State v. Mosley

54 So. 3d 692, 2010 La. App. LEXIS 1547, 2010 WL 4486542
CourtLouisiana Court of Appeal
DecidedNovember 9, 2010
DocketNo. 10-KA-266
StatusPublished
Cited by4 cases

This text of 54 So. 3d 692 (State v. Mosley) 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. Mosley, 54 So. 3d 692, 2010 La. App. LEXIS 1547, 2010 WL 4486542 (La. Ct. App. 2010).

Opinion

SUSAN M. CHEHARDY, Judge.

12This is defendant, Terrance Mosley’s, third appeal to this Court. In this appeal, defendant seeks review of his habitual offender adjudication and enhanced sentence of life in prison.

In his first appeal to this Court, we affirmed his underlying conviction for possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A), and underlying sentence of 25 years at hard labor.1 State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, writ denied, 09-1316 (La.3/15/10), 28 So.3d 1002.

After defendant’s conviction, the State, on August 8, 2008, filed a bill of information alleging that defendant was a third felony offender. On August 25, 2008, the trial court found that defendant was a third felony offender, vacated his underlying sentence of 25 years, and imposed an enhanced sentence of life imprisonment without benefit of probation or suspension of sentence.

In his second appeal to this Court, defendant appealed his habitual offender status and sentence. In that appeal, this Court, on error patent review, found that 13the trial court erred in finding that the defendant was a third felony offender because the State failed to prove that the cleansing period had not lapsed between defendant’s predicate and underlying offenses. State v. Mosley, 08-1319 (La.App. 5 Cir. 5/26/09), 16 So.3d 398. Based upon that finding, this Court vacated the habitual offender finding and sentence, reinstated defendant’s original 25-year sentence, and remanded for further proceedings. Id., 08-1319 at 10, 16 So.3d at 404.

On July 23, 2009, the trial court held the second habitual offender hearing. At the hearing, the trial court found that the State had proven that defendant was a third felony offender. The judge, thereafter, vacated defendant’s original 25-year sentence and imposed an enhanced sentence of life imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant appeals the adjudication and sentence.

DISCUSSION

In his first assignment of error, defendant argues that the trial court erred by failing to find that the predicate offenses on the multiple offender bill of information did not sufficiently inform the defendant of his right to cross-examine and confront the witnesses against him as mandated by La. C.Cr.P. art. 556.1. He specifically argues [695]*695that his two predicate convictions were infirm because the trial court in both cases failed to properly advise him of his constitutional right of confrontation in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),2 and La.C.Cr.P. art. 556.1.3

I/The State responds that the evidence produced at the habitual offender hearing was sufficient to show that the two predicate guilty pleas were knowingly and voluntarily made, and the language used in the guilty plea forms adhered to the dictates of Boykin. The State further responds that La.C.Cr.P. art. 556.1 is not applicable to defendant’s predicate guilty pleas, which were entered before the article was enacted by 1997 La. Acts, No. 1061, § 1 and became effective on August 15,1997.4

At the second hearing to prove defendant’s multiple offender status, the State introduced the following exhibits: the curriculum vitae of the fingerprint expert; a fingerprint card containing defendant’s fingerprints; and certified copies of defendant’s two predicate convictions in case nos. 95-5719 and 97-1488. Furthermore, at that hearing, defendant stipulated that he was the same person who was convicted of the two predicate felonies alleged in the habitual offender bill. Additionally, the parties stipulated that less than ten years had passed between defendant’s release from state custody on the second predicate offense and the commission of the underlying offense. .

Defendant, however, objected to both predicate convictions in the habitual offender bill, on the basis that, in both cases, the district court failed to advise him of his right of confrontation before accepting his guilty pleas. He makes the same argument on appeal.

When a defendant’s habitual offender status is based on convictions obtained by guilty pleas, the State has the burden of proving the existence of the guilty pleas and that defendant was represented by counsel when the guilty pleas |fiwere offered. State v. Shelton, 621 So.2d 769, 779 (La.1993); State v. Jenkins, 07-586, pp. 4-5, (La.App. 5 Cir. 1/22/08), 977 So.2d 142, 147. If the State meets its burden of proof, the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. State v. Shelton, supra; State v. Jenkins, 07-586 at 5, 977 So.2d at 147.

If the defendant meets his burden or irregularity or infringement, the burden shifts back to the State to prove the constitutionality of the plea by producing a “per-[696]*696feet transcript,” which shows the defendant’s waiver of his Boykin rights was voluntary, informed, and express. Shelton, 621 So.2d at 779-80; Jenkins, supra. If the State produces anything less than a perfect transcript — such as a guilty plea form, a minute entry, or an imperfect transcript — the trial judge must weigh the evidence to determine whether the defendant’s prior guilty plea was both knowing and voluntary. Shelton, 621 So.2d at 780; Jenkins, supra.

As the State points out in its brief, this Court has recently addressed this issue. In State v. Otero, 09-468 (La.App. 5 Cir. 1/26/10), 31 So.3d 1125, writ denied, (La.9/24/10), 45 So.3d 1072, the defendant challenged his status as a third offender on grounds that he was not advised of his right to cross-examine witnesses against him in connection with his two predicate guilty pleas. Following the supreme court’s reasoning in State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560 (per curiam),5 and State v. Smallwood, 06-2363 (La.5/18/07), 955 So.2d 1264,6 this Court found that the defendant failed to show any irregularity in the predicate guilty pleas, since the guilty plea forms showed both the defendant’s attorney and the trial court advised the defendant of his right to confront his | ^accusers, and the right of confrontation encompasses the right to conduct cross-examination at trial. Otero, 09-468 at 6-7, 31 So.3d at 1130.

Applying those precepts to this case, we find that the State met its initial burden at the second habitual offender hearing by introducing certified copies of defendant’s predicate convictions. The certified copies for each conviction contained a Waiver of Constitutional Rights Plea of Guilty form signed by defendant, his attorney, and the trial judge. Thus, the State established the existence of two prior guilty pleas in which defendant was represented by counsel.

Under Shelton, the burden then shifted to defendant to show an irregularity or infringement in the prior pleas. Defendant argued, and continues to argue on appeal, that the guilty plea form did not contain language to “specifically provide notice to the defendant of his right to confront and cross examine witnesses” against him.

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Bluebook (online)
54 So. 3d 692, 2010 La. App. LEXIS 1547, 2010 WL 4486542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mosley-lactapp-2010.