Opinion
NUMBER 2015 KA 1465
03-09-2016
STATE OF LOUISIANA v. ROBERT LATROY WHITE
Warren L. Montgomery, D.A. Covington, LA and Matthew Caplan Covington, LA Attorneys for Appellee State of Louisiana Jane L. Beebe Louisiana Appellant Project New Orleans, LA Attorney for Appellant Defendant - Robert Latroy White Robert Latroy White Angola, LA Appellant Pro Se
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 434333 Honorable William J. Burris, Judge Warren L. Montgomery, D.A.
Covington, LA
and
Matthew Caplan
Covington, LA Attorneys for Appellee
State of Louisiana Jane L. Beebe
Louisiana Appellant Project
New Orleans, LA Attorney for Appellant
Defendant - Robert Latroy White Robert Latroy White
Angola, LA Appellant
Pro Se BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
On August 15, 2007, the State filed a bill of information charging the defendant, Robert Latroy White, with armed robbery, a violation of La. R.S. 14:64. On September 24, 2007, the defendant entered a plea of not guilty. On November 14, 2007, after a trial by jury, the defendant was found guilty as charged. On February 20, 2009, the defendant was sentenced to fifty-years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant then stipulated to his status as a second-felony habitual offender, the original sentence was vacated, and the trial court imposed a sentence of one-hundred-years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court denied the defendant's motion to reconsider sentence. The defendant appealed to this Court raising several counseled and pro se assignments of error. In an unpublished opinion, this Court affirmed the conviction, habitual offender adjudication, and sentence. State v. White, 2009-1766 (La. App. 1st Cir. 2/12/10), 2010 WL 532333 (unpublished), writ denied, 2010-0582 (La. 10/8/10), 46 So.3d 1263.
Subsequently, the defendant filed an application for postconviction relief (PCR) in the trial court wherein he alleged four claims for relief, including the claim that the trial court failed to advise him of his rights under the habitual offender law. Following a hearing on the PCR, the trial court found merit in the defendant's claim regarding the habitual offender adjudication, but denied the other claims. The trial court vacated the habitual offender adjudication and sentence, and reinstated the original sentence of fifty-years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.
On November 2, 2011, a second habitual offender hearing was held. On January 20, 2012, the trial court reviewed the evidence presented at the November hearing, adjudicated the defendant a fourth-felony habitual offender, vacated the fifty-year sentence, and resentenced the defendant to life imprisonment at hard labor. The trial court ordered that ninety-nine years of the sentence be served without benefit of probation, parole, or suspension of sentence.
The defendant filed another PCR, in part regarding the trial court's failure to hold a hearing to allow him to represent himself at the habitual offender hearing. On October 27, 2014, the trial court vacated the previous enhanced sentence, reinstating the original sentence of fifty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court granted the defendant another habitual offender hearing, and further granted the defendant's motion to represent himself with standby counsel.
On June 10, 2015, the defendant was adjudicated a second-felony habitual offender. The trial court vacated the original sentence that was previously reinstated, and resentenced the defendant to one hundred years imprisonment, to be served without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, challenging the habitual offender adjudication in a counseled and pro se brief. For the following reasons, we affirm the habitual offender adjudication and sentence.
STATEMENT OF FACTS
On or about April 30, 2007, at approximately 2:15 p.m. in a Wal-Mart in Covington, Louisiana, the defendant was observed by Jason Pittman, the victim and security guard at Wal-Mart. Pittman began following the defendant after observing him remove security devices from items and place the items in his waistband. Pittman approached the defendant after he walked past the last cash register, and a physical altercation ensued. The defendant pulled a knife from his pocket and swiped at the victim, and the victim retreated. Pittman exited the store after the defendant and observed him enter a vehicle. Pittman provided the make and license plate number of the vehicle to the police.
The statement of facts included herein was originally presented in the defendant's prior appeal.
ASSIGNMENTS OF ERROR
The defendant's counseled and pro se briefs each include one assignment of error challenging the habitual offender adjudication. In the counseled brief, the defendant specifically argues that the State presented insufficient evidence of the predicate convictions. The defendant first contends that the State failed to prove that the predicate convictions were for felony theft and access device fraud. The defendant further contends that the State did not present fingerprints as proof of identity for the May 7, 2001 guilty pleas, and did not produce a Boykin form, transcript, or any proof that the defendant was informed of his rights prior to pleading guilty. The defendant further notes that the probation officer who testified at the habitual offender proceedings was not present during the predicate convictions, and did not supervise him for the convictions the trial court used to support the adjudication. In the pro se brief, the defendant reiterates the claim that there was no proof of a predicate felony, noting that the bill of information and minutes do not contain a monetary value.
Initially we note, La. C.Cr.P. art. 930.3, which sets out the exclusive grounds for granting postconviction relief, provides no basis for review of claims of excessiveness or other sentencing error postconviction. State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172 (per curiam). A habitual offender adjudication does not pronounce a separate conviction or institute a separate criminal proceeding, but instead only addresses itself to the sentencing powers of the trial judge after the conviction and has no functional relationship to innocence or guilt. A habitual offender adjudication thus constitutes sentencing for purposes of Melinie and La. C.Cr.P. art. 930.3, which provides no vehicle for postconviction consideration of claims arising out of habitual offender proceedings, as opposed to direct appeal of the conviction and sentence. La. C.Cr.P. art. 912(C)(1) (defendant may appeal from a judgment "which imposes sentence."); State v. Cotton, 2009-2397 (La. 10/15/10), 45 So.3d 1030, 1030-1031 (per curiam).
The defendant appealed to this court from the judgment which imposed sentence, and his application for writs to the Louisiana Supreme Court was denied. See White, 2010 WL 532333. Accordingly, the trial court should have denied any and all claims in this matter concerning sentencing or the habitual offender adjudication raised on postconviction relief. Moreover, the "new" sentence imposed following the erroneously granted postconviction relief is identical to the initial sentence imposed and affirmed on appeal. See La. C.Cr.P. art. 921.
The predicate convictions at issue consist of guilty pleas to theft offenses committed in 2001. In accordance with the law in effect at the time of the predicate theft offenses at issue, a theft constitutes a felony offense when the misappropriation or taking amounts to a value of "three hundred dollars or more, but less than a value of five hundred dollars." La. R.S. 14:67(B)(2) (prior to legislative amendments in 2006, 2010, and 2014).
If the defendant denies the allegations of the habitual offender bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. State v. Shelton, 621 So.2d 769, 779-80 (La. 1993). 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 shifts to the State. The State will meet its burden if it introduces a "perfect" transcript of the taking of the guilty plea, one that reflects a colloquy between the judge and the 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. Id.; see Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). 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 the State to determine whether the State has met its burden of proving that the defendant's prior guilty plea was informed and voluntarily and made with an articulated waiver of the three Boykin rights. Shelton, 621 So.2d at 780; State v. Douglas, 2010-2039 (La. App. 1st Cir. 7/26/11), 72 So.3d 392, 399-400, writs denied, 2011-2307 (La. 5/25/12), 90 So.3d 406 & 2012-2508 (La. 5/3/13), 115 So.3d 474.
The purpose of the rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea, in which the appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction used in a subsequent recidivist proceeding, as to which a presumption of regularity attaches to promote the interests of finality. See State v. Deville, 2004-1401 (La. 7/2/04), 879 So.2d 689, 691 (per curiam). In attempting to establish both the prior felony conviction and that the defendant is the same person convicted of that felony, the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical driver's license number, sex, race, and date of birth. The Habitual Offender Law, La. R.S. 15:529.1, does not require the State to use a specific type of evidence, including fingerprints, to carry its burden at a habitual offender hearing, and prior convictions may be proved by any competent evidence. State v. Payton, 2000-2899 (La. 3/15/02), 810 So.2d 1127, 1130-32; see State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339, 344 n. 3, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).
At the hearing on March 30, 2015, the State first introduced the testimony of Kelly Spinks, a special agent for probation and parole. Agent Spinks testified that she discontinuously supervised the defendant during a three to four year period wherein she met with him fifteen to twenty times, had in-depth conversations, and developed a rapport and thorough memory of the defendant. She specifically described the defendant's personality, noted his tendency to quote biblical scriptures despite his proximate criminality, and recalled helping him obtain employment. Agent Spinks confirmed that she recalled testifying at one of the defendant's previous habitual offender hearings, specifically the hearing that took place on November 2, 2011. In preparation for the 2011 hearing, Spinks reviewed the defendant's DOC file that was reintroduced at the 2015 hearing. Spinks testified that some of the documents pertained to crimes in connection with which she supervised the defendant. She confirmed that the documents were generated by the Department of Public Safety and Corrections (DOC), all including the defendant's name and personal DOC number.
The State introduced four bills of information filed in the Twenty-First Judicial District Court charging the following theft offenses: (1) theft at a value "between" three hundred and five hundred dollars committed on September 26, 2000; (2) theft by fraud at a value "less than" three hundred dollars, but not more than five hundred dollars committed between April 4, 2000 and November 20, 2000; and (3) theft by fraud at a value "more than" three hundred dollars, but less than five hundred dollars committed March 17, 2000. The State introduced minute entries for the May 7, 2001 guilty pleas in each of the above cases. While the minutes indicate that the defendant pled nolo contendere or guilty as charged in each case, the theft offense in case number 97079 was noted at a reduced minimum value of one hundred dollars, but not more than five hundred dollars. The State also introduced corresponding pen packs for the offenses. The pen packs included consistent identifying information and the corresponding docket numbers, and consistent descriptions and dates of commission for each offense. Attached to an affidavit of the custodian of records for the Louisiana Department of Public Safety and Corrections, Office of Probation and Parole, the State introduced a fingerprint card that included identifying information and a physical description. The exhibit further includes photographs of the defendant with consistent identifying information, including the defendant's name, date of birth, race, height, sex, and DOC number. The minutes show that the defendant was present in court with counsel for each of the pleas and was fully advised of his Boykin rights. The pertinent exhibits reintroduced by the defense at the hearing consisted of the minute entry for case number 97872, showing that there was no amount stated when the defendant pled guilty to theft by fraud, and the minute entry for case number 97079, showing that the theft was listed as having a value of at least one hundred dollars, but not more than five hundred dollars.
The State also introduced evidence of a conviction of theft (unauthorized use of an access card) committed on December 17, 1999. In that case, a value range was not included in the bill of information. Thus, the defendant was charged with a misdemeanor. The bills of information in case numbers 97082 and 97872 were amended on February 4, 2001 to add the value ranges. The State also introduced the original bills of information for those cases, attached to an affidavit of the custodian of records for the Louisiana Department of Public Safety and Corrections, Office of Probation and Parole.
The hearing resumed on April 27, 2015. The State introduced bills of information for case number 63166 charging the defendant with simple burglary of an inhabited dwelling and illegal possession of stolen property valued at five hundred dollars, and for case number 55469 charging the defendant with illegal possession of stolen property valued at three hundred dollars. While there was no minute entry for the guilty plea in case number 55469, the State introduced the minutes for the guilty pleas in case number 63166. The trial court did not consider these convictions, noting that the minutes do not indicate that the defendant was advised of his Boykin rights. The minute entries show that the defendant was present in court with counsel. As previously noted herein, after the State meets it initial burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken, the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity. Shelton, 621 So.2d at 779. Nonetheless, as the evidence presented on March 30, 2015 was sufficient to support the adjudication, consideration of the evidence presented on April 27, 2015 is not warranted. --------
As detailed above, the State introduced pertinent court minutes evidencing the taking of the pleas, the bills of information relating to predicate offenses, the DOC pen pack for the offenses, and the testimony of a DOC representative attesting to the DOC printouts and confirming her supervision of the defendant for some of the offenses. The identifying information presented by the State was consistent. While the defendant argues that the grade for the thefts was not shown to be at a felony grade, clearly the value stated in the amended bill of information in case number 97872, "more than $300 less than $500," was at a felony grade. Unlike the minutes in case number 97079, the minute entry for case number 97872 does not include a reduction of the minimum value at the time of the plea and clearly states that the defendant pled nolo contendere to theft by fraud. As the defendant was only adjudicated a second-felony habitual offender, the felony-grade theft conviction in case number 97872 alone supports the adjudication. As stated, the minutes show that the defendant was represented by counsel when he pleaded guilty. Therefore, the State met its burden of proof under Shelton, and the burden shifted to the defendant to present affirmative evidence of an infringement of his rights or an irregularity in the proceedings. The defendant's mere reintroduction of the minute entries did not constitute evidence of an infringement or irregularity. Therefore, the defendant failed to carry his burden of proof under Shelton. Moreover, the minutes for the May 7, 2001 plea indicates that the defendant was fully advised of his Boykin rights. The record supports the second-felony habitual offender adjudication. Thus, we find no error in the adjudication. Considering the foregoing, the assignments of error lack merit.
For the foregoing reasons, the defendant's habitual offender adjudication and sentence are affirmed.
HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED.