State Of Louisiana VS Phil Coleman

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Download PDF NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 2093 STATE OF LOUISIANA VERSUS PHIL COLEMAN judgment rendered May fi 2011 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 09 06 0952 Honorable Trudy M White Judge HON HILLAR C MOORE III DISTRICT ATTORNEY ATTORNEYS FOR STATE OF LOUISIANA STACY WRIGHT ASSISTANT DISTRICT ATTORNEY BATON ROUGE LA FREDERICK KROENKE ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLANT PHIL T COLEMAN PHIL T COLEMAN DEFENDANT APPELLANT WINNFIELD LA IN PROPER PERSON BEFORE KUHN PETTIGREW AND HIGGINBOTHAM 33 PETTIGREW J The defendant Phil Coleman was charged by bill of information with simple burglary a violation of La R 14 The defendant entered a plea of not guilty After S 62 a trial by jury the defendant was found guilty as charged The defendant entered a plea of not guilty to the habitual offender bill of information filed by the State After a hearing the defendant was adjudicated a fourth felony habitual offender and sentenced to twenty five years imprisonment at hard labor The defendant now appeals assigning error to the sufficiency of the evidence in a counseled and pro se brief The defendant pro se brief s additionally assigns error to the admission of the confession and the admission of hearsay testimony For the following reasons we affirm the conviction habitual offender adjudication and sentence STATEMENT OF FACTS On or about July 26 2006 a reported burglary took place at approximately 2 00 m p at a mobile home located at 11525 Lovett Road in Central Louisiana East Baton Rouge Parish Kim Miley was moving into the mobile home at the time and was bringing some packages there on the day in question s Miley coworker Peggy Bankhead was assisting her with transporting the packages When they arrived they noticed a blue Mazda Millenia with an open door parked outside Miley called her husband to see if anyone was supposed to be there at that time She gave a description of the vehicle to her husband including the license plate number supposed to be there and contacted the police He informed her that no one was Miley and Bankhead observed a male individual peer through the window blinds to look outside of the mobile home and they noticed that the front door was unhinged Miley and Bankhead waited outside for approximately five minutes before the individual exited the trailer and quickly approached the Mazda Millenia Miley and Bankhead briefly pursued the individual when he drove off but lost him when they were delayed by a traffic light that the individual disregarded Detective Kenneth Jackson of the East Baton Rouge Parish Sheriffs Office was assigned to the case Detective Jackson used the license plate number provided by the victim and determined that the vehicle in which the perpetrator left the scene was owned 0a by Tonya Coon According to Coon the defendant was borrowing her vehicle at the time of the offense Coon was familiar with the defendant through a mutual friend Michael Wallace and would occasionally allow the defendant to borrow her vehicle According to the police upon his arrest the defendant admitted to being present at the mobile home but stated that he did not remove anything COUNSELED ASSIGNMENT OF ERROR AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE In the sole assignment of error in the counseled brief the defendant argues that the State failed to prove the essential element of identity beyond a reasonable doubt The defendant contends that the eyewitnesses Bankhead and Miley were unable to identify him and notes that neither eyewitness could identify his tattoos despite the revealing attire a tanktop shirt provided in their description of the perpetrator to the police Regarding his pretrial statement the defendant notes that Detective Jackson stated that he could not remember the exact conversation or the exact wording of the statement or how long it took the defendant to make the statement In this regard the defendant further notes that Detective Jackson gave multiple excuses to explain his failure to record or put the statement in writing The defendant additionally notes that there were no witnesses other than Detective Jackson to the statement and argues that Detective Jackson inability to remember any other details outside of the known facts s suggest that the evidence does not meet the requirements of La R 15 and is S 450 insufficient to support the conviction Finally the counseled brief concludes that reasonable hypotheses of innocence remain In the defendant pro se brief he notes that fingerprints lifted from the scene s were not matched to him He further notes that the eyewitnesses were unable to identify him in a lineup The defendant further notes that Coon did not actually see him 1 The defendant did not raise at the trial court the argument that the confession does not meet the requirements of La R 15 Therefore the defendant is precluded from raising this argument on S 450 appeal See La Code Evid art 103 A La Code Crim P art 841 1 z Misidentification i that someone else committed the offense is the only hypothesis of innocence e developed in the brief 3 drive off in her vehicle and there was no evidence linked to the burglary in the vehicle The defendant further argues that the tattoos on both of his arms were present at the time of his arrest and are distinguishing characteristics that could not have been missed by the eyewitnesses if he had been the perpetrator The standard of review for sufficiency of the evidence to support a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the State proved the essential elements of the crime and defendant identity as the perpetrator of that crime beyond a reasonable s doubt See La Code Crim P art 821 Jackson v Virginia 443 U 307 319 99 S Ct S 2781 2789 61 L 560 1979 State v Johnson 461 So 673 674 La 2d Ed 2d S 438 App 1 Cir 1984 When analyzing circumstantial evidence La R 15 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence State v Graham 2002 1492 p 5 La App 1 Cir 2 845 So 416 420 When a case involves circumstantial evidence and 03 14 2d the trier of fact reasonably rejects a hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1 Cir writ 2d denied 514 So 126 La 1987 2d Simple burglary is the unauthorized entering of any dwelling with the intent to commit a felony or any theft therein other than as set forth in R 14 La R S 60 S 62A 14 When the key issue is the defendant identity as the perpetrator rather than s whether the crime was committed the State is required to negate any reasonable probability of misidentification State v Holts 525 So 1241 1244 La App 1 Cir 2d 1988 Positive identification by only one witness may be sufficient to support the s defendant conviction State v Andrews 940842 p 7 La App 1 Cir 5 655 95 2d So 448 453 Coon testified that on the date in question the defendant called her sometime between 9 a and 1 p and asked to borrow her vehicle she agreed but did 00 m 00 m not recall personally giving him the keys Coon left her car keys at her house for the 4 defendant and left home after her conversation with him Coon further explained that she had two sets of keys her boyfriend Wallace kept one set and the other set was kept either on her table or underneath the seat of the car Coon testified that certain individuals she would occasionally allow to borrow her vehicle were privy to that information Coon further testified that her car was borrowed without her permission on an occasion but she no longer allowed that to occur By rule those who were allowed to use her vehicle were required to ask for permission and the defendant was the only person who asked to use her vehicle on the date in question Coon testified that although she informed the police that the defendant used her vehicle on the date in question she explained to them that she did not actually see him take the vehicle but assumed he had since he asked to borrow it before she left home that day The weekend before the date in question Miley and her husband brought other packages to the mobile home that included winter clothes and other items that they would not need before moving in They left the items in boxes and stored them in spare bedrooms When Miley and Bankhead arrived on the date in question a group of items were propped up in front of the door in a manner that caused Miley to assume that it was a robbery in progress The Mileys testified that these specific items were not stacked or stored in this particular area prior to the incident It also appeared someone had rummaged through and relocated several boxes The Mileys also noted that a box of items was missing The missing box included hunting equipment bullets and keepsakes When the individual exited the mobile home and approached the Mazda Millenia Bankhead questioned him and he stated Oh I was just hauling some stuff out for Roy and them She asked for his name and he responded Jonathan Finch before abruptly driving away Miley and Bankhead only saw the individual for an estimated seven seconds or less before he drove away and he did not make any significant contact while responding to Bankhead questioning s Miley and Bankhead further testified that the individual was weaving in and out of cars and ignored a red traffic light as they pursued him After the individual evaded them they returned to the mobile home and waited for the police to arrive 5 Miley and Bankhead advised the responding officer Officer Joseph Bush of the East Baton Rouge Parish Sheriffs Office that the assailant was approximately five feet and nine or ten inches tall was wearing a white tshirt with shorts was of a muscular build and had tanned skin They did not note the presence of any tattoos on the individual Officer Bush also testified that items were stacked at the door as if someone had gathered them The Mileys did not know the defendant and did not give him permission to enter the mobile home Detective Jackson testified during the trial that he contacted Coon the registered owner of the Mazda Millenia the next evening after the incident Coon informed the detective that the defendant had borrowed her vehicle on the day of the burglary Coon granted the police consent to search the vehicle but no evidence was recovered On July 28 2006 a photographic lineup that included a photograph of the defendant was presented to the witnesses but they did not make a positive identification Detective Jackson estimated that Coon residence in Denham Springs was about s twentyfive minutes away from the crime scene Detective Jackson testified that the physical description given by the witnesses of the person they saw leave the trailer on the day of the incident in question matched the defendant physical characteristics s Based on the time that the defendant borrowed the vehicle and the description by the witnesses Detective Jackson obtained a warrant for the defendant arrest s He was arrested by the Denham Springs Police Department and taken to Livingston Parish Prison Detective Jackson travelled to Livingston Parish to interview the defendant in prison After Detective Jackson informed the defendant of his rights the defendant indicated that he understood his rights and informed the detective that Coon loaned him the vehicle he kicked in the trailer door to gain entry and before he could take anything two ladies drove up The defendant further stated that he was able to elude the ladies when he got back into the vehicle and drove away The defendant did not testify or present any defense witnesses The verdict rendered against the defendant indicates the jury accepted the testimony offered against the defendant and rejected any hypothesis of innocence As the trier of fact the jury was free to accept or reject in whole or in part the testimony of any witness State v Johnson 990385 p 9 La App 1 Cir 11 745 So 99 5 2d 217 223 writ denied 20000829 La 11 774 So 971 On appeal this court 00 13 2d will not assess the credibility of witnesses or reweigh the evidence to overturn a fact s finder determination of guilt State v Glynn 940332 p 32 La App 1 Cir 95 7 4 653 So 1288 1310 writ denied 95 1153 La 10 661 So 464 2d 95 6 2d Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency State v Lofton 961429 p 5 La App 1 Cir 3 691 So 1365 1368 writ denied 971124 La 10 97 27 2d 97 17 701 So 1331 2d We cannot say that the jury determination was irrational under the facts and s circumstances presented to them See State v Ordodil 2006 0207 pp 14 15 La 06 29 11 946 So 654 662 An appellate court errs by substituting its appreciation 2d of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 2007 2306 pp 1 2 La 09 21 1 1 So 417 418 per curiam Coon testified that she gave the defendant 3d sole permission to use her vehicle on the date in question scene at the time of the offense Her vehicle was at the The entry of the mobile home was forced The defendant confessed to entering the mobile home and he did not have the authority to do so Items were missing from the mobile home and others were stacked in a manner suggesting their removal was imminent before Miley and Bankhead arrival It is clear s that the defendant entered the mobile home without authority and with the intent to commit a felony or any theft therein After a thorough review of the record we are convinced that a rational trier of fact viewing the evidence presented in this case in the light most favorable to the State could find that the evidence proved beyond a reasonable doubt and to the exclusion of any reasonable hypothesis of innocence all of VA the elements of simple burglary and the defendant identity as the perpetrator of that s offense The sole counseled and first pro se assignments of error are without merit PRO SE ASSIGNMENT OF ERROR NUMBER TWO In the second pro se assignment of error the defendant argues that the State failed to prove that a voluntary confession existed The defendant notes that a waiver of rights form was not executed and contends that Detective Jackson could not remember how he advised the defendant of his Miranda rights The defendant further notes that he never wrote or signed a confession and a confession was not recorded The defendant argues that a consideration of the totality of the circumstances leads to the conclusion that the State failed to affirmatively show that he provided a statement The defendant further argues that while Detective Jackson testimony at the motion to s suppress hearing was vague he added additional andor inconsistent details regarding the statement when he testified during the trial The defendant contends that he was prejudicially denied the benefit of the explanatory and exculpatory details of the original purported confession The law is clear that before a confession can be introduced into evidence the State has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear duress intimidation menaces threats inducements or promises La Code Crim P art 703D La R 15 The State also bears the S 451 burden of proving that an accused who makes an inculpatory statement or confession during custodial interrogation was first advised of his constitutional rights and made an intelligent waiver of those rights State v Davis 942332 La App 1 Cir 12 95 15 666 So 400 406 writ denied 960127 La 4 671 So 925 In Miranda 2d 96 19 2d v Arizona 384 U 436 86 S 1602 16 L 694 1966 the Supreme Court S Ct 2d Ed promulgated a set of safeguards to protect therein delineated constitutional rights of persons subject to custodial police interrogation The warnings must inform the person 3 Although the hearing is referred to and treated as a motion to suppress hearing the record before us reflects that the hearing took place as a result of the State motion to admit the confession and the s s defendant opposition thereto 8 in custody that he has the right to remain silent that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney either retained or appointed Miranda 384 U at 444 86 S at 1612 S Ct The trial court must consider the totality of the circumstances in determining whether a confession is admissible State v Hernandez 432 So 350 352 La 2d App 1 Cir 1983 Testimony of the interviewing police officer alone may be sufficient to prove a defendant statements were freely and voluntarily given State v Maten s 2004 1718 p 12 La App 1 Cir 3 899 So 711 721 writ denied 20051570 05 24 2d La 1 922 So 544 In determining whether the ruling on defendant motion 06 27 2d s to suppress was correct we are not limited to the evidence adduced at the hearing on the motion We may consider all pertinent evidence given at the trial of the case State v Chopin 372 So 1222 1223 n La 1979 2d 2 A trial court ruling on a s motion to suppress the evidence is entitled to great weight because that court had the opportunity to observe the witnesses and weigh the credibility of their testimony State v ones 2001 0908 p 4 La App 1 Cir 11 835 So 703 706 writ 02 8 2d denied 20022989 La 4 841 So 791 Correspondingly when a trial court 03 21 2d denies a motion to suppress factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion i unless such s e ruling is not supported by the evidence See State v Green 940887 p 11 La 95 22 5 655 So 272 280281 However a trial court legal findings are subject to 2d s a de novo standard of review See State v Hunt 20091589 p 6 La 12 25 09 1 3d So 746 751 At the motion to suppress hearing Detective Jackson testified that he spoke to the defendant on or about August 19 2006 subsequent to the defendant arrest s Detective Jackson further testified that he read the defendant his Miranda rights specifying as follows You have the right to remain silent Anything you say can and will be used against you in the court of law You have the right to an attorney to assist you prior to questioning If you can afford an attorney one will be t appointed to you at no cost to you If you decide to answer questions now you will still have the right to stop answering questions in order to get the advise sic of an attorney for any reason you might have According to Detective Jackson the defendant indicated that he understood and wished to waive those rights Detective Jackson further testified that the defendant then informed him that he broke into the trailer but did not take anything The defendant further stated that he was interrupted when two females arrived and was able to evade them when they pursued him by vehicle Detective Jackson stated that he could not remember exactly how the defendant said that he broke into the trailer but added that he thought the defendant stated that he kicked the door to gain entry During cross examination Detective Jackson testified that he did not bring a waiver of rights form or recorder with him to the interview and he also did not attempt to obtain a form or recording Detective Jackson took notes during the interview but did not ask the defendant to reduce his statement to writing confirmed that the defendant was very cooperative Detective Jackson Detective Jackson further testified that he did not routinely ask suspects for a written statement but would normally have a digital recorder present although he did not have one for the interview in question During the trial of this matter Detective Jackson account of the rights given to s the defendant prior to questioning was virtually verbatim to his testimony at the suppression hearing Detective Jackson confirmed that the defendant indicated that he understood his rights did not request an attorney at any point in time and did not give any indication that he wished to discontinue the interview Detective Jackson testified that the defendant said he borrowed the vehicle from Coon kicked the door of the trailer to enter it that two ladies drove up before he could take anything and that he was able to elude them by driving away in Coon vehicle s Detective Jackson acknowledged that he could not recite the statement word for word but indicated that his testimony basically constituted the defendant statement s s defendant demeanor Detective Jackson stated that the When asked about the defendant was very remorseful and stated that he did not take anything from the house Detective Jackson could not remember exactly how long it took him to get the statement from the 10 defendant or why the interview was not recorded but presumed that it took probably a few minutes When asked if he recorded the defendant statement Detective Jackson s stated I normally take a recording device For some reason I didn record it t could have been I didn have it with me or I didn have batteries t t It When further questioned Detective Jackson explained that waiting for recording equipment could jeopardize his opportunity to retrieve a statement specifically stating If an individual sits in jail too long they get the advice of a jailhouse lawyer They could get tight lipped and they don want to say anything t Detective Jackson stated that he had no doubts as to the content of the defendant statement s In the instant case the defendant did not introduce any evidence at the hearing on the motion to suppress the statements and has not made any specific allegations of police misconduct The trial court believed the defendant gave a statement to Detective Jackson and further believed the defendant made a knowing and intelligent waiver of his constitutional rights The admissibility of a confession is a question for the trial court whose conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence 2d So 485 487 La 1980 State v Jackson 381 We find no abuse of discretion as the trial court s conclusions are supported by the evidence and thus will not be overturned See State v Patterson 572 So 1144 1150 La App 1 Cir 1990 writ denied 577 2d 2d So 11 La 1991 Accordingly we find no merit in pro se assignment of error number two PRO SE ASSIGNMENT OF ERROR NUMBER THREE In defendant third pro se assignment of error he contends that inadmissible s hearsay testimony was allowed during the trial Specifically the defendant contests Detective Jackson testimony regarding purported statements by Tonya Coon as to s whether she actually saw the defendant in her vehicle on the date in question The defendant notes that Coon testified and was released prior to the testimony in question by Detective Jackson and argues that he was denied the opportunity to cross examine Coon in regard to the accuracy of these statements The defendant asserts that during the trial the State did not question Coon about her statement to the police The defendant concedes that his trial counsel did not object to the portion of Detective s Jackson testimony at issue but notes that the jurisprudence carves out an exception to the contemporaneous objection rule where such alleged trial error raises overriding due process considerations The defendant argues that the admission of the testimony in question was not harmless contending that there was an absence of corroborating testimony that there was contradictory testimony and that the State had no case without the testimony in question In the event that this court finds that the issue is not reviewable for lack of a contemporaneous objection the defendant argues that his trial counsel was ineffective in this regard The defendant specifically argues that his trial counsel deficient performance in failing to contemporaneously object to the s testimony in question was prejudicial because the jury was exposed to damaging hearsay testimony that denied him a fair trial Notably it was defense counsel who elicited the testimony that the defendant now argues was inadmissible hearsay testimony The defendant specifically makes reference to testimony elicited from Detective Jackson by the defense attorney as 011r MT Q Did she Ms Coon indicate that she actually saw Mr Coleman drive off in that vehicle A I don know if she actually said that She just said she loaned the t car to Phil Coleman Q Did she indicate that there were other individuals who possibly would have had access to that vehicle A She didn say t Q Did you ask A No ma am Q Did Ms Coon indicate to you at what point Coleman in the vehicle 12 that she ever saw Mr A She made a statement that he returned home that day picked up Mr Wallace somewhere near the interstate and then later eventually brought the car back Something like that He brought Michael s she saying Phil had picked up Michael off the interstate and I think brought him home Phil left again and later returned with the vehicle is how it went Q She told you that she saw Mr Coleman in the vehicle A She said that Phil and Michael Phil picked up Michael off of I 12 in Livingston I12 and 448 exit and brought him I think brought him home and then left again in the vehicle and then later brought the vehicle back is what she told me That exactly how it was written in the report s I believe Although the defendant argues that during the trial the State did not question Coon about her statements to the police and that he was denied the opportunity to cross examine Coon in regard to the accuracy of these statements the record clearly reflects otherwise During direct examination specifically regarding her statements to the police Coon confirmed telling the police that the defendant borrowed her car but when specifically asked if the defendant used her vehicle she added the following I guess I mean I cannot sit here and say that he used it because I did not physically see him in it He did call and ask if he could borrow it but I did not see him in it so I can sit here and say that I gave him the t keys cause I didn He asked if he could borrow it I said yes he could I t never saw him leave in it I never saw him come back in it When asked if she relayed this information to the police she stated I told them the same thing I telling you I told them that he borrowed my car Now going back to m physically see him take my car no I didn During cross examination Coon reiterated t that she did not actually see the defendant use her vehicle on the day in question After redirect examination the State indicated that it had no further questions for Coon noting that her release was at the defense attorney discretion The defense attorney s specifically stated Defense will excuse Ms Coon Not only is the defendant incorrect in his assertion that Coon was not questioned regarding her statements to Detective Jackson as noted above the defense elicited Detective Jackson testimony regarding Coon statements s s The defendant cannot claim reversible error on the basis of evidence that he elicited See State v Tribbet 415 So 182 184 La 1982 State v Kimble 375 So 924 928 La 1979 2d 2d 13 State v Sensley 460 So 692 701 La App 1 Cir 1984 writ denied 464 So 2d 2d 1374 La 1985 Moreover a defense attorney examination of witnesses falls within s the ambit of trial strategy for purposes of evaluating an ineffectiveness claim State v Eames 97 0767 p 8 La App 1 Cir 5 714 So 210 216 writ denied 98 98 15 2d 1640 La 11 726 So 922 It is well settled that allegations of ineffectiveness 98 6 2d of counsel relating to decisions involving investigation preparation and strategy cannot possibly be reviewed on appeal See State v Martin 607 So 775 788 La App 1 2d Cir 1992 Only in an evidentiary hearing in the district court where the defendant could present evidence beyond that contained in the instant record could this allegation be sufficiently investigated review Accordingly this allegation is not subject to appellate See State v Albert 961991 p 11 La App 1 Cir 6 697 So 97 20 2d 1355 1363 1364 Pro se assignment of error number three lacks merit SENTENCING ERROR Under La Code Crim P art 920 we routinely review the record for errors 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we note the following sentencing error As previously noted herein the defendant was adjudicated a fourth felony habitual offender and sentenced to twentyfive years imprisonment at hard labor The habitual offender statute La R 15 as denoted prior S 529AA ii c 1 to its 2010 revisions provided in pertinent part Any person who after having been convicted within this state of a felony thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows If the fourth felony and two of the prior felonies are felonies as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more or any combination of such crimes the person shall be imprisoned for the defined 4 The defendant would have to satisfy the requirements of La art 924 et seq in order to receive P Cr C such a hearing 14 remainder of his natural life without benefit of parole probation or suspension of sentence emphasis added In this case 2004 2000 and 1999 guilty plea simple burglary convictions were considered in the adjudication of defendant as a fourthfelony habitual offender as to the enhancement of the instant conviction Simple burglary offenses are punishable by imprisonment of twelve years See La R 14 Thus in accordance S 628 with former La R 15 the defendant was subject to a mandatory life S 529AA ii c 1 imprisonment sentence upon enhancement An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review La Code Crim P art 882A The trial court did not articulate a basis for departing downward from the minimum sentence under the Habitual Offender Law as required by State v Johnson 971906 pp 8 9 La 3 709 So 672 67677 and 98 4 2d incorrectly stated imprisonment that there was a sentencing range of twenty years to life Nevertheless although the trial court apparently erred in imposing an illegally lenient sentence this court will not correct the sentence as the error is not inherently prejudicial but in the defendant favor and the State has not appealed the s illegal sentence State v Price 2005 2514 pp 1822 La App 1 Cir 12 952 06 28 2d So 112 123 25 en banc writ denied 20070130 La 2 976 So 1277 08 22 2d HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 15 STATE OF LOUISIANA FIRST CIRCUIT COURT OF APPEAL MV 1 ITZIOR 1 1 STATE OF LOUISIANA PHIL COLEMAN NO 2010 KA 2039 KUHN J dissenting in part Because the trial court was statutorily directed to impose a mandatory life sentence I believe this court should correct the sentence despite the s State failure to appeal that issue Accordingly I dissent