State of Louisiana Versus Mark Priest

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

20-KA-72 1

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

20-KA-72 2

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