State v. Brown

297 So.3d 947

STATE of Louisiana

v.Charles Nicholas BROWN, Jr. a/k/a Charles Brown, Jr.

19-695

Court of Appeal of Louisiana, Third Circuit.

May 6, 2020

Paula C. Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Charles Nicholas Brown, Jr.

M. Bofill Duhe, District Attorney, Sixteenth Judicial District Court, W. Claire Howington, Nicole Burke, Aaron Brown, Assistant District Attorneys, 300 Iberia Street, Suite 200, New Iberia, LA 70560, (337) 369-4420, COUNSEL FOR PLAINTIFF/APPELLANT: State of Louisiana.

Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.

SAUNDERS, Judge:

Defendant, Charles Brown, Jr., was charged by bill of information filed on July 19, 2016, with attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. Trial by jury commenced on September 17, 2018, and the jury found Defendant guilty of the responsive verdict of aggravated battery, a violation of La.R.S. 14:34, on September 20, 2018. A pro se motion for appeal was filed on October 15, 2018, and supplemented on May 10, 2019. On the same date, Defendant filed a pro se motion for new trial, which he supplemented on January 31, 2019. On November 8, 2018, Defendant was sentenced to serve six years at hard labor.

The State filed an amended bill of information charging Defendant as a habitual offender on November 8, 2018.¹ Defendant filed a response to the habitual offender bill on November 14, 2018. A habitual offender hearing commenced on January 10, 2019. At that hearing, the trial court ordered the parties to prepare briefs regarding whether a conflict of interest prohibited the use of one of Defendant's prior convictions. The "State's Memorandum in Favor of Judge Comeaux's Ability to Take Plea in Docket Number #13-13 for Use in Habitual Offender Hearing" was filed on February 4, 2019. Defendant's response was filed on February 19, 2019.

The habitual offender hearing resumed on February 26, 2019. At that time, the trial court concluded all predicate offenses could be used for habitual offender enhancement, found Defendant a fourth felony offender, vacated the previously imposed sentence, and sentenced Defendant to serve thirteen years at hard labor. The State objected to the sentence. The court then denied Defendant's motion for new trial and granted his motion for appeal.

The State filed a motion to reconsider sentence on March 28, 2019. The motion was denied at a hearing held on May 22, 2019. The State filed a motion for appeal on May 28, 2019, and it was subsequently granted.

Defendant and the State are both before this court asserting assignments of error. Defendant attacks the admissibility of one of his predicate offenses, and the State alleges the trial court erred in imposing a sentence less than the mandatory minimum.

FACTS:

Defendant hit Jonathan Haile in the head with a skillet and stabbed him in the face and chest with a screwdriver. As a result of the attack, Haile suffered a left orbital fracture, stab wounds to the left face and left chest, and a left pneumothorax.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. We find no errors patent.

DEFENDANT'S ASSIGNMENT OF ERROR:

In his only assignment of error, Defendant contends the State failed to meet its burden of proving he was a fourth felony offender, as the presiding judge in his conviction for failure to register as a sex offender was his attorney in the case which required his registration. Thus, Defendant asserts the conviction for failure to register as a sex offender is not a valid predicate for habitual offender purposes. Consequently, Defendant claims he is a third felony offender and should be resentenced accordingly. We find no merit to this contention.

Louisiana Revised Statutes 15:529.1(D)(1)(b) provides:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in violation of the constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

The Louisiana Supreme Court discussed the burden of proof at habitual offender hearings in State v. Shelton , 621 So.2d 769, 779-80 (La.1993) (footnote omitted):

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were 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. The State will meet its burden of proof if it introduces a "perfect" transcript of the taking of the guilty plea, one which reflects a colloquy between judge and 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. 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 defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

The habitual offender bill of information at issue listed the following offenses:

1) On September 20, 2018, CHARLES NICHOLAS BROWN, JR. was convicted of Aggravated Battery, said conviction being based upon the defendant's conviction, in the Sixteenth Judicial District Court, Parish of Iberia; State of Louisiana, Docket Number 16-0849.

2) And now, the undersigned Assistant District Attorney informs the Court that on December 10, 1987 CHARLES NICHOLAS BROWN, JR. was convicted of the crime of Aggravated Burglary, Attempted Forcible Rape and Simple Robbery, in the Sixteenth Judicial District Court, Parish of Iberia State of Louisiana, Docket Number 41576.

3) And now, the undersigned Assistant District Attorney informs the Court that on February 6, 2007, CHARLES NICHOLAS BROWN, JR. was convicted of the crime of Unauthorized Entry of An Inhabited Dwelling, in the Sixteenth Judicial District Court, Parish of Iberia State of Louisiana, Docket Number 01-389.

4) And now, the undersigned Assistant District Attorney informs the Court that on May 23, 2013 CHARLES NICHOLAS BROWN, JR. was convicted of the crime of Duty of Offenders to Notify Law Enforcement of Change of Address, in the Sixteenth Judicial District Court, Parish of Iberia State of Louisiana, Docket Number 13-13.

Defendant filed a response to the habitual offender bill, asserting the following:

A. The underlying pleas were improper and fail to meet the standards required by law for reasons including, but not limited to, the fact that defendant was never properly Boykinized prior to acceptance of the underlying pleas;

B. The gaps in time between the current and prior convictions and/or pleas are greater than those allowed by law;

C. The gaps in time between the prior convictions and/or pleas are greater than those allowed by law;

D. Sentencing as a habitual offender in accordance with the laws of the State of Louisiana represents a violation of defendant's constitutional protections.

Defendant objects to the inclusion of his conviction for failure to register as a sex offender as a predicate for habitual offender purposes because Judge Comeaux, the presiding judge in his conviction for failure to register as a sex offender, was his attorney in the case which required his registration. Defendant argues that Judge Comeaux's failure to recuse violates his right to due process.

In State v. Cooper, 96-119 (La. App. 3 Cir. 7/17/96), 678 So.2d 59, writ denied , 96-2121 (La. 1/24/97), 686 So.2d 857, this Court held that a judge who presided at trial and then the subsequent habitual offender sentencing hearing did not have to recuse himself, even though he had represented the defendant in both of the underlying convictions. This court reasoned that the habitual offender ruling that the judge made was not based on any confidential knowledge that he had gained during his representation of the defendant; instead it was based on public record.

The fifth circuit has held that a judge's failure to recuse "is not a jurisdictional defect, and, as such is waived by an unconditional guilty plea." See State v. Sede , 08-547, pp. 5-6, 8 (La.App. 5 Cir. 2/10/09), 8 So.3d 702, writ denied , 09-1023 (La. 3/5/10), 28 So.3d 1006 (citing Kidd v. Caldwell , 371 So.2d 247, 250 (La.1979) ). The Sede court went on to conclude there was no evidence the defendant would have fared better if another judge had been appointed to accept his plea. "Although the defendant did not plead to a reduced charge, he agreed to plead guilty in exchange for a life sentence, instead of the death penalty." Id. at 706.

In this case, at the time Defendant entered his plea in 2013, proof of actual...