STATE OF LOUISIANA VS MICHAEL J. SVEHLA
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 KA 0397 STATE OF LOUISIANA v c VERSUS GpP4V MICHAEL J SVEHLA DATE OF JUDGMENT December 28 2006 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 386466 DIV J PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE WILLIAM J KNIGHT JUDGE Walter P Reed Counsel for Plaintiff Appellee Covington Louisiana State of Louisiana KathIyn Landry Baton Rouge Louisiana Melissa H Brink Counsel for Defendant Covington Louisiana Michael J Svehla BEFORE Disposition CONVICTIONS KUHN GAIDRY AND WELCH JJ HABITUAL OFFENDER ADJUDICATION AFFIRMED eU Ug Appellant rf AND SENTENCES KUHN J Michael J Defendant twelve He of P01110 graphy counts pled not guilty evidence and his Following a convicted of sentenced a as a court to probation parole the sentences the following 1 life at or court offender under La imprisonment sentence on suspension On labor for of sentence hard labor without benefit of on counts consecutively to The trial court on 1 7 counts 8 12 seeking the others was 8 12 in a new 15 529 1 felony habitual by erred in the accused seizure and The trial as a offender and probation counts 2 7 the ten without benefit of years Defendant court court was or sentenced sentenced court mistrial after the erred in state to suspension of ordered that each of the Defendant now appeals urging denying the suppression motions result of the unconstitutional search interrogation he a Defendant moved for reconsideration of denied the motion court The Following assignments of error The trial trial have defendant to probation parole The He denied the motions R S third a count 1 at hard counts hard labor without benefit of at on denied the motions court charged 14 81 1 suppress the to Defendant filed motions for adjudicated defendant imprisonment filed 2 felony for five years run as offender bill of information habitual to sentences convicted was judgment of acquittal The trial defendant sentence The trial police 14 81 1 and 14 27 suspension of imprisonment the in violation of La R S Defendant filed motions charges defendant multiple sentenced him or charged by bill of information with attempted pornography involving juveniles hearing the trial parole was involving juveniles statement to jury trial and post verdict filed all to violation of La R S state Svehla was subjected denying to the defendant s motion for a amended the bill of information in the 2 middle of trial and where state 3 made by of court within the hearing of the jury witness outside s The trial acquittal court improper erred in a at the conclusion of the state s posttrial judgment of acquittal because the state did not bear its burden of proof and the verdict was not supported by substantial evidence and was contrary 4 motion were denying the defendant s motion for directed verdict made evidence comments and to for the law and the weight of the evidence The maximum consecutive court in this 5 The trial case were court imposed by the trial sentences unconstitutionally excessive erred in finding that the defendant was a third felony offender and sentencing him as a habitual offender life imprisonment without benefit of probation parole suspension of sentence Finding merit in the no habitual offender assigned adjudication and errors we affirm defendant to or convictions s sentences FACTS On received been about or a 12 July 2004 Probation and Parole Officer Robert Indest telephone call from defendant s mother indicating that defendant had using illegal drugs and his behavior time defendant response to the performed violations a was tip on probation and Indest check defendant identified Indest of defendant s home for was not observed miscellaneous as his bedroom allowed that collectively referred to use a some Phelps picked of up As the one or discs possible probation digital numerous discs the Internet for were labeled of the discs and 3 as Phelps inside a room special condition of his probation a computer to In officer probation Indest searched defendant s residence and found video discs and compact discs defendant his was Indest with the assistance of Probation Officer Mike residence At that causing his family fear was personal porn attempted to purposes or play it porn on the PlayStation video image appeared game before the believed to be the television on seconds a system that situations Crime knew viewing the image for and from ranging over later able to to an observing the St few what he adult Indest seized view the discs he observed four year old to teens a a in sexual Tammany Parish Sheriff s Office Laboratory Further review of the discs revealed approximately twelve files various children defendant alTest of children was An nearby television a engaged in sexual activity with Indest turned the discs containing to to PlayStation system stopped playing child images After screen approximately 90 discs When Indest numerous connected was s engaged in sexual activity with adults Indest returned residence and arrested him for violating his probation Upon his the defendant told Indest that he would have gotten rid of the discs if he they were illegal DENIAL OF MOTION TO SUPPRESS In this assignment of elTor defendant claims the evidence seized of the search of his residence should have been residence view it was was searched without not a warrant immediately apparent and suppressed although that the items argues the statement he made upon alTest should be never advised of his Miranda We previously suppress under App 1st Cir Although a our court s unpublished pretrial determination absolutely preclude a in plain He fuIiher suppressed because he was rights reviewed the trial 05 were contraband denial of defendant s motion supervisory jurisdiction in State v Svehla 2005 10 11 result He argues that his the discs were as a and of the different decision on 4 found the ruling KW 1972 to be to La correct admissibility of evidence does not appeal judicial efficiency demands that this court light of and a accord great deference its pretrial decisions unless it is apparent in subsequent trial record that the determination produced 1983 to an unjust result See State See also State v patently elToneous Johnson 438 So 2d 1091 v 412 Humphrey was So 2d 507 La 523 1105 La 1982 on rehearing of error defendant By this assignment ruling denying his motion to suppress statement made upon his alTest Upon review argument court s we previous decision on again seeks review of the trial comi s the discs seized from his residence and the The of assignment find that the record in this the issue error case presents no new fully supports this presented in the writ application and is devoid of any additional evidence that would lead us to change the conclusion we reached therein As um general a constitutional rule warrantless easonable under the Fourth Amendment While a warrantless probation has the U S a search is reduced generally on probation or parole does govermnental intrusion into his affairs 39 644 p 6 La 13 App 2d Cir 4 A reasonable probation officer walTantless searches conduct by se per the United States Constitution to unreasonable a person as 9 on parole 5 of the Louisiana Constitution not have the or does the a a ordinmy citizen State Perry v 900 So 2d 313 318 05 warrantless search probation An freedom from same suspicion that criminal activity is occurring is to are expectation of privacy under the Fomih Amendment of Constitution and under Article I individual searches or parole officer 5 necessary for In addition are allowed even a though courts are in agreement that the searches To detennine whether whether the 2 particular intrusion the manner justification for initiating the search and See Perry 39 644 1344 p 4 La La 4 30 04 7 at p 900 So 2d 14 App 1st Cir 2 03 at defendant to The residence search found in have been sufficient very However likely 4 the 319 l the place in which it see to as suspicion on scope of conducted was also State was 3 the conducted Hamilton v the instant was done case we 2002 not was find that the scope of um easonable under the by defendant s probation officer in s mother The discs form on the trial court others which cause to arrest cOlTectly The defendant noted this fact pornography existed were clearly labeled momentmy the television when considered alone may probable that child defendant after some plain view inside defendant s home glimpse of the image displayed reasonable consider in which it set In order to ascertain capacity of investigating possible criminal activity by were offender four part test which is 1981 La court must residence s receiving information from defendant pOll1 a was 872 So 2d 480 the search conducted his official adopted parole officer or 845 So 2d 383 387 writ denied 2003 1095 Applying the Malone factors circumstances at a probation a 1239 warrantless search is reasonable a by Court has Supreme Malone 403 So 2d 1234 v subterfuge for criminal investigation a walTantless search a reasonable the Louisiana forth in State be must not similarly labeled on that convicted a certainly not sex aroused a particular disc and Thus Indest was justified in seizing the discs for further examination Regarding the to arrest defendant statement Indest testified when he returned he informed defendant that he 6 was to being the residence arrested for a probation violation He fuIiher and would not revocation hearing pornography or be able was not was was what is going response to to going happen because when for rights was was child was At as he was saying anything else a they have statement anesting him for to or him step by step was no idea not made in not advised probation violation a He did not any such crime Indest testified that defendant s spontaneous denying court a just giving him Indest stated that he had the motion the trial was no need to hearing motion on a proving beyond a an interrogation specifically found to suppress Before what purpOlis evidence the state must to affirmatively not a be a rights intenogation at that time advising of rights was Indest confession the state bears the burden confession prove that it 7 the an that defendant s statement reasonable doubt the free and confession was advise defendant of his stated that had there been It stated there court spontaneously made without any prompting from of there you lock them up possession of child pornography would have been necessary At if probation violations Indest also told defendant that specific question by him a taking place and there The trial determine Indest indicated that defendant s on remember defendant In would probation a pornography then he could be charged with that crime defendant of his Miranda statement court that he would have jail defendant but instead he interrogating not the any technical of illegal he would have gotten rid of the discs Indest testified that he of what and out defendant that he would be detained defendant told Indest that if he had known the pornographic material in point question bond where if he did possess child that to to explained was voluntary can nature of the be introduced into free and voluntmy and not made under inducements also the influence or interrogation statements that was or who a defendant is in compelling influence 11 warning cert intimidation makes statement a See State denied 532 U S not admissible v 959 The state must during custodial as given as a evidence result of police even 99 0569 pp 2 3 Tilley 121 threats Spontaneous and voluntary rights custody and are menaces La C Cr P art 703 D first advised of his Miranda without the Miranda 767 So 2d 6 duress 15 451 accused an made while interrogation fear La R S promises establish of S Ct 1488 when made La 7 6 00 149 L Ed 2d 375 2001 Interrogation is questioning initiated by law enforcement officers after person has been taken into in any 1612 significant way 16 L Ed 2d 694 custody Miranda 1966 otherwise or Arizona 384 U S v Miranda warnings established that the defendant has been Miranda 384 U S La 15 1 02 at 444 86 S Ct 805 So 2d 1141 In the instant case to him as a defendant result of his the motion to suppress was was at 436 86 S Ct 1602 applicable only custodial a See State 444 v when it is interrogation Maise 2000 1158 p 10 statement being taken into custody but explaining to defendant what the probation violation was was not going to Defendant then issue above the trial the to subject 1612 anest on spontaneously made the statement Considering the at are of his freedom of action 1148 49 being inten ogated Instead Indest happen deprived a court or did the discs 8 not abuse its discretion in denying DENIAL OF MOTIONS FOR A MISTRIAL In his second failing grant his motions for to mistrial a mistrial Defendant separate occasions during the trial two on Defendant motions of elTor defendant contends the trial assignment challenges each of these notes court erred in that he moved for The trial a denied both court nllings Amendment of the bill of information The first motion for amendment to a mistrial was made when the trial the bill of information after the jury had sworn The defendant argues that the amendment clerical error as The it with bill of information twelve of counts photographing videotaping filming performances involving RS to 14 81 1 A opening 1 not a filed otherwise or a miscitation or state moved to 17 was a not selected but prior photographing information should be amended to to initially indicated he had however when the conform no state a to any delete defendant is filming or that the bill of Counsel the amendment counts of for The pornography photographs films videotapes 9 to copy of the amended bill of charged defendant with twelve involving juveniles by possessing argued the evidence objections presented by violation of La The state noted that the evidence reflected that by charged juveniles amend the bill of information The state which 2004 reproducing visually sexual child under the age of seventeen the 14 involving videotaping certainly arguably reproducing infonnation merely September pOll1ography guilty of possession of these images following day an already been selected and On November 15 2005 after the jmy statements surplus language defendant allowed completely changed the substance of the offenses charged original defendant was court or other visual reproductions of any sexual performances involving seventeen objected 17 to a violation of La the amendment Counsel bill would constitute because 14 81 1 A argued that such defect and warranted a argued that defendant would suffer information RS the open no 3 a child under the age of counsel for defendant substantive mistrial a a change in the the In response prejudice from the amendment to the bill of file discovery examination and other parts of the record pretrial hearings voir after hearing the arguments of both additional time in which information In to prepare to offered parties to The trial allow the defense the amended bill of the amendment of the bill of defend overruling defendant s objection court The Comi is against to noted going to allow the amendment of the bill under Article 488 of the Code of Climinal Procedure The Comi finds that under 489 that the amendment is not prejudicial The Court will however in reading the bill to the jury make the jury aware of the fact that an original bill not to create any La Code Crim P was provisions filed which confusion mi 487 A An indictment that or was prejudice to thereafter amended So the jury provides charges an offense in accordance with the of this Title shall not be invalid any defect or imperfection in or because any miswriting or insufficient because of omission of any matter of form only misspelling or improper English or because of the use of any sign symbol figure or abbreviation or because any similar defect imperfection omission or uncertainty exists therein The amended in respect or was Defense counsel declined the offer information the trial as dire clearly reflected that defendant being charged with possession of the pornography involving juveniles court state or comi may at any to any time cause such fOll11al defect the indictment to be imperfection omission uncertainty Before the trial the court may order an indictment defect of substance After the trial begins a begins amended with respect to a mistrial shall be ordered on the ground of a 10 defect of substance In jury trial trial begins when the first prospective juror is called for a examination La C CrP 637 So 2d 1033 amendment of a 1034 35 Art I Const 1974 prosecution an the accusation the supreme 93 0394 p 3 La 6 3 94 the law court set out to on the provides that a cross examination criminal a of cause The bill of information against him in sufficient detail well n This requirement protects the accused s defense and exercise fully his rights of inform the defendant of the accusation i against him prepare therefore 13 S accused shall be informed of the nature and confrontation and trial per curiam Johnson v bill of information La right 761 In State mi to cause allow him of the for to prepare admissibility of the evidence Accordingly the state may not substantively amend a bill of infonnation to charge a new offense once trial has begun as allow the court and nature must as to to determine the Citations omitted Our review of the record in this of information the detailed new was to reflects that the amendment clarify the charges that he Furthennore was to the record reflects that defendant be tried for examination of the voir dire possession of child pOll1ography in this case including the was changed not to as defendant was explained to possession For instance the The state in its examination prospective jurors that defendant pornography statute to intentional was Defense counsel also was possession sale distribution 11 or no statute repeatedly being charged with acknowledged which the district attOll1ey referred an questioning of the pOliion of the pornography involving juveniles being charged under of child pOliion of the describes what charge obviously prospective jurors by the defense counsel clearly reveals that there uncertainty the bill to While the amendment description of the actions constituting the offenses it did offenses aware merely case was the that the pOliion that possession with intent to sell distribute or reproduction of any sexual Thus the amendment the was videotape performance involving clearly made to cure A erroneous was Criminal Procedure is intended 1974 see also State to to mean a 620 2d So 873 indictment charged La any v amendment even La 1986 1993 Thus case La The purpose of to charged a was the prejudice 870 App 3d Cir 1985 requiring the so that he La can state to La writ file potential prejudice the trial no writ denied prejudice when the of the crime with which he is clearly provided sufficient notice of even to offered defendant additional time Counsel for defendant declined the offer Thus defendant has failed prejudice flowing from the amendment of the bill of information foregoing reasons details of the offenses allowing the court an prepare his properly App 1st Cir defendant suffers defendant to against him for preparation for trial At the time of the amendment to prove any if provide the defendant with adequate against him provides sufficient notice to prepare to 487 of the Code of Norman 290 So 2d 865 Young 615 So 2d 948 951 In the instant the charges For the v an defect which will work the indictment before trial is See State Such contemplated by Article notice of the crime for which he is defense child under the age of 17 a Harris 478 So 2d 229 231 denied 481 So 2d 1331 amendment as City of Baton Rouge v sic visually harmless defect of substance of the party accused other or the miscitation of the subsection charges of pornography involving juveniles considered cure film photograph any to we be find the amendment of the one of form and the trial comi amendment after the commencement of trial 12 language providing committed the no error in Comment on evidence in Defense counsel discovering that Indest made upon evidence in the presence of the Because Indest that the spoke comment of matters was iury lJresence o jury urged wan The record reflects that after the lunch members of the the comi staff the was anted a Indest recess on a the second conversation he had with recess replied court It interesting s explained that unbeknownst to him to a and not heard as was mistrial The trial advised that it would admonish the jury courtroom day to evidence argues of trial some a member of comment disregard event this are jury the comment Indest likely that they did court denied the motion and any remark heard outside the The trial court admonished the me jury open in two ways First in the that any of you overheard any remarks by anyone involved in during lunch then you are to disregard those remarks as they not evidence They were not heard in the courtroom And they are to be disregarded here from the As you heard me say already in this case the evidence you are consider is what comes from the witness stand or is introduced here in the courtroom In the event and that is 13 were Although he case witness stand to gentlemen let case expressions follows Ladies and of the walking outside several members of the suspected considering the volume of his voice it Defense counsel moved for was watch the jurors absolutely certain that the jurors actually heard not the mistrial staff member asked him how the the walking behind him when he made the aforementioned was a on mistrial that Indest had advised him that court jury possibly overheard during the proceeding Indest second motion for regarding the case Indest explained that as he courtroom comment directly associated with the trial defendant highly prejudicial and defense counsel informed the a a out of an abundance of as caution are you Remarks C CrP that anyone overheard to disregard that anything in the hallway during lunch by witnesses fall under the discretionary mistrial mi 771 which in pertinent pmi provide as provIsIOns of La follows In the following cases upon the request of the defendant or the state the court shall promptly admonish the jUlY to disregard a remark or comment made during the trial or in argument within the hearing of the jury when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant or the state in the mind of the jury 2 When the remark person other than the or is made comment judge district attorney regardless of whether the remark or or by a witness a or official court is within the scope of comment Article 770 In such cases on motion of the defendant the mistrial if it is satisfied that the defendant a new trial a an admonition is not court may sufficient to grant assure A mistrial under the provisions of article 771 is at the discretion of the trial court and should be make it p 3 La impossible for the defendant to obtain App 1st Cir 11 5 5 26 00 witness is comi 762 an 2d So 1101 should order not noted mistrial is a results that would will 99 admonishment admonition is court granted only where the prejudicial remarks of the witness not a a fair trial State 743 So 2d 1275 The proper directing the jury drastic deprive to assure Tran 98 2812 1280 writ denied 99 3380 La remedy for inappropriate remarks by to mistrial under article 771 adequate v a disregard the remark The trial only if it determines the defendant a fair trial As that an previously remedy which is wananted only if substantial prejudice the defendant of be disturbed absent an a fair trial and the ruling abuse of discretion State 14 v of the trial Welch 448 705 710 La 2d So App 1st Cir writ denied 450 441 So 2d 1227 Clay La 1984 trial is The trial impossible Belgard 410 we found it interesting elTor or a constitute cure to a to was any in This writ denied 446 comment to 2d So determine whether assure the a fair trial on the defendant s a court s the to guilt v 1213 a fair State and to court s assure refusal prejudicial v evidence photographic an we the jurors mayor may grant a court mistrial find admonition and was on this not no not have sufficient that the defendant received to on indicating that Indest Fmihermore finding that comment not was comment thorough admonition by the trial in the trial assignment to question by Indest observe the jurors reactions potential prejudice State La 1982 proper in response to no error adequate defendant s assertions The prompt and We find admonition is an abuse of discretion in the trial mistrial heard if note the comment Contrary 1st Cir 1983 App judge is given wide discretion or its face not La So 2d 720 724 Initially did 1231 952 La 1984 2d So a to fair trial ground of error lacks merit DENIAL OF MOTION FOR POST VERDICT JUDGMENT OF ACQUITTAL In his third assignment of error defendant contends the trial court erred in denying his motion for post verdict judgment of acquittal Specifically defendant argues the state failed to prove the the evidence presented at trial requisite element of intent Defendant was insufficient to prove possessed pornography that he knew involved juveniles absolutely no proof that he knew the child 15 pornography that he asserts intentionally He argues that there was contained on was the discs in his Although room some of the discs were possession of pornography involving adults is The standard of review for the conviction is whether when the prosecution viewing labeled porn not sufficiency of the evidence the evidence in the 2d So 461 beyond a 99 S Ct 2781 307 reasonable doubt 674 La 673 light See La C Cr P 1st Cir 1984 App 61 L Ed 2d 560 identity 821 State mi an testing the overall evidence both direct and circumstantial must analyzing circumstantial evidence 617 2d So State v State writ denied 532 So 2d 130 the defendant is La must v 1116 La La 1988 guilty beyond a 14 81 1 defines to Johnson 443 U S incorporated in for reasonable doubt provides the fact finder 715 So 2d 157 hypothesis 1st Cir 1255 writ denied La App v a Shanks 97 1885 pp 159 in pornography involving juveniles Pornography involving juveniles is 3 The intentional with intent to sell or possession distribute of any 16 1st rational juror that peIiinent pmi follows A of all evidence both direct satisfy reasonable doubt State the objective standard for App Ultimately to Virginia v McLean 525 So 2d 1251 be sufficient under Jackson 1st Cir 6 29 98 App La R S as Nevers 621 So 2d 1108 906 La 1993 and circumstantial 3 4 15 438 proved a v be satisfied the overall evidence excludes every reasonable innocence Cir La R S uphold favorable state standard of review Louisiana Code of Criminal Procedure miicle 821 is When that the perpetrator of as The Jackson 1979 to most rational trier of fact could conclude the a notes illegal essential elements of the crime and the defendant s that crime defendant any of the following sale distribution photographs or films possession videotapes or other visual reproductions child under the age of In the instant case residence contained he of any sexual defendant does 94 0942 pornography involving juveniles 9 p 116 S Ct 215 881 deny that the discs seized from his not illegal material Pornography involving juveniles is Cinel La 11 30 94 a general 646 So 2d 309 133 L Ed 2d 146 1995 I He insists however that on the discs intent crime 316 cert have adverted must reasonably certain to Upon review the state result from his act or sufficiently met its burden of reviewing the discs in failure as S 14 10 2 requisite case we find that element of intent question he identified three known series of child confirmed that photographs Helen and Vahl series from each of these well known series Gordon depicted actual engaged in various sexual situations The critical existence of the Indest and 1 the of human Investigations Special Agent testified that Gordon identified the Staben a to act La R course consequences presented in this proving pOll1ography children v General criminal intent is present prescribed criminal of the testimonial evidence Michael Gordon Federal Bureau of upon the to See State denied 516 U S when the circumstances indicate that the offender in the ordinary experience a seventeen of the existence of the was unaware performance involving evidence pOll1ography Phelps of defendant s was defendant s testified that upon intent and or knowledge of the own statement to being advised that he was the police Both being charged with probation violation for possessing illegal pornography involving juveniles Since defendant has child pornography the files in on question only alleged the discs were we in fact the state failed to prove he was aware ofthe existence of the need not address the sufficiency ofthe evidence to prove that pornography 17 defendant indicated that he not was that such material aware the officers that if he had known that the material discarded it While this statement state that the material sufficiently proved each He told illegal he would have a clearly evinces defendant the discs Thus elements on of the essential pOll1ography involving juveniles beyond error it in fact contained was illegal by defendant claims lack of knowledge of the illegality of the child pornographic material knowledge was was of the crime reasonable doubt This we s find the of assignment of lacks merit EXCESSIVE SENTENCES In his fomih assignment of error defendant contends the trial imposing excessive sentences for what he refers juveniles is considered the asserts to he asseIis account when offender program was mitigation contributing the sole support had educated and and imposing the program while incarcerated a was of the or to participating society by serving a two may violate as a in a court voluntary tutor week old son sex in the OED for whom he history of gainful employment and was an productive member of society Article I Section 20 of the Louisiana Constitution of excessive that it Defendant argues the trial was manied and had consistent comi s comments adequately stated the considerations sentences that he pornography involving severity of the offenses apparent from the not sentencing guidelines to ened in the maximum consecutive simple possession as that it is should have considered in was Specifically unconstitutionally disproportionate Defendant further taken into sentences court punishment Although a defendant s a sentence may constitutional prohibits the imposition be within statutory limits it right against excessive punishment and is 18 subject to Generally needless appellate review State is considered excessive if it is sentence a imposition of pain and suffering to society it is so disproportionate Reed 409 So 2d 266 267 imposition of not be set sentences aside as La 1982 as La 767 nothing 1979 than the more A sentence is considered dispropOliionate if when the crime and punishment harm So 2d 762 Sepulvado 367 v to A trial shock considered in are one s sense grossly light of the of justice State v judge is given wide discretion in the within statutory limits and the imposed should sentence excessive in the absence of manifest abuse of discretion State Lanclos 419 So 2d 475 478 La 1982 v The Code of Criminal Procedure court need cite the entire checklist of article 894 1 but the record imposing adequately considered Cir sentence the criteria State writ denied 565 So 2d 942 article 894 1 a review for La individual sentencing decision Remand is the sentence is shown involving offender poses the an most at to v the The trial stated reasons a 11 La expressed by consider the and factual basis for a statute may be worst 99 1239 p imposed only offenders to 16 in when the or his past conduct of La App 1037 writ denied 2000 0958 La 3 9 01 19 1 st App sufficient factual basis for public safety due 113 court reflect that it must should by 478 under Hilton 894 1 of the criteria excessiveness s be considered 562 So 2d 1 light serious offenses and the unusual risk 764 So 2d 1027 In mi unnecessary when permitted repeated criminality See State 3 3100 Herrin court Lanclos 419 So 2d The maximum sentence cases v 1990 circumstances of the crime and the trial its La C Cr P must the trial not before forth items that sets 1st Cir 786 So 2d Initially maximum under the sentence the challenge while he note we mandatory Nor does the defendant life pornography statute defendant does not appear to under the habitual offender law imposed sentence challenge the repeatedly challenges the imposition of the sentences imposed the convictions of on attempted pornography involving juveniles The offense of not more than than ten two years or pornography involving juveniles is punishable by thousand dollars and RS 14 81 1 juveniles we offenses for which he offenses are less provided in the As parole or statute was convicted and noted statute lesser warrant no defendant in this imprisonment probation parole at the 3 mandatory sentence probation parole or was to pornography involving refer the to and urges that the than the other offenses such distinction case was sentenced on counts 8 12 to five years or suspension of sentence on each of suspension of sentence See as a imprisonment 20 at hard labor the maximum pOll1ography involving juveniles and also sentenced of life to hard labor without benefit of probation for the offenses of Defendant or correctly noted by the defendant sentences attempted pornography involving juveniles 14 27 D probation parole simple possession as fine of hard labor for not less that while the defendant has chosen suspension of sentence and by As the legislature has made to ten years without benefit of allowed note egregious previously counts 2 7 14 81 1 E proscribes various offenses relating However at without benefit of ten years La R S suspension of sentence La than more imprisonment a at on third La R S 14 81 1 E and felony habitual offender to hard labor without the benefit of count one In imposing the possibility of lesser conduct crime treatment in a court the entire record before in the found defendant nature While us we be to ruled s the out past criminal desperately in need of cOlTectional It noted that such confinement reasons for young comi was also Based women deprecate the seriousness of the offenses sentence atiiculated do not find the sentences by the trial imposed are court in this not and the case to of criminal offender defendant s failure to offense involving Therefore respond in this case juvenile is certainly the based upon the nature of past rehabilitation attempts to abuse of discretion in the trial sentences a comi The sentences worst on type the offenses and we find no elTor or imposition of maximum consecutive s are be the worst found jurisprudence defendant who committed the instant offenses while sex on concluded that any lesser agree that the factual circumstances probation for another are of defendant light of the offenses the trial we court undue risk that defendant would commit another the maximum would Considering excessive in protection of the public particularly particularly vile sentences than an the trial case concluding that custodial environment necessary for the the sentences there would be The trial in this sentences not shocking they needless infliction of pain and suffering to This the sense of justice assignment of error nor lacks merit HABITUAL OFFENDER ADJUDICATION In his final assignment of erroneously adjudicated him the evidence a third presented in sUPRort predicate number two failed to defendant contends error the trial felony offender Specifically he of the October 28 establish 21 a knowing 1996 and court asserts that predicate conviction voluntary waiver of his constitutional trial its burden of to cany that rights predicate as Thus he contends the state failed required by Boykin proving the constitutionality of the underlying guilty plea in 2 In State Shelton v 621 Court revised the scheme of So 2d 769 La 1993 the Louisiana allocating burdens of proof Supreme in habitual offender proceedings stating If the defendant denies information the burden is on the allegations the State to prove of the bill of the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken 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 judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury his privilege against self incrimination and his right to confront his accusers 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 defendant s prior guilty plea was informed and voluntary and made with an articulated waiver of the three Boykin rights footnotes omitted Shelton 621 So 2d Applying at 779 this 80 scheme jurisPIudential once of the habitual offender bill of information state had the burden of that defendant 2 was proving represented by Defendant does not contest predicate 1 on defendant denied the the alleged predicate offense the the existence of the counsel when the number one conviction 22 allegations prior guilty plea and predicate plea the 2004 camal was lmowledge 2 accepted of a juvenile to Contrary the defendant constitutionality proving claim the s of the state did not The prior guilty plea the existence of the initially bear the burden of proving bore the burden of only state plea At the habitual offender hearing in this case the introduced several state documents in support of predicate number certified Tammany Parish bill of information charging the copies of defendant with the and to the aforementioned represented by counsel March 18 re 1997 at the time of the were plea and that defendant was state met affirmative evidence of an plea or of produce to produce hearing the a minute entry for a With these documents the state this burden defendant was infringement of his rights required or a to produce some procedural irregularity Defendant could have in to meet attempted by introducing the transcript testimony regarding the taking of the prior guilty plea offender A copy of plea was proving the existence of the prior guilty any other affirmative evidence defendant guilty s represented by counsel when the plea was taken burden of proof would have shifted back of the marijuana defendant hearing reflecting also included taking of the predicate guilty plea this burden distribute charge and also indicating that defendant successfully carried its initial burden the 1996 to probation revocation hearing and a transcript of an April 26 1999 sentencing hearing Once the These documents included felony offense of possession with intent minute entry for the October 28 a plea St a one However If defendant had met this burden to the any such affirmative of the the constitutionality the record is devoid of any attempt counsel for the defendant transcript state to prove proceeding as 23 evidence the Instead at the only argued that the evidence that the trial state by the habitual failed to judge explained the Boykin rights to defendant failed to the him meet prior guilty plea during the colloquy of the predicate his burden the burden of proving the never shifted back presumption of regularity attaching to operate State v Denomes 95 1201 the to a final 10 p 465 471 writ denied 96 1455 La 11 8 96 Considering of the October 28 third the foregoing 1996 at we guilty plea find as a issue Because the constitutionality of It is in this situation that the state judgment of conviction is intended to La App 1st Cir 10 5 96 674 2d So 683 So 2d 266 in the trial no error predicate in court s adjudicating consideration the defendant a felony offender This assignment of error lacks merit For the foregoing reasons adjudication and sentences CONVICTIONS are defendant s convictions habitual offender affirmed HABITUAL OFFENDER ADJUDICATION SENTENCES AFFIRMED 24 AND
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