State v. Warner

638 So. 2d 1160, 1994 La. App. LEXIS 2049, 1994 WL 278393
CourtLouisiana Court of Appeal
DecidedJune 24, 1994
DocketNos. 91 KA 1387, 92 KA 0352
StatusPublished
Cited by3 cases

This text of 638 So. 2d 1160 (State v. Warner) 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. Warner, 638 So. 2d 1160, 1994 La. App. LEXIS 2049, 1994 WL 278393 (La. Ct. App. 1994).

Opinions

jaPITCHER, Judge.

Gregory Warner was charged by bill of information with possession of stolen things, a violation of LSA-R.S. 14:69. He pled not guilty and, after trial by jury, was convicted as charged. The court sentenced him to serve a term of ten years imprisonment at hard labor. Subsequently, the state filed a bill of information charging defendant as a second felony offender based upon a previous felony conviction in 1980 for theft (of a value between $100 and $500). After a hearing, the trial court found defendant to be a second felony offender, vacated the original sentence, and sentenced defendant as a habitual offender to serve a term of eighteen years imprisonment at hard labor.

Defendant has appealed. In connection with his conviction for possession of stolen things, he assigns as error a request that the conviction be reversed due to patent error. Such a request is unnecessary as this Court routinely reviews all appeal records for the existence of patent error. See LSA-C.Cr.P. art. 920(2). On appeal, defendant [1162]*1162does not specifically brief this assignment, nor does he call this court’s attention to the existence of any particular patent error. We have reviewed the record of defendant’s conviction for possession of stolen things and have found no indication of patent error. In connection with defendant’s adjudication as a second felony habitual offender, he assigns the following as error: (1) the court’s error in adjudicating him as a habitual offender; and (2) the court’s imposition of an excessive sentence.

In a pro se brief filed with this court, defendant attacks the sufficiency of the evidence and advances a variety of arguments relating to the effectiveness of his trial counsel. For the following reasons, we refuse to consider these pro se arguments. Although defendant asked the trial court to allow him to represent himself on appeal, the court denied the request after a hearing and appointed counsel to represent defendant on appeal. Defendant’s applications seeking review of the trial court’s denial of his motion for self-representation were denied. State v. Warner, 594 |aSo.2d 397 (La.App. 1st Cir. 1991), writs denied, 596 So.2d 196, 600 So.2d 668 (La.1992). A criminal defendant has no right to be both represented and representative. State v. McCabe, 420 So.2d 955, 958 (La.1982). Thus, we will not consider his pro se arguments. Furthermore, the claims raised in the pro se brief were not formally assigned as error. In accordance with well-established jurisprudence, this Court will not consider arguments which are neither assigned as error nor related to errors patent on the face of the record. State v. Johnson, 552 So.2d 807, 808 n. 2 (La.App. 1st Cir. 1989). See LSA-C.Cr.P. arts. 844 and 920.

ADJUDICATION AS HABITUAL OFFENDER

In this assignment of error, defendant claims the court erred when it adjudicated him as a second felony habitual offender. Defendant claims the five year cleansing period provided by LSA-R.S. 15:529.1(C) had expired before the commission of the instant offense and the court improperly considered an offense defendant committed on July 6, 1987 as interrupting the five year cleansing period. In response, the state claims that, because defendant did not go an entire five year period without serving time in a penal institution, the five year cleansing period did not apply.

The habitual offender statute contains a five year cleansing period:

This Section shall not be applicable in eases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.

LSA-R.S. 15:529.1(C). The date of actual discharge from the state’s custody, whether extended through revocation of parole or shortened by law due to “good time” diminution of the initial sentence, is the controlling date for determining the expiration of the predicate felony. State v. Johnson, 552 So.2d at 809-10.

At the hearing, the state introduced records from the Twenty-Second Judicial District Court which showed that, on October 29, 1980, “Kent Warner” pled guilty to theft of an item valued at more |4than $100 and less than $500. This was the offense listed in the habitual offender bill as being the predicate felony. The state also introduced a copy of defendant’s records from the Louisiana Department of Public Safety and Corrections, commonly referred to as a “pen pack.” On appeal, defendant concedes that, although various names for the defendant are listed in the documents contained in the pen pack, the state’s fingerprint expert established that the records relate to defendant. A document in the pen pack shows that defendant was discharged from state custody on the theft conviction on August 4, 1982.

Documents contained in the pen pack also reveal that, on August 19, 1987, defendant pled guilty in the Twenty-Second Judicial District Court to unauthorized use of a movable valued over $1000. The offense occurred [1163]*1163on July 6, 1987, and defendant was discharged from state custody on May 10, 1989. This conviction is not listed in the habitual offender bill as a predicate felony.1

The state also introduced the testimony of John Sumrall, a Bogalusa City Police Officer, who was asked by the state to interpret defendant’s rap sheet which was included in the pen pack. According to Sumrall’s testimony, defendant was placed on probation for other offenses after his discharge on the predicate felony on at least two occasions prior to commission of the instant offense. Sumrall testified that defendant was “placed on probation” on January 16, 1984, the probation “began” on February 3, 1984, and the probation was “closed out” on November 21, 1985. Sumrall | ¡¡further testified that defendant was “placed” on probation on August 19, 1987, the probation “began” July 6,1987, and the probation “ended” August 19, 1989 with revocation. Sumrall also testified that at some point defendant received a seven year sentence from which he was discharged on May 10,1989. Sumrall indicated the date for this sentence was not on the rap sheet.2

At the conclusion of the habitual offender hearing, defense counsel claimed the issue was whether or not defendant was out of jail for a cumulative five year period between his discharge on the predicate felony conviction (August 4, 1982) and the commission of the instant offense (July 3, 1990). In response, the state claimed it had established numerous periods of incarcerations during that time period and, because defendant did not make it through an entire five year period without being incarcerated, the five year cleansing period provision did not apply. After reviewing post-hearing memoranda on the issue, the trial court adjudicated defendant to be a second felony offender. In written reasons, the court concluded that the 1987 intervening felony conviction “interrupted” the five year cleansing period. Because an uninterrupted five year period did not elapse between August 4, 1982 and July 3, 1990, the court concluded that the cleansing period provision did not apply. Defendant objected to this ruling by the court.

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Cite This Page — Counsel Stack

Bluebook (online)
638 So. 2d 1160, 1994 La. App. LEXIS 2049, 1994 WL 278393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-warner-lactapp-1994.