Opinion
2022 KA 0538
11-04-2022
STATE OF LOUISIANA v. DAMION WILLIAMS
Jane Hogan Hammond, Louisiana Damion Williams Counsel for Defendant/ Appellant Hillar C. Moore, III District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. 08-13-0994 The Honorable William Jorden, Judge Presiding
Jane Hogan Hammond, Louisiana Damion Williams Counsel for Defendant/ Appellant
Hillar C. Moore, III District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
THERIOT, J.
Defendant, Damion Katraiel Williams, was charged by bill of information with armed robbery with a firearm, a violation of La. R.S. 14:64 and 14:64.3 (count one); second degree kidnapping, a violation of La. R.S. 14:44.1 (count two); and attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1 (count three). He pled not guilty and, following a jury trial, was found guilty as charged on all three counts. On count one, the trial court imposed 25 years at hard labor, without the benefit of parole, probation, or suspension of sentence; on count two, the trial court imposed 15 years at hard labor, with the first 2 years to be served without the benefit of parole, probation, or suspension of sentence; and on count three, the trial court imposed 40 years at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences to be served concurrently, with the exception that the first 5 years on count one be served consecutively to all other sentences.
The defendant filed motions for post-verdict judgment of acquittal and for new trial that were denied by the trial court.
The trial court "clarified" that the first five years of the sentence for count one was to be served consecutively at a hearing on defendant's motion for post-verdict judgment of acquittal held a week after the initial sentencing. Defendant filed a motion to reconsider these sentences, which the trial court denied.
Later, after the State filed a habitual offender bill of information, the trial court adjudicated defendant a third-felony habitual offender on count one, vacated the prior sentence, and imposed an enhanced sentence of 66.33 years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence.Defendant subsequently appealed, alleging six assignments of error, and this court affirmed the convictions, habitual offender adjudication, and sentences. State v. Williams, 2016-0519 (La.App. 1st Cir. 9/15/17), 2017 WL 4082077, at *10 (unpublished). Defendant filed an application for writ of certiorari and/or review, and the Louisiana Supreme Court, in part, granted his writ to vacate the enhanced sentence on count one and remanded for resentencing thereon. State v. Williams, 2017-1753 (La. 6/15/18), 245 So.3d 1042 (per curiam). Defendant did not seek review of the supreme court's ruling affirming the convictions and remaining sentences.
Defendant did not file a motion seeking reconsideration of this habitual offender sentence.
The supreme court vacated the defendant's habitual offender sentence and remanded the case for resentencing in accordance with 2017 La. Acts, No. 282, § 2, which reduced the sentencing range for a third-felony offender like defendant. Williams , 245 So.3d at 1042.
On remand, the trial court resentenced defendant on count one as a habitual offender to 45 years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence, to be served concurrently with any other sentence. The trial court denied defendant's motion to reconsider the enhanced sentence. Defendant now appeals, challenging the trial court's denial of his re-urged motion for new trial on remand, the trial court's calculation of the sentencing range applicable to the enhanced offense, and the constitutionality of the enhanced sentence imposed on count one on remand. For the following reasons, we affirm the enhanced sentence on count one.
Defendant re-urged his motion for new trial on remand. The trial court found it lacked jurisdiction over the motion and farther found that it would deny the motion on the merits even if it had jurisdiction.
The statement of facts included herein was previously presented in the original appeal of this case. Williams,
2017 WL 4082077, at *1.
In the early morning hours of May 19, 2013, Leroy Grant was walking in the Glen Oaks area of Baton Rouge when he was approached by men in an SUV, forced inside at gunpoint, and driven to Oaklon Avenue. Once there, he was forced to lie in a ditch, at which point he ran and was shot three times.
Following the incident, Grant met with a detective and identified defendant as the man who forced him into the car at gunpoint, robbed him of a Samsung Galaxy phone, and later shot him. At trial, Grant partially recanted this statement, indicating that defendant was not present at the time of the offenses.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one; defendant argues the trial court erred on remand in failing to grant his re-urged motion for new trial based on a constitutional challenge of the petit jury in this case. Defendant cites State v. Cannon, 2019-590 (La. 4/18/19), 267 So.3d 585 (per curiam), wherein the Louisiana Supreme Court held that the exclusion of those born after June 2, 1993 from the jury pool resulted in a general venire that was improperly constituted,Herein, defendant argues his jury venire was made deficient by the same process that existed in Cannon and was not a fair cross-section of the community. Defendant concedes that this Court, in State v. Young II, 2019-0761 (La.App. 1st Cir. 11/15/19), 290 So.3d 1130, 1133, writ denied, 2019-01986 (La. 5/7/20), 296 So.3d 617, held the trial court lacked authority to consider a motion for new trial asserted by the defendant therein on remand for the sole purpose of sentencing. However, defendant argues this case is distinguishable from Young II, noting that while the defendant therein attempted to challenge the sufficiency of the evidence for a second time on remand, defendant herein moved for a new trial "based on a substantial defect in the proceeding."
The supreme court cited Code of Criminal Procedure articles 401 et seq. and Louisiana Constitutional articles I, § 3 ("No person shall be denied the equal protection of the laws.") and V, § 33 ("A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled.'"). Cannon,
267 So.3d at 586.
Citing Young II, the State argues the trial court did not err in finding it lacked jurisdiction to consider defendant's motion for new trial on remand. The State alternatively argues that the trial court did not err in denying defendant's claim on the merits because: (1) defendant waived his right to challenge the venire by not filing a pretrial motion to quash; and (2) age is not a "distinctive group" for purposes of fair-cross-section analyses (citing State v. Germany, 2020-00878 (La. 11/4/20), 303 So .3d 631, 632 (per curiam)).
In denying the motion for new trial urged by defendant on remand, the trial court agreed with the State's argument that it was without jurisdiction considering the limited purpose of the remand by the Louisiana Supreme Court, and the supreme court's ruling denying in part defendant's application for review, affirming the convictions and unenhanced sentences. The trial court further found that even if it had jurisdiction, it would deny the motion due to defense counsel's failure to exercise due diligence and timely raise the issue that would have been visibly apparent based on the makeup of the jury pool.
Pursuant to La. Code Crim. P. art. 853, a motion for new trial can be filed and disposed of prior to sentencing. However, once a case is appealed, the trial court is without jurisdiction to entertain a motion for a new trial unless the case is remanded to that court for that purpose. State v. Brown, 451 So.2d 1074, 1078 (La. 1984); State v. Guerin, 2007-1429 (La.App. 1st Cir. 12/21/07), 2007 WL 4480738, at *1 (unpublished).
Initially, in State v. Young I, 2017-1101 (La.App. 1st Cir. 12/21/17), 2017 WL 6524554, writ denied, (unpublished) 2018-0126 (La. 10/29/18), 254 So .3d 701, the defendant was convicted of computer-aided solicitation of a minor and indecent behavior with a juvenile after a bench trial, tie moved for post-verdict judgment of acquittal on the basis of double jeopardy, and the motion was granted as to count one. After sentencing, the defendant and the State appealed. While the defendant challenged the sufficiency of the evidence on count two, the State challenged the granting of a post-verdict judgment of acquittal on count one. This court affirmed the conviction and sentence on count tv/o, reversed the ruling of double jeopardy on count one, reinstated the conviction on count one, and remanded for sentencing on count one. Young I, 2017 WL 6524554 at * 1.
On remand, the trial court resentenced the defendant and denied defendant's motion in arrest of judgment and motion for new trial. Young II, 290 So.3d at 1131. In doing so, the trial court, in part, stated: "This court sees no procedural mechanism by which this court, the trial-court, can do anything other than what the First Circuit remanded this court to do.'1 Young II, 290 So.3d at 1133. On appeal, the defendant argued the trial court had authority to grant a new trial on count one under La. Code Crim. P. art. 851(B)(1), when the verdict is contrary to the law and the evidence, and under La. Code Crim. P. art. 851(B)(5), if it is of the opinion that the ends of justice would be served. Young II, 290 So.3d at 1131. This court disagreed, found no error in the trial court's denial of the motion for new trial, and cited Brown and Guerin in holding "'[t]he trial court lacked authority upon remand for sentencing to grant a new trial." Young II, 290 So.3d at 1133.
Herein, as previously stated, this court affirmed all three of defendant's convictions and sentences. The Louisiana Supreme Court granted, in part, defendant's application for review, vacated his enhanced recidivist sentence for armed robbery on count one, and remanded the case to the trial court solely "for resentencing for [the armed robbery] offense in accordance with 2017 La. Acts 282." Williams, 245 So.3d at 1042. Thus, the trial court lacked authority upon remand for sentencing to grant a new trial. See Young II, 290 So.3d at 1133.
Moreover, the proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. Code Crim. P. art. 532(9). A motion to quash based on the grounds that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. Code Crim, P. arts. 521, 532(9), and 535(C); State v. Smith, 2017-1333 (La.App. 1st Cir. 2/21/18), 2018 WL 1007350, at *4, writ denied, 2018-0405 (La. 2/18/19), 265 So.3d 771. The Cannon decision does not provide grounds to disregard defendant's failure to follow the proper procedure for raising a jury venire challenge. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), the Court held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." (Emphasis added). Such a "new rule" was not pronounced by the Louisiana Supreme Court in Cannon. State v. Armentor, 2019-1267 (La.App. 1st Cir. 7/31/20), 309 So.3d 762, 771, writ denied, 2020-01032 (La. 2/17/21), 310 So.3d 1149; State v. Thornton, 2019-1029 (La.App. 1st Cir. 7/23/20), 309 So.3d 366, 371, writ denied, 2021-00003 (La. 4/13/21), 313 So.3d 985. Thus, defendant's claim that his conviction was obtained by an improperly constituted jury was waived by his failure to raise this issue in a pretrial motion to quash. See Armentor, 309 So.3d at 772; Thornton, 309 So.3d at 371. Based on the foregoing, we find no merit in assignment of error number one.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, defendant argues the trial court erred in using the enhanced penalty provision for armed robbery with a firearm in calculating the sentencing range on count one under the habitual offender law. He contends the miscalculation meant the trial court applied a sentencing range of 52 to 208 years, as opposed to 49.5 to 198 years. Defendant notes that this court, on original appeal, declined to correct the trial court's failure to consider the firearm enhancement in initially imposing the habitual offender sentence on count one that was later vacated by the supreme court. Labeling the matter as final under the doctrine of collateral estoppel, defendant further argues that he should not be penalized on remand for his subsequent success on appeal.
The State argues it does not matter that the initial enhancement was illegally lenient, as collateral estoppel does not apply because the portion of this court's ruling that affirmed the enhanced sentence was vacated by the Louisiana Supreme Court. The State notes that the supreme court further instructed the trial court to resentence defendant on the enhanced conviction of armed robbery with a firearm, an underlying offense that carries a maximum penalty of 99 years plus 5 years for a total of 104 years. Thus, the Stale contends the applicable sentencing range was 52-208 years.
In vacating defendant's habitual offender sentence and remanding for resentencing, the supreme court noted defendant's appeal was pending when the legislature amended the Habitual Offender Law by 2017 La. Acts 282. The amendment substantially reduced the sentencing range for a third-felony offender like defendant. As the supreme court further noted, 2017 La. Acts, No. 282, § 2, states that it "shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." The supreme court noted that the State conceded defendant was entitled to be resentenced in accordance with Act 282 because his conviction would become final after November 1, 2017. Williams, 245 So.3d 1042.
Specifically, at the time of the offenses, Louisiana Revised Statute 15:529.1(A)(3)(a) mandated a sentence of "not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction." In 2017, Subpart A(3)(a) was amended by Acts 257 and 282 to reduce the statutory minimum sentence for a third-felony habitual offender to "not less than one-half of the longest possible sentence for the conviction."
In 2018, Act 542 added Subsection K to La. R.S. 15:529.1:
K. (1) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed.
(2) The provisions of Subsection C of this Section as amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the amount of time that must elapse between the current and prior offense for the provisions of this Section to apply, shall apply to any bill of information filed pursuant to the provisions of this Section on or after November 1, 2017, accusing the person of a previous conviction.2018 La. Acts, No. 542, § 1 (effective August 1, 2018). In State v. Lyles, 2019-00203 (La. 10/22/19), 286 So.3d 407 (per curiam), the supreme court was called upon to interpret the effect of the legislature's enactment of paragraph K for the habitual offender statute in Act 542. In that case, the court noted that the series of legislative acts amending the habitual offender statute essentially created "three categories of persons potentially affected by" the legislation. The defendant herein would fall in the first category, which the court defined as: "[P]ersons ... whose convictions became final on or after November 1, 2017, and whose habitual offender bills were filed before that date. Those defendants would be eligible to receive the benefits of all ameliorative changes made by Act 282." Lyles, 286 So.3d at 410.
Accordingly, as defendant's conviction is still not final (see La. Code Crim. P. arts. 914 and 922) and his habitual offender bill was filed before November 1, 2017 (January 13, 2015), he is entitled to be sentenced under the version of the habitual offender statute as amended by Act 282 and before its amendment by Act 542, The sentencing range for the underlying offense of armed robbery is not less than 10 nor more than 99 years, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64(B). Thus, defendant is correct in asserting that he, as a third-felony habitual offender whose underlying conviction was punishable by imprisonment for a term less than his natural life, had a sentencing exposure of not less than one-half of the longest possible sentence, 49.5 years, and not more than twice the longest possible sentence prescribed for a first conviction, 198 years. La. R.S. 15:529.1(A)(3)(a) (as amended by 2017 La. Acts, No. 282, § 1).
With the firearm enhancement of La. R.S. 14:64.3, the offender shall be imprisoned at hard labor for an additional period of 5 years, without the benefit of parole, probation, or suspension of sentence, with this additional penalty to he imposed consecutively to the period imposed under La. R.S. 14:64. See La. R.S. 14:64.3(A).
However, we note that we disagree with defendant's claim that collateral estoppel prevented the trial court's consideration of the firearm enhancement provision. Specifically, as this court noted on the original appeal, under La. R.S. 14:64.3, defendant was subject to imprisonment at hard labor for an additional period of five years, without the benefit of parole, probation, or suspension of sentence, with this additional penalty to be imposed consecutively to the period imposed under La R.S. 14:64. See La. R.S. 14:64.3(A). While this court declined to correct the sentence, as any illegality inures to defendant's benefit, this court made no determination that the firearm enhancement provision was inapplicable. See Ashe v. Swensen, 397 U.S. 436 ? 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (wherein the United States Supreme Court defined the doctrine of collateral estoppel found in the double jeopardy clause of the Fifth Amendment to the U.S. Constitution as, "mean[ing] simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit"). Further, according to La. Code Crim. P. art. 882, the trial court may correct an illegal sentence at any time. Finally, it is well settled that a defendant has no constitutional or statutory right to an illegally lenient sentence. See State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 797. Thus, while defendant asserts that the trial court, in essence, penalized him for successfully exercising his right of appeal by considering the enhancement penalty on remand, this assertion is without merit.
Although the trial court disagreed with defense counsel's argued sentencing range of 49.5 to 198 years, the correct range under the applicable version of the Habitual Offender Law, the trial court agreed that a downward departure was warranted in this case and imposed 45 years at hard labor, less than the minimum sentence argued by defendant and required by law. Considering the above, we find no merit in assignment of error number two.
We note that the five-year enhancement penalty of La. R.S. 14:643 should have been added separately to the habitual offender sentence imposed. State v. King , 2006-1903 (La. 10/16/07), 969 So.2d 1228. Arguably, the trial court still failed to impose the enhancement penalty in this case. However, because any illegality inures to defendant's benefit in this case, we elect not to amend the sentence. See State v. Price, 2005-2514 (La.App. 1st Cir. 12/28/06), 952 So.2d 112, 124-25 (en banc), writ denied. 2007-0130 (La. 2/22/08), 976 So.2d 1277.
ASSIGNMENT OF ERROR NUMBER THREE
In assignment of error number three, defendant argues the sentences are excessive. Noting that the State still elected to seek enhancement under the Habitual Offender Law, he argues that the original sentences were already, in effect, equivalent to a life sentence. In further arguing that an "effective life sentence" is excessive, defendant notes that he does not have a violent predicate offense and has only been sentenced to probation in the past. Noting the trial court granted a "slight" downward departure in resentencing him on remand to 45 years, defendant argues the sentence remains an "effective life sentence" that is unconstitutionally excessive in light of the actual harm caused in this case. Defendant notes that the victim was admitted and released from the hospital on the same day, after being treated for non-fatal injuries, and suffered the financial loss of merely his cell phone. Further, defendant notes that the victim actively desired that all charges be dropped in this case. Finally, defendant notes that his sister, Jasmine Starks, testified regarding the great impact the family would suffer as a result of defendant's incarceration.
The State notes defendant's criminal history, including two prior convictions and multiple arrests that include seven arrests for crimes of violence. The State notes that this court, in rejecting defendant's challenge to his vacated 66-year sentence which was initially imposed on his enhanced count, found that defendant's past conduct of repeated criminality indicates that he poses an unusual risk to public safety and could have warranted a maximum sentence. While the State questions the appropriateness of the trial court's downward departure from the minimum sentence under the habitual offender law, the State notes the trial court tailored defendant's sentence to fit his unique circumstances.
The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979); State v. Honea, 2018-0018 (La.App. 1st Cir. 12/21/18), 268 So.3d 1117, 1120, writ not considered, 2019-00598 (La. 08/12/19), 279 So.3d 915. A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hurst 99-2868 (La.App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Brown, 2002-2231 (La.App. 1st Cir. 5/9/03), 849 So, 2d 566, 569. Remand is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La. 1982); State v. Graham, 2002-1492 (La.App. 1st Cir. 2/14/03), 845 So.2d 416, 422.
In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge finds that the punishment mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court re-examined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. A sentencing court must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds clear and convincing evidence in the particular case before it that rebuts this presumption of constitutionality. A trial court may not rely solely upon the non-violent nature of the instant or, as in this case, prior offenses as evidence that justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So.2d at 676. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that, because of unusual circumstances, this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Given the legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the sentencing court's role to question the legislature's wisdom in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Downward departures from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So.2d at 676-77.
In support of his argument that a further downward departure is warranted in this case, defendant relies on the testimony of his sister, Jasmine Starks, at a motion hearing held the month prior to his resentencing. Starks testified that she and her siblings relied on defendant for support, noting defendant is the eldest, that their father died when she was three, and that their mother became ill when she was in the fifth grade. She noted defendant has three children for whom he provided support and sewed as a strict disciplinarian. She admitted that she and her other siblings, other than defendant, did not commit crimes such as those committed by defendant.
Prior to imposing the sentence, the trial court noted defendant was previously convicted of possession of cocaine, for which he never served any substantial time in jail and pled guilty to simple burglary. The trial court observed that while simple burglary is not a crime of violence, it presents the "terrifying situation" in which a person could walk in during the commission of the offense. Yet, as the court pointed out, defendant again did not serve any significant jail time on the simple burglary conviction. The trial court noted defendant graduated from those offenses to the current offenses of kidnapping, attempted murder, and the armed robbery offense. While the trial court found that defendant must be held accountable, the court believed the case warranted a downward departure, finding that a 45-year sentence would result in defendant's release "around 70" years old. The trial court added, "While 1 do take the severity of it and what you were convicted of doing, what you did, I think that that is, in fact, severe enough to merit this. These are your actions. So I think if, in fact, you make it to 70 years old this is where you pay your accountability."
As noted by the State, defendant arguably received the benefit of a downward departure without proving by clear and convincing evidence that he is exceptional, such that a downward departure was warranted in this case.
Considering the trial court's reasons for sentencing, and defendant's repeated criminality, we find no abuse of discretion by the trial court. We find the enhanced sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. Thus, we find no merit in assignment of error number three.
DECREE
For the reasons set forth herein, the trial court's judgment, which denied defendant's re-urged motion for new trial on remand and resentenced defendant on count one as a habitual offender, is affirmed.
AFFIRMED.