State Of Louisiana VS Gary J. Perez
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NOT DESIGNATF FOR PiJBLICATION D STATE OF LUUISiANA TOF AI COL PEAL FIRST CIR UIT NUIVIBER 2012 KA 1745 STATE OF LOUISIANA VERSUS GI GARY J PEREZ s Judgment Rendered Apri126 2013 Appealed from the Second Twenty Judicial District Court In and for the Parish of St Taminany State of Louisiana Docket Number 400883 Honarable William J Burris Judge Presiding Walter P Reed Counsel for Plaintiff Appellee District State of Louisiana Attorney Covington LA Kathryn W Landry Special Appeals Counsel Baton Rouge LA Jane L Beebe Counsel for Defendant Appellant Louisiana Gary J Perez Appellate Project New Orleans LA Gary J Perez Angola LA In Proper Person BEFORE GUIDRY CRAIN AND THERIOT JJ GUIDRY J he T defendant Gary J Perez was charged by bill of information with armed robbery a violation of La R 14 The defendant entered a plea of not guilty S 64 On May 20 2008 after a trial by jury the defendant was found guilty of the responsive offense of first degree robbery a violation of La R 14 On June S 64 1 12 2009 the defendant was adjudicated a third habitual offender The trial felony court imposed a sentence of seventy years imprisonment at hard labor to be served without the benefit of probation parole ar suspension of sentence The defendant appealed challenging the constitutionality of the sentence and the propriety of the s State closing argument On February 12 2010 in an unpublished opinion this court affirmed the conviction habitual offender adjudication and sentence State v Perez 09 La App lst Cir 2 30 So 3d 285 Table writ denied 1754 10 12 0605 10 La 10 46 So 3d 1265 10 8 On 7anuary 10 2011 the defendant filed an application for post conviction relief PCR and it was denied by the trial court on January 11 2011 On June 7 2011 this court denied the defendant writ application seeking review of the trial s s court denial of the PCR application State v Perez 11 La App lst Cir 0272 11 7 6 unpublished The Louisiana Supreme Court subsequently denied the swrit application State ex rel Perez v State 11 La 3 85 defendant 1469 12 30 So 3d 112 On June 6 2011 the defendant filed a PCR applicarion requesting an time of out appeal in order to seek review of his sentence as a multiple offender On June 30 2011 the trial court denied the defendant ssecond application stating The defendant spredicate convictions consist of two Februazy 25 1997 guilty pleas to unauthorized entry of an inhabited dwelling violations of La R 14 under docket S 623 numbers 183623 and 188773 in St Bernazd Parish and a May 6 1999 guilty plea to possession of cocaine a violation of La R 40 under docket number 397506 in Orleans Pazish In S 967 the reasons for the adjudication the trial court stated that it found the defendant to be a fourth felony habitual offender However in accordance with the minutes and the habitual offender sentencing transcript the defendant was adjudicated a third habitual offender and felony sentenced as such 2 that the PCR application was repetitive since a prior application was filed and denied The trial court further noted that claims of excessive sentence and multiple offender adjudications are not grounds for post conviction relie On August 29 2011 the defendant filed a writ application with this court seeking review of the trial court denial of his second PCR application On October 24 2011 this Court s denied the writ application for review of the trial court sruling on the second PCR State v Perez 11 La App lst Cir 10 unpublished 1594 11 24 On July 27 2012 the Louisiana Supreme Court granted the defendant swrit application in part remanded the case and ordered the trial court to grant the defendant an out appeal citing State v Counterman 475 So 2d 336 340 time of La 1985 State ex rel Perez v State 11 La 7 93 So 3d 583 2537 12 27 On appeal the defendant filed a counseled brief seeking only review pursuant to La C Cr P art 920 and contending that there are no non issues to 2 frivolous argue on appeal The defendant also filed a pro se brief challenging the habitual offender adjudication For the following reasons we affirm the conviction habitual offender adjudication and sentence STATEMENT OF FACTS The facts were set forth in our original decision in this matter PRO SE BRIEF In his pro se brief the defendant contends that the State evidence of the s two alleged prior convictions from St Bernard Parish did not meet the burden of proof to enhance the sentence pursuant to La R 15 Citing La R S 529 1 S F 1 529 15 the defendant asserts that the State introduced computer printout sheets that did not ha a seal of authenticity and were further not certified as true e or correct pursuant to La C art 905 The defendant argues that the predicate E pleas were unconstitutionally given that he did not waive his rights and that he was not afforded representation of counsel The defendant further asserts that the 3 trial court allowed Jill Walker the probation and parole officer who obtained the computer printouts to present hearsay testimony when referring to the St Bernard Parish convictions The defendant asserts that Walker was not present during the predicate guilty pleas was not the defendant probation officer for the alleged s convictions and could not testify that she knew for a fact that the convictions belonged to the defendant The defendant notes that in vacating the habitual offender adjudication and sentence in State v Smith 04 La App lst Cir 0800 04 17 12 897 So 2d 710 this court found inadmissible an exhibit identified by the State as a computer document from the Department of Public Safety and Corrections DPSC showing the release date for the predicate conviction of the defendant therein Regarding the Orleans Parish predicate conviction the defendant contends that the arrest register presented by the State in conjunction with the testimony of the fingerprint expert Sergeant Dawn Powell was insufficient The defendant notes that Sergeant Poweil was unable to provide the date that the fingerprints on the arrest register were taken and further notes that the habitual offender law is based on prior convictions as opposed to arrests The defendant contends that the State cannot rely on an arrest register alone to show that he was ultimately convicted The defendant further argues that the evidence regarding the Orleans Parish conviction did not show that he voluntarily and freely pled guilty or that he was represented by counsel during the plea 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 2d 769 779 La 1993 If the State meets this burden the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea If 4 the defendant is able to do this then the burden of pxoving ihe constitutionality of the plea shifts to the SYate The State wiPl meet its burden of proof if it introduces a perfect transcript of the taking of the guilty lea one that reflects a colloquy between the judge and the dzfendant 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 2d at 779 80 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 articulated waiver of the three Bo rights Shelton 621 So 2d at 780 State v Bickham 98 La App lst Cir 6 739 So 2d 887 889 1839 99 25 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 presumprion of regiularity attaches to promote the interests of finality See State v Deville 04 La 7879 So 2d 689 691 per curiam 1401 04 2 In its reasons for adjudicating the defendant a habitual offender the trial court noted that due to Hurricane Katrina the bills of information and the Bovkin transcripts for the St Bernard Parish convictions were destroyed The court noted that the extract minutes of February 25 1997 and a Print Report remained Case available and showed counseled pleas to tw separate unauthorized entry of an inhabited dwelling offenses The trial court noted Walker identified the defendant as the person she supervised in the Orleans Parish case As further noted Walker 5 had previousiy been assigned to St Bernard Parish and remembered that the defendant had charges in that parish The trial courx noted that Deputy Powell of the St Ta Parish Sheriff Office Crinninalistics Laboratory fingerprinted mmany s the defendant on May 15 2009 and identified the defendant as the same person who was convicted in the Orleans Parish case fronn the fingerprints on the arrest register as the fingerprints on the bill of inforrnation were unusable The trial court also noted that as evidence of the Orleans Parish predicate conviction the State introduced minutes showing the defendant to have pled with counsel on May 6 1999 to possession of cocaine a waiver of rights and guilty plea form signed by the defendant and the certified arrest register The minutes of the defendant two February 25 1997 guilty pleas to s unauthorized entry of an inhabited dwelling violations of La R 14 under S 623 docket numbers 183623 and 188773 in St Bernard Parish show that the defendant was represented by counsel and advised of his BSovkin rights Further the Case Print Report in S and S reflect that the defendant pled guilty in those cases 4 5 Records from the DPSC also reflected the defendant sprior convictions in Orleans Parish and St Bernard Parish As noted by the defendant in State v Smith this court found similar evidence inadmissible However in that case the document was being presented as evidence that the prior conviction fell within the year ten cleansing period for purposes of the multiple offender adjudication This court noted that the habitual offender statute La R 15 in Section F S 529 1 provides that certain types of certified prison records shall constitute prima facie evidence of the imprisonment and discharge of Lhe defendant In finding the s State evidence inadmissible in that case we noted that the evidence was not properly authenticated and that there was no witness in that case with personal knowledge as to how the document was generated or that it was identical to the record retained in the computer Nor was there any testimony that the document 6 was made and kept in the coarse of regularly conducted business activity or that it was the regular practice of the DPSC to make and to keep the documents Smith 897 So 2d 715 17 To the contrary herein Walker testified that in preparation for her testimony she personally accessed and printed out the DPSC records pertaining to the s defendant priar convictions in St Bemard Parish and Orleans Parish Walker testified that the records were from the secured statewide computer system maintained by the DPSC as a part of the ordinary course of business and only authorized employees had clearance to input data into the system This testimony was sufficient to establish the authenticity of the DPSC recards under La C art E 1 B 901 and 7 As to the May 6 1999 guilty plea to possession of cocaine under docket number 397506 in Orleans Parish the minutes of the guilty plea show that the defendant was represented by counsel at the time of the plea The waiver ofrights and guilty plea form show that he was advised of and waived his Boykin rights Sergeant Powell an expert in fingerprint analysis compared the fingerprints on the arrest register with the fingerprints taken from the defendant on the date of the hearing and found that the fingerprints matched The arrest register includes the s defendant name date of birth and social security number consistent with the bill of information in the instant case In State v Anderson 99 La App 4th Cir 1 753 So 2d 321 1407 00 26 the defendant argued that because the fingerprints on the bill of information far a forgery conviction were not suitable for identification the State failed to meet its burden However therein the State produced the arrest register for the offense which contained fingerprints that an officer was able to identify as fingerprints belonging to the defendant In addition the State was able to match the arrest register with the certified copy of the forgery conviction through the defendant s 7 name date ofbirth date of offense and case number and complainant sname The s defendant name date of birth social security and bureau of identification numbers were the same as the person who pled guilty to the fargery charge The court found this information was sufficient and that the State met its burden of proving that the defendant was the same person who pled guilty to the forgery charge Anderson 753 So 2d at 326 The Louisiana Supreme Court has held that the State need not introduce a perfect transcript of a guilty plea to prove a prior conviction The State may offer a guilty plea form a minute entry an imperfect transcript or any combination thereof and this offering shifts the burden of proof to the defendant to show some irregularity Shelton 621 So 2d at 779 State v Carlos 98 80 1366 La 7 738 So 2d 556 559 Based on the evidence presented by the State at 99 the habitual offender hearing as to the predicate convictions in St Bernard Parish and Orleans Parish we find that the burden shifted in this case but the defendant offered nothing but speculation to counter the State showing We find that the s defendant failed to present affirmative evidence of any infringement of his rights or of a procedural irregularity and therefore the burden never shifted back to the State to prove the constitutionality of the predicate pleas On this recard the trial court did not err in finding sufficient proof of the predicate convictions Therefore we find no error in the defendant adjudication and sentencing as a third s felony habitual offender The pro se brief assignment of error lacks merit ANDERS BRIEF Defense counsel has filed a brief containing only one assignment of error alleging that the conviction and sentence should be reversed pursuant to La C or Cr P art 920 and a motion to withdraw as counsel 2 Defense counsel has reviewed the procedural history and record of the case In her motion to withdraw and brief referring to the procedures outlined in Anders v State of California 386 8 S U 738 87 S Ct 1396 18 L Ed 2d 493 1967 and State v Jvles 96 La 2669 97 12 704 So 2d 241 per curiam counsel indicated that after a conscientious and thorough review of the trial court record she could find no non issues frivolous to raise on appeal See also State v Mouton 95 La 4653 So 2d 0981 95 28 1176 1177 per curiam State v Benjamin 573 So 2d 528 La App 4th Cir 1990 The Anders procedure used in Louisiana was discussed in Benjamin 573 So 2d at 529 sanctioned by the Louisiana Supreme Court in Mouton 653 So 2d at 31 1177 and expanded by the Louisiana Supreme Court in J les According to Anders 386 U at 744 87 S Ct at 1400 if counsel finds his case to be wholly S frivolous after a conscientious examination of it he should so advise the court and request permission to withdraw To comply with J appellate counsel must vles not only review the procedural history of the case and the evidence but his brief also must contain a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place Jvles 704 So 2d at 242 quoting Mouton 653 So 2d at 1177 When conducting a review for compliance with Anders an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous In the brief filed on behalf of the defendant defense counsel has complied with ail the requirements necessary to file an Anders brief Ordinarily the defendant is not entitled to a second review far error of the record of his underlying conviction See State v Tal or 01 La App Sth Cir 11 802 So 2d 452 O1 14 779 783 wriT denied 01 La 1 834 So 2d 426 However due 84 3326 03 10 to the Louisiana Supreme Court ruling granting the defendant a second appeal s the record on appeal has been re for error under La C Cr P art 920 reviewed 2 Under La C Cr P art 920 we are limited in our review to errors discoverable 2 9 by a mere inspection of the leadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found no reversible errors See State e Price OS La App lst Cir 12 952 2S14 06 28 So 2d 112 123 en banc writ denied 07 La 2 976 So 2d 1277 25 0130 08 22 Furthermore we agree with defense counsel ss that there are no non s rtion frivolous issues or trial court rulings that arguably support this appeal Accordingly the defendant conviction habitual offender adjudication and s sentence are affirmed Defense counsel smotion to withdraw is granted CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED MOTION TO WITHDRAW GRANTED 10
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