Opinion
2012 KA 0162
12-21-2012
STATE OF LOUISIANA v. JOSEPH W. NEATHERY
Hillar Moore, III District Attorney and Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Katherine M. Franks Abita Springs Attorney for Defendant/Appellant Joseph W. Neathery Joseph W. Neathery Jackson, Louisiana Defendant/Appellant Pro Se
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
DOCKET NUMBER 03-01-0494
HONORABLE TRUDY M. WHITE, JUDGE
Hillar Moore, III
District Attorney
and
Allison Miller Rutzen
Assistant District Attorney
Baton Rouge, Louisiana
Attorneys for Appellee
State of Louisiana
Katherine M. Franks
Abita Springs
Attorney for Defendant/Appellant
Joseph W. Neathery
Joseph W. Neathery
Jackson, Louisiana
Defendant/Appellant
Pro Se
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
MCDONALD , J.
The defendant, Joseph W. Neathery, was charged by bill of information filed March 20, 2001, with two counts of aggravated burglary (counts I and II), violations of La. R.S. 14:60; and two counts of armed robbery (counts III and IV), violations of La. R.S. 14:64, and pled not guilty. Following a bench trial, he was found guilty as charged on all counts. On April 2, 2003, on counts I and II, on each count, he was sentenced to five years at hard labor. On counts III and IV, on each count, he was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently. Thereafter, on February 11, 2004, the State filed a habitual offender bill of information against the defendant. Following a hearing, he was adjudged a second-felony habitual offender. On counts I and II, he was sentenced to fifteen years at hard labor, to be served concurrently. On counts III and IV, he was sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence to be served concurrently with one another and with the sentences imposed on counts I and II. On appeal, this court vacated all four original sentences in the case, vacated the habitual offender adjudication, vacated all four enhanced sentences in the case, and remanded for dismissal of one of the aggravated burglary convictions, either count I or II, as elected by the State. State v. Neathery, 2005-0026 (La. App. 1st Cir. 11/4/05), 913 So.2d 893 (table) (unpublished).
Predicate #1 was set forth as the defendant's November 22, 1993 guilty plea under Nineteenth Judicial District Court Docket #8-93-1, to simple robbery. Predicate #2 was set forth as the defendant's November 22, 1993 guilty plea, under Nineteenth Judicial District Court Docket #11-92-24, to simple burglary.
Upon remand, the State dismissed count II, and the trial court reimposed the original sentences on counts I, III, and IV. Thereafter, following a habitual offender hearing, the defendant was adjudged a second-felony habitual offender on count III, and was sentenced, on count III, to fifty years at hard labor without benefit of probation, parole, or suspension of sentence. Following the defendant's second appeal, this court affirmed the convictions for counts I, III, and IV; affirmed the sentences for counts 1 and IV; but vacated the habitual offender adjudication and sentence on count III, and remanded with instructions. State v. Neathery, 2007-1226 (La. App. 1st Cir. 12/21/07), 973 So.2d 179 (table) (unpublished).
On February 1, 2011, the day before the defendant was scheduled for release for "completion of sentence," the State instituted habitual offender proceedings against him for a third time. The defendant moved to quash, arguing the habitual offender bill was untimely. Following a hearing, the trial court granted the motion to quash and ordered the release of the defendant. The State moved for a stay to allow review of the granting of the motion to quash, but the trial court refused to stay the proceedings. The State applied for supervisory' writs, and this court reversed the refusal to issue a stay, finding that even absent habitual offender proceedings, the trial court had never imposed sentence on count III after this court vacated the sentence in the defendant's second appeal. State v. Neathery, 2011KW1106 (La. App. 1st Cir. 6/22/11) (unpublished). Thereafter, on June 24, 2011, this court issued the following unpublished action on the State's application for emergency supervisory writs:
WRIT GRANTED. The trial court's ruling granting the defendant's motion to quash is reversed, the motion is denied, and this matter is remanded to the district court for further proceedings. The trial court abused its discretion in determining that the State's delay in filing the instant multiple offender bill of information was unreasonable. There was no abusive or vindictive reason for the delay, and the defendant was still incarcerated at the time the State made its filing. See State v. Muhammad, 2003-2991 (La. 5/25/04), 875 So.2d 45.State v. Neathery, 2011KW1145 (La. App. 1st Cir. 6/24/11) (Pettigrew, J., dissenting), writ denied, 2011-1537 (La. 7/14/11), 67 So.3d 474.
On June 27, 2011, the trial court sentenced the defendant, on count I, to five years at hard labor; and on counts III and IV, on each count, to ten years at hard labor, with the sentences to run consecutively to each other. Thereafter, following a habitual offender hearing, the defendant was adjudged a second-felony habitual offender on count III. The trial court then vacated the sentences imposed on June 27, 2011, and on count I, sentenced the defendant to five years at hard labor; on count III, sentenced him to forty-nine and one-half years at hard labor; and on count IV, sentenced him to ten years at hard labor, with the sentences to run concurrently with each other. Noting predicate #1 and count III were both crimes of violence, the trial court found the defendant had failed to show he was exceptional under the habitual offender law and rejected his request for a downward departure from the statutory minimum sentence for count III. The defendant moved for reconsideration of sentence, but the motion was denied. The defendant now appeals, contending the three-year delay in pursuing habitual offender proceedings following his second appeal violated his right to speedy trial and due process. Additionally, in a pro se brief, he argues: the habitual offender sentence imposed on count III placed him in double jeopardy; the State failed to sufficiently prove he was a habitual offender; and the State made false allegations of convictions and arrests against him in connection with 2011KW1106. For the following reasons, we affirm the habitual offender adjudication and sentence on count III.
FACTS
We set forth the facts concerning the offenses committed by the defendant in the first appeal in this matter. See State v. Neathery, 2005-0026, 913 So.2d 893.
UNTIMELY HABITUAL OFFENDER ADJUDICATION
In his counseled assignment of error, the defendant argues the three-year delay in pursuing habitual offender proceedings following his second appeal violated his right to speedy trial and due process.
Although our action in 2011KW1145 does not absolutely preclude a different decision on appeal, judicial efficiency demands that this court accord great deference to earlier decisions unless it is apparent, in light of a subsequent trial record, that the determination was patently erroneous and produced an unjust result. See State v. Humphrey, 412 So.2d 507, 523 (La. 1982) (on rehearing).
Upon review, we find the record in this case fully supports our previous decision that the State's delay in filing the instant multiple offender bill of information was not unreasonable. The State and the defense presented their arguments concerning State v. Muhammad, 2003-2991 (La. 5/25/04), 875 So.2d 45, and the issue of the timeliness of the third filing of habitual offender proceedings in a motion hearing on May 16, 2011. Thereafter, the trial court rendered a judgment on the issue, and reasons for that judgment, on June 17, 2011. This court reviewed transcripts of the May 16, 2011 and June 17, 2011 hearings prior to rendering its ruling 2011KW1145. The defendant presents no new arguments to persuade us the ruling in 2011KW1145 was incorrect.
This assignment of error is without merit.
DOUBLE JEOPARDY
In pro se assignment of error number 1, the defendant argues the habitual offender sentence imposed on count III placed him in double jeopardy.
Under Louisiana's Habitual Offender law, a bill of information alleging that a defendant is a recidivist does not charge a new crime but merely advises the trial court of circumstances, and seeks enhanced punishment following a defendant's most recent conviction. The enhancement of the penalty for habitual offenders convicted of a new felony only addresses itself to the sentencing powers of the trial judge after conviction and has no functional relationship to the innocence or guilt of the instant crime. Thus, a ruling at a multiple offender hearing is not a definitive judgment but merely a finding ancillary to the imposition of sentence. State v. Dorthey, 623 So.2d 1276, 1278-79 (La. 1993).
Furthermore, because the hearing is not a trial, legal principles such as res judicata, double jeopardy, the right to a jury trial and the like do not apply. Louisiana's Habitual Offender statute is simply an enhancement of punishment provision. It does not punish status and does not on its face impose cruel and unusual punishment. Dorthey, 623 So.2d at 1279.
This assignment of error is without merit.
MOTION TO QUASH HABITUAL OFFENDER BILL
In pro se assignment of error number 2, the defendant argues the State failed to sufficiently prove he was a habitual offender.
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 the 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 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. 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 the defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. State v. Shelton, 621 So.2d 769, 779-80 (La. 1993). 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 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court reversed five robbery convictions founded upon guilty pleas because the court accepting the pleas had not ascertained that the defendant voluntarily and intelligently waived his right against compulsory self-incrimination, right to trial by jury, and right to confront his accusers. Boykin only requires a defendant be informed of these three rights "Its scope has not been expanded to include advising the defendant of any other rights which he may have, nor of the possible consequences of his actions." State v. Smith, 97-2849 (La Add 1st Cir. 11/6/98), 722 So.2d 1048, 1048-49. '
--------
In connection with the instant habitual offender proceedings, the State introduced into evidence the bills of information and minutes concerning predicates #1 and #2. The minutes indicated, in regard to predicate #1, with benefit of counsel, the defendant pled guilty after advice and waiver of his Boykin rights. In regard to predicate #2, the minutes showed, with benefit of counsel, the defendant pled guilty after advice of his Boykin rights. Fingerprints appeared on the back of both predicate bills. Additionally, the State presented testimony from Louisiana State Police Bureau of Criminal Identification Criminal Records Analyst 5 Katherine Williams. Williams testified State Exhibit #6 was a certified copy of a probation card for the defendant, with fingerprints, concerning predicates #1 and #2. She indicated the fingerprints appearing on State Exhibit #6 belonged to the same person she fingerprinted in court, i.e., the defendant. She also indicated the fingerprints appearing on the back of the habitual offender bill of information belonged to the defendant she had fingerprinted in court.
There was no error. In connection with the challenged predicates, the State met its initial burden of proof under Shelton. Thereafter, the defendant failed to produce any affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas. Accordingly, the State had no burden to prove the constitutionality of the challenged predicates by "perfect" transcripts or otherwise.
This assignment of error is without merit.
2011KW1106
In pro se assignment of error number 3, the defendant argues the State made false allegations of convictions and arrests against him in connection with 2011KW1106.
An attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling the judgment is a collateral attack. See Smith v. LeBlanc, 2006-0041 (La. App. 1st Cir. 8/15/07), 966 So.2d 66, 72. No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio. Nethken v. Nethken, 307 So.2d 563, 565 (La. 1975). The defendant's challenge in this appeal to the allegations of the State considered by this court in 2011KW1106 is a prohibited collateral attack.
This assignment of error is without merit.
HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT III AFFIRMED. STATE OF LOUISIANA VERSUS JOSEPH W. NEATHERY
NUMBER 2012 KA 0162
BEFORE: KUHN, PETTIGREW, AND MCDONALD, JJ. PETTIGREW, J., CONCURS, AND ASSIGNS REASONS.
I will respectfully concur with the majority even though I still have concerns about the State's delay in initiating the habitual offender proceeding, as reflected by my dissent in the unpublished writ action in State v. Neathery, 2011 KW 1145 (La. App. 1st Cir. 6/24/11), writ denied, 2011-1537 (La. 7/14/11), 67 So.3d 474.