State v. Dukes

121 So. 3d 1256, 2013 WL 4082268, 2013 La. App. LEXIS 1620
CourtLouisiana Court of Appeal
DecidedAugust 14, 2013
DocketNo. 48,101-KA
StatusPublished

This text of 121 So. 3d 1256 (State v. Dukes) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dukes, 121 So. 3d 1256, 2013 WL 4082268, 2013 La. App. LEXIS 1620 (La. Ct. App. 2013).

Opinion

STEWART, J.

1, FACTS AND PROCEDURAL HISTORY

This matter previously came before this court in State v. Dukes, 46,029 (La.App.2d Cir.1/26/11), 57 So.3d 489. On January 21, 2009, the defendant was arrested after selling cocaine to, and buying ecstasy from, an undercover narcotics agent. As stated above, the defendant was convicted of possession of ecstasy and distribution of cocaine. He was adjudicated a fourth-felony offender and sentenced to life imprisonment without benefits.1 He appealed, and although his convictions and cocaine sentence were affirmed, this court remanded the matter after determining that the trial court did not impose a sentence for the possession of ecstasy conviction. While the case was on remand for resentencing, the state filed a fifth-felony habitual offender bill of information. The bill, filed on July 9, 2012, charged Dukes with having the following prior convictions:

(1) On December 6, 1994, the defendant pled guilty to one count of possession of a Schedule II CDS.
(2) On November 14, 1997, the defendant pled guilty to one count of possession of marijuana, a Schedule I CDS.
(3) On November 14, 1997, the defendant pled guilty to distribution of a Schedule II CDS.
(4) On April 24, 2006, the defendant pled guilty to one count possession with intent to distribute a Schedule II CDS.
(5) On November 17, 2009, the defendant pled guilty to the instant conviction for one count of possession of a Schedule I CDS.2

[1258]*1258IgOn July 19, 2012, the defendant filed a motion to quash the habitual offender bill of information, asserting that the bill was untimely because it was filed more than two years after his conviction. He further asserted that since the state filed a multiple offender bill at least two years earlier, it had sufficient knowledge of his prior felonies.

The trial court conducted a hearing on the motion to quash and determined that since the defendant had previously been billed and sentenced as a fourth-felony offender with regard to his distribution of cocaine conviction, it was a mere technical error that he had not been multiple billed on the instant charge. The trial court expressed that the defendant had notice of the state’s intent to file a multiple offender bill of information, and since he was sentenced to life imprisonment on the cocaine conviction, he suffered no prejudice as a result of the current multiple offender bill. As such, the trial court denied his motion.

The state then proceeded with its habitual offender adjudication proceeding, after which the defendant was adjudicated a fourth-felony habitual offender. He waived all sentencing delays, and was sentenced to a second life sentence to be served concurrently with his other life imprisonment sentence.

|3On August 13, 2012, the defense filed a motion to reconsider sentence, asserting that his sentence was excessive and that the evidence was insufficient to adjudicate him a fourth-felony offender. The trial court denied his motion on August 15, 2012, without need for a contradictory hearing.

The defendant now appeals. For the following reasons, we affirm the defendant’s second life imprisonment sentence as a habitual offender.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he alleges that the fifth-felony habitual bill of information was untimely. He acknowledges the trial court’s statement that it failed to impose a sentence regarding the ecstasy charge because the State failed to include it in the fourth-felony habitual bill of information. The trial court characterized this failure as a “technical error.” The defendant expresses that he is “being punished” for oversights by the trial court, as well as the state.

To the contrary, the state argues that the defendant was aware of its intention as evidenced by its prior filing of the multiple offender bill. The state gave notice of its intent to multi-bill the defendant on all counts. The state further argues that because the defendant had not been sentenced on the possession of ecstasy charge, there is no unreasonable delay in filing the multiple offender bill. Lastly, the state maintains that the defendant has not been prejudiced by the filing of the second habitual offender bill.

Sentence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unrea[1259]*1259sonably delayed, he may Rinvoke the supervisory jurisdiction of the appellate court. La. C. Cr. P. art. 874. La. R.S. 15:529.1 provides for enhancement of penalty for habitual offenders. More specifically, La. R.S. 15:529.1(D)(l)(a) provides in pertinent part:

D. (l)(a) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has been previously convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender say whether the allegations are true. (Emphasis provided.)

A review of the statute reveals the absence of a prescriptive period for completion of the habitual offender proceeding. State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45. Although the statute sets no prescriptive time within which the bill must be filed, the supreme court has made a determination that the district attorney must file the habitual offender bill within a reasonable time after learning that the defendant had prior felony convictions. Id.; State v. Toney, 02-0992 (La.4/9/03), 842 So.2d 1083. The rationale is necessitated by the defendant’s constitutional right to a speedy trial. Muhammad, supra. A reasonable time is determined on a case-by-case basis. Id.

As a general matter, the Supreme Court has set forth four factors for the court to consider in determining whether a defendant’s right to a speedy |r,trial has been violated. Those factors are the length of the delay, the reasons for the delay, the accused’s assertion of his right to speedy trial, and the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Muhammad, supra. While these factors are neither definite nor dispositive in the context of the habitual offender proceeding, they are instructive. Muhammad, supra.

In Muhammad, supra, the supreme court addressed the issue of whether the defendant’s adjudication as a multiple offender was timely. In that case, the defendant was convicted of 17 counts of access device fraud. On the day of sentencing, the state filed a habitual offender bill charging the defendant as a multiple felony offender.

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Related

Barker v. Wingo
407 U.S. 514 (Supreme Court, 1972)
State v. Dorthey
623 So. 2d 1276 (Supreme Court of Louisiana, 1993)
State v. Muhammad
875 So. 2d 45 (Supreme Court of Louisiana, 2004)
State v. Toney
842 So. 2d 1083 (Supreme Court of Louisiana, 2003)
State v. Dukes
57 So. 3d 489 (Louisiana Court of Appeal, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
121 So. 3d 1256, 2013 WL 4082268, 2013 La. App. LEXIS 1620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dukes-lactapp-2013.