Opinion
2011 KA 0786
12-21-2011
STATE OF LOUISIANA v. JESSIE BELL, JR.
Camille A. Morvant, II, D.A. Lisa R. Pinho, A.D.A. Thibodaux, LA Counsel for Appellee State of Louisiana Ferdinand J. Kleppner Metairie, Louisiana Counsel for Defendant-Appellant Jessie Bell, Jr.
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
NUMBER 477,549, DIV. C, PARISH OF LAFOURCHE
STATE OF LOUISIANA
HONORABLE WALTER I. LANIER, III, JUDGE
Camille A. Morvant, II, D.A.
Lisa R. Pinho, A.D.A.
Thibodaux, LA
Counsel for Appellee
State of Louisiana
Ferdinand J. Kleppner
Metairie, Louisiana
Counsel for Defendant-Appellant
Jessie Bell, Jr.
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
Disposition: HABITUAL OFFENDER ADJUDICATIONS AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND REMANDED.
KUHN, J.
The defendant, Jessie Bell, Jr., was charged by bill of information with distribution of cocaine and possession of cocaine with intent to distribute, violations of La. R.S. 40:967(A). He pled not guilty and, following a trial by jury, was found guilty as charged on both counts. Thereafter, the state filed a habitual offender bill of information seeking to enhance the defendant's sentences pursuant to La. R.S. 15:529.1. The trial court sentenced the defendant on each count to thirty years at hard labor, with the first two years of the sentences to be served without the benefit of parole, probation, or suspension of sentence, and to be served concurrently. Subsequently, the trial court adjudicated the defendant to be a fourth-felony habitual offender, vacated the previous sentences, and sentenced him to life imprisonment without the benefit of parole, probation, or suspension of sentence under La. R.S. 15:529.1. The defendant has now appealed his habitual offender adjudications and sentence. He designates two assignments of error as follows:
The defendant separately appealed his convictions and, in an unpublished decision, this Court affirmed. State v. Bell, 10-1954 (La. App. 1st Cir. 6/10/11), 2011 WL 3444226.
1. The trial court erred in ruling that the defendant is a fourth-felony offender based upon the evidence and/or lack thereof presented by the state in connection with his multiple offender bill of information.
2. The trial court erred in sentencing the defendant to life imprisonment.
For the following reasons, we affirm the habitual offender adjudications, vacate the habitual offender sentence, and remand for resentencing.
FACTS
The facts of the underlying offenses were set forth in the defendant's prior appeal, as follows:
In July of 2006, Todd Sigrist volunteered to work with the Lafourche Parish Sheriffs Drug Task Force (LPSDTF) as a confidential informant. On July 18, 2006, Sigrist advised SergeantBell, 10-1954 at pp. 1-2. (Footnote omitted).
John Champagne of the LPSDTF that he could arrange to buy cocaine from defendant. Accordingly, Sigrist and Champagne met that day and Sigrist telephoned defendant. Champagne was able to hear Sigrist's end of the recorded conversation, which ostensibly involved an order for seafood. However, Sigrist explained that "seafood" was a code word for cocaine that he and defendant had used on prior occasions.
Sigrist had spoken to defendant earlier in the day to place an order for two ounces of cocaine. At that time, defendant was driving to Golden Meadow from Baton Rouge, and indicated to Sigrist that he first needed to pick up a trailer from his friend, Doby Guidry. They arranged to meet at a remote location on Highway 308 where defendant intended to load some equipment located in a shed onto the trailer. Defendant indicated he would call Sigrist when he was ready to meet.
Champagne provided Sigrist with serialized task force money to make the purchase, together with an audio transmitter for Sigrist to wear during the transaction. It was agreed Sigrist would use the phrase "ice chest" as a signal that the drug purchase was complete and officers could move in for the arrest.
After Sigrist received a call from defendant indicating he was ready to meet, Sigrist proceeded to the meeting location under LPSDTF surveillance. The LPSDTF also had the Guidry residence under surveillance, and defendant was observed departing the residence for the meeting location in a pickup truck. Once Sigrist arrived at the meeting location, he helped defendant load the equipment onto the trailer. At one point, he and defendant walked to the rental truck that defendant was driving and defendant retrieved approximately one ounce of crack cocaine from inside the interior of the truck. Defendant sold the cocaine to Sigrist, who gave him $960.00 of the LPSDTF serialized funds. Thereafter, Sigrist gave the signal indicating the transaction was complete, and the LPSDTF arrived on the scene and placed defendant under arrest.
The serialized funds were recovered during a search of defendant. The crack cocaine involved in the purchase was recovered from Sigrist. Additionally, during a search of the truck, the police found approximately 12.7 grams of crack cocaine underneath the dash under the vehicle's steering wheel. The cocaine was packaged in a plastic baggie that held ten smaller bags containing crack cocaine. The police also found a roll of cash inside the pocket of a pair of pants located inside the truck. Subsequently, defendant gave an oral statement to the police admitting he sold crack cocaine to Sigrist and several other individuals.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the defendant contends the trial court erred in finding him to be a fourth-felony habitual offender. Specifically, the defendant contends the state failed to provide sufficient documentation to connect him to the prior convictions in 29th Judicial District Court docket number 92-0249 and 17th Judicial District Court docket numbers 270,797 and 274,500.
In State v. Shelton, 621 So.2d 769, 779-80 (La. 1993), the Louisiana Supreme Court discussed the state's burden of proof in a habitual offender proceeding as follows:
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 (sic), 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 proving that defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. (Footnotes omitted).See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).
To obtain a multiple-offender adjudication, the state is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. In attempting to do so, 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. State v. Payton, 00-2899 (La. 3/15/02), 810 So.2d 1127, 1130. The Habitual Offender Act does not require the state to use a specific type of evidence in order to carry its burden at the hearing, and the prior convictions may be proved by any competent evidence. Payton, 810 So.2d at 1132.
In State v. Westbrook, 392 So.2d 1043 (La. 1980) (on rehearing), a case where the defendant was convicted of a second offense of driving while intoxicated, the defendant complained of an insufficient connexity to prove he was actually the prior offender. In affirming his second offense DWI conviction, the Louisiana Supreme Court held that "the driver's license number, sex, race and birth date all identified the prior offender with defendant. The State [therefore] carried its burden of proving that this defendant is the Westbrook previously convicted[.]" Westbrook, 392 So.2d at 1045. See also State v. Lee, 97-1035 (La. App. 5th Cir. 2/11/98), 709 So.2d 226, 228-29 (affirming the defendant's adjudication as a multiple offender even though the bill of information for a predicate conviction did not contain the defendant's fingerprints); State v. Hawthorne, 580 So.2d 1131, 1132-33 (La. App. 4th Cir. 1991) (affirming the defendant's second-felony habitual offender adjudication because the defendant's fingerprints matched those on the arrest register in the defendant's name for a charge of aggravated rape, and conviction documentation showed the same crime, same defendant, same date of crime, and same victim's name as that found on the arrest register).
Herein, the habitual offender bill of information alleges Jessie Bell, Jr., a/k/a Jessie Moten, had the following prior convictions: (1) an August 6, 1991 conviction for illegal possession of stolen things in 24th Judicial District Court docket number 89-2667; (2) a December 2, 1992 conviction for possession of cocaine with intent to distribute in 29 Judicial District Court docket number 92-0249; (3) a March 7, 1995 conviction for possession with intent to distribute cocaine in 17th Judicial District Court docket number 270,797; (4) a May 22, 1995 conviction for possession of cocaine in 17th Judicial District Court docket number 274,500; and (5) a May 22, 2006 conviction for possession of cocaine in 17th Judicial District Court docket number 412, 125.
At the adjudication hearing, the state offered no evidence regarding this conviction and requested that the trial court strike it from the habitual offender bill of information.
On appeal, the defendant contends the conviction under docket number 92-0249 should not have been used as a predicate because the Boykin form is unsigned and does not contain any fingerprints. The defendant also contends the trial court should not have considered the convictions under docket numbers 270,797 and 274,500 because there was no Boykin form or fingerprints provided in connection with these convictions. Thus, the defendant argues he should not have been adjudicated a fourth-felony habitual offender.
At the adjudication hearing, the state introduced a complete criminal record (rap sheet) for "Jessie Moten," reflecting his date of birth (December 25, 1960), social security number, and several aliases (i.e., Jessie Bell, Jessie Bell, Jr. and Jessie Menette). In support of the alleged prior conviction in docket number 92-0249, the state also introduced, among other things, an in globo exhibit containing certified copies of a bill of information filed against Jessie Moten, under 29th Judicial District Court docket number 92-0249, minutes entries, a plea agreement and waiver of rights form, a guilty plea form (executed by Jessie Moten) and a complete Boykin transcript under that docket number. Our review of this exhibit reveals that, contrary to the defendant's assertion, the guilty plea/Boy kin form is signed by both the defendant and his attorney. The plea agreement/waiver of rights form is also signed by the defendant and his attorney. Therefore, the defendant's claim that the form is unsigned is not supported by the record.
Moreover, as the state notes in its brief, even if the forms at issue were not signed, that would not automatically render the prior conviction invalid. As further support for its contention that the defendant is the same individual who was convicted in docket number 92-0249, the state also introduced into evidence: a fingerprint card of the defendant's fingerprints taken in court on the day of the hearing; a Hahnville Sheriff's Office arrest record and fingerprints for a May 27, 1992 arrest for Jessie Moten; a fingerprint card from Probation and Parole in connection with Jessie Moten's May 27, 1992 arrest in docket number 92-0249; and a St. Charles Parish probation worksheet for Jessie Moten in connection with his probation in docket number 92-0249.
The state also introduced testimony from Kathy Williams, a Criminal Records Analyst with the Louisiana State Police Bureau of Criminal Identification and Information. Williams was accepted as an expert in fingerprint comparison. After comparing the fingerprints of defendant taken in open court with fingerprints from a May 27, 1992 arrest record and a probation and parole record associated with docket number 92-0249, Williams testified that the fingerprints matched. In fact, Williams testified that the fingerprints taken from the defendant in open court matched all of the fingerprints introduced by the state in connection with each of the predicates.
Considering the foregoing, we find that the documentary evidence introduced by the state in connection with the defendant's prior convictions (even those with alias names), together with the fingerprints taken in open court and the expert testimony comparing those fingerprints to those included in the state's exhibits in connection with the prior convictions, as well as the other testimony presented, was sufficient to establish the defendant's identity as the offender in each of the predicate offenses. Even though fingerprints were not included on the bills of information for the prior convictions, the information provided by the state was sufficient to connect the defendant to the prior convictions. Thus, the state proved beyond a reasonable doubt that the defendant is the same person previously convicted in each of the prior felonies alleged.
This assignment of error is without merit.
REVIEW FOR ERROR
In accordance with our review for error pursuant to La. Code Crim. P. art. 920(2), we note a sentencing error. In this case, after being convicted of distribution of cocaine and possession of cocaine with intent to distribute, the defendant was billed as a habitual offender. In the habitual offender bill of information, the state listed both of these convictions. At the conclusion of the habitual offender hearing, the trial court adjudicated the defendant to be a fourth-felony habitual offender and vacated both of the previously imposed sentences. The court then imposed a single, enhanced sentence of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Therefore, it is unclear whether the court intended to enhance one or both of the sentences. If the court intended to enhance only one sentence, the record does not indicate for which conviction it intended to enhance the sentence. Moreover, if the court intended to enhance both sentences, but then imposed only a single sentence, error occurred. It is well settled that sentencing error occurs when a trial court, in sentencing for multiple counts, does not impose a separate sentence for each count. See State v. Russland Enterprises, Inc., 542 So.2d 154, 155 (La. App. 1st Cir. 1989). Accordingly, the habitual offender sentence imposed herein must be vacated and the matter remanded for resentencing.
For the reasons stated, we affirm the habitual offender adjudications, vacate the habitual offender sentence, and remand this matter for resentencing.
Because we vacate the habitual offender sentence, we pretermit consideration of the defendant's second assignment of error regarding the alleged excessiveness of the life sentence.
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HABITUAL OFFENDER ADJUDICATIONS AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; AND REMANDED FOR RESENTENCING.