Judgment rendered November 17, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,110-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JEREMY TAYLOR Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 364,544
Honorable Charles Gordon Tutt, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Meghan Harwell Bitoun
JAMES EDWARD STEWART, SR. Counsel for Appellee District Attorney
WILLIAM JACOB EDWARDS TOMMY JAN JOHNSON Assistant District Attorneys
Before GARRETT, STONE, and THOMPSON, JJ. GARRETT, J.
Following a bench trial, the defendant, Jeremy Taylor, was convicted
as charged of aggravated assault with a firearm, in violation of La. R.S.
14:37.4. He was subsequently adjudicated a fourth felony offender and
sentenced to 20 years at hard labor. On appeal, he complains of the trial
court’s denial of his pro se motion for transcription, as well as his
adjudication and sentence as a habitual offender. We find no merit to the
assignment of error pertaining to the motion for transcription. However, due
to an error patent regarding the cleansing period for a predicate offense, we
reverse the defendant’s habitual offender adjudication, vacate his sentence,
and remand for further proceedings.
FACTS AND PROCEDUAL HISTORY
On July 27, 2018, the defendant was involved in a physical altercation
with the mother of his young child outside her Shreveport residence. The
woman told the defendant to leave, and he pushed her. The defendant went
to the vehicle in which he was riding and retrieved a black handgun, which
he then pointed at the woman and their child. After the defendant left, the
woman called the police. Her next-door neighbor, who was related to the
defendant, gave a recorded statement to the police. She had observed the
incident through the windows of her house. She told the police that she saw
the defendant throw the woman to the ground and then retrieve a black
handgun from the vehicle. At trial, she recanted the portion about seeing
him with the handgun. The relevant part of her recorded statement was
played in court. The defendant did not testify. He called as a witness an
occupant of the vehicle, who testified that the defendant did not have a gun
and the woman instigated the confrontation. The trial court found this witness to be “totally unbelievable.” Following the bench trial on March 9,
2020, the defendant was convicted as charged of aggravated assault with a
firearm.
After the trial, the defendant filed numerous pro se motions. Germane
to this appeal is a pro se “Motion for Transcription” filed on March 20,
2020, seeking trial transcripts for use on posttrial motions. On March 31,
2020, the trial court issued a written ruling in which it denied the motion on
the grounds that it was premature. The defendant filed a writ application,
which we denied on July 21, 2020.
In the meantime, on May 22, 2020, the state filed a fourth or
subsequent felony habitual offender bill of information. It asserted that,
between 2005 and 2013, the defendant had five felony convictions. At the
conclusion of the habitual offender hearing on May 28, 2020, the trial court
adjudicated the defendant a fourth felony offender. On June 3, 2020, the
defendant filed a pro se motion objecting to the habitual offender bill of
information, as well as a pro se motion to quash. They were among the pro
se motions denied by the trial court at the sentencing hearing held on
August 13, 2020. The defendant waived any delays prior to the imposition
of sentence. After finding several aggravating factors but no mitigating
ones, the trial court sentenced the defendant to the minimum sentence of 20
years at hard labor.
On appeal, the defendant asserted two assignments of error: (1) the
trial court erred in denying his motion for transcription; and (2) the sentence
imposed was excessive because the trial court failed to quash the habitual
offender bill, which included possession of marijuana, second offense –
currently a misdemeanor under Louisiana law – as a prior felony offense. 2 MOTION FOR TRANSCRIPTION
The defendant argues that the trial court’s failure to grant his pro se
“Motion for Transcription” infringed upon his right of access to the courts
and unnecessarily hindered his ability to perfect and file his posttrial
motions. The state maintains that this assignment of error is meritless. It
contends that, when the motion was filed, the defendant did not have a right
to a free transcript at that stage of the proceedings. Also, the defendant still
had the appellate process available to him, at which time a record was
provided.
When the defendant previously raised this issue, we denied his writ
application on the grounds that he had not yet been sentenced and an appeal
was premature. We reiterate that reasoning. At the time the defendant filed
his motion for transcription, he was not entitled to a trial transcript, which
was properly provided later in conjunction with his appeal. See State v.
Harris, 558 So. 2d 594 (La. 1990). This assignment of error lacks merit.
HABITUAL OFFENDER ADJUDICATION
In his second assignment of error, the defendant contends that his
sentence is unconstitutionally excessive because the trial court failed to
quash the habitual offender bill, which included possession of marijuana,
second offense – currently a misdemeanor under Louisiana law – as a prior
felony offense.
Although the state asserts that this argument lacks merit, it
acknowledges that the record before us contains an error patent regarding the
habitual offender adjudication. Where a defendant has been adjudicated a
habitual offender, the state’s failure to prove the defendant’s date of
discharge from state custody and supervision, and thus prove that the 3 “cleansing period” has not expired, constitutes error patent on the face of the
record. State v. Robinson, 47,427 (La. App. 2 Cir. 10/3/12), 105 So. 3d 751;
State v. Casaday, 51,330 (La. App. 2 Cir. 5/17/17), 223 So. 3d 108. At issue
here is the defendant’s 2008 guilty plea for illegal use of a weapon. He pled
guilty on August 26, 2008, and was sentenced to five years at hard labor
without benefit of probation, parole, or suspension of sentence. His next
conviction was for possession of marijuana, second offense, to which he
pled guilty on November 14, 2013.1 The cleansing period, which was five
years at the time of the instant offense, was activated by the actual discharge
date. Since the period between these two convictions exceeds five years and
the record does not contain the actual date of release, the state concedes
error patent.
We agree. The state bears the burden of proving that the predicate
convictions fall within the “cleansing period” provided by La. R.S.
15:529.1(C). State v. Meadows, 51,980 (La. App. 2 Cir. 4/11/18), 247 So.
3d 1018. The Louisiana Supreme Court has long held that the actual
discharge date is what activates the cleansing period.
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Judgment rendered November 17, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,110-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JEREMY TAYLOR Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 364,544
Honorable Charles Gordon Tutt, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Meghan Harwell Bitoun
JAMES EDWARD STEWART, SR. Counsel for Appellee District Attorney
WILLIAM JACOB EDWARDS TOMMY JAN JOHNSON Assistant District Attorneys
Before GARRETT, STONE, and THOMPSON, JJ. GARRETT, J.
Following a bench trial, the defendant, Jeremy Taylor, was convicted
as charged of aggravated assault with a firearm, in violation of La. R.S.
14:37.4. He was subsequently adjudicated a fourth felony offender and
sentenced to 20 years at hard labor. On appeal, he complains of the trial
court’s denial of his pro se motion for transcription, as well as his
adjudication and sentence as a habitual offender. We find no merit to the
assignment of error pertaining to the motion for transcription. However, due
to an error patent regarding the cleansing period for a predicate offense, we
reverse the defendant’s habitual offender adjudication, vacate his sentence,
and remand for further proceedings.
FACTS AND PROCEDUAL HISTORY
On July 27, 2018, the defendant was involved in a physical altercation
with the mother of his young child outside her Shreveport residence. The
woman told the defendant to leave, and he pushed her. The defendant went
to the vehicle in which he was riding and retrieved a black handgun, which
he then pointed at the woman and their child. After the defendant left, the
woman called the police. Her next-door neighbor, who was related to the
defendant, gave a recorded statement to the police. She had observed the
incident through the windows of her house. She told the police that she saw
the defendant throw the woman to the ground and then retrieve a black
handgun from the vehicle. At trial, she recanted the portion about seeing
him with the handgun. The relevant part of her recorded statement was
played in court. The defendant did not testify. He called as a witness an
occupant of the vehicle, who testified that the defendant did not have a gun
and the woman instigated the confrontation. The trial court found this witness to be “totally unbelievable.” Following the bench trial on March 9,
2020, the defendant was convicted as charged of aggravated assault with a
firearm.
After the trial, the defendant filed numerous pro se motions. Germane
to this appeal is a pro se “Motion for Transcription” filed on March 20,
2020, seeking trial transcripts for use on posttrial motions. On March 31,
2020, the trial court issued a written ruling in which it denied the motion on
the grounds that it was premature. The defendant filed a writ application,
which we denied on July 21, 2020.
In the meantime, on May 22, 2020, the state filed a fourth or
subsequent felony habitual offender bill of information. It asserted that,
between 2005 and 2013, the defendant had five felony convictions. At the
conclusion of the habitual offender hearing on May 28, 2020, the trial court
adjudicated the defendant a fourth felony offender. On June 3, 2020, the
defendant filed a pro se motion objecting to the habitual offender bill of
information, as well as a pro se motion to quash. They were among the pro
se motions denied by the trial court at the sentencing hearing held on
August 13, 2020. The defendant waived any delays prior to the imposition
of sentence. After finding several aggravating factors but no mitigating
ones, the trial court sentenced the defendant to the minimum sentence of 20
years at hard labor.
On appeal, the defendant asserted two assignments of error: (1) the
trial court erred in denying his motion for transcription; and (2) the sentence
imposed was excessive because the trial court failed to quash the habitual
offender bill, which included possession of marijuana, second offense –
currently a misdemeanor under Louisiana law – as a prior felony offense. 2 MOTION FOR TRANSCRIPTION
The defendant argues that the trial court’s failure to grant his pro se
“Motion for Transcription” infringed upon his right of access to the courts
and unnecessarily hindered his ability to perfect and file his posttrial
motions. The state maintains that this assignment of error is meritless. It
contends that, when the motion was filed, the defendant did not have a right
to a free transcript at that stage of the proceedings. Also, the defendant still
had the appellate process available to him, at which time a record was
provided.
When the defendant previously raised this issue, we denied his writ
application on the grounds that he had not yet been sentenced and an appeal
was premature. We reiterate that reasoning. At the time the defendant filed
his motion for transcription, he was not entitled to a trial transcript, which
was properly provided later in conjunction with his appeal. See State v.
Harris, 558 So. 2d 594 (La. 1990). This assignment of error lacks merit.
HABITUAL OFFENDER ADJUDICATION
In his second assignment of error, the defendant contends that his
sentence is unconstitutionally excessive because the trial court failed to
quash the habitual offender bill, which included possession of marijuana,
second offense – currently a misdemeanor under Louisiana law – as a prior
felony offense.
Although the state asserts that this argument lacks merit, it
acknowledges that the record before us contains an error patent regarding the
habitual offender adjudication. Where a defendant has been adjudicated a
habitual offender, the state’s failure to prove the defendant’s date of
discharge from state custody and supervision, and thus prove that the 3 “cleansing period” has not expired, constitutes error patent on the face of the
record. State v. Robinson, 47,427 (La. App. 2 Cir. 10/3/12), 105 So. 3d 751;
State v. Casaday, 51,330 (La. App. 2 Cir. 5/17/17), 223 So. 3d 108. At issue
here is the defendant’s 2008 guilty plea for illegal use of a weapon. He pled
guilty on August 26, 2008, and was sentenced to five years at hard labor
without benefit of probation, parole, or suspension of sentence. His next
conviction was for possession of marijuana, second offense, to which he
pled guilty on November 14, 2013.1 The cleansing period, which was five
years at the time of the instant offense, was activated by the actual discharge
date. Since the period between these two convictions exceeds five years and
the record does not contain the actual date of release, the state concedes
error patent.
We agree. The state bears the burden of proving that the predicate
convictions fall within the “cleansing period” provided by La. R.S.
15:529.1(C). State v. Meadows, 51,980 (La. App. 2 Cir. 4/11/18), 247 So.
3d 1018. The Louisiana Supreme Court has long held that the actual
discharge date is what activates the cleansing period. State v. Meadows,
supra; State v. Casaday, supra. In the absence of proof that the cleansing
period had not expired, the evidence was insufficient to prove the
defendant’s habitual offender status. The proper action for an appellate
court faced with a habitual offender adjudication based on insufficient
evidence is to reverse the habitual offender adjudication, vacate the
sentence, and remand for resentencing. See State v. Meadows, supra.
1 The bill of information stated that this offense occurred on or about September 29, 2013. 4 Accordingly, we reverse the habitual offender adjudication, vacate the
sentence, and remand for further proceedings. As a result, we pretermit
consideration of the defendant’s excessive sentence argument.2
ERROR PATENT
During sentencing, the trial court advised the defendant that he had
“two years from the date this sentence becomes final to apply” for
postconviction relief. It later stated that the defendant had “two years to
apply for post-conviction relief.” La. C. Cr. P. art. 930.8 provides that a
defendant has two years from the date his “judgment of conviction and
sentence has become final” in which to seek post-conviction relief. At
resentencing on remand, the trial court should advise the defendant that he
has two years from the date his conviction and sentence become final to seek
post-conviction relief. State v. Robertson, 53,970 (La. App. 2 Cir. 6/30/21),
322 So. 3d 937.
CONCLUSION
We affirm the defendant’s conviction. However, we reverse the
habitual offender adjudication, vacate the defendant’s sentence, and remand
the matter for further proceedings.
CONVICTION AFFIRMED; HABITUAL OFFENDER ADJUDICATION REVERSED; SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.
2 We note that the defendant argues in his brief that his prior conviction on November 14, 2013, for possession of marijuana, second offense, should not have been used in a habitual offender adjudication because that crime is no longer a felony. This issue was not raised in open court by the defendant during the habitual offender hearing on May 28, 2020. The defendant’s pro se motion to quash, which is less than clear and contains a litany of complaints, was not filed until June 3, 2020. We need not address the merits of the issue now urged on appeal. We merely note that the arguments being made now were not timely and cogently presented to the trial court before the habitual offender hearing. 5