State Of Louisiana VS Randean Henry

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NOT DESIGNATED FORPUBLICATION TE ST OF LOUISIANA TOF APPEAL COUR FIRST CIRC CJIT NO 2Q12 KA 0841 STATE OF LOUISIANA VERSUS RANDEAN HENRY Judgment Rendered l A DEC 21 2012 On Appeal from the 17th Judicial Dzstnct Court In and for the Parish of Lafourche I V 1 State of Louisiana Trial Court No 48 Z 76S Honorable Terome J Barbera III Judge Presiding James D Baton Buddy Rouge LA Caldwell Attorneys for Appellee State oi Louisiana Camille A Morvant II District Attorney S Benjamin Caillouet Joseph S Soignet Kristine Russell Assistant District Attorneys Thibodaux LA Frank Sloan Mandeville Attorney for Defendant Appellant Randean Henry LA Randean Henry Appellant Defendant Ferriday LA In Proper Person BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ 61 C S GG S k Lf dS l HIGGINBOTHAM J The defendant Randean Hanry was ch by bill of information with rged fourth offense driving whil intoxicated DWI a violation of La R 14 The S 98 defendant initially entered a plea of not guilty Subsequently the trial court denied the defendant smotion to quash 1 d withdrew his former plea and pled he Fendant guilty as charged pursuant to State Crosby 33 So 584 591 La 1976 2d reserving the right to appeal the trial co ruling on his motion to quash The s art defendant was sentenced to twenty years imprisonment at hard labor The trial court denied the deiendant motion to reconsider sentence s The defendant now appeals assigning srror to the trial court denial of the s motion to quash in a counseled brief and in a pro se brie In his pro se brief the defendant further assigns error to the trial court acceptance of his guilry plea the s constitutionaliry of La R 14 the triai court denial of his motion to S 98 2 F s reconsider sentence and the trial court failure to grant him a speedy trial For the s following reasons we affirm the conviction and the sentence STATEMENT OF FACTS While the defendant pled guilt to the instant offense the ollowing facts are in accordance with the testimony presented at the Boykin hearing in part based on the police report On or aboui Januar 23 2 while standing outside of a bar in 10 Bayou Blue in Lafourche Parish smoking a cigarette the bar owner Da Daigle observed a red Mustang r heading north on LA Highway 316 ckiessly Deputy Dain Prejean of the Lafourche Parish Sheriff Office was dispatched to s the scene According to Da the vehicle was brought to a stop while partially gle on the road and partially in the parking lot The vehicle was then accelerated as the back end swerved from side to side nearly striking a vehicle which was parked in the parking lot Additionally the vehicle nearly struck Daigle as the driver accelerated again before parking the vehicle and stumbling into the bar 2 Daigle followed the driver into the bar ar advised the bartender not to serve d him The driver became upset anc by ne time he stura out of the bar Deputy Prejean had arrived at the scene T drivex ider as the defendant admitted he tified to the deputy that he had cons znethamph and cocaine earlier that day amed tamine The deputy detected an odox of aicohol frorri tt defendant body and he noticed s that the defendant speech was ligf slurred I defendant pezformed poorly s tA kie on a field sobriety test and he was suhsequently arrested for DWI The defendant refused any chemical testing COUNSELED ASSIGNMENT OF ERROR AND PRO SE ASSIGNMENT OF ERROR NUMBER TWO In the sole counseled assignment of error the defendant contends that any statutory ambiguity involving the State burden of proof should be resolved in s favor of the defendant such that the State had the burden of proving beyond a reasonable doubt that the prior DWI offenses fell within the ten cleansing year period provided in La R 14 The defendant notes that the date of the S 98 2 F commission of the offense is us in computir d gthe ten period and further year contends that the State failed to prove tl da of cemmission for the 1997 DWI ee predicate convictions The def argues that proof of the date of the arrest ndant does not constitute proof of the date of commission of an offense as an offense may be committed well before the offender is arrested Thus the defendant concludes that the trial court erred in denying the motion to quash as to the two 1997 convictions In assignment of enor number two of his pro se brief the defendant contends that the State only proved that he was incarcerated from June 23 2003 until June 29 2007 approximately four years The defendant further contends that The defendant has three previous D arrests in Laiourche Parish tlxat resulted in convictions VI on June 23 2003 August 19 199 and May i4 1997 The May 14 1997 conviction docket number 286250 is based on a January 7 1996 arrest the August 19 1997 conviction docket number 248871 is based on a Decer 12 1992 arrest and the June 23 2003 conviction mber docket number 336456 is based on a Januazy 29 1999 arrest 3 the documentation presented bp trie State at he hearing did not show any time served on the May 14 199 c azad hae here was insufficient vidence to ictiora n calculate the cleansing periods for the 1997 pxedicate convictions The DWI statute provid f a cleansing period far remote former sro calted DWI offenses Specif cally the version of L R 14 that was in effect a S 98 2 F at the time of the instant offense pros in pertinent part ides For purposes of this Section a prior conviction shall not include a conviction for an offense under this Section if committed more than ten years prior to the commission of the crime for which the defendant is being tried However periods of time during which the offender was awaiting trial on probation for an offense described in Paragrapn 1 of this Subsection under an order of attachment for failure to appear or incarcerated in a penal institution in this or any other state shall be excluded in computing the ten period year Emphasis added In accordance with La R 14 an initial ten cleansing period S 98 2 F year determined on a strictly caIendar basis u comprise the period of time ould beginning with the date of commission of the offense for which the defendant is being tried and ending with the same znonth and day ten years earlier However applicable periods of time designated in La RS 14 shall be excluded in 2 F 98 computing the ten period State v Warren 2011 La App lst Cir year 1262 12 10 291 So 981 9 3d 2 Therefore the total period of time attributed to all of the applicable excludable periods of time cannot be cmunted in ealcuiating the ten cleansing year period For example if a de was incarcerated for five years the fyears endant ve of incarceration cannot be eounied in determining the ten cdeansing period In year such an example the cleansing period would begin with the date of the offense for which the defendant is being tried and after excluding five years attributable to incarceration and tacking on ten years for the cleansing period would end with a calendar date fifteen years preceding the beginning date Accordingly in this 2 The defendant did not contest the use of the June 23 2003 conviction below ox on appeal in the counseled and pro se assignments Thus only the use of the 1997 predicate convictions is at issue 4 example a predicate offense must falJ outside the ending date of the cleansing period in order for the relevant convictiari tc be cleansed Warren 91 So3d at 982 The periods oftime that shall be exclude in computing the cleansing period must be determined by exa the relevant periods of f associated with all nining me of the predicate convictions The time the defendant was aetually incarcerated as well as the time he was awaiting trial or n robation must be supported by competent evidence Warren 91 So at 984 3d Herein the defendant led counseled and pro se motions to quash arguing that the ten cleansing period is applicabl to the 1997 predicate offenses year e andlor that the State failed to present sufficient information to determine the applicable cleansing period At the hearing held September 22 2010 on the s defendant motions to quash Misty Montgomery of the Office of Probation and Parole of the Louisiana Department of Public safety and Corrections reviewed the penitentiary pack pen packj including all of the department records for the s defendant Montgomery confirmed that the department kept thorough records as to inmates serving time in the Departrrient of orrections Montgomery noted that the defendant was arrested far ihe instant offense on January 25 2010 In reviewing the ten period priox to that arrest frorn January 25 2000 to January year 25 2010 che testified that the defendant had been incarcerated from January 19 2000 to June 29 2007 a total of eighty months approximately seven years nbne and five months having been free from incarceration for approximately thirty one months According to further testimony by Montgomery before 2000 the defendant was incarcerated for add time periods including March 12 1996 tional to December 28 1997 approximately one year and nine months and again from 7anuary 20 1993 to June 21 1995 approximat lytwo years and five months Thus prior to the year 2000 the defendant was incarcerated for approximately fifty additional months 5 The defendant testified t ch heaa noting in pertinent part that he was contesting the 1997 DWI predicate a The defendant contended that the nvictions information in the pen pack ivas inaccurate as to the years af incarceration before 2000 The defendant initially claimed that r ords included years of incarceration between 1992 and 1998 when he h actually been released due to a sentence ad being vacated The defendant later clarified ihat after 1992 he supposedly served four years in prison that should not have been served and that those four years should not be considered in computing the cleansing period Noting that there was a nearly five period between the date of the arrest year for the first predicate at issue December 12 1992 and the date of conviction for that offense August 19 1997 the trial court inquired as to whether there were any disputes regarding date of the arrest The defense attorney stated ihat the date of the arrest was not disputed and also ageed that there were no disputes as to the minutes for the contested predicates Then the foliowing colloquy took place THE COtiRT So that would be those two convictions would be the offense of December 12 92 and the o of 1 Ffense 96 7 MR WALLIS the defense attorney s That correct THE COURT So the minutes of those two cases can you identify those e V aiready know what the 12 is What is the docket number of 92 the predieate offense that was committed or alleged to be committed on January 7 96 MR SOIC the assistant district attorney iNET s That 286250 THE COURT Ok So the minutes of that offense for that case will also be an evidence The trial court then took the matter under advisement In subsequently denying the motion to quash the trial court specifically concluded The evidence presented at the hearing the testimony of the s defendant former parole officer and the documents from the 6 Department of Public Safety recYzons Ce show that between December 12 1992 th date f the frst predicate offense and January 24 2010 the date f the cunent offense the defendant Randean Henry was incar except for approximately four years erated When a trial court denies a motion to quash factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court discretion s See State v Odom 2002 I App lst Cir 6 861 So 187 191 2698 a 03 27 2d writ denied 2003 La 10i17 855 Sc 765 However a trial court 2142 03 d s legal fndings are subject to a de novo standard of review See State v Smith 99 0606 La 7766 So 501 504 00 6 2d Regarding the date of the con DWI predicate offenses on December ested 12 1992 the defendant was arrested for DWI driving under a suspended license and driving left of center on a divided highway and on January 7 1996 the defendant was arrested for careless operation DWI fifth offense and driving under a suspended license The dates of the arrests for the predicate DWI offenses were presumed by the trial court and the parties Lto correspond with the date of the elow commission of the offenses The defandan did not arg below that the offenses ze were not committed on the date of the arrests and did not object to the tr court ial s presumption in that regard ouisiara L de c Cr Procedure rticle S36 f minal requires a motion to quash to be in writing and to specify the grounds upan which it is based It is well established in our law that a new basis for an objection cannot be raised for the first time on appeaL La Code Crirri P art 841 State v Cressy 440 So 141 142 La 1983 Further in State v Pelas 99 La App 2d 43 0150 lst Cir 11 745 So 1215 1217 this Court held that the defendant was 99 5 2d precluded from raising a new basis for his motion to quash on appeal The cleansing period zn this case would begin on or about January 23 2010 the date of the instant offer By merely excluding the seven years and five se months of imprisonment during the first ten period examined by Monigomery vear from the date of the instant offense back to 7anuary of 2000 and taeking on ten years for the cleansing period the cleansing period wc end on or about August uld 23 1992 approximately seventeen years a fve rnon precedi nci hs gthe beginning date Even without considering anv addiiional excl time periods including udable the defendant syears of incarceration rior to 2000 it is evident tn the predicates t at issue the Decen 12 1992 and January 7 199 offenses ouera not ommitted ber i outside of the cleansing period and vvere properly used to enhance the instant offense pursuant to La R 14 Thus the counseled assignment of error S 98 2 F and pro se assignment of error number two are without merit PRO SE ASSIGNMENT OF ERROR NUMBER ONE In pro se assignment of error number one the defendant contends that the trial court accepted his guilry pYea despite his assertion that he was not intoxicated while operating his vehicle and the flack of a significant factual basis in support of the plea The defendant further contends that the recitation of facts by the prosecution made no mention of into by alcohol or drugs but only ior ica mentioned that he was impaired without supporking the necessary elements of the offense The defendant further contends that trial court did not discuss the elements of the offense prior to accepting his plea While noting that he and the defense attorney did not specifically label his plea an Alford plea the defendant contends that he protested his innocence and pled guilty in his best interest and that the trial court nFVer asked him if he agreed with the State recitation of the s facts The defendant furthet c that he made statements that raised the issue ntends of whether a valid Alford plea was entered or whether his plea should have instead beer cor a nolo contendere plea placing the trial court on notice of the sidered necessity of a trong factual basis The defendant concludes that his conviction should be reversed and the matter remanded to allow him to withdraw his guilty piea 8 We note that the defeaidant did not c his innocence to the trial court taim during the guilty plea proceed However th defendant confirmed that he ng consulted his attorney and concludec that pleading guilry was in his best interest adding that he believed that he would not prevail if there were a trial The defendant also specif statect that he was entering a plea reserving ically Crosby the right to appeal the trial cr ruliag on the motion to quash s urt A guilty plea is a canviction and therefore should be afforded a great measure of finality State v Jackson 597 So 526 529 La App 1 st Cir writ 2d 2d denied 599 So 315 La 1992 An express acl of guilt is not a mission constitutional requirement for the imposition af a criminal penaity The fact that a defendant believes he is innocent even if he rrzakes such belief known to the court does not preclude him from entering a guilty plea State v Castaneda 94 1118 La App lst Cir 6 658 So 297 303 The best interesY or Alford 95 23 2d plea which derives from the United States Supreme Court case of North Carolina v Alford 400 U 25 91 S 160 27 L 162 197Q is one in which the S Ct 2d Ed defendant pled guilty vhile maintaining his innocence In that case the Supreme Court ruled that a defendant mav plead guilty vithout forgoing his protestations of innocence if the plea represe a voluntary and intelligent choice among the ts alternative courses of actic open n to the defendant especially where the defendant was represented by competent counsel whose advice was that ths plea would be to the defendant advantage Alford 00 U at 31 91 S at 164 s S Ct In a case involving an Alford plea the record must contain a factual basis strong for the plea Alford 400 U at 38 91 S at 168 S Ct At the Boykin hearing in this case the trial court informed the defendant of the definition of the offense and recited the factual basis for the offense which included a lengthy oral review of the poiice report and evidence that would be presented at trial regarding the instant offense and the predicaee offenses The 9 statements from Deputy Prejean spolice report included Daigle observations and s Depury Prejean observatious once he arrived at the scene The State indicated s that it was prepared to call Daigle and the inves officers as trial witnesses igating including those who heard the defendant make incriminating statements The State would also call Sergeant Angie W intzei who was prepared to perform the Intoxilyzer test Daigle observed the defendant driving recklessly swerving and nearly striking him and a parked vehicle before parking his vehicle and stumbling into the bar Daigle further observed an altercation between the defendant and the bartender when he refused to serve the defendant After the defendant stumbled out of the bar he told Deputy Prejean that he consumed methamphetamine and cocaine earlier that day and the deputy detected the odor of alcohol from the s defendant body The deputy noted that the defendant speech was slightly s slurred he performed poarly on a field sobriety test and he refused chemical testing after his arrest e R find that the record ontains a 5trong factual basis in support of the guilty plea Further the Boylcin transcript clearly shows that the defendant was carefully informed of his rights and the consequences of his plea and that Lhe plea was entered into knowingly and voluntarily Thus we find no merit in pro se assignment af error number one PRO SE ASSIGNMENT OF ERROR NUMBER THREE In pro se assignment of error number three the defendant argues that La S 98 R 14 is unconstitutionally vague on its face because tr awaiting traal 2 F e exception to the time used to compute the ten cleansing period does not year address eriods in which the offerider is out on bond and conflicts with the incarcerated in a penal instituti9n exception The defendant ihen by contrast states that the words of the statute are very clear and easy to interpret 10 conciuding that the legislature did nc ir to exclude periods of time of t tetid incarceration far other cons in c the clea period for a ictioris ompuking ising particular conviction Statutes are prasumed to be valid whene possible the constitutionality of er a statute should be upheld Because statute is presumed constitutional the party challenging the statute bears the burden of pzoving its unconstitutic Attacks nality on the constitutionality of a statute may be made by two methods The statute itselfcan be challenged or the statute application to a particular defendant can be s the basis of the attack State v Gamberella 633 So 595 601 La App lst 2d 02 Cir 1993 writ denied 94 La 6 640 So 1341 Constitutional 0200 94 24 2d challenges may be based upon vagueness State v Griffin 495 So 1306 130 2d La 1986 A staYute is vague if its meaning is not clear To the average citizen or if an ordinary person of reasonable intelligence is incapable of discerning its meaning and conforming his conduct to it State v Barthelemy 54S So 531 532 2d 33 La 1989 State v Thomas 2005 La 9pp lst Cir 6 938 So 2210 06 9 2d 168 175 writ denied 200 La 4 955 So 683 Gamberella 76 2403 07j 27 2d 633 So at f02 2d The defendant specificalfly ontends that La S R 2 F 98 14 is unconstitutionally vague We disagree We find that the awaiting trial exceptiozi to the time used to compute the ten cleansing period cl includes per year arly ods in which the offender is out on l Fu there rs no conflict arnong the ond awaiting trial exception and the periods that are o be excluded from the computation like any period the offender is incarcerated in a penal institution The language at issue is clear and unambiguous and it embraces the Legislature s desire for the cleansing period to include only time during which the accused is not under any legal restraints See State v Aoerner 20ll La App Sth Cir 659 11 12 28 3d 2 88 So ll28 1130 B on the fore we finci no merit inpro se sed oing assignment of error number three PRO SE ASSIGN OF ERROR NUMBER FOUR MENT In pro se assignment c erz mu ttk defFndant ce that the f or nber ur e ntends trial court imposeci an u 3er The defendant argues that the consti4utional tence sentence subjects him to cruel exces and unusual punisYim and serves no ive ent oiher purpose than to cause him needless pain and suffering The defendant also argues that the trial court failed to consider sentencing guidelir set forth in the es La Code Crim P art 1 894 o The defendant specifically claims that the trial court did not consider that he is a hard working law citizen who paid taxes abiding provided for his family and stayed out of trouble for over two and one years half The defendant claims that a presentence investigation report PSI would have revealed several other mitigating facYors Finally the defendant contends that he has never been given the benefit of reatment ar home incarceration for any of his prior offenses a Louisian Code of riminal Pracedure article 8 provides that 2j A 2 1 he defendant cannot appeal or seek review of a sentence imposed in conformity t with a plea agreemexii which u set forth in the record at the time of the p1ea as See State v Young 9f La 10 680 So 1171 1174 State v Q195 96 1 2d Johnson 99 La App lst Cir 9 768 So 234 236 In this case the 2371 00 22 2d s ewas agreed to as part of a plea agreement and is not subject to defendant senten review by this court PRO SE ASSIGNMENT OF ERROR NUMBER FIVE In pro se assignment of error number five the defendant argues that the trial court erred by not granting his m for a fast and speedy tria The defendant tion notes that the trial court did not haae a hearing on his requests though thz trial court and t State were aware of his motions e 12 The defendant further contend that despite objections he was n hxougiit to tria v the twoyear tirne period ot ithin required by statute The record clearly indicaYes that the defendant was advised of his rights by the trial court waived his rights knowingly and voluntarily and pled guilty without reserving his right to appeal thisissue pursuan to Crosby l t oreover La Code Crim P art 701 which provides the statutory right to a speedy trial merely authorizes pre relie The remedy for a speedy trial violation under Article trial 701 is limited to release from incarceration without bail ar release of the bail obligation for one not incarcerated Once a defendant has been convicted any allegation of a violation is moot State v Odom 2003 La App lst Cir 1772 04 2 4 878 So 582 593 writ denied 2004 La 10 883 So 2d 1105 04 8 2d 1026 In addition to the Article 701 limitations La Code Crim P art 578 2 A provides for a two time limitation from the date of institution of the year prosecution within wk the trial of a defendant accused of a non felony ich capital must be commenced In this case the bill of information was filed on March 18 2010 and the Boyliin hearing and guilty plea took place on January 25 2012 Thus to the extent that the defendant claim is based on Article 578 it has s 2 A no merit as he pled guilty before the two period lapsed year Besides thes statutory prolrisions the righx to a speedy triai is guaranteed by both the federal S U Const aznend VI and state La Const art I 16 constitutions and the proper method for raising the claim of a denial of the constitutional right to a speedy triai is by a motion to quash State v Gordon 0633 2004 La App lst Cir 1O129 896 So 1053 1063 writ denied 2004 04 2d 3144 La 4 897 So 6Q0 The defendarat counseled and pro se motions 05 1 2d s to quash filed May 4 2010 July 22 2010 and August 17 2010 were not based on any claim that the State violated his constitutional right to a speedy triaL 13 Therefore the defendant failed to preserve for appeal his claim that the State violated his constitutional right to a speedy tra See Gordon 896 So at 1063 I 2d Further a review of the defendant claim out of an abundance of caution reveals s that the defendant constitutional speedy trial rights were not violated s In Barker v Wingo 407 U 514 530 92 S 2182 2192 33 L S Ct 2d Ed 101 1972 the United States Supreme Court idertified four factors to determine whether a particular defendant had been deprived of his right to a speedy trial namely 1 the length of delay 2 the reason for the delay 3 the defendant s assertion of his right and 4 prejudice to the defendant The Louisiana Supreme Court has explained The first of the Barker factors the length of the delay is a threshold requirement for courts reviewing speedy trial claims This factor serves as amechanism Unless the delay in a triggering given case is presumptively prejudicial further inquiry into the other Barker factors is unnecessary However when a court finds that the delay was presumptively prejudicial the court must then consider the other three factors Citations omitted State v Love 2000 La 5847 So 1198 1210 3347 03 23 2d In this case the length of the delay from the institution of prosecution to the date of the guilty plea was about one year andl ten months The record shows that the trial court denied the defendant motions to quash two of the predicate s offenses on November 12 2010 and the defendant filed a motion for a speedy trial on December 29 2010 Subsequently on January 5 2011 the defendant filed pro se motions including a motion to recuse the judge and a motion for preliminary examination transcripts As noted the defendant failed to file in the trial court a motion to quash on speedy trial grounds Further the defendant does not allege prejudice to his case Thus applying the Barker analysis to the present case we find no violation of the defendant constitutional speedy trial rights s assignment of error number five lacks merit 14 Pro se ENCING I V SE EI2ROR In conducting our review of the record as required by La Code Crim P art 2 920 we note the existence o a sentencing error The penalty provision for driving while intoxicated fourth r subsequent offense includes a mandatory fine of five thousand dollars La R 14 Tl record reflects the triai court S 8 e a 1 E failed to impose a Under Yh gener provisions f La Code Crim P art ne 1 A 882 an illegal sentence may be corrected at any time by an appellate court on review Because the trial court failure to impose the fine was not raised by the s State in either the trial court or on appeal and the defendant is not prejudiced by the trial court failure to impos the mandatory fine we decline to amend the s sentence imposed by the trial court See State v Price 2005 La App lst 2514 Cir 12 952 So 112 123 e banc writ denied 2007 La 06 28 2d 25 0130 08 22 2976 So 1277 2d CONVICTION AND SENTE AFFIRMED NCE 15 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0841 STATE OF LOUISIANA VERSUS RANDEAN HENRY McCLENDON concurs and assigns reasons While I am concerned about the failure of the trial court to impose the legislatively mandated fine given the state failure to object and in the interest s of judicial economy I concur with the majority opinion

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