Opinion
NO. 2018KA1736
05-31-2019
STATE OF LOUISIANA v. DESMOND H. COUSIN
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee The State of Louisiana Gwendolyn K. Brown Baton Rouge, Louisiana Counsel for Defendant/Appellant Desmond H. Cousin
NOT DESIGNATED FOR PUBLICATIONAppealed from the 22nd Judicial District Court in and for the Parish of St. Tammany
Docket No. 580761
Honorable Martin E. Coady, Judge PresidingWarren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, LouisianaCounsel for Appellee
The State of LouisianaGwendolyn K. Brown
Baton Rouge, LouisianaCounsel for Defendant/Appellant
Desmond H. CousinBEFORE: WELCH, CHUTZ, AND LANIER, JJ
DISPOSITION: Habitual Offender Adjudication and Sentence Vacated; Original Sentence Reinstated.
LANIER, J.
The defendant, Desmond H. Cousin, was charged by bill of information with bank fraud, a violation of La. R.S. 14:71.1. He was found guilty as charged and sentenced to six years imprisonment at hard labor. The defendant was adjudicated a third-felony habitual offender and was resentenced to eight years imprisonment at hard labor without the benefit of probation or suspension of sentence. The defendant appealed his conviction and sentence.
The habitual offender bill alleged the defendant had prior convictions for possession of cocaine and aggravated burglary.
In State v. Cousin, 2017-1135 (La. App. 1 Cir. 12/21/17), 240 So.3d 954, writ denied, 2018-0184 (La. 11/5/18), 255 So.3d 1049, we affirmed the defendant's conviction, but vacated his habitual offender adjudication and enhanced eight-year sentence. We noted that the defendant was not informed of his right to remain silent and that the State offered no evidence of the defendant's status as a habitual offender. We found that the admission by the defendant to the allegations in the habitual offender bill, without prior advisement of his right to remain silent and in the absence of any documentary proof by the State, required reversal of the habitual offender adjudication. State v. Cousin, 240 So.3d at 962-963.
Following the remand, the defendant was re-arraigned on the original habitual offender bill of information. The defendant was informed of the allegations against him, the right to have the State prove the allegations in the habitual offender bill, and the right to remain silent. The defendant denied the allegations.
At the new habitual offender hearing, the trial court adjudicated the defendant a second-felony habitual offender. The trial court vacated the original six-year sentence and resentenced the defendant to eight years imprisonment at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals.
DISCUSSION
In his sole assignment of error, the defendant argues the trial court erred in adjudicating him a second-felony habitual offender. Specifically, the defendant contends that the evidence the State introduced was insufficient to establish his prior conviction. The State concedes this assignment of error has merit.
In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. If the defendant denies the allegations of the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel (or waived counsel) when it was 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. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, i.e., either the transcript of the plea or the minute entry. State v. Henry, 2000-2250 (La. App. 1 Cir. 5/11/01), 788 So.2d 535, 541, writ denied, 2001-2299 (La. 6/21/02), 818 So.2d 791. SeeState v. Shelton, 621 So.2d 769, 779-780 (La. 1993).
SeeState v. Zachary, 2001-3191 (La. 10/25/02), 829 So.2d 405, 407; State v. Douglas, 2010-2039 (La. App. 1 Cir. 7/26/11), 72 So.3d 392, 399-400, writs denied, 2011-2307 (La. 5/25/12), 90 So.3d 406, 2012-2508 (La. 5/3/13), 115 So.3d 474.
At the new habitual offender hearing following remand, the defendant objected to the validity of his guilty plea to possession of cocaine. The trial court noted the objection and proceeded with the hearing. The State introduced into evidence two bills of information. Each bill had the name of the defendant, his address, and his date of birth. One bill charged him with aggravated burglary, committed on May 1, 2002. The other bill charged him with possession of cocaine, committed on July 18, 2015. Each bill of information had the defendant's fingerprints on the back of it, with the dates indicating when the defendant had been found guilty and fingerprinted by the Sheriff's Office. See La. Code Crim. P. art. 871. The defendant had affixed his fingerprints to a fingerprint card on the day of the habitual offender hearing. The State called a fingerprint expert, who testified that the fingerprints on the back of the bills of information matched the prints on the fingerprint card.
The trial court found that the defendant's aggravated burglary conviction could not be used as a predicate conviction because the cleansing period had elapsed between the aggravated burglary conviction and the current felony conviction for bank fraud. Accordingly, the trial court used only the possession of cocaine conviction and adjudicated the defendant a second-felony habitual offender.
The defendant argues in brief that the trial court erred in adjudicating him a second-felony habitual offender because the State failed to prove the existence of a prior proper guilty plea and that the defendant was represented by counsel when the plea was taken. We agree. We find that with the fingerprinted bill of information that charged the defendant with possession of cocaine, the State proved only the defendant's identity; and it proved the conviction only to the extent that the challenged guilty plea was presumed constitutional. At the initial habitual offender hearing (prior to remand), however, defense counsel indicated that the defendant had pled guilty to both his prior convictions (possession of cocaine and aggravated burglary). As such, the State was required to introduce into evidence at the new habitual offender hearing some documentation, such as a Boykin colloquy transcript or a minute entry, showing a proper guilty plea and that the defendant was represented by counsel when he pled guilty. SeeState v. Clesi, 2007-0564 (La. 11/2/07), 967 So.2d 488, 489-490 (per curiam); Henry, 788 So.2d at 541.
Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).
The State in the instant matter, however, introduced no such evidence (or any other evidence except for the bills of information and the fingerprint card). The defendant herein denied the allegations of the habitual offender bill of information and, as such, the State was required, but failed, to meet its initial burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. Accordingly, the burden never shifted to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. The trial court, therefore, erred in adjudicating the defendant a second-felony habitual offender and resentencing him.
Based on the foregoing, we vacate the defendant's habitual offender adjudication and enhanced sentence and reinstate the defendant's original sentence.
The defendant is not protected by principles of double jeopardy from being tried again under the Habitual Offender Law. State v. Young, 99-1310 (La. App. 1 Cir. 4/17/00), 769 So.2d 12, 14.