Opinion
No. 2011 KA 0015.
December 8, 2011. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LAFOURCHE STATE OF LOUISIANA DOCKET NUMBER 463597 THE HONORABLE JEROME J. BARBERA III, JUDGE.
Camille A. Morvant, II, District Attorney, Thibodaux, Louisiana, Kristine M. Russell, Assistant District Attorney, Attorney for Appellee, State of Louisiana.
Frank Sloan, Mandeville, Louisiana, Attorney for Defendant/Appellant, Henry Breaux, Jr., Pro Se, Angola, La.
BEFORE: GAIDRY, McDONALD, AND HUGHES, JJ.
Defendant, H.B., was charged by grand jury indictment with sexual battery of a person under the age of thirteen (count 1) and second degree cruelty to a juvenile (count 2), violations of La.R.S. 14:43.1 and 14:93.2.3, respectively. Defendant pleaded not guilty and, following a trial by jury, was unanimously found guilty as charged on both counts. The trial court sentenced him for the sexual battery conviction to 40 years at hard labor, with the first 25 years to be without benefit of parole, probation or suspension of sentence, and to 30 years at hard labor for the second degree cruelty to a juvenile conviction. The sentences were made concurrent. Thereafter, the state filed a habitual offender bill of information seeking to enhance defendant's sentences pursuant to La.R.S. 15:529.1.
In order to protect the identity of the minor victim, the initials of defendant, the victim, and the victim's uncle will be used herein. See La.R.S. 46:1844W.
Prior to its amendment by 2011 La. Acts No. 67, § 1.
All references made herein to La.R.S. 15:529.1 are made to that provision as it existed prior to its amendment by 2010 La. Acts No. 911, § 1 and No. 973, § 2.
Following a habitual offender hearing on October 12, 2010, the trial court adjudicated defendant to be a fourth-felony habitual offender and sentenced him to life imprisonment without benefit of parole, probation or suspension of sentence. The trial court subsequently realized it had failed to specify which sentence was enhanced and, on its own motion, set a hearing to modify and amend the habitual offender sentence it imposed. Accordingly, on November 23, 2010, the trial court sentenced defendant pursuant to La.R.S. 15:529.lA(1)(b)(i) as a third-felony habitual offender on his conviction for sexual battery of a person under the age of thirteen to 75 years at hard labor, the first 25 years to be without benefit of parole, probation or suspension of sentence. Pursuant to La.R.S. 15:529.1A(1)(c)(ii), defendant was sentenced as a fourth-felony habitual offender for the second degree cruelty to a juvenile conviction to life imprisonment at hard labor. The sentences were made concurrent.
Defendant now appeals, raising four counseled and six pro se assignments of error. For the following reasons, we affirm both convictions and defendant's adjudication and sentence as a third-felony habitual offender on count one (sexual battery). We reverse defendant's adjudication and sentence as a fourth-felony habitual offender on count two (second degree cruelty to a juvenile) and remand this matter for resentencing on that conviction.
ASSIGNMENTS OF ERROR
Counseled Assignments of Error:
1. The trial court erred and/or abused its discretion in preventing defendant from impeaching the reliability of the victim's testimony by introducing evidence that she previously had recanted rape allegations she made against her uncle.
2. The trial court erred and/or abused its discretion in preventing defendant from presenting evidence that the victim's uncle had the predisposition and opportunity to have caused the injuries to the victim's "privates."
3. The trial court erred in adjudicating defendant to be a fourth-felony habitual offender and in sentencing him to life imprisonment.
4. The trial court erred in failing to vacate the life sentence previously imposed when it resentenced defendant.
Pro se Assignments of Error:
1. The trial court erred in charging defendant as a fourth-felony habitual offender.
2. The disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated by the state and the trial court.
3. The sentence imposed upon defendant for the sexual battery conviction was grossly excessive because it exceeded the sentencing guidelines.
4. The grand jury indictment was defective in that it failed to include the essential facts constituting the offenses charged against defendant, as required by La.C.Cr.P. art. 464.
5. The trial court lacked subject matter jurisdiction over the instant prosecution.
6. The trial court erred in sentencing defendant under the habitual offender statute, La.R.S. 15:529.1, which is an unconstitutional statute.
FACTS
In April 2008, defendant obtained custody of his five-year-old biological daughter, P.L. Several months later, on August 18, 2008, shortly after the child returned to defendant's home following a court-ordered visitation with her maternal relatives, defendant filed a complaint with the Lafourche Parish Sheriff's Office (LPSO) concerning bruises on the rear portion of her body. During the follow-up investigation, the child was observed to be frail and limping. Investigators were told by both defendant and P.L. that she had fallen off a jungle gym and broken her left leg in July of 2008, and had required surgery on that leg.
As a result of the continued investigation by the Office of Community Services and the LPSO, P.L. eventually was removed from defendant's home and placed in a foster home. On her first evening in the foster home, P.L.'s foster mother noticed what appeared to be blood on P.L.'s panties. On August 28, 2008, P.L. was taken to Children's Hospital in New Orleans for an examination by Dr. Yameika Head, stipulated by the parties to be an expert in the field of child abuse pediatrics.
The results of the examination by Dr. Head were highly abnormal. Dr. Head, who indicated that she has seen over a thousand children suspected of being maltreated, indicated that the traumatic genital and anal injuries she observed during P.L.'s examination were the worst she had ever seen. Additionally, Dr. Head testified that, while P.L. initially told her she broke her leg falling off of monkey bars, she later stated that defendant broke her leg.
At trial, P.L. testified that defendant wiped her "bottom," which she also called her "privates," frequently while they were in the bathroom together. In describing how defendant broke her leg she stated, "He was wiping me and I always kick because it hurts and he didn't want me to kick him so he pulled my leg back and it broke." She indicated defendant was wiping her "hard" when this occurred.
RECANTATION OF PRIOR ACCUSATIONS
In his first counseled assignment of error, defendant contends the trial court erred in barring the introduction of evidence that P.L. had recanted prior accusations of sexual abuse that she had made against her uncle. Defendant argues this ruling violated his constitutional rights to confront his accuser and to present a defense, because it prevented him from attacking the reliability and credibility of P.L.'s accusations against him.
Prior to trial, defendant filed a motion in limine to allow admission of evidence regarding allegations of sexual abuse made and later recanted by P.L. in March or April of 2008. The motion was based on the fact that, prior to defendant obtaining custody of P.L. in 2008, she made accusations of being sexually abused by her maternal uncle, U.L., and a juvenile cousin. She later recanted the accusations made against her uncle. However, her uncle gave a detailed confession and pleaded guilty to forcible rape in connection with the accusations made by P.L.
At the hearing on the motion in limine, defendant argued that the rape shield law, La.C.E. art. 412, did not prevent him from cross-examining P.L. for impeachment purposes on her history of recanted accusations. Defendant maintained that since the accusations and recantation were inconsistent with each other, the jury could conclude either that the accusations by P.L. were false or that she was susceptible to undue influence by maternal family members. The trial court denied the motion in limine, finding that a reasonable juror could not have concluded, despite the recantation, that P.L. made false accusations against her uncle.
Defendant filed a writ application seeking review of the trial court's ruling, which this Court declined to consider due to its noncompliance with several procedural requirements. Thereafter, defendant filed a new writ application, which was denied by this Court. However, a denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same issue when an appeal is taken. See Display South, Inc. v. Express Computer Supply, Inc., 06-1137, p. 4 n. 3 (La. App. 1st Cir. 5/4/07), 961 So.2d 451, 453 n. 3.
The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. This right includes the right to cross-examine the prosecution's witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Vaughn, 448 So.2d 1260, 1267 (1983) (on rehearing). Further, an accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
However, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So.2d 443, 449 (La. 1976); State v. Freeman, 07-0470, p. 6 (La. App. 1st Cir. 9/14/07), 970 So.2d 621, 624, writ denied, 2007-2129 (La. 3/14/08), 977 So.2d 930. Even relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. See La.C.E. art. 403. Further, a trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. Freeman, 07-0470 at p. 7, 970 So.2d at 625.
Generally, a defendant may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. La.C.E. art. 607C. However, the right of an accused sex offender to present a defense must be balanced against the victim's interests under La.C.E. art. 412, which is intended to protect a victim of sexual assault from having her sexual history made public. State v. Everidge, 96-2665, p. 5 (La. 12/2/97), 702 So.2d 680, 684. Thus, in a prosecution for sexually assaultive behavior, Article 412 prohibits the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. Freeman, 07-0470 at p. 5, 970 So.2d at 624. However, the rape shield law is not applicable when a defendant attempts to use evidence of a victim's false allegations of improper sexual behavior to impeach the victim's credibility. State v. Smith, 98-2045, p. 5 (La. 9/8/99), 743 So.2d 199, 202-03. In such instances, the relevant inquiry for the trial court is whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim made prior false accusations. Smith, 98-2045, p. 6,743 So.2d at 203.
In the instant case, considering that P.L.'s uncle confessed and pleaded guilty to forcible rape, we find no error in the trial court's conclusion that defendant failed to establish that P.L.'s accusations against him were false. In any event, defendant appears on appeal to have abandoned his contention that P.L.'s accusations against her uncle might be false. Rather, defendant now argues that the trial court erred in concluding that only evidence of prior false accusations of sexual abuse by P.L. could be used to impeach her testimony. He asserts that evidence regarding P.L.'s "false" recantation of her accusations against her uncle was relevant to demonstrate that her ability to recall and report events consistently over time was flawed, that she was unable to distinguish between real and imagined events, and that she was susceptible to the suggestions of her maternal grandmother. He further argues that when his interests in admitting the evidence are weighed against those of the state in protecting the victim's privacy, the result requires the admission of the evidence concerning the recantation.
Defendant's contentions are unpersuasive. The evidence as to the victim's recantation would be of little, if any, probative value for the purposes asserted. The mere fact that P.L. recanted her accusations against her uncle has no evidentiary value in establishing that she is susceptible to influence by her maternal grandmother. Additionally, even if the evidence as to the recantation would have some slight probative value in establishing P.L.'s ability to recall and report past events and distinguish between real and imagined events, it is greatly outweighed by the interest in protecting her sexual history from becoming public.
Defendant suggests that embarrassment and humiliation to the victim could have been minimized by allowing him to present evidence of the recantation to the jury by means other than cross-examining P.L. However, doing so would have defeated the very purposes for which defendant claims the evidence was relevant, which purportedly was to demonstrate the victim's ability to recall and report past events consistently, her ability to distinguish what is real or imagined, and her susceptibility to familial influence. Merely informing the jury that a false recantation occurred would be of little evidentiary value as to any of these issues, since the recantation could have been the result of a myriad of other factors. Moreover, defense counsel could have explored P.L.'s ability to recall past events, to distinguish between what is real or imagined, and her susceptibility to familial influence of her maternal relatives, by cross-examining her on matters having no connection to her past sexual history.
This assignment of error is without merit.
PREDISPOSITION AND OPPORTUNITY TO CAUSE INJURIES
in his counseled and pro se assignments of error number two, defendant argues the trial court violated his right to present a defense by preventing him from presenting evidence that P.L.'s uncle had the predisposition and opportunity to have caused her genital and anal injuries. Defendant asserts he was erroneously denied his right under La.C.E. art. 412B(1) to introduce evidence of past sexual behavior of the victim in order to show that someone else, namely P.L.'s uncle, was responsible for her injuries. Additionally, defendant contends in his pro se assignment of error, that his constitutional right to present a defense was denied by the trial court's refusal to admit evidence regarding the confession and conviction of P.L.'s uncle for her forcible rape.
Defendant never raised the possibility or mentioned any evidence that anyone other than P.L.'s uncle, and possibly her juvenile cousin, could have been responsible for P.L.'s injuries.
As previously noted, evidence of the sexual history of a victim of sexually assaultive behavior generally is not admissible at trial, except for limited purposes. Louisiana Code of Evidence article 412 provides, in pertinent part, that:
B. Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim's past sexual behavior is also not admissible except for:
(1) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense. . . .
. . .
F. Past sexual behavior defined. For purposes of this Article, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged.
On the first day of trial in this case, defendant filed a motion in limine pursuant to Article 412 to admit evidence that P.L. previously was sexually assaulted by her uncle and a juvenile cousin, for the purpose of suggesting that those assaults were the source of her injuries. Defendant further asserted that P.L.'s uncle was a frequent visitor to his mother's house during P.L.'s court-ordered weekend visitation and, therefore, still had access to her at the time of the most recent sexual assaults, further suggesting he may have caused the injuries in question. On the same date, the state also filed a motion in limine to exclude evidence by the defense that someone else committed the sexual assault of the victim that resulted in her vaginal and anal injuries, since the defense failed to comply with the procedural requirements for admitting such evidence.
At the hearing held on the opposing motions, the state argued that defendant was precluded from introducing evidence regarding the prior sexual abuse of P.L. by her uncle because he failed to file a timely motion as required by Article 412D. In order to offer evidence under the exception provided by Article 412B(1) that a person other than the accused was the source of the victim's injury, the accused is required to file a written motion within the time limit provided for pretrial motions, accompanied by a written statement of evidence delineating persons to be called as witnesses.See La.C.E. art. 412C D. If the trial court determines that the statement of evidence contains evidence such as that described in Article 412B, a hearing should be ordered to determine if the evidence is admissible. La.C.E. art. 412(E).
In the instant case, the trial court granted the parties until October 30, 2009, to file pretrial motions. Since defendant did not file his motion to introduce evidence of the victim's prior injuries from sexual assaults until January 26, 2010, the trial court found the motion untimely. The trial court further concluded that, even if the motion had been timely, defendant's statement of evidence did not present competent evidence of any of the exceptions described in Article 412B(1). Specifically, although defendant sought to introduce the evidence in question in order to establish that the prior abuse was the source of P.L.'s injuries, he offered no competent evidence that any specific acts of sexual behavior occurred within 72 hours of the instant offense. According to defendant's statement of evidence, the prior sexual abuse resulting in the guilty plea of P.L.'s uncle occurred in February of 2008. However, the medical evidence indicated that P.L.'s genital and anal injuries were inflicted within two to four weeks of her August 28, 2008 physical examination.
Defendant's statement of evidence listed four witnesses, who allegedly would have testified as follows: (1) a neighbor of P.L.'s maternal grandmother would testify that she knew P.L.'s uncle was at his mother's house at the same time that P.L. was there for court-ordered overnight visitation with her grandmother; (2) a therapist who treated P.L. during the time in question would testify that she "knows" that the child complained of abuse by her uncle rather than her father; (3) defendant's ex-girlfriend would testify she wrote to defendant in jail that she was tired of people lying about him; and (4) defendant's sister would testify she was told by P.L. that her uncle was still abusing her.
We find no error in the denial of defendant's motion in limine on the grounds that it was not timely filed. In Michigan v. Lucas, 500 U.S. 145,111. S.Ct. 1743, 114 L.Ed.2d 205 (1991), the United States Supreme Court reversed a lower court decision holding that a notice and hearing requirement similar to that provided in Article 412 was per se unconstitutional. In reaching this holding, the Supreme Court noted that to the extent that a rape shield statute operates to prevent a criminal defendant from presenting relevant evidence, the defendant's ability to confront adverse witnesses and present a defense is diminished, but this does not necessarily render the statute unconstitutional. Michigan v. Lucas, 500 U.S. at 149, 111 S.Ct. at 1746. Moreover, some courts of this state have upheld the exclusion of evidence of the victim's prior sexual behavior when the defendant failed to file a timely motion as required by Article 412C D. See State v. Kinsel, 00-1610, p. 10-11 (La. App. 5th Cir. 3/28/01), 783 So.2d 532, 538, writ denied, 01-1230 (La. 3/28/02), 812 So.2d 641; State v. Billings, 93-1542, p. 3 (La. App. 3d Cir. 5/4/94), 640 So.2d 500, 501, writ denied, 94-1437 (La. 10/7/94), 644 So.2d 631.
In the instant case, there was a period of over nine months from the time that the grand jury returned the indictment until the deadline for filing pretrial motions. Defense counsel offered no explanation for failing to file the required motion during this extensive time period. Moreover, we reject defendant's contention that the state was not prejudiced by the defendant's failure to file a timely motion because his first motion in limine sought the admissibility of the same evidence.
The two motions in limine filed by defendant were radically different. The first was directed at introducing evidence of the victim's prior accusation of sexual abuse and her subsequent recantation thereof for the purpose of impeaching her credibility. As such, it did not fall within the scope of Article 412.See Smith, 98-2045, p. 5, 743 So.2d at 203. In contrast, evidence that prior sexual abuse of the victim may have been the source of her injuries fell squarely within the contemplation of Article 412B(1), which necessitated a timely motion and accompanying statement of evidence. Defendant's failure to meet these requirements deprived the state, as well as the victim, of proper notice. Thus, the state was deprived of an opportunity to investigate the evidence and witnesses included in the requisite statement of evidence attached to defendant's motion.
Additionally, we agree with the trial court that, even if defendant's motion had been timely, the attached statement of evidence failed to describe evidence that would have allowed the introduction of evidence regarding the prior sexual abuse under any of the exceptions provided by Article 412B(1). In particular, it failed to describe competent evidence of sexual behavior of the victim with anyone other than defendant within 72 hours of the instant offense. The only evidence included in the statement as to possible sexual abuse of P.L. by her uncle during the applicable period suggested by the medical evidence consisted of hearsay testimony regarding unspecified complaints of abuse purportedly made by P.L. Considering this fact, as well as the medical evidence indicating the prior abuse was not the source of P.L.'s injuries, we find no error in the trial court's ruling that the statement of evidence did not include evidence such as that described in Article 412B(1).
On appeal, defendant argues the trial court erred in excluding evidence that went beyond the bounds of Article 412, specifically that P.L.'s uncle pleaded guilty to forcible rape, as long as the jury was not told that P.L. was the victim. He contends he should have been allowed to present this evidence, together with evidence that the uncle was a visitor to his mother's house during P.L.'s court-ordered weekend visitation during the period that the latest abuse occurred. However, it should be noted that the defense never indicated to the trial court that it wished to introduce evidence of the uncle's rape conviction without designating P.L. as the victim, nor did the defense attempt to offer such evidence at trial. It is clear from a review of the record that the overall focus of defendant's motion was to obtain admission of evidence of her uncle's prior sexual abuse of P.L.
Finally, in his pro se assignment of error, defendant further argues that the state was required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to present all material evidence to the jury, including the fact that P.L.'s uncle confessed to and was convicted of forcibly raping her on a prior occasion. This argument misconstrues the holding of Brady, which requires the state to disclose to the defendant, upon request, any evidence that is favorable to the accused when the evidence is material to guilt or punishment. See In re Riehlmann, 2004-0680 (La. 1/19/05), 891 So.2d 1239, 1243 n. 1 (per curiam). The Brady rule imposes no obligation upon the state to present to the jury at trial all evidence favorable to the accused.
These assignments of error lack merit.
ADJUDICATION AS FOURTH-FELONY HABITUAL OFFENDER
In his third counseled and first pro se assignments of error, defendant argues the trial court erred in adjudicating him to be a fourth-felony habitual offender. Specifically, he complains that the trial court erred in utilizing one of the two convictions obtained in the instant matter as a predicate in adjudicating him to be a habitual offender with respect to the other conviction obtained that same date. Thus, defendant asserts he can only be adjudicated to be a third-felony habitual offender.
At the habitual offender hearing, the state presented evidence establishing that defendant had prior felony convictions for aggravated flight from an officer and for possession of marijuana, second offense. Relying on these two predicate offenses, as well as the convictions obtained in the present matter for sexual battery and cruelty to a juvenile, the state argued that defendant was a fourth-felony habitual offender. Moreover, because the instant conviction for sexual battery was a sex offense as defined in La.R.S. 15:540 et seq. and the convictions for aggravated flight from an officer and second degree cruelty to a juvenile were crimes of violence under La.R.S. 14:2B, the state argued that defendant should be sentenced to life imprisonment under La.R.S. 15:529.1A(1)(c)(ii). The trial court accepted the state's position and, utilizing the instant conviction for sexual battery as a predicate conviction, adjudicated defendant to be a fourth-felony habitual offender and sentenced him to life imprisonment on the conviction for second degree cruelty to a juvenile.
We find merit in defendant's contention that the trial court erred in adjudicating defendant to be a fourth-felony habitual offender. In pertinent part, La.R.S. 15:529.1 A(1) states, "Any person who,after having been convicted within this state of a felony . . . thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows. . . ." (emphasis added). The Supreme Court has held that the plain language of this provision reflects a legislative intent to expose a person who has previously been convicted of a felony to imposition of habitual offender penalties for any felony committed after the date of the prior felony conviction.See State v. Shaw, 06-2467, p. 16 (La. 11/27/07), 969 So.2d 1233, 1243. Therefore, La.R.S. 15:529.1A(1), as well as the jurisprudence interpreting it, require that a predicate conviction must precede the principal offense in order to be used to enhance a defendant's status as a multiple offender. See State v. Johnson, 03-2993, p. 17-18 (La. 10/19/04), 884 So.2d 568, 578.
In the instant case, defendant's conviction for sexual battery could not be used as a predicate to enhance his conviction for second degree cruelty to a juvenile because it did not precede the latter conviction as required by La.R.S. 15:529.1A(1). Defendant did not commit the cruelty to a juvenile offense after being convicted for sexual battery. Thus, because he was convicted of both offenses on the same date, the sequencing requirement was not met in this case.
Contrary to the state's argument to the trial court, the fact that La.R.S. 15:529.1B allows multiple convictions obtained on the same day (if obtained after October 19, 2004) to be treated as separate convictions for future enhancement purposes does not eliminate the sequencing requirement of La.R.S. 15:529.1A(1).
Accordingly, defendant's adjudication as a fourth-felony offender is reversed, and the life sentence imposed thereon is vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion.
Defendant is not protected by principles of double jeopardy from being adjudicated again under the Habitual Offender Law.See State v. Thomas, 05-2210, p. 12 (La. App. 1st Cir. 6/9/06), 938 So.2d 168, 177, writ denied, 2006-2403 (La. 4/27/07), 955 So.2d 683.
FAILURE TO VACATE PRIOR SENTENCE
In his fourth counseled assignment of error, defendant argues the trial court erred in imposing new habitual offender sentences on November 23, 2010, without vacating the earlier life sentence imposed on October 12, 2010.
As previously noted, defendant originally was sentenced on both of the instant convictions on March 18, 2010. He was subsequently adjudicated to be a fourth-felony habitual offender and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence following a habitual offender hearing on October 12, 2010. However, because the trial court failed to specify on which conviction the life sentence was imposed, defendant was resentenced as a habitual offender on both convictions on November 23, 2010. At that time, the trial court vacated the original sentences imposed on March 18, 2010, but failed to specifically vacate the habitual offender life sentence imposed on October 12, 2010.
The habitual offender statute clearly requires the sentencing court, when imposing a habitual offender sentence, to vacate any sentence previously imposed in the case. See La.R.S. 15:529.1D(3). A trial court's failure to comply with this requirement results in an illegal habitual offender sentence. State v. Jackson, 00-0717, p. 3 (La. App. 1st Cir. 2/16/01), 814 So.2d 6, 9 (en banc), writ denied, 01-0673 (La. 3/15/02), 811 So.2d 895. However, in those cases where the trial court clearly intended to impose a new sentence as a substitute for the original sentence, no sentencing discretion is involved in the correction of the illegal sentence, and an appellate court has authority under La.C.Cr.P. art. 882A to correct the sentence without the necessity of vacating the habitual offender sentence or remanding for resentencing. See Jackson, 00-0717, p. 4 and 6, 814 So.2d at 9 and 11.
In sentencing defendant at the second habitual offender hearing, the trial court evidently overlooked its duty under La.R.S. 15:529.1D(3) to vacate the prior life sentence imposed. The trial court clearly did not intend to impose two life sentences upon defendant for the same conviction. Accordingly, we hereby vacate the life sentence imposed upon defendant on October 12, 2010 to conform to the requirements of La.R.S. 15:529.1D(3). See Jackson, 00-0717, p. 6, 814 So.2d at 11. Having already ordered remand of this matter on other grounds, we further instruct the trial court to amend the minute entry and commitment to reflect that the life sentence imposed on October 12, 2010, has been vacated.
This assignment of error lacks merit.
SEXUAL BATTERY SENTENCE
In his third pro se assignment of error, defendant contends the sentence imposed on his sexual battery conviction is illegal, unconstitutional, and excessive because it exceeds the ten-year maximum sentence authorized by La.R.S. 14:43.1C for this offense.
Under La.R.S. 14:43.1C(1), a defendant convicted of sexual battery is exposed to a penalty of imprisonment, with or without hard labor, of not more than ten years. However, since the victim in the instant case was under the age of thirteen, the applicable sentencing provision was La.R.S. 14:43.1C(2). Under this provision, when the victim of the sexual battery is under the age of thirteen and the offender is at least seventeen years old, the offender is exposed to imprisonment at hard labor for not less than 25 years and not more than 99 years, with the first 25 years to be without benefit of parole, probation, or suspension of sentence. The trial court originally sentenced defendant under this provision to 40 years at hard labor.
Subsequently, defendant was adjudicated to be a third-felony habitual offender with respect to his sexual battery conviction. The trial court then sentenced him under La.R.S. 15:529.1A(1)(b)(i), which exposed him to a potential sentence on that conviction of not less than 66 years nor more than 198 years. The trial court sentenced him to 75 years at hard labor, the first 25 years to be without benefit of parole, probation, or suspension of sentence. The sentence imposed was within the applicable statutory limits and, in fact, near the lower end of the continuum of possible sentences.
This assignment of error lacks merit.
GRAND JURY INDICTMENT
In his fourth pro se assignment of error, defendant contends the indictment returned by the grand jury was defective because it did not state the essential facts comprising the charged offenses as required by La.C.Cr.P. art. 464.
The time for testing the sufficiency of an indictment or bill of information is before trial by means of a motion to quash or an application for a bill of particulars. Normally, a postverdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. State v. Manning, 03-1982, p. 48 (La. 10/19/04), 885 So.2d 1044, 1089, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005). Since defendant failed to file a motion to quash in the instant case, he waived any claim based on the allegedly defective indictment.
Moreover, the indictment was not fatally defective. In accordance with La.C.Cr.P. art. 464, an indictment should be "a plain, concise, and definite written statement of the essential facts constituting the offense charged," and should include a citation to the statute that the defendant is alleged to have violated. Nevertheless, the indictment itself need not set out the detailed facts constituting the violation, because a defendant may procure such details through a bill of particulars. State v. Gainey, 376 So.2d 1240, 1243-44 (La. 1979); State v. Tupa, 515 So.2d 516, 517 n. 2 (La. App. 1st Cir. 1987). Thus, if the indictment sufficiently identifies the conduct charged and the statute violated, a motion to quash will not be granted. Gainey, 376 So.2d at 1244. A review of the indictment indicates these requirements were met in the instant case.
This assignment of error is without merit.
SUBJECT MATTER JURISDICTION
In his fifth pro se assignment of error, defendant contends the trial court lacked subject matter jurisdiction over this prosecution because the charges against him were invalid. Specifically, he complains that the grand jury indictment was defective because it did not contain an "enabling clause."
Under La.Const. art. V, § 16A, the district court is vested with original jurisdiction over criminal prosecutions. No legal basis exists for defendant's claim that a criminal indictment must contain an "enabling clause." Furthermore, the offenses of which defendant was charged and convicted were enacted by legislative acts containing proper enacting clauses as required by La.Const. art. III, § 14. See 1991 La. Acts No. 654, 2003 La. Acts No. 232, and 1999 La. Acts No. 191.
This provision states that: "The style of a law enacted by the legislature shall be, 'Be it enacted by the Legislature of Louisiana.' It shall be unnecessary to repeat the enacting clause after the first section of an act." (Emphasis added.)
This assignment of error lacks merit.
CONSTITUTIONALITY OF HABITUAL OFFENDER STATUTE
In his final pro se assignment of error, defendant contends the Habitual Offender Statute, La.R.S. 15:529.1, unconstitutionally violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it removes from the jury the determination of facts relating to a defendant's prior convictions. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and numerous other cases, defendant argues that predicate convictions are an essential element of the offense and, therefore, must be found by a jury beyond a reasonable doubt.
Initially, we note that defendant failed to raise this issue before the trial court. An irregularity or error cannot be availed of after verdict unless, at the time the ruling or order of the court was made or sought, the party made known to the court the action that he desired the court to take, or of his objections to the court's action, and the grounds therefor. La.C.Cr.P. art. 841; State v. Dudley, 06-1087, p. 31 (La. App. 1st Cir. 9/19/07), 984 So.2d 11, 30-31, writ not considered, 08-1285 (La. 11/20/09), 25 So.2d 783. In any event, the Louisiana Supreme Court has held on numerous occasions that the Habitual Offender Law is constitutional in its entirety. See State v. Johnson, 97-1906, p. 5-6 (La. 3/4/98), 709 So.2d 672, 675. Moreover, Apprendi, by its own language, is not applicable to habitual offender proceedings. See Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355; State v. LeBlanc, 04-1032, p. 12 (La. App. 1st Cir. 12/17/04), 897 So.2d 736, 744, writ denied, 05-0150 (La. 4/29/05), 901 So.2d 1063, cert. denied, 546 U.S. 905, 126 S.Ct. 254, 163 L.Ed.2d 231 (2005). It is well settled that a habitual offender proceeding is a status, rather than a criminal, proceeding. Accordingly, the right to a jury trial does not apply to such a proceeding as a matter of federal or state constitutional law. LeBlanc, 897 So.2d at 744.
This assignment of error lacks merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE ON COUNT ONE (SEXUAL BATTERY) AFFIRMED; ON COUNT TWO (SECOND DEGREE CRUELTY TO A JUVENILE) CONVICTION AFFIRMED, HABITUAL OFFENDER ADJUDICATION REVERSED, AND SENTENCE VACATED; THE CASE IS REMANDED FOR RESENTENCING, WITH INSTRUCTIONS.