State Of Louisiana VS Joseph Neathery
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NOT DESIGNATED fOR PUBLICATION STATE Of LOUISIANA COURT Of APPEAL fIRST CIRCUIT 2007 KA 1226 STATE Of LOUISIANA VERSUS JOSEPH W NEATHERY On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 3 01 494 Section VIII Honorable Wilson E Fields Doug Moreau District Judge Presiding Attorneys for State of Louisiana Attorney Cliff Wilkerson Assistant District Baton Rouge Attorney LA Attorney for Defendant Appellant Joseph W Neathery Katherine M Franks Louisiana Abita Appellate Project Springs LA BEFORE PARRO KUHN AND DOWNING JJ Judgment rendered December 21 2007 PARRO J This is case before this sentences and other matters 11 4 05 913 So 2d 893 discussed in and of pled following counts a imprisonment Joseph robbery bench trial W a Neathery was one the defendant second a imprisonment sentence was court as 5 R 14 64 to a charged ordered to as two and The jury trial all four on of sentence on counts run concurrently one imprisonment the trial and two at hard one was the trial to be labor court sentenced the at hard labor without the benefit of to be served parole and the defendant As to counts concurrently with one parole another and and two appealed his convictions and found that the trial court sentences On appeal this court improperly enhanced all four sentences and that convictions aggravated burglary offenses all four enhanced sentences and the guilty were As to counts three and four imposed The defendant found 14 60 at hard labor without the benefit of felony habitual offender suspension of vacated violations of LSA habitual offender bill of information probation with the sentences violations of LSA R S The sentences fifty years of imprisonment sentences 1st Or App As to counts three and four the trial court sentenced defendant to for both of and two the trial court sentenced the defendant to five years suspension of concurrently or La charged by bill of information with and two one court sentenced the defendant to fifteen years served for correction Neathery 05 0026 v counts three and four at hard labor The state then filed adjudicated remand Following is the procedural background unpublished the defendant to ten years of or a guilty to all charges The defendant waived his right not As to counts probation See State aggravated burglary counts two counts of armed defendant again following previous decision our The defendant counts of court case was Neathery 05 0026 was a double jeopardy violation and the habitual offender remanded with instructions to the at 8 2 All original adjudication were prosecution and the trial state dismissed Following the remand the namely count two and the trial remaining three court re offender bill of information and defendant to be a parole or of fifty years of imprisonment suspension of following reasons we hearing on a robbery were arguing that to prove his count The robbery count re ten years correctly not enhanced a habitual offender reasonable doubt For the aggravated vacate the habitual offender to the first armed as probation previously affirm all the convictions and the sentences for the adjudication and the enhanced sentence the to the first count at the second identity beyond second armed habitual adjudicated imprisonment for aggravated burglary and appeals now count and the burglary hearing a at hard labor without benefit of sentence for the first armed hearing the state failed sentences on each of the The trial court then sentenced the imprisonment for the other armed robbery count The defendant aggravated burglary felony habitual offender with respect second sentences of five years of imposed court held at the conclusion of that charging the defendant with armed robbery defendant to count of imposed the original Subsequently the trial counts one robbery count and remand with instructions FACTS On or about January 15 2001 three other assailants knocked in Baton Rouge Louisiana on at 1 approximately 7 30 p the door of a Gretchen Fontenot townhouse located one opened the door and observed all four assailants with firearms entry As Fontenot into the home and At the time townhouse was pushed Fontenot of the forced in the kitchen 1 The facts pulled Temple are taken from our to the they stood living Hansel entry into the Kennesaw Drive room Temple doorway armed the assailants forced their floor the other resident to room See of the home Neathery 3 05 0026 at 3 of the jump out of the put his assault rifle up to Temple living original opinion on at the Temple unsuccessfully attempted kitchen window when the defendant assailants as the defendant and of the residents of the townhouse to close the door attempted m s head The During her testimony Fontenot stated that she screamed several times and added f shut up they such were me if I didn t me drugs and money and used duct tape to tie up the victims as going to kill they told The assailants made several demands for items Fontenot and Temple testified that they did not have any drugs in their home but that the assailants exited the home after On the knocked on preceding night the the door of the opened the door they were them that looking for residence the victims had not On that occasion window a individual named Chad and an including the defendant had a the assailants indicated that The victims had informed party not know anyone named Chad and were not they did Sheriffs Office same four assailants same After Fontenot had raised assailants then left that collecting money jewelry c1othing and other items According to the statement given a to the East Baton by the defendant the assailants had intended night but delayed doing having party The Rouge Parish to commit the offenses on so ASSIGNMENT OF ERROR In his sole assignment of adjudicating him second a error the defendant argues the trial court erred in felony habitual offender contends that the state did not meet its burden of trial court erred in We defendant find s to failing provide written merit with identity 2 the Accordingly adjudication and the enhanced In order to obtain establish both the issue a reasons vacate felony from witnesses 2 In State provide v 12 14 01 both adjudication state s the failure written to prove instant habitual the offender multiple offender conviction the state attempting to do so the state may is required to is the same person present 1 testimony expert opinion regarding the fingerprints of the defendant when While the issue is not before court to defendant sentence and remand with instructions compared with those in the prior record 2 for its prior felony conviction and that the defendant convicted of that the proof regarding his identity and the regarding the we Specifically us reasons Smith 00 0423 La since the matter is photographs in the duly authenticated 3 being for this habitual offender App 1st Cir 11 3 00 804 SO 2d 630 4 remanded note that any failure constituted harmless we adjudication 769 So 2d 1280 1285 writ denied by the trial error See 01 0993 La record State evidence of identical driver 4 or Payton 00 2899 La 3 15 02 v According to the Katherine Williams open court A was license number 810 So 2d 1127 sex 1130 marked on January 25 2007 made of the defendant was State as s s right thumb and right index Exhibit Number 2 and introduced into evidence However the habitual offender exhibits before this court do not contain of the defendant from that date The S 2 Louisiana State Police record with a exhibit before this court is a a a certified copy of that fingerprint card from April 25 hearing and marked without as State s same 1994 for second a Louisiana State Police record exhibits that contain 3 fingerprints hearing S 1 Exhibits degree battery habitual offender However January 25 2007 being introduced into evidence exhibit before this court is S 1 containing in the S 2 and simple a a fingerprint card from 1993 appellate record are the only The other four exhibits before this court relevant to the and S 4 S 3 are the for a According to the identified at the was Exhibit Number 1 before objection by the defendant certified copy of exhibit fingerprint card certified copy of robbery and simple burglary committed by Joseph Wayne Neathery transcript in fingerprint comparison fingerprinted the defendant in expert and date of birth race transcript of the habitual offender hearing fingerprint card The card finger an s certified copies of the bills of information for simple burglary and simple robbery respectively and the minutes of the proceedings for the defendant defendant s guilty pleas and sentences s present charges and S 6 sentencing hearing 3 The on a copy of the bill of information for the certified copy of the minutes of the defendant April 2 2003 for his present convictions copies of the fingerprints fingerprint expert who testified on the the 5 1 and 5 2 exhibits at the first habitual offender from the instant habitual offender Exhibit 1 a S 5 were 4 certified by Cynthia 5 Kilcrease the hearing on February 11 2004 It is clear hearing transcript that what the state identified and introduced 5 2 exhibit before The 5 1 s exhibit before us is a as Louisiana 5tate actually fingerprint card from February 20 1993 for second degree battery committed by In its habitual offender bill of information the state sought to use the Joseph Wayne Neathery of a guilty plea by the defendant on November 22 1993 to simple robbery and simple burglary predicate As such the second degree battery to establish the defendant as a second felony habitual offender conviction has no bearing on the defendant s habitual offender adjudication and the purpose for the 5 1 exhibit being made a part of the record at the January 25 2007 habitual offender hearing is unclear 5tate s is Police record with 4 a The state did not introduce Exhibit state rested 5 1 through 5 6 January 25 2007 hearing hearing on February 11 2004 at the At the first habitual offender 5 6 us It is clear that the exhibits before this court exhibits that were introduced at the February 11 2004 5 hearing 5 1 After introducing 5 5 the the state introduced Exhibits through 5 6 are the same After the exhibits identified 5 1 as and 5 2 January 25 2007 habitual offender hearing the the fingerprints that Neathery that Thus Williams and 5 2 fingerprinted while the on fingerprinted Ms Williams 5 1 by the 5 2 with the us Exhibit in the as Exhibit appellate record were 5 1 by Ms Williams to we do not have before at the a second suggest that Ms in court and marked us only fingerprint exhibits degree battery conviction any 5 2 in the appellate record fingerprint card of the defendant made January 25 2007 habitual offender hearing as the was the same transcript person convicted s prior felony offenses namely simple robbery and simple burglary the habitual offender adjudication and the enhanced Pursuant to the directive from aggravated burglary counts the leaving only the remaining We to suggest Accordingly the appellate record does not contain competent evidence of the 5 Joseph compared with the 1994 fingerprints for support proof of the defendant s identity and that he the same certain in the affirmative seem the simple robbery and simple burglary convictions Exhibit In other words was fingerprints taken for the defendant s simple robbery and suggest that the 1993 fingerprints for 5 1 the was responded transcript of this hearing would simple burglary convictions and marked would state if she compared the fingerprints of the defendant taken by her Exhibit before she Williams to compare compared the prints and determined When asked in the courtroom whom was state asked Ms Williams Ms to the same individual they belonged that the person as 5 1 on admitted into evidence at the were are aware our sentence are vacated original opinion for the state to dismiss one of state dismissed count two of the bill of information two counts of armed that the Habitual Offender Act does not evidence Therefore burden at robbery require in addition to the the state to habitual offender remaining specific type of hearing and that prior use a a including fingerprints to carry its convictions may be proved by any competent evidence See Payton 810 So 2d at 1132 the January 25 2007 habitual offender hearing the state s method of proof was However at by fingerprint identification and There was no attempt to compare for example similar driver s license matching security numbers or dates of birth No photographs were introduced into evidence and no other witness other than Ms Williams testified at the instant habitual offender hearing See State v numbers Curtis and social 338 So 2d 662 names match on La 1976 In any event our review of the record reveals that the dates of birth several of the records However only the Louisiana State Police record of the simple robbery and simple burglary convictions contains a social security number As such a social Also the 5 2 exhibit in the appellate security number match cannot be made with other records record lists presumably the defendant s driver s license number as 5689532 whereas the present bill of information lists the defendant s driver s license number as 5863961 6 count of aggravated burglary trial court and the state count two At the January 25 2007 habitual offender hearing the agreed that the defendant s enhanced the armed It is obvious that the court and the state robbery referring to the next count in the count of armed robbery had been designated Moreover to be the sentence would be for sequencing order as even though technically the first count three in the bill of information original habitual offender bill of information indicates that the enhanced was for the count 3 armed were robbery conviction sentence Therefore on remand the state should clarify the designation of the remaining armed robbery count it is If the defendant is seeking to enhance trial court shall give written reasons with 5 R 15 529 1 D See LSA For the foregoing enhanced sentence respect a habitual offender to the enhanced sentence it the imposes 3 reasons and we we vacate the habitual offender remand with convictions and the sentences for the robbery again adjudicated instructions adjudication and the We affirm all three of the aggravated burglary count and the second armed count CONVICTIONS AffIRMED SECOND COUNT Of OffENDER ARMED ADJUDICATION AGGRAVATED BURGLARY SENTENCE AND ROBBERY AND SENTENCE ENHANCED REMANDED WITH INSTRUCTIONS 7 AffIRMED HABITUAL SENTENCE VACATED
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