State Of Louisiana VS Rickey Earl Hills
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 0910 STATE OF LOUISIANA VERSUS RICKY EARLY HILLS Judgment Rendered October 29 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case Number 10 08 0427 Honorable Michael R Erwin Presiding Hillar C Moore III District Attorney Baton Rouge LA Counsel for Appellee State of Louisiana Dylan C Alge Assistant District Attorney Baton Rouge LA Jane L Beebe Louisiana Appellate Project Counsel for Defendant Appellant Ricky Early Hills New Orleans LA BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J The defendant Rickey Earl Hills I was charged by bill of information with possession of cocaine a Schedule II controlled dangerous substance a violation of La R 40 See La R 40 The defendant entered a plea of not S 967 C S 964 guilty was found guilty as charged after a jury trial and was sentenced to five years of imprisonment at hard labor The trial court denied the defendant motion s to reconsider sentence The State filed a habitual offender bill of information and the defendant was adjudicated a fifth felony habitual offender The trial court sentenced the defendant to fiftyfour years of imprisonment The defendant now appeals and urges two assignments of error challenging the denial of his motion to reconsider sentence and motion to quash the habitual offender bill of information For the following reasons we affirm the conviction the habitual offender adjudication and the sentence of March 3 2010 and we vacate the original sentence STATEMENT OF FACTS On the night of September 6 2008 officers of the Baton Rouge City Police Department came into contact with the defendant while on foot patrol to enforce a temporary curfew imposed after Hurricane Gustay Specifically the officers were conducting a walkthrough at the North Foster Motel when the defendant was observed sitting on the edge of his bed by the doorway with a lighter and an approximately threeinch glass cylindrical pipe drawn to his mouth The defendant was placed under arrest and a search incident to the arrest resulted in the The defendant first name is interchangeably spelled as Rickey or Ricky in the record and s the evidence presented in support of the predicate convictions 2 While the sentencing transcript reflects that the trial court was silent at the time of the sentencing as to the manner of service in accordance with the minutes and criminal commitment the sentence is to be served at hard labor 3 There was no electricity or air conditioning as a result of the hurricane the defendant door s along with others in the complex was open and he was in plain view V recovery from the front pocket of defendant shirt of a rocklike substance later s determined to be cocaine ASSIGNMENT OF ERROR NUMBER TWO In the second assignment of error the defendant challenges his habitual offender adjudication The defendant specifically argues that the State did not sufficiently prove the prior convictions noting that two of them were entered on the same date September 8 1994 that case number 0203 555 had no fingerprints for comparison and that for all of the alleged prior convictions the State presented only a bill of information and a fill in the blank minute entry as proof of their existence The defendant contends that testimony presented at the hearing on the motion to quash the habitual offender bill of information showed that the fill in the blank minute entries do not necessarily reflect what occurred but only what should have occurred or what had been pretyped using computer codes The defendant argues that the State failed to comply with minimum requirements to prove that the defendant was a habitual offender and that the prior convictions were lawfully obtained If the defendant denies the allegations of the habitual offender bill of information the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken State v Shelton 621 So 2d 769 779 La 1993 If the State meets this burden the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea If the defendant is able to do this then the burden of proving the constitutionality of the plea shifts to the State The State will meet its burden of proof if it introduces a perfect transcript of the taking of the guilty plea one which reflects a colloquy between the judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury his 3 privilege against self incrimination and his right to confront his accusers Shelton 621 So 2d at 77980 If the State introduces anything less than a perfect transcript for example a guilty plea form a minute entry an imperfect transcript or any combination thereof the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the s defendant prior guilty plea was informed voluntary and made with an articulated waiver of the three Boykin rights Shelton 621 So 2d at 780 State v Bickham 981839 p 4 La App 1st Cir 6 739 So 2d 887 88990 99 25 The purpose of the rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea in which the appellate court may not presume a valid waiver of rights from a silent record and a collateral attack on a final conviction used in a subsequent recidivist proceeding as to which a presumption of regularity attaches to promote the interests of finality See State v Deville 041401 p 4 La 7 879 So 2d 689 691 per curiam 04 2 In support of his argument that the minute entries used by the State herein are insufficient the defendant cites State v Longo 560 So 2d 530 La App 1st Cir 1990 and State v Blunt 464 So 2d 869 La App 4th Cir 1985 In Longo this court held that where a transcript of the plea of guilty is not introduced in evidence the state may not rely upon a pretyped pre printed or otherwise pre fabricated fill inthe blank extract of the minutes of the court in which a predicate conviction occurred to prove a valid and knowing waiver of constitutional rights because such an extract is not a true 4 Boykin v Alabama 395 U 238 89 S Ct 1709 23 L Ed 2d 274 1969 requires that a trial S court ascertain before accepting a guilty plea that the defendant has voluntarily and intelligently waived 1 his right against compulsory self incrimination 2 his right to trial by jury and 3 his right to confront his accusers Boykin only requires that a defendant be informed of these three ri ghts 0 minute entry i a contemporaneous record of the prior proceeding e Instead a copy of the actual minute entry itself must be introduced to prove advice of and a valid waiver of Boykin rights Longo 560 So 2d at 533 citation omitted The habitual offender bill of information lists the following prior convictions in the Nineteenth Judicial District Court a July 20 1990 guilty plea to felony theft under docket number 03 900670 Section I a September 8 1994 guilty plea to simple burglary under docket number 01 940982 Section III September 8 1994 guilty pleas to two counts of forgery under docket number 07 941615 Section III a June 9 1997 guilty plea to simple burglary under docket number 03 970510 Section V and October 1 2003 guilty pleas to two counts of simple burglary under docket number 02 03 0555 Section IV While the defendant notes that two of his predicate convictions were entered on the same date September 8 1994 and should have been counted as one conviction under La R 15 the trial court only adjudicated him to be a fifthfelony S 529 113 offender based on predicate convictions for four separate dates Thus the remaining issue is whether the evidence presented by the State established the existence of the prior convictions and that the defendant was represented by counsel when they were taken At the habitual offender proceeding the State presented the bills of information and actual minute entries for each of the above noted prior convictions At the hearing on the motion to quash defense witness Yvette Whitfield a Nineteenth Judicial District Court minute clerk testified that a computer macro system that generates language is used to construct minute entries including Boykin information She confirmed that the defendant and attorney s s name and the charge are typed in During cross examination Whitfield specified 5 The habitual offender bill of information provides an incorrect date for the guilty pleas for these particular prior convictions The October 1 2003 date is in accordance with corresponding minutes in evidence 5 that when clerks convert incourt notes to typed minutes by computer separate codes provide anticipated language which is read by the clerks and checked for accuracy and is amended or supplemented when necessary The minute entries herein unlike those in State v Blunt and State v Longo reflect a full Boykin inquiry and the assistance of counsel In Blunt the minute entry was a form with blank spaces only for the defendant and his attorney s s names In Longo the minute entry had blank spaces for the defendant name and s age In the instant case based on the appearance of the minute entries and the testimony presented at the motion to quash hearing we find that the minute entries were not prefabricated or pre printed and consisted of a contemporaneous record of a Boykin examination As noted by the defendant fingerprint evidence was linked to the defendant as to each predicate offense with the exception of the 2003 simple burglary convictions To prove that a defendant is a multiple offender the State must establish by competent evidence that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony State v Chaney 423 So 2d 1092 1103 La 1982 The Louisiana Supreme Court has held a conviction may be maintained by competent evidence other than fingerprints State v Payton 00 2899 pp 89 La 3 810 So 2d 1127 1132 The 2003 convictions 02 15 were linked to the defendant based on the name date of birth social security number and address A careful review of the documentation introduced by the State in support of the use of the predicates to establish the defendant habitual s offender status convinces us that the State met its initial burden under Shelton Specifically the State proved the existence of the convictions at issue and that the 6 With the exception of an address provided in the 1990 theft conviction the oldest predicate the 2003 predicate convictions and the other predicates had a matching date of birth address and social security number 3 defendant was represented by counsel by introducing certified true copies of the bills of information and actual minutes for the guilty plea convictions Thereafter the defendant failed to produce any affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas Accordingly the State had no further burden to prove the constitutionality of the predicates at issue by perfect transcript or otherwise This assignment of error lacks merit ASSIGNMENT OF ERROR NUMBER ONE In the first assignment of error the defendant contends that the trial court erred in denying his motion to reconsider sentence The defendant argues that the trial court failed to consider that his non violent history shows evidence of drug abuse and addiction The defendant notes that the fiftyfouryear imprisonment term was imposed after he informed the trial court he was fortysix adding that this was arbitrary and essentially throws his life away with no possibility of rehabilitation for his drug addiction The defendant also notes that despite his record he was offered a three year sentencing plea bargain prior to trial with credit for the year and onehalf he had already served The defendant argues that the enhanced sentence ultimately imposed was severe punitive and unjustifiable based on these facts At the outset we note that the trial judge did not vacate the original sentence before resentencing the defendant as a habitual offender As it is apparent from the court actions that it intended to vacate the original sentence out of an s abundance of caution we vacate the first sentence See State v Thomas 95 2348 pp 67 La App 1st Cir 12 686 So 2d 145 149 writ denied 970192 96 20 La 3 690 So 36 See also La R 15 and shall vacate 97 14 2d S 529 3 D 1 the previous sentence if already imposed We further note that the record does not reflect either an oral or written motion to reconsider the new sentence imposed on March 3 2010 In felony 7 cases within thirty days following the imposition of sentence or within such longer period as the trial court may set the State or defendant may make or file a motion to reconsider sentence La C art 881 The motion shall be P Cr 1 1A oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based La C art 881 Herein P Cr B 1 the trial court advised the defendant that he had thirty days to file a motion for reconsideration of the new sentence No such action was taken Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based including a claim of excessiveness shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review La P Cr C art 881 One purpose of the motion to reconsider is to allow the E 1 defendant to raise any errors that may have occurred in sentencing while the trial judge still has the jurisdiction to change or correct the sentence The considerations that require giving the trial judge an opportunity to reconsider a sentence apply equally when a trial judge has imposed a new and different sentence Accordingly the defendant is procedurally barred from having his challenge to the new sentence reviewed by this court on appeal State v Smith 03 1153 pp 67 La App 1st Cir 4 879 So 2d 179 183 en banc State v 04 7 Duncan 941563 p 2 La App 1st Cir 12 667 So 2d 1141 1143 en 95 15 banc per curiam REVIEW FOR ERROR The defendant asks that this court examine the record for error under La P Cr C art 920 This court routinely reviews the record for such errors 2 whether or not such a request is made by a defendant Under Article 920 we 2 are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful 0 review of the record in these proceedings we have found no reversible errors See State v Price 05 2514 pp 18 22 La App 1st Cir 12 952 So 2d 112 06 28 123 25 en banc writ denied 070130 La 2 976 So 2d 1277 08 22 CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED ORIGINAL SENTENCE VACATED AND SENTENCE OF MARCH 3 2010 AFFIRMED 9
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