State Of Louisiana VS Joseph M. Brister
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 KA 0787 STATE OF LOmSIANA VERSUS JOSEPH M BRISTER Judgment On Rendered November 2 2007 Appeal from the Twenty Second Judicial District Court In and For the Parish of St Tammany State of Louisiana Docket No 395328 Honorable William J Burris Judge Presiding Hon Walter P Reed Counsel for Appellee District State of Louisiana Attorney Covington Louisiana By Kathryn W Landry Assistant District Attorney Baton Rouge Louisiana Frank Sloan Counsel for Defendant Mandeville Louisiana Joseph BEFORE Appellant M Brister GAIDRY McDONALD AND McCLENDON JJ McCLENDON J Defendant being a convicted felon in weapon count plea of not charged as information to to imprisonment was probation now sentence on weapon or or carrying a Defendant entered a was habitual count two Defendant As to count at one found was forty imprisonment years suspension of sentence i at on a sentenced probation which the trial c 1 1A 15 529 as adjudicated was defendant 1 000 fine guilty offender bill of hard labor without the benefit of a concealed a dangerous instrumentality by jury defendant count court two hard labor without The trial court ordered concurrently appeals arguing count two sentencing minute entry firearm a LSA R S to or of 14 95 1 and 14 94 sentence and to sentenced bill of information with charged by The state filed habitual offender Defendant the trial enhance to sentences be served excessive a count Pursuant the benefit of that the illegal use of a suspension of suspended defendant each seeking fifteen years or possession After guilty felony parole and one was violations ofLSA R S count two fourth Brister Joseph M that the trial In the alternative court imposed an defendant argues that should be amended to conform to the sentencing transcript Defendant raises the following additional assignments of error in a pro se 1 brief The trial statements court made erred in denying by defendant on the motion to suppress March 21 2005 wrongfully allowed the prosecutor to exclude prospective jurors on the basis of race and defense counsel was ineffective for failing to object to such exclusion 2 The trial court 3 Defendant predicate guilty plea to device fraud is invalid because he was not apprised right to have the case tried by a judge s May 5 1992 2 access of his pack was not admitted during the habitual offender proceeding and the trial court erred in allowing defendant to A 4 pen be multi billed 5 The trial a previous sentence F or the court following both instant convictions on 15 529 1D in not violated LSA R S sentence on imposing imposing the instant offenses before under the habitual offender law reasons adjudication and the affirm the convictions the habitual offender we sentences and remand to the trial court to amend the sentencing minute entry STATEMENT OF FACTS of March 20 2005 During the early morning hours Trooper Christian Chattellier and Lieutenant Richard Cook of the Louisiana State Police heard suspected gunshots coming from Louisiana at in front of the the time Troop L US Headquarters Trooper Chattellier walked troop and observed a forty miles 190 at the lane toward the shoulder of the right appeared arm to be and fired While a a thirty large framed male leaned pursued as Chattellier exited his unit ordered the passenger out guard as was U S traveling in The passenger highway to and who of the window extended his stopped the Pontiac he moved approached Trooper Chattellier about in the vehicle the vehicle Trooper drew his weapon exit the vehicle with his hands up orders to exit the vehicle with his hands up his hands up The vehicle on maintaining sight of the vehicle Trooper Chattellier quickly the passenger hands down outside gunshot toward the troop accessed his unit and observed to were traveling southbound per hour Highway The officers the service road in front of the to colored Pontiac light in Mandeville 190 Highway After further the passenger exited with his Trooper Chattellier repeatedly ordered the passenger Lieutenant Cook approached drew his weapon Trooper Chattellier patted down the male subject 3 and to hold and stood The subject s breath smelled of alcohol vehicle There were no The driver identified as was also ordered out of the black handgun from A cold partially a the passenger side of the vehicle was female other occupants in the vehicle Trooper Chatiellier recovered Budweiser beer a the floorboard on consumed bottle of located in the back of the vehicle Defendant was the passenger and sole male occupant of the vehicle ASSIGNMENT OF ERROR NUMBER ONE In the first sentence assignment of imposed the on defendant argues that the error enhanced count Defendant notes that the maximum term of offense illegal use Defendant further inhabited fraud to a notes that his not at the time of the nature offenses revoked of imposing on repeated two occasions denied a s desire sentence State v years appeal court Defendant concludes that court defendant s parole imposition of sentence the s discretion to generally objected the conviction and sentence Arguably defendant 619 So 2d 1059 s to impose the sentence sentence a s objection 1060 4 La defense sentence and noted The trial to the 1993 per curiam court to file length of bare claim of excessiveness a was pattern and reminded defendant counsel a his actions court noted that After the could be considered Mims factors The trial court further noted defendant s the request for reduction in written motion this to device access Defendant contends that the trial the trial criminal behavior greatly higher than forty dwelling and proportionate to attorney although noting the trial defendant inhabited an mitigating as sentence without hard labor of his convictions and his obvious intoxication lesser sentence would have been In underlying for the prior convictions unauthorized entry of an crimes of violence consider the or year excessive is two imprisonment is two years with weapon dwelling burglary of were failed of count forty under State v Mitchell 96 1896 97 1988 denied sentence is La 705 So 2d 1098 is section 20 of the Louisiana Constitution punishment La 798 to shock discretion v Supreme Court mandated contribution to grossly out of which 623 as sentence is harm 83 when the crime and to State it society is so Hurst 99 2868 v writ denied 00 3053 sentence La in the imposed 797 So 2d at 83 So 2d 1276 1280 81 that if a trial of punishment to the imposition court crimes or not 1993 La the judge determines that the that the no measurable sentence amounts of pain and severity of the crime holding in Dorthey punishable the of justice 10 11 that would one a that is severity of the the to by the Habitual Offender Law makes recognition by the are Generally statutory limits and the than the purposeful However the sentence a the Court in State judge is given wide discretion recognized proportion prohibits excessive in the absence of manifest abuse of acceptable goals reduce the sentence to express as Dorthey punishment more defendant s imposition of pain and suffering 797 So 2d 75 Hurst 99 2868 at pp In State nothing one s sense A trial So 2d 962 should not be set aside Louisiana light of of sentences within imposition to held that grossly disproportionate if 1 Cir 10 3 00 App 10 5 01 as Supreme grossly disproportionate considered in are disproportionate 10 1979 La 767 than the needless more A sentence is considered p The Louisiana punishment 367 So 2d 762 nothing writ 24 only for constitutional excessiveness considered excessive if it is or 697 So 2d 22 Accordingly statutory limits may still be excessive within the crime 1 Cir 6 20 97 App 19 98 of excessive Sepulvado v La examined Article I imposition 4 p suffering and is he is duty bound to constitutionally excessive be was made only after and in light of that the determination and definition of acts is purely 5 a legislative function It is the Legislature prerogative s crimes classified these to felonies as unless punishments determine the length of the courts Moreover they are found are sentence imposed for with charged be unconstitutional to applying Dorthey 623 So 2d at 1278 As fourth a LSA R S felony habitual offender defendant 15 529 1 1A imprisonment and RS 14 94 c i to maximum a a term minimum of life defendant received Here significantly less than the maximum life trial under of twenty years term year of imposing an enhanced sentence is not disproportionate to defendant s term We do not find that the sentence abused its discretion in The See also LSA imprisonment imprisonment court years subject imprisonment forty a was criminal behavior sentence shocking This of grossly or assignment forty of error lacks merit ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error defendant upon advice from the on count two probation or also noted to notes that the trial court prosecutor amended the enhanced require that the sentence imposed be served without benefit of sentence However suspension of sentence without restricting parole as by defendant the minute entry for the sentencing proceeding incorrectly indicates that the probation parole or to be served without benefit of of sentence Defendant contends that the sentence suspension is trial court should be ordered to amend the minute entry to conform to the sentencing transcript Herein the minute entry for the indicates that illegal the parole was restricted sentencing Such See LSA R S 15 529 1G and 14 94 court properly sentenced defendant 6 a on count two restriction of However the incorrectly parole would be transcript reveals When there is a discrepancy between the minute entry and the 441 So 2d 732 Lynch court to correct conform to the 734 transcript the transcript prevails La Thus 1983 the minute entry and commitment order if necessary transcript State Lynch 94 v 0543 20 21 pp correct the minute entry for the sentence on La La 95 1441 The matter is remanded to the trial court with 662 So 2d 466 v the trial hereby order we 655 So 2d 470 481 82 writ denied Cir 5 5 95 State to 1 App 11 13 95 order to the habitual offender bill and if necessary the commitment order in accordance with this an opinion PRO SE ASSIGNMENT OF ERROR NUMBER ONE In the first pro court erred in defendant the St visit on the motion to suppress Division was in of the of Probation custody not and statement State or v confession 2005 during is inadmissible was made a since that an during interrogation promulgated constitutional a rights and made 86 S Ct 1602 set of inform the person in App to to was an first intelligent waiver of those 1 Cir 15 12 666 So 2d 95 671 So 2d 925 1966 In Miranda the v Supreme protect the therein delineated custodial custody 7 an 16 L Ed 2d 694 safeguards rights of persons subject must accused who makes during custodial interrogation Davis 94 2332 p 8 La Arizona 384 U S 436 warnings by statement made at March 21 Parole proving 400 406 writ denied 96 0127 La 4 19 96 Court on made given voluntarily advised of his constitutional rights statement Department of Public Safety and statement The state bears the burden of inculpatory the and should have been advised of his Miranda Defendant argues that the was to as Defendant argues that the March 21 2005 by Agent Joseph Cotton defendant and denying assignment of error defendant contends that the trial Tammany Parish Correctional Center Corrections rights se police interrogation The that he has the right to remain that any statement he does make may be used silent him and that he has appointed l Miranda that showing right a 384 U S the Miranda affirmatively show that the and not threats the presence of to requirements or defendant s or or statement confession as reflect a measure itself Rhode Island L Ed 2d 297 of compulsion In Innis 1980 other than those police should know response from the are suspect detennination of the actual speech or conduct that safeguards to as normally the must free and voluntary menaces was into evidence an that inherent in a functional custody or objective the to actions elicit test of equivalent attendant to arrest and perception of must 100 S Ct at 1689 90 the any words reasonably likely a state 300 100 S Ct 1682 1689 64 446 U S at 300 01 This is creates the intimidation beyond above and interrogation which the Court defined police In addition to in the Miranda opmlOn Innis 446 U S 291 v or LSA R S 15 451 conceptualized Court extended the Miranda the confession in order to introduce promises Interrogation of the met were made under the influence of fear duress inducements against attorney either retained an 86 S Ct at 1612 at 444 statement evidence as an that does on the part custody that incriminating not require a suspect but prohibits police situation in which the suspect probably will experience the functional equivalent of direct questioning by concluding that the police are to trying Abadie 612 So 2d 1 L 35 2d Ed interrogate their 1 Miranda La the defendant that to make cert an denied incriminating 510 U S 816 response 114 S Ct The Court in Innis concluded that the 1993 concern In Innis two State 66 police did police officers commented handicapped children might injure themselves only applies Supreme The Louisiana 6 get him v 126 not about if by where the party performing the interrogation is a state actor Court has found a probation officer to be a state actor State v Maise 00 1158 pp 10 11 La 1 15 02 805 So 2d 1141 8 1149 chance they found officers prompted the defendant who had previously requested counsel missing murder a reveal the location of the weapon functional remarks of equivalent not officers had no reason to questions directed courts suppress was Consequently the ruling of 05 0011 p 10 La 127 S Ct 1279 the ruling on defendant 10 7 06 167 L Ed 2d 100 motion s pertinent evidence given at the trial of the n 2 hearing on transported him to Department of Safety Public Statement of Miranda with the to 122 on a on case correct State motion motion a to State v denied cert determining whether In we are not limited We may consider all 372 So 2d Chopin v an Trooper Chattellier read L Corrections rights statement may at any a Office time even 9 the Police advised to right and defendant as to advised the evidence the right appointed subsequent lawyer present was specifically be used or State s Defendant The form attorney either retained questions without under arrest after the instant The trooper read each trooper stop answering questions answer was form to defendant Rights remain silent that any the presence of Troop and indicated that he understood his to at La 1979 offense and right an 446 U S ruling judge the motion Trooper Chattellier placed defendant along trial 2007 to suppress the 1223 a 936 So 2d 108 at follow to susceptible abuse of that discretion an the evidence adduced 1222 off hand Innis vested with great discretion when are US to the the defendant and the to suspect that the defendant suppress will not be disturbed absent Leger not to 100 S Ct at 1689 91 Trial to was because the officers appeal concerning the safety of handicapped children 300 03 between the musing The Court found this conduct interrogation express were This weapon a and the right to prior decision to According to Trooper Chattellier defendant stated that he understood his understand his he would not Defendant did rights understand his mentally impaired ill or anything and stated that stated that the firearm questioning was have to or a Further defendant did rights willing was not his to On lawyer present Chattellier confirmed that he smelled alcohol was Trooper Chattellier stopped at the motion to suppress testimony Statements made to suppress hearing Agent time of his instant arrest motion 2005 to suppress the was defendant to his that I was there kept wanting before to Agent talking place to tell elicit defendant disclosed A specifically testified cell he started me a hold what to me on not s soon at going at the motion the hearing the jail on as on to to initial remarks during the hearing defendant what he was As I brought doing drug screen was 10 not the was to I told him him happened He that just night questions was to not question Agent Cotton asked with the firearm and defendant The substance of the response also on him out of the happened with what follow up the March 21 The substance of those remarks a at interrogate defendant Cotton stated that he did not ask defendant any s to Corton did not advise about what had him and also was breath when he The purpose of the visit arrest and did at testimony intend holding Trooper parole supervisor s defendant of his Miranda Cotton s cease consistent with his issue Agent Agent to examination was at were complete paperwork and drug screening rights that he wished defendant Agent Cotton visited defendant s Defendant hearing According after defendant day on be promised or questions cross testimony Cotton Agent Cotton trial s answer indicating never not appear to threatened not was to be intoxicated such that not appear to Defendant he rights and seemed disclosed at responded the hearing On March 29 2005 him the notice of parolee Without any Agent Cotton visited defendant in the jail for his preliminary hearing questioning or an attempt rights to defendant informed the agent that the weapon that his belonged to girlfriend s uncle rights Agent Cotton asked him he some was noted a now as a elicit such information was in the he is follow up of the rear car saying 1 think 1 question from earlier changing his story friends with him and hearing Agent Cotton had not advised defendant of his Miranda why for take to saying that it his uncle and he was just said that he must have been mistaken On cross March 21 examination Agent he advised defendant that him but did not Cotton stated that at anything read him his Miranda he said could be used rights clarification According after defendant against On redirect examination to Cotton Agent spontaneously began discussing s offense report initially advised the agent that he noticed floor of the back girlfriend was driving seat as further advised that he with a bullet coming of the pistol on his picked the out March 21 semi automatic on US car the case defendant pistol Highway on 190 was the He jammed As he started hitting the top rail window frame the pistol discharged of the ejector port the side of the a on firearm up and noticed that it Agent Cotton warned defendant that anything he said could be used against him defendant stated that he know what happened the vehicle must The trial question to was innocent and wanted the agent Agent Cotton asked defendant why he had and defendant stated that his friends up on Cotton stated that he could not recall whether he asked for any Agent After point some two a to firearm unnamed friends allowed to ride in have left the firearm in the vehicle court concluded that defendant Agent Cotton s March 29 2005 follow regarding the inconsistency of the 11 two statements tantamount was any to as suppress to the March 21 portion of defendant Cotton follow up s defendant s s on denied the motion court 2005 statement and statement the motion granted March 29 2005 made after explanations provided during the to to as Agent During the trial Agent Cotton testified question inconsistent two The trial interrogation to as separate visits noted above March 21 2005 and March 29 2005 regarding the presence of the fire ann contests As noted the March 21 2005 on defendant appeal Miranda or 389 So 2d 1307 3159 69 defendant L that appears 1310 2d Ed on where even explanation of his possession of the Miranda not be issue a before every the assistance of counsel State Kimble v requirement interrogation 546 So 2d 834 that Miranda 840 S Ct by However it Nonetheless in Trooper rights the day before the State 46 50 Moseley 587 So 2d 1991 process La App warnings be given a 1066 La 101 subsequent remarks unless the evidence showing Defendant does such Harvill 403 So 2d 706 v suspect is questioned absent v s subsequent interrogation in the State 922 Castillo suspect has been informed of and has waived his significant break a v rights during initial questioning by the police those rights need repeated shows When 453 U S firearm Chattellier advised defendant of his Miranda statement at State spontaneous and voluntary were police the initial remarks made elicited defendant Cotton result of as a custody denied Herein 1981 March 21 2005 Agent cert given admissible in evidence without are defendant is in 1980 La 1004 a not statements compelling influence warnings the admission of statement Spontaneous and voluntary interrogation solely La not 12 or 2 Cir contend on 709 1 Cir 1989 of coercion App as a repeated on request for La 1981 There is every time no a the part of the police writ denied 589 So 2d appeal that he invoked his to counsel right claims any of the during Defendant was showing He we cannot say Cotton and his advice of to or a suppress the March 21 error Rather defendant elicited was rights by interrogation rights and signed to speak an request from defendant rendered the statement court form a With attorney that the gap between the find that the record supports the trial we sessions Miranda asked never of any evidence of coercion attorney an statement verbally advised of his waiving those rights to 21 only that his March questioning to no speak Agent statement to inadmissible Thus denial of the motion s 2005 statement at issue herein to assignment of This lacks merit PRO SE ASSIGNMENT OF ERROR NUMBER TWO In the second pro trial on court wrongfully allowed the basis of to object evidence race to substantiate 1986 a discrimination Kentucky v defendant burden then shifts jurors to challenges Herein As to the second In prospective jurors ineffective for failing to ample 106 S Ct 1712 90 L Ed 2d establish his peremptory because of stated in the record defendant uses the prosecution counsel noted that the race as was race to articulate generally the The state prospective juror such race is made neutral of the inference challenges or showing a race excused was cause to the for the prospective jurors by the state African American defense counsel 13 a an of case peremptorily excused six prospective prospective juror noting raise challenge If such facie prima a by showing facts and circumstances that potential jurors not exclude to 476 U S 79 first must exclude was prosecutor prima facie proof of such exclusion prosecuting attorney or defendant claims that the error Defendant claims that the record contains that the challenge the of and that defense counsel such exclusion Under Batson 69 assignment se specified defense the same that there was Defense counsel did pattern yet no other peremptory challenges objections during no exercised voir 2d So 1197 1980 objection is an not 1200 La 1984 State Nevertheless defendant counsel s 1168 69 La 1991 this claim recasts to the in the selection of State v 841 see Spencer 446 art 351 So 2d 349 386 as an of manner jurors peremptorily LSA C Cr P Bazile v the to irregularities raised timely as Defense counsel made state the removal of to or Potter 591 So 2d 1166 v the A defendant waives review of the jury when State by dire examination either questioning prospective jurors challenged not make any comments La allegation of defense ineffectiveness A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I In Louisiana Constitution pronged test performance is a prejudicial is if it deficient and 2 the was so serious trial whose result is reliable 687 as to claim of ineffectiveness must must deprive Strickland 104 S Ct at 2068 Cir 9 28 01 809 So 2d 360 s Further State 369 70 So 2d 857 860 To show 1984 s La on one App two a The or 668 prejudice the unprofessional conduct Strickland Felder 00 2887 p error fair trial 466 U S s 11 writ denied 01 3027 La La 466 App 1 10 25 02 it is unnecessary to address the issues of both performance and prejudice inadequate showing v him Washington proceeding would have been different U S at 694 counsel v a 1 his attorney the defendant of demonstrate that but for counsel the result of the 827 So 2d 1173 show that deficiency prejudiced 104 S Ct 2052 2064 80 L Ed 2d 674 defendant an a The defendant employed was assessing 13 of the S to the of the 1 Cir 1992 1993 14 defendant ifthe defendant makes components writ denied State Serigny 610 614 So 2d 1263 La v A claim of ineffectiveness is unless the record proceedings v generally relegated definitive resolution 1194 record The 121 S Ct 1196 not from investigated an evidence be In the review appellate State 697 So 2d 1355 v 1363 64 present the case court in where defendant could present these Accordingly this allegation is Albert 96 1991 cannot Only record alone beyond that contained in the instant record could sufficiently investigated denied 531 of counsel assistance inspection of the evidentiary hearing in the district an 2001 State appeal establish ineffective assistance of counsel of ineffective particular allegation be cert 149 L Ed 2d 111 standing alone does sufficiently on 776 So 2d 396 411 permits Miller 99 0192 p 24 La 9 6 00 U S post conviction to p 11 La App not allegations subject to 1 Cir 6 20 97 2 PRO SE ASSIGNMENT OF ERROR NUMBER THREE In the third pro 5 1992 se assignment predicate guilty plea apprised of his right to to of access have the error device fraud is invalid case tried argues that he did not knowingly pleaded guilty particular predicate other two offender the predicate convictions adjudication is illegal sentencing 15 529 that to 1 1A c imprisonment him that the range ii 2 by a range was he Defendant would have to a enhanced He does not contest the court a misinformed him offense that he twenty years defendant is satisfy hearing the not defendant Citing LSA is not court to life subject erred in 15 to R S life to imprisonment habitual offender requirements of LSA as informing the state by competent evidence the prior felony convictions and order to receive such was Defendant further argues that the habitual Defendant concludes that the trial sentencing Thus judge offense because the trial the a as May intelligently waive his rights when he defendant contends To prove that establish for and defendant argues that his C Cr P art must that the 924 et seq in defendant is the v means such as the convicted of the was 1103 423 So 2d 1092 Chaney by various person who same La prior felonies The state may establish this 1982 testimony of witnesses to prior testimony matching fingerprints of the accused with those prior proceedings State photographs or Brown 514 So 2d 99 v 1754 100 L Ed 2d 216 108 S Ct Where prior a Boykin was those to the allegations defendant represented by counsel rights or of a produce of the guilty plea some v state must rights and that he guilty plea required by as 1969 and that the prior guilty pleas affirmative evidence of an State plea the Once the state meets this burden the Thereafter the procedural irregularity constitutionality a of the bill of information the state has the existence of the proving defendant must denied 486 U S 1017 cert 1109 23 L Ed 2d 274 89 S Ct the burden of was in the record of duly authenticated record advised of his constitutional rights prior If the defendant denies the a crimes expert 1988 Alabama 395 U S 238 v 1987 La conviction resulted from show that the defendant knowingly waived contained in 106 State infringement of his the state must prove Shelton 621 So 2d 769 779 80 La 1993 In either a proving perfect transcript and the trial entry or transcript 3 is judge an or of the imperfect transcript presented that defendant the trial state to s plea the state must Boykin colloquy any combination of the defendant and the proof the constitutionality of the 1 If court must a anything Shelton 621 So 2d at 780 16 was form 2 less than a a minute perfect the evidence submitted determine whether the prior guilty plea between the defendant guilty plea weigh produce state met informed by its burden of and voluntary In this information for it not case defendant failed to file setting as mandated make any adjudication forth with 15 529 objections prior After the trial offender defendant noted the trial to court otherwise may not the at guilty pleas introduced by the not reflect 688 La on per curiam card for defendant certified habitual s be to state at the felony Defendant In the absence of a defendant review that the records of on multiple offender hearing did State hearing the offender fourth a adjudication appeal v also LSA C CrP see At the habitual offender the defendant did multiple offender hearing compliance with Boykin rules 1993 to complain for the first time his court found defendant presents these challenges for the first time contemporaneous objection Moreover 1 1D b general objection a the bill of to particularity his claim and the factual basis RS by LSA written response a art 841A introduced state 630 So 2d Windham fingerprint a copies of the bills of information and extracts of minute entries in docket numbers 203404 of the 22nd Judicial District Court the 1992 predicate guilty plea contested herein Judicial District Court dwelling 1993 a entry of S l and S 2 also contained The evidence counsel testimony of a presented by the as to each Deputy Lloyd an inhabited transcript state predicate analysis and identification from the to conviction an an inhabited 1997 jury trial State Exhibits corresponding proceedings The was state presented Morse concluded that the to Cotton who in docket numbers 265827 and 207577 17 represented the expert in the field of fingerprint predicate convictions belonged presented the testimony of Agent a dwelling reflects that defendant Morse Deputy of the of the 22nd burglary of and 265827 of the 22nd Judicial District Court conviction of unauthorized by guilty plea 207577 defendant fingerprints The state supervised defendant s also parole The more documentary and testimonial evidence presented by the than satisfied the state adequately existence of the contested represented by counsel to the noted the record does not information were or any claim that the 1 D b that the Consequently predicate plea Boykin rights presumptively judge error right to State infonn v of the aware a we to a minimum was note right as to any or RS is flawed previously by defendant to objection to the 1 1D a a claiming that he was jury Moreover not properly a was failure of the bench trial is not reversible right to 552 La 1982 a that the trial court erred in pursuant to noting LSA R S was of twenty years and 18 never of effective counsel who previously noted herein defendant tenn of imprisonment as a attempt 15 529 not only that it Defendant is correct in sentence no or knowing waiver of a that defendant is defendant of his rights precluded from urging his claim entered without waive produce to United States Constitutions range for his enhanced conviction is mandatory life However Moreover required by LSA Parker 416 So 2d 545 sentencing imprisonment to as bench trial a Finally defendant s claim that the his was upon which the state relied predicates Defendant had the assistance explained trial at 779 setting forth defendant is question Nonetheless of his was unaware in point constitutionality of the plea obtained in violation of the Louisiana and the factual basis for the claim and that contain any written response filed the habitual offender bill of information the proving Defendant made plea See Shelton 621 So 2d state at infringement of an of the taking burden s Thus the burden of proving the so shifted showing in the procedural irregularity defendant was of and that defendant predicate guilty plea affirmative evidence some to do It initial burden s state a informing twenty years that he is not 15 529 in fact 1 1A him to life subject c subject ii to a maximum term of life imprisonment 14 94 This under LSA R S assignment 1A 529 15 l See also LSA R S i c of error lacks merit PRO SE ASSIGNMENT OF ERROR NUMBER FOUR In the fourth pro assertions that no fingerprint expert assignment of se pack pen was day and of crimes arising from a a multiple offender adjudication As to the case him to be not billed any further Arguably having been convicted single criminal episode he on only one of his two on general of the testimony sic on was same exposed to convictions in this mal assertion defendant adds that the trial multiple presented that the admitted insufficient and was defendant makes error court allowed Defendant has both of the instant convictions argument in support of these assertions the issues raised in this assigmnent properly not were briefed and should be considered abandoned Uniform Rules of Louisiana Courts of we assume to Appeal Rule 2 that defendant is 4 12 Nevertheless asserting that a pen pack show the discharge dates for the not been properly preserved LSA R S below 15 529 Windham 630 So 2d the conviction dates not 688 were see App Moreover Deputy Morse dates LSA C Cr P also s documents state fingerprints raised not 841A art considering cleansing period did and therefore the state did not have See State v Parker s not object to any 00 2861 p 9 portion of the testimony of fingerprint analyst and identification expert present any arguments regarding the fingerprint evidence took inked was 818 So 2d 85 90 91 defendant did the We This assertion has the issue sufficient to indicate that the discharge 1 Cir 11 9 01 as Moreover the state elapse between any two convictions to prove the exact La at l 1D b appeal following should have been admitted convictions predicate for review on the note from defendant prior to 19 Deputy or Morse the habitual offender hearing Morse Deputy compared those fmgerprints the bills of information for the defendant s noted the the fingerprints state As to the final a was of illegal use imposed an a on on the back of the back of each exhibit on As heretofore proving that defendant is convicted of the prior felonies general assertion the record is clear that the or weapon enhanced multiple billed fingerprints predicate convictions and concluded that habitual offender bill of information two the carried its burden of successfully person who same were to sentence specifically seeking dangerous instrumentality on count two to state enhance both of the instant convictions This count and the trial court Thus defendant only filed was assignment of not error lacks merit PRO SE ASSIGNMENT OF ERROR NUMBER FIVE In the fifth and fmal pro that the enhanced impose sentence a sentence on se imposed a prior 15 529 1D 3 the as sentence in pertinent part language of the a prior statute sentence Since any prior felony before previous vacated upon his the in this Section if already imposed sentence sentencing Emphasis When the judge or felonies court added shall or adjudicated sentence vacate the Based court is not on required him a to previous the to plain impose sentence under the habitual offender law imposed as a not sentencing defendant provides and shall it is clear that the trial imposing did 15 529 1D 3 authorized in Subsection A punishment prescribed court Defendant concludes that the failure to finds that he has been convicted of a delinquent defendant contends error is invalid because the trial sentence violated LSA R S LSA R S of the underlying conviction before under the habitual offender law impose assignment upon defendant would have had to be multiple offender the failure 20 to impose an original sentence clearly does not constitute error This assignment of error lacks merit CONVICTIONS AND SENTENCES HABITUAL OFFENDER AFFIRMED CASE ADJUDICATION REMANDED TO THE TRIAL COURT WITH INSTRUCTIONS AND ORDER TO AMEND THE SENTENCING MINUTE ENTRY AS TO COUNT TWO 21
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