State Of Louisiana VS Allen Charles Bridgett, Sr.
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NOT DESIGN FOR PUBLICATION ATED STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 1547 STATE OF LOUISIANA VERSUS ALLEN CHARLES BRIDGET SR Judgment Rendered MAR 2 2 ZQ 3 U On Appeal from the 16th Judicial District Court In and for the Parish of St Mary State of Louisiana Trial Court No 165527 and 178667 Honorable Gerard B Wattigny Judge Presiding J Phil Haney District Attorney Walter J Senette 7r Attorney for Plaintiff Appellee State of Louisiana Franklin LA Margaret Smith Thibodaux LA BEFORE Sollars Attorney for Defendant Appellant Allen Charles Bridget Sr WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J HIGGINBOTHAM J The defendant Allen Charles Bridget Sr was charged by bill of information with possession of a Schedule II controlled dangerous substance cocaine a violation of La R 40 See also La R 40 Schedule S 967 C S 964 4 A II On September 29 2004 the defendant initially entered a plea of not guilty On December 1 2005 after he withdrew his initial plea and entered a plea of guilty as charged the trial court sentenced the defendant to two years imprisonment at hard labar On December 8 2005 the State filed a habitual offender bill of information On January 30 2006 the defendant filed a pro se motion to reconsider sentence which was denied by the trial court on February 1 2006 On March 3 2006 the habitual offender hearing was held wherein the defendant was adjudicated a second habitual offender the original sentence felony was vacated and an enhanced sentence of ten years imprisonment at hard labor was imposed On April 10 2006 the defendant counseled motion to reconsider sentence s was filed asking the court to reconsider the enhanced sentence On December 15 2008 the defendant again filed a pro se motion to reconsider the original two year sentence On January 21 2009 the trial court denied the pro se motion to reconsider sentence in part noting that a prior motion to reconsider the original sentence had been denied and that the sentence had been vacated The trial court also noted Furthermore the court is not inclined to reconsider Defendant ten s year sentence which he is serving pursuant to his conviction as a second multiple offender The name suffix on the defense brief submitted on appeal indicates that the defendant is a juniar However the name suffix used herein is as consistently stated throughout the record Also a charge of indecent behavior with a juvenile listed in the bill of information was severed by the State 2 While it appears that the defendanYs motion to reconsider sentence was untimely pursuant to La Code Crim P art 881 resulting in an untimely motion for appeal in the interest of A 1 judicial efficiency the instant appeal will not be dismissed See State v Shay 2007 La 0624 07 26 10 966 So 562 2d 2 On November 2 201 l the defendant filed a pro se motion to correct illegal sentence contending that the trial court failed to give him credit for time served on the original sentence On January 11 2012 the trial court held a hearing on the s defendant motion to correct illegal sentence and granted the motion insofar as the sentence was clarified to note that the defendant scredit for time served would include the time served on the ariginal sentence imposed in this case The sentence was otherwise unchanged The defendant now appeals assigning error to the trial s court denial of his motion to quash the habitual offender bill of information to the habitual offender adjudication and to the constitutionality of the sentence For the following reasons we affirm the conviction habitual offender adjudication and sentence STATEMENT OF FACTS Since the defendant pled guilty to the instant offense the facts were not fully developed However the following factual basis was presented at the Boyliin hearing and agreed upon by the defendant and his counsel On August 4 2004 Officer Paul Scott of the Patterson Police Department attempted to execute a warrant for the defendant The defendant removed his hat as Officer Scott approached him and a piece of white rock substance fell from the defendant like s hat The substance was seized and was later tested by the Acadiana Crime Lab and determined to contain cocaine ASSIGNMENT OF ERROR NUMBER ONE In assignment of error number one the defendant argues that the trial court erred in not granting his motion to quash the habitual offender bill of information The defendant specifically argues that a habitual offender proceeding must be completed befare the defendant serves the sentence which is to be enhanced The defendant notes that in this case he fully served the original sentence of two years prior to the date of the hearing on his motion to correct an illegal sentence The 3 defendant argues that the State and trial court failed to act with reasonable diligence to bring a proper habitual offender proceeding against him On April 9 2008 the defendant filed a motion opposing the habitual offender bill of information in the trial court but the motion did not raise the trial speedy issue Accordingly he failed to preserve this issue for appeal La Code Crim P art 841 Nevertheless even if we address the defendant sspeedy trial argument we find that it is without merit Louisiana Code Criminal Procedure article 874 provides that a sentence shall be imposed without unreasonable delay Under La R 15 a S 529 a D 1 multiple bill may be filed against a defendant who has been convicted of a felony at any time either after convicrion or sentence While La R 15 does S 529 1 not establish a time limit for habitual offender proceedings the jurisprudence holds that a habitual offender bill must be filed within a reasonable time after the State learns the defendant has prior felony convictions State v Muhammad 2003 2991 La 5 875 So 45 54 This rationale is based upon a defendant 04 25 2d s constitutional right to a speedy trial and to know the full consequences of the verdict within a reasonable time See State v Broussard 416 So 109 110 2d 11 La 1982 Though cited by the defendant herein on appeal the Louisiana Supreme Court overruled State ex rel Williams v Henderson 289 So 74 La 1974 2d and State ex rel Glynn v Blackburn 485 So 926 La 1986 to the extent that 2d they established a bright line rule that multiple offender proceedings I must be completed before the defendant satisfies his sentence on the underlying felony Muhammad 875 So at 56 The Muhammad Court held that an evaluation of 2d the circumstances surrounding the multiple offender proceedings should be conducted on a by case basis Muhammad 875 2d So at 54 In Muhammad the Court recognized that t are two concepts at issue in this here the case timely filing of a multiple offender bill of information and the timely 4 hearing or completion of the proceeding Muhammad 875 So at 56 In 2d Muhammad the original multiple offender bill of information was filed on the date of the defendant ssentencing which was before he was released from custody Due to a series of events including remands following two appeals the defendant was not finally adjudicated a multiple offender until four months after his sentence completion date The issue was whether the multiple offender adjudication was timely completed The Court found that the State did not unduly or unreasonably delay in completing the multiple offender proceedings noting the d efendant was never released from prison only to have the State thereafter file enhancement proceedings Muhammad 875 So at 56 2d As a general matter the United States Supreme Court has set forth four factors for courts to consider in determining whether a defendant right to a speedy s trial has been violated Those factars are the length of the delay the reasons for the delay the accused assertion of his right to a speedy trial and the prejudice to s the accused resulting from the delay Barker v Wingo 407 U 514 530 S 33 92 Ct S 2182 2192 33 L 101 1972 While these factors are neither 93 2d Ed definitive nor dispositive in the context of a habitual offender proceeding they are instructive See Muhammad 875 So at 55 see also State v Reaves 376 2d 2d So 136 138 La 1979 In this case the guilty plea and the imposition of the original sentence took place on December 1 2005 The State filed the habitual offender bill of information on December 8 2005 only seven days later On January 30 2006 the defendant filed a pro se motion to reconsider sentence which was denied by the trial court on February 1 2006 On February 17 2006 the State filed a motion to set the habitual offender hearing date Approximately three months after the original sentence was imposed on March 3 2006 the habitual offender hearing took place wherein the defendant was adjudicated a second habitual felony offender the original sentence was vacated and the defendant was resentenced to 5 i ten years imprisonment at hard labor Clearly the multiple offender adjudication was timely completed in this case At his original sentencing hearing the defendant was made aware that the State would be filing a habitual offender bill of information The defendant has made no showing of nor do we find any prejudice resulting from the brief delay Further there is nothing in the recard befare us that indicates any abusive or vindictive behaviar by the State Thus the defendant s due process rights were not violated Assignment of error number one is without merit ASSIGNMENT OF ERROR NUMBER TWO In assignment of error number twq the defendant contends that the State failed to meet its burden of proof at the habitual offender hearing The defendant notes that his trial counsel not only failed to object to hearsay testimony presented at the habitual offender hearing but also did not ask any questions about the validity of the 1996 predicate plea The defendant contends that there was no mention of a Boykin transcript or an examination to see if his predicate guilry plea was valid The defendant argues that since the State failed to prove that his 1996 guilty plea was informed free and voluntary and made with an articulated waiver of his constitutional rights the trial court erroneously adjudicated him a second felony offender Further the defendant adds that the failure of the trial court to advise him of the sentencing range at the time of the predicate plea renders the plea constitutionally suspect Finally the defendant claims that because his predicate plea was made pursuant to former La R 40 it cannot be used to enhance a S 983 sentence for purposes of a habitual offender adjudication Generally the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post relief filed in the trial conviction court where a full evidentiary hearing can be conducted State v Prudholm 446 The defendant would have to satisfy the requirements of La Code Crim P art 924 et seq to receive such a hearing 6 2d So 729 737 La 1984 But an evidentiary hearing is not necessary where the record on appeal is sufficient to permit a determination of counsel effectiveness s at trial State v Seiss 428 2d So 9 444 448 La 1983 Under such circumstances it is in the interest of judicial economy to dispose of the issue on appeal State v Calhoun 96 La 5 694 So 909 914 0786 7 9 20 2d Under Strickland v Washington 466 U 668 104 S 2052 80 S Ct 2d Ed L 674 1984 a defendant must show both that his counsel performance s was deficient and that the deficient performance prejudiced him With regard to s counsel performance the defendant must show that counsel made errors so serious that counsel was not functioning as counsel guaranteed by the Sixth Amendment As to prejudice the defendant must show that counsel errors were s so serious as to deprive him of a fair trial ia trial whose result is reliable Thus e it must be shown to a reasonable probability that but for counsel unprofessional s errors the result of the proceeding would have been different If the defendant denies an allegation of the habitual offender bill of information the burden is on the State to prove the existence of the prior guilty plea and that the defendant was represented by counsel when the plea was taken State v Shelton 621 So 769 779 La 1993 If the State meets this burden 2d 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 back to the State The State will meet its burden of proof if it introduces a transcript of the taking of the guilty plea one that reflects a perfect colloquy between the judge and the 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 Shelton 621 So at 779 2d 80 7 If the State introduces anything less than a perfect transcript for example a guilty plea form a minute entry an imperfect transcript or any combination thereof the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the s defendant prior guilty plea was informed and voluntary and made with an waiver articulated of the three Boykin rights Shelton 621 So at 780 State v 2d Bickham 98 La App 1st Cir 6 739 So 887 889 1839 99 25 2d 90 The purpose of the rule of Shelton is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea in which the appellate court may not presume a valid waiver of rights from a silent record and a collateral attack on a final conviction used in a subsequent recidivist proceeding as to which a presumption of regularity attaches to promote the interests of finality See State v Deville 2004 La 7 879 So 689 691 per curiam 1401 04 2 2d As noted by the defendant on appeal at the habitual offender proceeding the defense counsel did not object to the testimony and evidence presented by the State to establish the defendant habitual offender status s While the defendant filed a pro se motion in opposition to the habitual offender bill of information challenging the validity and use of his predicate conviction the motion was filed two years after the habitual offender hearing At any rate a careful review of the testimony and documentation introduced by the State in support of the use of the 1996 predicate to establish the defendant habitual offender status convinces us that the s State met its initial burden under Shelton Specifically the State proved the existence of the February 8 1996 guilty plea to possession of cocaine and that the defendant was represented by counsel by introducing into evidence the bill of information the minutes and transcript for the guilty plea conviction under St Mary Parish docket number of 95 The State also introduced the testimony 142339 of Ryan Stevens the probation officer who identified the defendant as the person 8 he supervised after he was placed on probation for the predicate offense under St Mary Parish docket number of 95 142339 Thereafter the defendant failed to produce any affirmative evidence showing an infringement of his ri or a procedural irregularity in the taking of ghts the plea Accordingly the State had no burden to prove the constitutionality of the predicate at issue by perfect transcripY or otherwise Nonetheless as noted the State evidence included a full transcript of the s predicate guilty plea proceeding Although the defendant contends otherwise the transcript shows that his 1996 guilty plea was informed free and voluntary and made with an articulated waiver of his constitutional rights The transcript also shows that the trial court advised the defendant of the sentence he would receive S 983 Further former La R 40 was repealed by 1995 La Acts No 1251 2 befare the guilty plea at issue took place and there is no indication that the predicate plea was made pursuant to former La R 40 We note that counsel S 983 is not required to engage in futility See State v Pendelton 96 La App 5th 367 Cir 5 696 So 144 156 wrft denied 97 La 12 706 So 97 28 2d 1714 97 19 2d 450 Considering the record in support of the habitual offender adjudication in this case the defendant has failed to show any deficiency in his trial counsel s performance or prejudice in this regard Based on the foregoing assignment of error number t wo lacks merit ASSIGNMENT OF ERROR NUMBER THREE In the final assignment of error the defendant argues that the trial court imposed an excessive sentence when a lesser sentence would have better served the defendant and the State nf Louisiana The defendant notes that his personal history was barely discussed at the time of the sentencing that the trial court considered a 197F simple burglary conviction even though it could not be used for In his appeal brief the defendant makes xeference to a 1974 simple burglary conviction while the record reflects that fhe considered conviction took place in 1976 9 enhancement purposes that the trial court considered his stepdaughter s molestation allegation despite the charge never eing prosecuted and that there was no inquiry to assess his potential for rehabilitation Noting that Louisiana is in a state of fiscal crisis and in need of sentencing reform tihe defendant contends that the excessive incarceration in this case serves no acceptable goal of punishment and is a waste of the State limited resources The defendant argues that society s would be served by reducing his sentence and providing him with help in overcoming his drug problem The defendant notes that his crimes were not crimes of violence The Eighth Amendment to the United States Constitution and Article I Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 A sentence is 2d considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks one sense of justice s The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court wide discretion to s sentence within the statutory limits State v Andrews 94 La App lst Cir 0842 95 5655 So 448 454 2d Louisiana Code of Criminal Procedure article 894 sets forth the factors for 1 the trial court to consider when imposing sentence While the entire checklist of La Code Crim P art 894 need not be recited the record must reflect the trial 1 court adequately considered the criteria State v Brown 2002 La App 1 st 2231 Cir 2d 03 9 5 849 So 566 569 The articulation of the factual basis for a sentence is the goal of La Code Crim P art 894 not rigid ar mechanical 1 compliance with its provisions Where the record clearly shows an adequate 10 factual basis for the sentence imposed remand is unnecessary even where there has not been full compliance with La Code Crim P art 894 L State v Lanclos 419 2d So 475 478 La 1982 The trial judge should review the defendant personal s history his priar criminal recard the seriousness of the offense the likelihood that he will commit another crime and his potential far rehabilitation through correctional services other than confinement State v Jones 398 So 1049 2d 52 1051 La 1981 In the instant matter the defendant was sentenced to the maximum sentence of ten years at hard labor See La R 40 As a general rule maximum S 967 2 C or near maximum sentences are to be reserved far the warst offenders and the worst offenses State v James 2002 La App lst Cir 5 849 So 2079 03 9 2d 574 586 Also maximum sentences permitted under a statute may be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality State v Hilton 99 La App lst Cir 3 764 1239 00 31 2d So 1027 1037 writ denied 2000 La 3786 So 113 0958 O1 9 2d The defendant notes that the trial court heard and considered testimony regarding a non claim of indecent behavior with a juvenile and also prosecuted considered a 1976 simple burglary conviction The sources of information from which a sentencing court may draw are extensive and traditional rules of evidence are not bars to consideration of otherwise relevant information A sentencing judge may consider any prior criminal activity of a defendant even if that activity did not result in conviction or an See State v Washington 414 So 313 2d 315 La 1982 State v Brown 410 So 1043 1045 La 1982 With equal 2d force the sentencing judge may consider a conviction even though it is very old provided the guidelines of article 1 894 are substantially followed State v McKethan 459 So 72 74 La App 2d Cir 1984 In addition to the criminal 2d activity noted above the trial court herein considered the defendant age and s criminal record The defendant extensive criminal history consists of several s 11 I arrests and convictions beginning in 1975 and including the following 1975 arrests for theft a 1976 conviction of sunple burglary 1990 arrests for criminal damage to properiy and aggravated assault 1993 arrests for failure to appear far criminal neglect of family and conspiracy to distribute cocaine the 1996 cocaine of possession guilty plea and a 1998 arrest for attempted possession of cocaine The trial court concluded that there was an undue risk that during the period of a suspended sentence the defendant would commit another crime and that a lesser sentence than the one imposed would deprecate the seriousness of the s defendant crimes We find that the trial court reasons for the sentence adequately s demonstrate compliance with Article 894 Considering the trial court review of 1 s the circumstances the defendanYs extensive criminal recard and the nature of the instant crime we find no abuse of discretion by the trial court The record contains ample justification for the imposition of the maximum sentence allowed by law This court will not set aside a sentence on the ground of excessiveness if the record supports the sentence imposed La Code Crim P art 881 The sentence D 4 imposed is not grossly disproportionate to the severity of the offense or shocking to the sense of justice and therefore is not unconstitutionally excessive Thus we find no merit in assignment of error number three CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 5 The trial court reiterated these considerations in denying the defendanYs application for post conviction relief on the grounds of ineffective assistance of counsel and inappropriate reasons for sentence 12
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