State v. Richmond

734 So. 2d 33, 1999 WL 126091
Louisiana Court of Appeal·Decided March 10, 1999·No. 98-KA-1015·Published·Cited by 45 cases

Opinion

734 So.2d 33 (1999)

STATE of Louisiana
v.
Nawassah J. RICHMOND.

No. 98-KA-1015.

Court of Appeal of Louisiana, Fifth Circuit.

March 10, 1999.

*35 Laurie A. White, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Appellant Nawassah J. Richmond.

Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Terry M. Boudreaux, Assistant District Attorney, Research and Appeals, Gretna, Louisiana, for State.

Panel composed of Judges H. CHARLES GAUDIN, CHARLES GRISBAUM, Jr. and JAMES L. CANNELLA.

CANNELLA, Judge.

Defendant, Nawassah J. Richmond, appeals her finding as an habitual offender and enhanced sentence. We affirm.

On July 8, 1996, defendant was charged with crime against nature, a violation of La.R.S. 14:89. She pled not guilty at arraignment and was tried on July 24, 1997 by a six person jury. On that date the jury returned a unanimous verdict of guilty as charged. On August 29, 1997, defendant was sentenced to serve 5 years imprisonment at hard labor, after which she filed an appeal. On March 25, 1998, this court affirmed the defendant's conviction and sentence.[1] On May 27, 1998, the State filed an habitual offender bill of information, charging the defendant with being a third felony offender. Pursuant to La.R.S. 15:529.1. After a hearing on July 17, 1998 defendant was found to be a third felony offender and was sentenced to 10 years imprisonment at hard labor. On appeal, defendant asserts that the trial judge erred in finding her a third felony offender and that her enhanced sentence is excessive.

Defendant asserts that the trial judge erred in finding her a third felony offender in violation of her Due Process rights under the Fourteenth Amendment to the United States Constitution. She contends that the State failed to meet its burden of proving that her prior guilty pleas were knowingly, intelligently, freely and voluntarily made because the Boykin transcripts were missing from the exhibits relating to the prior convictions and the State failed to mention the waiver of rights form at the hearing. Defendant contends that State v. Taylor, 93-226 (La.App. 5th Cir. 5/30/95), 656 So.2d 722 requires the State to produce a copy of the Boykin transcript and defendant's signed waiver of rights form to show that her prior convictions were valid.

To prove that a defendant is an habitual offender, the State must establish, *36 by competent evidence, the prior felony convictions and that defendant is the same person who was convicted of the prior felonies. State v. Chaney, 423 So.2d 1092, 1103 (La.1982); State v. Bailey, 97-302 (La.App. 5th Cir. 4/28/98),713 So.2d 588, 610, writ denied, 98-K-1458 (La.10/30/98), 723 So.2d 971. 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. Bailey, 713 So.2d at 610; State v. Brown, 514 So.2d 99 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216, reh'g denied, 487 U.S. 1228, 108 S.Ct. 2888, 101 L.Ed.2d 923 (1988). The State must further show that the prior convictions fall within the 10 year cleansing period prescribed by La. R.S. 15:529.1(C). State v. Bailey, 713 So.2d at 610.

Where a prior conviction resulted from a guilty plea, the State must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to the guilty plea, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State v. Shelton, 621 So.2d 769 at 779 (La.1993); State v. Bailey, 713 So.2d at 610. If defendant denies the allegations of the bill of information, the State has the burden of proving the existence of the prior guilty pleas and that defendant was represented by counsel. State v. Shelton, 621 So.2d at 779; State v. Bailey, 713 So.2d at 610; State v. Conrad, 94-232 (La. App. 5th Cir. 11/16/94), 646 So.2d 1062, 1064, writ denied, 94-3076 (La.4/7/95), 652 So.2d 1345. Once the State meets this burden, defendant must produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. State v. Shelton, 621 So.2d at 779; State v. Bailey, 713 So.2d at 610; State v. Conrad,, 646 So.2d at 1064. Thereafter, the State must prove the constitutionality of the plea. State v. Shelton, 621 So.2d at 779; State v. Bailey, 713 So.2d at 610; State v. Conrad, 646 So.2d at 1064.

In proving the constitutionality of the plea, the State must produce either a "perfect" transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an "imperfect" transcript. State v. Shelton, 621 So.2d at 780. If anything less than a "perfect" transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant's prior guilty plea was informed and voluntary. Id at 780.

In this case, defendant failed to file a written response to the bill of information, setting forth with particularity her claim and the factual basis for it, as mandated by La.R.S. 15:529.1(D)(1)(b).[2] In addition, the only objection made at the habitual offender hearing was to the identification procedure. She did not object to the absence of the Boykin transcripts or that the State failed to mention the waiver of rights form at the hearing. However, we note that the State did offer these into evidence. Defendant presents these challenges for the first time on appeal.

In State v. Windham, 630 So.2d 688, 688 (La.1993), the Louisiana Supreme Court stated:

In the absence of a contemporaneous objection at the multiple offender hearing, the defendant otherwise may not complain for the first time on review that the records of his guilty pleas introduced by the State at the multiple offender hearing did not reflect compliance with this court's Boykin rules.

In State v. Bell, 97-1134 (La.App. 5th Cir. 2/25/98), 709 So.2d 921, 926 writ denied, *37 98-792 (La.9/16/98), 721 So.2d 477, the defendant complained that his habitual offender adjudication was invalid because the State had failed to produce Boykin transcripts of his prior guilty pleas. We declined to consider defendant's argument, because he had not stated his objections in a written response, nor had he offered an oral objection at the habitual offender hearing. See also: State v. Hardy, 98-25 (La.App. 5th Cir. 5/13/98), 715 So.2d 466, 473.[3] Also, the Fourth Circuit has concluded that a defendant must file a written response to an habitual offender bill in order to preserve for appeal the issue of sufficiency of proof of a prior conviction based on a guilty plea. State v. Cossee, 95-2218 (La.App. 4th Cir. 7/24/96), 678 So.2d 72.

In this case, defendant did not file a written response to the bill of information nor did she challenge the State's proof of the guilty pleas or their compliance with Boykin at any time before her sentence was imposed. Accordingly, she cannot raise those issues now to attack her sentence as a third felony offender.[4]

Defendant a

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