravated battery conviction also is a part of this appeal. However, as we indicated in an order of this court, dated April 13, 1993, the district court record before the court in this appeal concerns defendant‘s conviction for distribution of cocaine only. In the order, we granted the state‘s motion to strike those portions of defendant‘s briefs relative to the aggravated battery conviction and sentencing.1 Thus, the assignments before the court in this appeal are as follows: (1) improper imposition of consecutive sentences; (2) imposition of a sentence which exceeds the sentence suggested by the sentencing guidelines; (3) excessive sentence; (4) denial of motion to quash habitual offender bill; and (5) refusal to allow defendant to introduce documentary evidence at the motion to quash hearing. Defendant has not specifically briefed the second assignment.
PATENT ERROR
This Court has discovered error patent on the face of the proceedings which requires us to vacate the ruling adjudicating defendant to be a habitual offender and the sentence imposed accordingly. See
The transcript of the proceedings reflects that, after the motion to quash the habitual offender bill was denied, defendant agreed to stipulate to the provisions of the multiple offender bill. The court‘s written reasons for judgment state that defendant was advised of his rights before the habitual offender stipulation. However, the transcript reveals that the court did not advise defendant of the specific allegations contained in the multiple offender bill of information, his right to be tried as to the truth of the allegations, or his right to remain silent before obtaining his stipulation to the provisions. These failures of the trial court constitute error patent on the face of the record and require that the habitual offender adjudication and sentence be vacated. See Griffin, 525 So.2d at 707.
For these reasons, we vacate the ruling adjudicating defendant to be a multiple offender and the sentence imposed for distribution of cocaine, and we remand for further proceedings in accordance with the views expressed in this decision. Because the issues raised in defendant‘s two assignments of
DENIAL OF MOTION TO QUASH
Prior to his adjudication as a habitual offender, defendant filed a motion to quash the habitual offender bill. He argued the district attorney had no discretion to charge him as a habitual offender under section 309(A) of the sentencing guidelines. Considering the guidelines to be merely advisory in nature, the court denied the motion to quash.
Section 309(A) of the Felony Sentencing Guidelines issued by the Louisiana Sentencing Commission provides as follows:
The guidelines increase the designated sentence range for an offender on the basis of the offender‘s prior criminal convictions, custody status, and the “crime family” of the current and prior convictions. In those cases in which the district attorney determines that the offender‘s pattern of past criminal conduct has been significantly more extensive than the typical offender with the same criminal history index, the district attorney may institute proceedings under R.S. 15:529.1, the Habitual Offender Law.
18 La.Reg. 50 (Jan.1992). Relying on this provision, defendant claims the sentencing guidelines limit the district attorney‘s discretion to charge someone as a habitual offender to only that circumstance described in section 309(A).
For the following reasons, we reject defendant‘s argument. As we indicated in State v. Carter, 610 So.2d 972 (La.App. 1st Cir.1992), “`the discretion to charge a defendant under the Habitual Offender Law lies with the district attorney and no one else.‘” 610 So.2d at 975 (quoting State v. McFarland, 578 So.2d 1014, 1016 (La.App. 4th Cir. 1991)). See also
Furthermore, the language of section 309(A) does not necessarily support defendant‘s claim. Section 309(A) says the district attorney “may” institute habitual offender proceedings under the circumstance mentioned. However, the section does not necessarily regulate the district attorney‘s discretion to proceed with habitual offender proceedings under other possible circumstances. Additionally, both the legislation authorizing the adoption of sentencing guidelines and language in the guidelines themselves clearly provide that the guidelines are “advisory” in nature. See
Accordingly, the assignment of error is without merit.
EVIDENTIARY RULING CONCERNING DOCUMENTARY EVIDENCE
At the motion to quash hearing, defendant attempted to introduce copies of various police reports in an attempt to establish that his past criminal record was not significantly more extensive than the typical offender with the same criminal history index. The state objected to introduction of the documents on the ground of irrelevancy. The prosecutor argued that, because section 309(A) of the sentencing guidelines did not limit the district attorney‘s discretion to charge a subject as a habitual offender, any evidence tending to establish that defendant‘s
CONVICTION AFFIRMED. MULTIPLE OFFENDER ADJUDICATION AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.