State of Louisiana Versus Mark Priest ( 2020 )

STATE OF LOUISIANA NO. 20-KA-72
VERSUS FIFTH CIRCUIT
MARK PRIEST COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-4724, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
September 09, 2020
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.
MULTIPLE OFFENDER ADJUDICATION AND SENTENCE VACATED;
SENTENCE ON REMAND REINSTATED
RAC
MEJ
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Zachary P. Popovich
COUNSEL FOR DEFENDANT/APPELLANT,
MARK PRIEST
Cynthia K. Meyer
DEFENDANT/APPELLANT,
MARK PRIEST
In Proper Person
CHAISSON, J.
In this appeal, defendant, Mark Priest, challenges his adjudication and
sentence as a second felony offender. For the reasons that follow, we find merit to
defendant’s argument that the trial court erred in adjudicating him a second felony
offender, and accordingly, we vacate his multiple offender adjudication and
sentence and reinstate the sentence of twenty years imposed on defendant pursuant
to this Court’s previous remand.
PROCEDURAL HISTORY
On May 15, 2018, following a bench trial, defendant was found guilty of
possession of over four hundred grams of methamphetamine, in violation of La.
R.S. 40:967(F). On May 24, 2018, defendant was sentenced to thirty years
imprisonment at hard labor and ordered to pay a fine of $250,000. Defendant
thereafter appealed. On February 6, 2019, this Court affirmed defendant’s
conviction, vacated his thirty-year sentence as unconstitutionally excessive, and
remanded the matter for resentencing, suggesting to the trial court that it impose a
sentence of twenty years imprisonment. State v. Priest, 18-518 (La. App. 5 Cir.
2/6/19), 265 So.3d 993, writ denied, 19-418 (La. 5/20/19), 271 So.3d 201.
On March 11, 2019, pursuant to this Court’s remand, the trial court
resentenced defendant to twenty years imprisonment at hard labor without benefit
of probation or suspension of sentence and ordered defendant to pay a fine of
$250,000. On December 12, 2019, despite the fact that a multiple offender bill of
information had not been filed, the trial court conducted a multiple offender
hearing and adjudicated defendant a second felony offender. In accordance with
that finding, the trial court vacated defendant’s sentence of twenty years and
resentenced defendant as a multiple offender to thirty years imprisonment at hard
labor without benefit of probation or suspension of sentence and also imposed a
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fine of $250,000. Defendant now appeals his multiple offender adjudication and
sentence.
DISCUSSION
On appeal, defendant raises two assignments of error. First, he contends that
the trial court erred in adjudicating him a second felony offender on December 12,
2019, when the record indicates that a multiple offender bill of information was not
filed until January 24, 2020. Second, defendant asserts that the imposed sentence
of thirty years is excessive.
We first turn our attention to defendant’s argument that the trial court erred
in adjudicating him a second felony offender prior to the filing of the multiple
offender bill of information. Defendant specifically asserts that the State’s failure
to initiate the multiple offender proceedings by the filing of a formal multiple bill
deprived him of his fundamental right to notice as to which prior offense was being
used to allege he was a multiple offender and of his right to file written objections
to the multiple offender bill of information. In light of this failure to properly
initiate the multiple offender proceedings, defendant argues that his adjudication as
a second felony offender should be declared void and be vacated. We agree.
In the present case, it is undisputed that the trial court conducted a hearing
and adjudicated defendant a second felony offender on December 12, 2019, and
that the multiple offender bill of information was not filed until January 24, 2020,
approximately six weeks after defendant was found to be a second felony offender.
The State’s admitted failure to initiate the multiple offender proceedings by a
formal bill of information renders defendant’s adjudication and sentence as a
multiple offender invalid.
In State v. Sutton, 544 So.2d 1345 (La. App. 4th Cir. 1989), the Fourth
Circuit was presented with a situation similar to the one herein. In that case, the
defendant pled guilty to an oral multiple offender bill of information and was
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sentenced as a multiple offender. Subsequent to the defendant’s sentencing as a
multiple offender, the State filed a written multiple offender bill of information.
The Fourth Circuit, after noting that a defendant cannot plead guilty to and be
sentenced on an oral multiple offender bill of information, vacated defendant’s
multiple offender adjudication and sentence.
Likewise, this Court has vacated multiple offender proceedings that were not
initiated by a formal multiple offender bill of information. In State v. Uqdah, 613
So.2d 1113 (La. App. 5th Cir. 1993), this Court held that a multiple offender
adjudication that was not initiated by a formal multiple offender bill was void. In
so ruling, this Court stated:
A habitual offender bill of information does not charge a new
crime but is only a method of increasing the punishment of second
and subsequent felony offenses. In order to sentence defendant as a
multiple offender under the Habitual Offender Law, it is essential that
former convictions be formally charged. Since there is no multiple
offender bill of information, the prior conviction cannot be used to
enhance the sentence for the present conviction.
In State v. Fullilove, 94-326 (La. App. 5 Cir. 11/16/94), 646 So.2d 1041,
1043, this Court reached a similar result. In that case, the defendant pled guilty to
simple burglary, admitted three previous felony convictions, and was sentenced as
a multiple offender as agreed upon by the parties. In vacating the defendant’s
sentence and remanding the matter for resentencing, this Court stated, “Since the
record discloses and the state concedes that a written multiple offender bill of
information was not filed in this case, the defendant’s sentence cannot be enhanced
based on the three previous felony convictions.”
In the present case, defendant was not properly charged as a multiple
offender, and accordingly, his multiple offender adjudication and sentence must be
vacated. In light of this determination, we find it unnecessary to address
defendant’s second assignment of error relating to the excessiveness of his
sentence.
20-KA-72 3
DECREE
Accordingly, for the reasons set forth herein, we vacate defendant’s
adjudication as a second felony offender and the sentence imposed pursuant
thereto, and we reinstate the sentence of twenty years imposed on defendant on
March 11, 2019, pursuant to this Court’s previous remand.
MULTIPLE OFFENDER ADJUDICATION
AND SENTENCE VACATED; SENTENCE
ON REMAND REINSTATED
20-KA-72 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 9, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-72
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)
MAILED
MARK PRIEST #733459 (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
RAYMOND LABORDE CORRECTIONAL (APPELLEE)
CENTER DISTRICT ATTORNEY
1630 PRISON ROAD ZACHARY P. POPOVICH (APPELLEE)
COTTONPORT, LA 71327 ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053