State v. King

935 So. 2d 354, 2006 WL 1751795
Louisiana Court of Appeal·Decided June 28, 2006·No. 41,083-KA·Published·Cited by 9 cases

Opinion

935 So.2d 354 (2006)

STATE of Louisiana, Appellee,
v.
Jack KING, Appellant.

No. 41,083-KA.

Court of Appeal of Louisiana, Second Circuit.

June 28, 2006.
Rehearing Denied August 4, 2006.

*357 Jack King, Pro Se Appellant.

Carey J. Ellis, III, David R. McClatchey, for Appellant.

Paul J. Carmouche, District Attorney, Dhu Thompson, Ron Christopher Stamps, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.

Before STEWART, MOORE and LOLLEY, JJ.

LOLLEY, J.

Jack King was convicted by a unanimous jury in the First Judicial District Court, Parish of Caddo, Louisiana for armed robbery using a firearm. La. R.S. 14:64 and 14:64.3 He was subsequently adjudicated a second felony habitual offender and sentenced to 203 years at hard labor, with credit for time served. King appealed. For the following reasons, King's conviction is affirmed, his sentence is amended, and as amended, affirmed.

FACTS

On May 18, 2004, King entered the customer line at a Hibernia Bank branch in Shreveport, Louisiana. When King reached the teller, he handed her a pillowcase, displayed a portion of his gun and demanded money. The teller stuffed at least $5,000 into the pillowcase, along with a dye pack. Once King received the pillowcase, he left the bank and the dye pack exploded. King ran from the bank with red dust from the dye pack covering him.

Patrick Knight, a customer at Hibernia Bank, chased King and forced him to the ground. At that time, King had the pillowcase and the gun in his possession. Knight kicked away the gun as he held King to the ground until the police arrived.

Following a trial, King was convicted by a unanimous jury of armed robbery using a firearm on May 26, 2005. The state subsequently filed a habitual offender bill of information seeking to have King declared a second felony habitual offender based on a 1983 manslaughter conviction and the subject armed robbery conviction. King filed a pro se motion to quash the habitual offender bill, which alleged in part that, during plea negotiations for his prior convictions, he was not advised that the convictions could or would be used for future enhancement purposes.

*358 At the habitual offender hearing, the trial court held that King's allegations were without merit. The trial court also denied his post-trial motions. Although King's second degree murder bill of indictment did not have fingerprints, the state introduced the bill of indictment, along with the minutes of his guilty plea to manslaughter, as Exhibit S-1. Despite King's objection to the introduction of S-1 because the certification was improper, the trial court found King to be a second felony offender.

On July 22, 2005, King was sentenced to 203 years at hard labor, with credit for time served. King subsequently filed a motion to reconsider sentence, which was denied by the trial court. This appeal by King ensued.

DISCUSSION

In King's first assignment of error, he maintains that the state did not comply with the requirements necessary to adjudicate him as a second felony offender under the habitual offender law. Specifically, King cites La. R.S. 15:529.1 and contends that more than 10 years have elapsed between his manslaughter conviction on July 5, 1983, and the commission of the present armed robbery offense on May 18, 2004. Additionally, he argues that the state failed to offer sufficient proof of the alleged manslaughter conviction. He urges that it is the state's initial burden to show that there was a conviction and that the defendant was represented by counsel, or waived counsel, at the time he entered his plea. He contends that, although the state submitted court minutes from the proceeding, the state failed to establish whether or not the prior guilty plea was informed and voluntary, and made with the articulated waiver of the three Boykin rights. Finally, King argues that the state failed to adequately establish his identity as the individual previously convicted of manslaughter as charged in the habitual offender bill of information. For the following reasons, we disagree.

Louisiana R.S. 15:529.1(D)(1) governs the procedure for preserving these issues on appeal. The procedure requires the court in which the subsequent conviction was obtained to bring the offender before the court, inform him of the allegations contained in the information and of his rights, and require the offender to say whether the allegations are true. If the offender denies the allegation, refuses to answer, or remains silent, his plea or the fact of his silence is entered on the record and he shall be given 15 days to file particular objections to the information. Any challenge to the previous conviction or adjudication of delinquency not made before sentence is imposed, may not thereafter be raised to attack the sentence. La. R.S. 15:529.1(D)(1)(b); State v. Jones, 29,805 (La.App.2d Cir.09/24/97), 700 So.2d 1034, writ denied, 1999-2487 (La.02/18/00), 754 So.2d 961.

In a habitual offender proceeding, the state is only required to establish a prior felony conviction, and that the defendant is the person convicted of the earlier offense. On appeal, the sole issue to be resolved is whether evidence was introduced upon which the trial judge could find the defendant to be the same person as the previously convicted felon. State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, XXXX-XXXX (La.06/26/98), 719 So.2d 1048, citing State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990).

Prima facie proof of a prior felony conviction may be established by compliance with La. R.S. 15:529.1(F). However, this provision is not the exclusive method of proving a prior felony conviction: *359 any other competent evidence may be used to establish such proof. White, supra; State v. Young, 27,237 (La.App.2d Cir.08/23/95), 660 So.2d 548. Identification of the accused may be by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared to those in the prison record introduced, or by photographs contained in the duly authenticated record. White, supra; Young, supra; Shepherd, supra.

In State v. Shelton, 621 So.2d 769 (La. 1993), the Louisiana Supreme Court discussed the state's burden of proof in a habitual offender proceeding as follows:

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 if it introduces a "perfect" transcript of the taking of the guilty plea, one which reflects a colloquy between judge and 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.

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State v. King, 935 So. 2d 354, 2006 WL 1751795 (La. Ct. App. 2006).

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