State of Louisiana v. Frederick James Collette

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

NO. 07-0386

STATE OF LOUISIANA

VERSUS

FREDERICK JAMES COLLETTE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO. 05-2215
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter,
Judges.

AFFIRMED AS AMENDED.

Jeffrey J. Trosclair
Assistant District Attorney
St. Mary Parish Courthouse
Franklin, LA 70538
(337) 828-4100
COUNSEL FOR APPELLEE:
State of Louisiana

Sherry Watters
Louisiana Appellate Project
Post Office Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
COUNSEL FOR DEFENDANT/APPELLANT:
Frederick James Collette

PETERS, J.

A jury convicted the defendant, Frederick James Collette, of five counts of

armed robbery, violations of La.R.S. 14:64. After adjudicating him a second felony

offender as to one of the five convictions, the trial court sentenced him to serve forty-

nine and one-half years at hard labor on each count. In sentencing the defendant, the

trial court ordered that the first two counts be served consecutively without benefit

of probation and suspension of sentence, and that the remaining three counts be

served concurrently to each other and to all other sentences. After the trial court

denied his motion to reconsider his sentences, the defendant filed this appeal,

asserting two assignments of error.

FACTUAL BASIS

All of the charges arise from two robberies. On September 19, 2005, the

defendant entered Community Financial Services in New Iberia, Louisiana, pointed

a gun at an employee, and demanded money. Additionally, on November 2, 2005, he

entered Regions Bank in New Iberia and, while armed with a gun, took money from

several tellers.

ERRORS PATENT ANALYSIS

In reviewing the record as required by La.Code Crim.P. art. 920, we find that

errors exist in the sentencing process that require correction. Specifically, the trial

court sentenced the defendant to serve forty-nine and one-half years at hard labor on

each of the counts, but did not sentence the defendant to serve those prison terms

without the benefit of parole, probation, or suspension of sentence. On the first two

counts, the trial court ordered that the prison terms be served without benefit of

probation or suspension of sentence on each count. On the remaining charges, the

trial court was silent as to conditions imposed on the sentences.

Louisiana Revised Statute 14:64(B) provides that the sentence imposed under

that statute be without benefit of parole, probation, or suspension of sentence. The

confusion arises because La.R.S. 15:529.1(G) provides that any sentence imposed

under the habitual offender law “be without benefit of probation or suspension of

sentence.” As to the first and second counts, the trial court apparently relied on this

provision in failing to prohibit parole as a condition of the sentence. However, in

State v. Bruins, 407 So.2d 685, 687 (La.1981), the supreme court concluded that a

defendant’s “sentence as an habitual offender based on an underlying conviction of

armed robbery should be without parole, probation, or suspension of sentence.” (See

also, State ex rel. Simmons v. Stalder, 93-1852 (La. 1/26/96), 666 So.2d 661, which

was decided after Section G was added to La.R.S. 15:529.1).

While recognizing that La.R.S. 15:301.1(A) provides that the failure of the trial

court:

to specifically state that all or a portion of the sentence is to be served
without benefit of probation, parole, or suspension of sentence shall not
in any way affect the statutory requirement that all or a portion of the
sentence be served without benefit of probation, parole, or suspension
or sentence

we also note that by omitting reference to parole with regard to the first two counts,

the trial court impliedly informed the defendant that he would be eligible for parole.

In such a case, this court is required to correct the sentence imposed rather than rely

on the self-operating provisions of La.R.S. 15:301.1(A).

Therefore, we find that the habitual offender sentences imposed by the trial

court were illegally lenient, and we hereby correct the defendant’s sentence to reflect

that his term of imprisonment shall be served without benefit of parole, probation, or

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suspension of sentence as required by La.R.S. 14:64(B). See State v. Thibodeaux,

05-680 (La.App. 3 Cir. 12/30/05), 918 So.2d 1093.

Concerning the remaining three counts wherein the trial court failed to mention

probation, parole, or suspension of sentence at all in sentencing the defendant, “this

error need not be corrected on remand because under State v. Williams, 00-1725

(La.11/29/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A), the ‘without benefits’

provision is self-activating.” State v. King, 05-553, p. 15 (La.App. 5 Cir. 1/31/06),

922 So.2d 1207, 1215, writ denied, 06-1084 (La. 11/9/06), 941 So.2d 36.

ASSIGNMENTS OF ERROR ANALYSIS

The first assignment of error asserted by the defendant relates to the proceeding

wherein he was adjudicated a second felony offender. The hearing began with the

state informing the trial court that the defendant would acknowledge that he was the

same person who had been convicted of the prior drug offense upon which the

habitual offender proceeding was based, and that his plea in that proceeding was

knowingly and voluntarily entered. The state then introduced a certified copy of the

bill of information, the minute entry, and the Boykin colloquy in the defendant’s prior

plea.

Initially, the defendant’s counsel acknowledged to the trial court that the

defendant wished to admit that he was the same person previously convicted of the

underlying offense, and that he was the same person who committed the armed

robberies of which he was convicted. However, after the trial court began to

Boykinize the defendant, and before the colloquy was complete, the defendant’s

counsel informed the trial court that the defendant did not understand what right to

appeal he was giving up and that the defendant wanted a hearing. Rather than

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continue with the Boykinization process, the trial court allowed the state to proceed

with an evidentiary hearing.

The state called Allegra Jefferson, a state probation and parole officer, as a

witness in the evidentiary hearing. Ms. Jefferson identified the defendant as the same

person she had previously supervised after conviction of the underlying felony

offense. According to Ms. Jefferson, the defendant had been convicted in December

of 2002, and came under her supervision as a parolee in December of 2004. She

further testified that, but for the current convictions, his parole supervision would

have terminated in October of 2009. With this identity evidence before it, the trial

court adjudicated the defendant as an habitual offender. Thereafter, the trial court

sentenced the defendant as previously indicated.

In State v. Shelton, 621 So.2d 769, 779-80 (La.1993) (footnotes omitted), the

supreme court discussed the burden of proof at habitual offender hearings as follows:

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. We note that this new
procedure will not only give appropriate significance to the presumption
of regularity which attaches to judgments of conviction which have
become final, but will also provide an advantage to defendants who

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were previously under [State v.] Lewis[, 367 So.2d 1155 (La.1979)]
unable to introduce any extra-record evidence and whose guilty pleas
were heretofore under [State v.] Tucker[, 405 So.2d 506 (La.1981)]
found constitutionally valid by mere proof of a minute entry and a guilty
plea form.

In brief to this court, the defendant does not dispute that Ms. Jefferson’s

testimony satisfied the identity requirement, but asserts that the state failed to prove

the prior conviction was knowingly and voluntarily entered into. The defendant bases

this argument on the fact that, while the state introduced the necessary documentation

at the beginning of the hearing at a time when there appeared to be a stipulation of

everything necessary to effect the adjudication, it did not reintroduce the

documentation after the trial court abandoned the Boykinization efforts and began

taking evidence. However, in making this argument, the defendant does not assert

that the documents, if properly in evidence, did not establish that the prior conviction

was knowingly and voluntarily entered into.

We disagree with the defendant’s classification of the proceedings as two

separate hearings. The proceedings began as an adjudication proceeding and ended

as an adjudication proceeding. The state introduced the documents as a part of the

hearing and the fact that the attempted stipulation fell through during the adjudication

hearing did not make them any less part of the record. Because the documents were

properly in evidence and readily available to the trial court, and because the defendant

does not assert that the content was insufficient, we find no merit in this assignment

of error.

In his other assignment of error, the defendant asserts that the trial court erred

in imposing an unconstitutionally excessive sentence, particularly as to counts three,

four, and five.

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In State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), the
supreme court held that when a defendant claims a sentence is excessive
“[t]he only relevant question on review . . . [is] ‘whether the trial court
abused its broad sentencing discretion, not whether another sentence
might have been more appropriate.’ State v. Humphrey, 445 So.2d
1155, 1165 (La.1984).”

State v. Robinson, 05-633, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151, 1156.

Specifically, the defendant asserts that the trial court failed to consider the sentencing

factors found in La.Code Crim.P. art. 894.1, did not require a pre-sentence

investigation report, and gave no reasons for sentencing.

In considering this assignment of error, we first note that after the trial court

imposed the sentences in the five counts, the defendant’s counsel orally moved for

reconsideration of the sentences without setting forth any bases for reconsideration.

While La.Code Crim.P. art. 881.1(B) allows for an oral motion at the
time of sentencing, the motion must still comply with La.Code Crim.P.
art. 881.1(E) (emphasis added), which provides:

Failure to make or file a motion to reconsider sentence
or to include a specific ground upon which a motion to
reconsider sentence may be based, including a claim of
excessiveness, shall preclude the state or the defendant
from raising an objection to the sentence or from urging
any ground not raised in the motion on appeal or review.

The failure to include any specific ground for reconsideration,
including particularly the trial court’s failure to comply with the
provisions of La.Code Crim.P. art. 894.1, relegates this court to
consideration of “a bare claim of excessiveness” when reviewing the
first three assignments of error. [State v.] Whatley, [03-1275 (La.App.
3 Cir. 3/3/04),] 867 So.2d [955] at 958.

State v. Whatley, 06-316, p. 4 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, 604-05.

Thus, our review of the defendant’s sentence is limited to a bare claim of

excessiveness. In doing so, we first note that the defendant was convicted of four

counts of armed robbery, with each count having an incarceration sentencing range

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of ten to ninety-nine years at hard labor, with the sentences to be served without the

benefit of parole, probation, or suspension of sentence. La.R.S. 14:64(B). The trial

court sentenced the defendant to serve forty-nine and one-half years on each count,

with two sentences to run consecutive and three sentences to run concurrent.

Considering the sentences only from the aspect of a bare claim of

excessiveness, we find that they are not excessive. See State v. Vance, 06-452

(La.App. 5 Cir. 11/28/06), 947 So.2d 105; State v. Gipson, 41,549 (La.App. 2 Cir.

12/13/06), 945 So.2d 239; State v. Christaw, 41,641 (La.App. 2 Cir. 12/13/06), 945

So.2d 217; State v. Morris, 40,322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359; State v.

Robinson, 05-633 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151; State v. Bowers, 39,970

(La.App. 2 Cir. 8/19/05), 909 So.2d 1038; and State v. Taylor, 04-1389 (La.App. 5

Cir. 5/31/05), 905 So.2d 451, writ denied, 05-2203 (La. 5/26/06), 930 So.2d 12.

DISPOSITION

We affirm the defendant’s convictions in all respects. We correct the sentences

imposed on counts one and two by amending those sentences to provide that both

sentences are to be served without benefit of parole, probation, or suspension of

sentence. We affirm the remaining three sentences subject to the self-activating

provisions of La.R.S. 15:301.1(A).

AFFIRMED AS AMENDED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-
16.3, Uniform Rules, Courts of Appeal.

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