State v. Jenkins

977 So. 2d 142, 2008 WL 185525
Louisiana Court of Appeal·Decided January 22, 2008·No. 07-KA-586·Published·Cited by 14 cases

Opinion

977 So.2d 142 (2008)

STATE of Louisiana
v.
Jerald J. JENKINS.

No. 07-KA-586.

Court of Appeal of Louisiana, Fifth Circuit.

January 22, 2008.

*145 Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Anne Wallis, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant, Jerald J. Jenkins.

Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.

SUSAN M. CHEHARDY, Judge.

Jerald J. Jenkins appeals his adjudication as a second-felony habitual offender and the resulting sentence of sixty years at hard labor without benefit of probation or suspension of sentence. We affirm.

On March 22, 2007, Jerald J. Jenkins was convicted by a jury of one count of aggravated burglary, a violation of La.R.S. 14:60. He was later sentenced to thirty years' imprisonment at hard labor. The conviction was affirmed by this Court. State v. Jenkins, 07-423 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166.

On April 13, 2007, the State filed a bill of information that alleged Jerald J. Jenkins is a second-felony offender, based on a 2002 conviction for violation of La.R.S. 40:981.3, distribution of a controlled dangerous substance within a school zone.

The defendant filed a Motion for Discovery of Habitual Offender Basis. During the hearing, defense counsel orally moved to quash the bill, alleging that the Boykin colloquy in the defendant's 2002 guilty plea was inadequate to advise him of his rights. The trial court denied the motion to quash.

Following a hearing, the trial court found the defendant to be a second felony offender, vacated the original sentence, and resentenced the defendant to imprisonment at hard labor for sixty *146 years without benefit of probation or suspension of sentence. The defendant has appealed the habitual offender adjudication and sentence.

FACTS

At the habitual offender hearing, the State claimed that the defendant had one prior conviction. The habitual offender bill indicates that on August 14, 2002, the defendant pleaded guilty to violation of La.R.S. 40:81.3, "distribution within a school zone."[1]

Lieutenant Luis Munguia of the Jefferson Parish Sheriff's Office identified the defendant in open court. He testified that the fingerprints he took from the defendant on the date of the habitual offender hearing matched the fingerprints from the defendant's prior conviction. In addition, the State introduced the transcripts of the Boykin colloquy from the defendant's 2002 conviction, as well as an excerpt from the transcript of his trial for aggravated burglary. At the trial, in response to cross examination he admitted he had pleaded guilty to a charge of distribution of cocaine within 1,000 feet of a school zone on the same day he pleaded guilty to another charge of distribution of cocaine and a charge of possession of marijuana.

ASSIGNMENT OF ERROR NUMBER ONE

In his only assignment of error, the defendant asserts the trial court imposed an illegal sentence.

The defendant argues his habitual offender sentence is illegal because his Boykin examination in 2002 was defective, the sentence is excessive, and the trial court did not give reasons for imposition of the sentence.

The defendant claims the Boykin colloquy from his 2002 conviction is incomplete because it does not contain an explanation of his habitual offender rights.[2] He asserts the trial court erred in accepting his 2002 guilty plea in the habitual offender adjudication because the State failed to prove his 2002 guilty plea was informed, was free and voluntary, and was made with an articulated waiver of his constitutional rights.

The State argues it presented adequate evidence to show that the defendant was advised of his Boykin rights during the predicate guilty plea.

To prove that a defendant is a habitual offender, the State must establish by competent evidence the prior felony conviction and that defendant is the same person who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092, 1103 (La.1982); State v. Smith, 99-1395, p. 3 (La.App. 5 Cir. 4/25/00), 760 So.2d 506, 509, writ denied, 00-1604 (La.6/15/01), 793 So.2d 1233. The State may establish this by various means, such as the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or photographs contained in a duly-authenticated record. State v. Brown, 514 So.2d 99, 106 (La.1987); State v. Baker, 00-1050, p. 7 (La.App. 5 Cir. 11/15/00), 776 So.2d 1212, 1216-17, writ denied, 01-44 (La.11/16/01), 802 So.2d 621.

*147 The Habitual Offender Act does not require the State to use a specific type of evidence in order to carry its burden at the hearing. State v. Payton, 2000-2899, p. 8 (La.3/15/02), 810 So.2d 1127, 1132. The prior convictions may be proven by any competent evidence. Id.

When the defendant's habitual offender status is based on a guilty plea in a prior conviction, the State has the burden of proving the existence of the guilty plea and that the defendant was represented by counsel when it was taken. State v. Shelton, 621 So.2d 769, 779 (La.1993); State v. Muhammad, 03-419, p. 3 (La.App. 5 Cir. 6/29/04), 880 So.2d 29, 32, writ denied, 04-2082 (La.1/7/05), 891 So.2d 669. If the State meets its burden, the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. Id.

If the defendant meets his burden, the burden shifts back to the State to prove the constitutionality of the plea by producing a perfect transcript, which shows the defendant's waiver of his Boykin constitutional rights was voluntary, informed, and express. Shelton, 621 So.2d at 779; Muhammad, 03-419 at pp. 3-4, 880 So.2d at 32. If the State produces anything less than a perfect transcript, i.e., a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence, in order to determine whether the defendant's prior plea was knowing and voluntary. Shelton, 621 So.2d at 780; Muhammad, 03-419 at p. 4, 880 So.2d at 32.

In the present case, the State established the defendant's second-offender status by competent evidence.

Although the defendant's 2002 plea colloquy does not mention specifically his right to remain silent, the failure of the trial court to advise the defendant of his right to remain silent is considered harmless error where the defendant's multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Knight, 01-881, p. 4 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 949. Therefore, the failure of the trial court to specifically mention the right to remain silent in the 2002 plea colloquy was harmless error, since the defendant's second offender status was proven in the multiple offender hearing by competent evidence.

The 2002 guilty plea colloquy reveals that the defendant was adequately advised of his Boykin rights, i.e., the rights to trial by jury, against self-incrimination, and to confront his accusers. In addition, the 2002 Boykin colloquy indicates the defendant answered affirmatively when asked if he had re

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State v. Jenkins, 977 So. 2d 142, 2008 WL 185525 (La. Ct. App. 2008).

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