State v. Hager

148 So. 3d 615, 14 La.App. 5 Cir. 99, 2014 La. App. LEXIS 1881, 2014 WL 3734496
CourtLouisiana Court of Appeal
DecidedJuly 30, 2014
DocketNo. 14-KA-99
StatusPublished
Cited by1 cases

This text of 148 So. 3d 615 (State v. Hager) 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. Hager, 148 So. 3d 615, 14 La.App. 5 Cir. 99, 2014 La. App. LEXIS 1881, 2014 WL 3734496 (La. Ct. App. 2014).

Opinion

ELLEN SHIRER KOVACH, Judge Pro Tempore.

| ¡¿Defendant, Bryan Hager, appeals his adjudication and sentence as a third felony offender. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On May 17, 2011, the Jefferson Parish District Attorney filed a bill of information charging Bryan Hager, defendant herein, with second degree battery, in violation of La. R.S. 14:34.1. On November 27, 2012, defendant waived his right to trial by jury and proceeded to trial before the bench. After hearing the evidence, the judge found defendant guilty as charged. On April 22, 2013, the trial judge sentenced defendant to three years at hard labor. On April 25, 2013, defendant filed his motion for appeal, which the trial judge granted. State v. Hager, 13-546, p. 2 (La.App. 5 Cir. 12/27/13), 131 So.3d 1090, 1091. On appeal, defendant challenged the sufficiency of the evidence. This Court affirmed, finding | sthat the evidence was sufficient to support the conviction. Hager, 13-546 at 6-7,131 So.3d at 1093.

On June 25, 2013, the State filed a multiple bill alleging defendant to be a second felony offender,' and defendant denied those allegations. On September 12, 2013, the State dismissed that multiple bill and filed a superseding multiple bill alleging defendant to be a third felony offender. Defendant denied the allegations of the superseding multiple bill on November 4, 2013. On December 12, 2013, a multiple bill hearing was held, after which the trial judge found defendant to be a third felony offender. The trial judge then vacated the original sentence and resentenced defendant under the multiple bill statute to imprisonment at hard labor for four years without benefit of probation or suspension of sentence. On December 17, 2013, defendant filed a timely motion for appeal that was granted.

FACTS

The underlying facts were set forth in this Court’s previous opinion in State v. Hager, 13-546 at 2-4, 131 So.3d at 1091-92; however, they are not repeated herein because they are not relevant to the issues raised in this appeal.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial judge erred in finding him to be a third felony offender. He contends that the evidence of the two prior convictions from Pennsylvania was insufficient, as the State only presented the trial court with Boykin1 forms but no transcripts, minute entries, or links to the fingerprint cards. The State responds that the evidence was suffi[618]*618cient to prove the existence of the prior felony convictions and that defendant was the same person who was convicted of them. The State further responds that this satisfied its burden as to an out-of-state conviction, noting that defendant had not presented evidence that the |4guilty pleas did not represent a knowing and voluntary choice among available alternatives.

The State alleged in the multiple offender bill of information that defendant had twice before pled guilty: (1) on November 13, 2002, to a violation of 18-3502(a), a felony [burglary] under both Pennsylvania and Louisiana law, in case number CP-15CR-0003395-2002 of the Commonwealth of Pennsylvania Court of Common Pleas of Chester County; and (2) on December 21, 2007, to a violation of 18^4101(a)(l), a felony [forgery] under both Pennsylvania and Louisiana law, in case number CP-15-CR-0004774r-2007 of the Commonwealth of Pennsylvania Court of Common Pleas of Chester County. Defendant did not file a written response to the multiple bill.

At the multiple bill hearing, Nikki Pas-salaqua, an expert latent fingerprint examiner, testified that she took defendant’s fingerprints in court that day (State’s Exhibit 2) and compared them to a fingerprint card relating to an arrest for the underlying second degree battery charge (State’s Exhibit 3) and found that they matched. She also compared the fingerprints contained in State’s Exhibit 2 to a fingerprint card from the Coatesville Police Department in Pennsylvania (State’s Exhibit 4) and found that they matched as well. Next, Passalaqua compared the fingerprints contained in State’s Exhibit 2 to a fingerprint card from the Cain TWP Police Department in Pennsylvania (State’s Exhibit 5), and it was her opinion that they matched.

Following Passalaqua’s testimony, the State introduced into evidence the above exhibits, as well as State’s Exhibits 6 and 7. State’s Exhibit 6 contained a bill of information and a form entitled “Guilty Plea Colloquy” which was dated December 21, 2007, and pertained to a forgery conviction from Pennsylvania. State’s Exhibit 7 contained a bill of information and a form entitled “Guilty Plea 15Colloquy” which was dated December 13, 2002, and pertained to a burglary conviction from Pennsylvania.

The State then argued that it had proven that defendant had two prior felony convictions and, therefore, he should be adjudicated as a third felony offender. Defense counsel responded that State’s Exhibit 5 had a case number on the back that corresponded with one of defendant’s alleged prior convictions but that State’s Exhibit 4 did not contain a case number. He argued that the State had attempted to create a correlation between the fingerprints on State’s Exhibit 4 and the conviction [State’s Exhibit 7] through an “O.T.N.” number but that there had been no testimony as to what an “O.T.N.” number was in Pennsylvania and whether it was unique to a case. As such, defense counsel contended that the State had not established beyond a reasonable doubt that the fingerprints on State’s Exhibit 4 linked defendant to the conviction.

The trial judge responded that State’s Exhibit 4 contained a date of offense of June 30, 2002, and an “O.T.N.” number that matched the conviction. Defense counsel noted that those fingerprints might be associated with, a misdemeanor conviction and not a felony conviction which was required for this proceeding. Defense counsel further argued that the State had not established under Shelton2 [619]*619that defendant knowingly, freely, and voluntarily waived his rights because the State only produced a Boykin form when it needed to produce two of three in any combination of a minute entry, a transcript, or a Boykin form.

The State replied that State’s Exhibits 4 and 5 corresponded with State’s Exhibits 7 and 6, respectively, by the offenses, the dates of the offenses, and the “O.T.N.” numbers. The State further replied that based on Balsano,3 all that was required for the initial burden was that the State prove the existence of the prior Rguilty pleas and that defendant was represented by counsel when the pleas were taken, which it had done. It argued that defendant had not produced affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.

After hearing arguments of counsel, the trial judge found defendant to be a third felony offender. He explained that he reviewed the Boykin forms wherein defendant indicated he was represented by counsel and that he committed the crimes to which he was pleading guilty. The trial judge noted that the Pennsylvania Boykin forms were more detailed than those in Louisiana and that they showed defendant was advised of his rights and initialed them. He also stated that he found that defendant was aware of all of his rights at the time he entered the pleas.

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Bluebook (online)
148 So. 3d 615, 14 La.App. 5 Cir. 99, 2014 La. App. LEXIS 1881, 2014 WL 3734496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hager-lactapp-2014.