State of Louisiana v. Robert Lee Samuel

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-100

STATE OF LOUISIANA

VERSUS

ROBERT LEE SAMUEL

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 285,772
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and James T. Genovese,
Judges.

AFFIRMED.

Cooks, J., concurs in the result.

Dmitrc I. Burnes
Post Office Box 650
Alexandria, Louisiana 71309-0650
(318) 448-0482
COUNSEL FOR DEFENDANT/APPELLANT:
Robert Lee Samuel

James D. Downs
District Attorney - Ninth Judicial District
ADA Loren M. Lampert
Post Office Drawer 1472
Alexandria, Louisiana 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

The Defendant, Robert Lee Samuel, was charged by bill of information on

February 7, 2007, with one count of possession with intent to distribute promethezine

with codeine, a controlled dangerous substance (CDS) listed in Schedule V of Title

40 of the Louisiana Revised Statues, in violation of La.R.S. 40:969(A)(1)(G),1 and

one count of possession of hydrocodone, a Schedule III CDS, in violation of La.R.S.

40:968(C). On August 8, 2007, after a trial by jury, the Defendant was found guilty

on both counts. On October 19, 2007, the Defendant was sentenced to five years at

hard labor for his conviction of possession with intent to distribute promethezine with

codeine and five years at hard labor for his conviction of possession of hydrocodone,

with his sentences to run concurrently. On the same day, the trial court denied the

Defendant’s motion for a new trial.

Thereafter, the State filed a habitual offender bill, alleging that the Defendant

was a third felony offender. In response, the Defendant filed an objection and motion

to quash the habitual offender bill. The trial court held habitual offender proceedings

on November 26, 2007, at which time the court adjudicated the Defendant as a third

felony habitual offender, vacated his five-year sentence for possession with intent to

distribute promethezine with codeine, and sentenced him to ten years at hard labor.

On December 4, 2007, the Defendant filed a written notice of appeal with the

trial court. The Defendant is now before this court on appeal, alleging the following

five assignments of error:

1. The evidence presented at trial by the State was insufficient by
failing to show that the defendant had knowledge of the contents of the
package.

1
This citation error will be discussed in the Errors Patent section of this opinion.

1

2. The evidence presented at trial by the State was insufficient by
failing to show that the defendant had intent to distribute.

3. The instructions given by the trial court to the jury were incorrect and
confused the jury and violated defendant’s rights to a fair trial and due
process of law under both the [United States] and Louisiana
Constitutions.

4. The trial court erred by not granting the oral motion for continuance
made by defendant’s attorney.

5. The trial court erred in finding defendant a third felony offender for
the purposes of the habitual offender bill of information.

FACTS

The following facts were adduced from the record in this case. Shortly before

August 11, 2006, the United States Postal Service (USPS) in Los Angeles, California,

intercepted a suspicious package addressed to a Janice McGee at 101 Hope Street,

Alexandria, Louisiana. The package was burst on one end, and illegal narcotics were

identified. Thereafter, the USPS set up a controlled delivery in conjunction with the

New Orleans USPS Office and the Louisiana State Police Narcotics Bureau wherein

the package was to be delivered to the Hope Street address in Alexandria.

On August 11, 2006, the USPS and the Louisiana State Police conducted the

controlled delivery at 101 Hope Street, Alexandria, Louisiana. During the controlled

delivery, the USPS Inspector delivered the package to a young black female who was

later identified as Donesha Hayes (the Defendant’s 15-year-old step-daughter), who

signed for the package using the name Janice Mintz.

Prior to the delivery of the package, the Defendant told Donesha to be

expecting a package and to sign for it using whatever name was on the address label.

After signing for the package, and while the Defendant was in his bedroom, Donesha

took it to the Defendant’s bedroom and placed it next to him on his bed.

2

Shortly after the controlled delivery, law enforcement officers executed a

search warrant at the residence. Upon execution of the search warrant, the Defendant

was discovered in his bedroom, and the package was on the floor next to the bed,

unopened. The package was recovered by law enforcement officers, and its contents

were determined to be 15 pints of codeine and 70 hydrocodone pills. Thereafter, the

Defendant was placed under arrest.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are two errors patent.

First, there is an error in the bill of information. Louisiana Code of Criminal

Procedure Article 464 states:

The indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. It shall
state for each count the official or customary citation of the statute
which the defendant is alleged to have violated. Error in the citation or
its omission shall not be ground for dismissal of the indictment or for
reversal of a conviction if the error or omission did not mislead the
defendant to his prejudice.

The bill of information (bill) contains an error in the citation for possession

with intent to distribute codeine. The bill erroneously refers to “La.R.S. 40:969A1G”

as the citation for this offense; however, the correct citation for this offense is La.R.S.

40:970(A)(1). Nevertheless, the bill correctly refers to the drug as contained in

Schedule V, whereas La.R.S. 40:969 contains offenses related to drugs listed in

Schedule IV. Additionally, the elements of the crime are correctly set forth in the bill.

Furthermore, there is nothing on the face of the record indicating that this citation

error misled the Defendant to his prejudice, and neither the minutes nor the pleadings

3

indicate that the Defendant alleged any prejudice prior to trial. Accordingly, we find

this error to be harmless. See State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924

So.2d 1225, and State v. Roberts, 06-765 (La.App. 3 Cir. 1/17/07), 947 So.2d 208,

writ denied, 07-362 (La. 10/5/07), 964 So.2d 938.

Next, there is an error regarding the habitual offender proceeding. We note that

the record does not indicate that the Defendant was advised of his right to remain

silent.

In State v. Coleman, 96-525, pp. 12-13 (La.App. 3 Cir. 10/7/98), 720 So.2d

381, 387, this court explained, in pertinent part:

Although the right to remain silent is not specifically set forth in La.R.S.
15:529.1, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on
other grounds, 438 So.2d 1113 (La.1983); appeal after remand, 457
So.2d 1251 (La.App. 1 Cir.1984), appeal after remand, 471 So.2d 1041
(La.App. 1 Cir.1985), the Louisiana Supreme Court held this statute
clearly recognizes the defendant has the right to remain silent, and the
statute implicitly provided defendant should be advised by the court of
his right to remain silent. The court in Johnson, relying on State v.
Martin, 427 So.2d 1182 (La.1983), further stated La.R.S. 15:529.1(D)
specifically provides defendant shall be advised of his right to a formal
hearing and to demand that the state prove its case.

This court has found such an error to be harmless when the defendant is

adjudicated a habitual offender after a full hearing, and the defendant does not testify

or acknowledge his status as a habitual offender. See State v. Alexander, 05-276, 05-

277 (La.App. 3 Cir. 11/2/05), 916 So.2d 303.

However, in the present case, the Defendant did testify, acknowledging his

prior convictions.

In State v. Payne, 94-1628, pp. 2-8 (La.App. 3 Cir. 5/22/96), 677 So.2d 527,

528-30, on error patent review, this court explained in pertinent part:

In State v. Johnson, 432 So.2d 815 (La.1983), defendant was
determined by the trial court to be a habitual offender and sentenced to

4

twenty-four years at hard labor. At the hearing, defendant pled not
guilty. No evidence was presented by the state that defendant was the
same person who had been previously convicted. The trial court, over
the objection of counsel, compelled defendant to testify. The supreme
court reversed and vacated the sentence. The court stated:

This section of the statute clearly recognizes that the
defendant, if he chooses, has the right to remain silent.
Once the defendant chooses to remain silent[,] the state
must then by competent evidence prove the elements of
R.S.15:529.1 before the defendant can be sentenced as an
[sic] habitual offender. Before the defendant chooses to
acknowledge or confess in open court that he has been
previously convicted of a felony, the statute requires that
he first be cautioned by the trial court as to his rights. R.S.
15:529.1(D) specifically provides that defendant be
advised by the court of his right to a “formal hearing” and
to have the state prove its case. State v. Martin, 427 So.2d
1182 (La.1983). Further, this section implicitly provides
that the defendant should be advised, by the court, of his
statutory right to remain silent.

Id. at 817.

More recently, in State v. Harris, 654 So.2d 680, the supreme
court, in an application for post-conviction relief, stated:

Admissions of identity at a multiple offender hearing
implicate the defendant’s Fifth Amendment privilege
against self-incrimination. State v. Johnson, 432 So.2d 815
(La.1983). Nevertheless, multiple offender proceedings
“simply should not be equated (at least for purposes of
determining the validity of an admission) to trials of guilt
or innocence.” State v. Martin, 427 So.2d 1182, 1185
(La.1983). This Court has therefore declined to adopt as a
constitutional prerequisite to a valid admission of identity
at a multiple offender proceeding a procedure analogous to
the Boykin colloquy which must accompany a valid plea of
guilty. Id., 427 So.2d at 1185, n. 7. In the absence of any
allegation or showing that the admission was involuntary,
compare State v. Johnson, supra, the availability of post-
conviction relief turns on whether the proceedings as a
whole accorded the petitioner fundamental fairness and due
process of law. See, Holloway v. Lynaugh, 838 F.2d 792
(5th Cir.), [cert. denied], 488 U.S. 838, 109 S.Ct. 104, 102
L.Ed.2d 80 (1988); State v. Firmin, 522 So.2d 1181
(La.App. 4th Cir.), [writ denied], 532 So.2d 759 (La.1988).

5

In the case sub judice, unlike in Harris, no independent evidence
was introduced by the state to prove defendant was the same person
previously convicted of a predicate felony. However, our review of the
record convinces us that “the proceedings as a whole accorded the
(defendant) fundamental fairness and due process.”

....

There have been no allegations or showing that the admission was
involuntary. Defendant was represented by counsel at the hearing, he
was informed of the allegations in the multiple offender bill[,] and he
was advised of his right to a hearing wherein the state would have the
burden of proving he was the same person previously convicted of the
predicate offense. Furthermore, the admission was part of a plea
agreement and defendant was fully apprised of the sentence he was to
receive.

In the habitual offender bill of information, the State charged the Defendant

with having been convicted of the prior crimes of theft, district court docket number

228,540, in Rapides Parish, and simple robbery, district court docket number

230,111, in Rapides Parish. The Defendant was adjudicated a habitual offender after

a full hearing. At the beginning of the habitual offender proceeding, the Defendant’s

fingerprints were taken, and the State introduced, without objection by the Defendant,

certified copies of the plea colloquies in district court docket numbers 228,540 and

230,111. Thereafter, the State called an investigator for the Rapides Parish District

Attorney’s office, Ray Keith Delcolym, to testify. Mr. Delcolym was accepted by the

trial court, without objection, as an expert in the field of fingerprint identification.

Mr. Delcolym compared the Defendant’s fingerprints, which were taken at the

beginning of the proceeding, to the fingerprints contained on the certified copies of

the bills of information in district court docket numbers 228,540 and 230,111, and

identified the Defendant as the person that was convicted of the previous crimes. The

Defendant’s attorney then cross-examined the expert witness. After the State rested,

the Defendant, on his own volition, took the stand and did not dispute that he was

6

convicted of the prior convictions.

We find that, although the Defendant acknowledged his prior convictions

without first being advised of his right to remain silent, unlike in Johnson, the

Defendant’s testimony was voluntary; and, the Defendant was represented by counsel.

Additionally, a full habitual offender hearing was held. Accordingly, we find that the

trial court’s failure to advise the Defendant of his right to remain silent was harmless

error in this instance and that he was afforded a fair hearing.2

ASSIGNMENTS OF ERROR NOS. 1 & 2:

As the Defendant’s first two assignments of error relate to sufficiency of

evidence, we will discuss both of these errors together. The Defendant alleges that

there was insufficient evidence to show that he had knowledge of the contents of the

package containing the illicit drugs or to show that he had the intent to distribute

them.

In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900,

902, this court stated:

With regard to sufficiency of the evidence, this court set forth as follows
in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d
724, 726-27:

When the issue of sufficiency of evidence is raised on
appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel.

2
In State v. Carmouche, an unpublished opinion bearing docket number 07-911 (La.App. 3
Cir. 1/30/08), we recognized as an error patent the failure of the trial court to advise the defendant,
who was charged as a habitual offender, of his right to remain silent and his right to have the State
prove its case against him. The record indicated that the Defendant was adjudicated a habitual
offender after a full hearing was held, that the Defendant’s testimony was voluntary, and that the
Defendant was represented by counsel. Consequently, we found that the error was harmless and that
the Defendant was afforded a fair hearing.

7

Graffagnino v. King, 436 So.2d 559 (La.1983); State v.
Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393
So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses.
Therefore, the appellate court should not second-guess the
credibility determination of the trier of fact beyond the
sufficiency evaluations under the Jackson standard of
review. See King, 436 So.2d 559, citing State v.
Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the
elements of the crime beyond a reasonable doubt. In order for this court
to affirm a conviction, the record must reflect that the State has satisfied
this burden of proving the elements of the crime beyond a reasonable
doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d
1367.

The Defendant was convicted of one count of possession with intent to

distribute a Schedule V CDS, in violation of La.R.S. 40:970(A)(1), which states,

“[e]xcept as authorized by this part, it shall be unlawful for any person knowingly or

intentionally: (1) To produce, manufacture, distribute or dispense or possess with

intent to produce, manufacture, distribute, or dispense, a controlled dangerous

substance classified in Schedule V.” The other offense for which the Defendant was

convicted was possession of a Schedule III CDS, in violation of La.R.S. 40:968(C),

which states, in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a
controlled dangerous substance classified in Schedule III unless such
substance was obtained directly or pursuant to a valid prescription or
order from a practitioner, or as provided in R.S. 40:978 or R.S. 40:1239,
while acting in the course of his professional practice or except as
otherwise authorized by this Part.

To find the Defendant guilty of the first offense, possession with intent to

distribute a Schedule V CDS, the State had to prove beyond a reasonable doubt that

the Defendant possessed a Schedule V CDS and intended to distribute same. In order

to find the Defendant guilty of the second offense, possession of a Schedule III CDS,

8

the State had to prove beyond a reasonable doubt that the Defendant possessed a

Schedule III CDS.

The Defendant argues that the State failed to prove that he had knowledge the

package that was delivered to his home contained drugs; and, therefore, there was

insufficient evidence to find him guilty of possession or possession with intent to

distribute. The second argument made by the Defendant is that the State’s case is

entirely circumstantial; and, thus, he could not be convicted unless every other

reasonable hypothesis of innocence is excluded. We find these assignments of error

to be without merit.

We note that the Defendant offers no jurisprudence to support any of his

arguments. In order to prove the possession with intent to distribute offense, the State

had to prove that the Defendant was: (1) in possession of the Schedule V CDS; and

(2) had intent to distribute the same. For the possession of a Schedule III CDS

offense, the State only had to prove the Defendant possessed a Schedule III CDS.

It is well-settled that constructive possession of narcotics may suffice to find

a defendant guilty of possession of said narcotics. State v. Lathers, 03-941 (La.App.

5 Cir. 2/23/04), 868 So.2d 881. In Lathers, the court affirmed a possession with

intent to distribute conviction where, subsequent to the execution of a search warrant,

law enforcement officers discovered a bag containing marijuana on the bed where the

defendant had been sleeping. In the instant case, testimony was elicited at trial that

the package containing the narcotics was delivered and placed on the bed where the

Defendant was sleeping. Moreover, testimony was offered by State Trooper Keith

Nugent, who testified that the Defendant confessed that the package was his. Nugent

interviewed suspects on the day in question. Pursuant to Lathers, and in conjunction

9

with the Defendant’s confession, we find that the State clearly provided sufficient

evidence to prove that the Defendant possessed the narcotics at issue.

With respect to the intent to distribute element of the Defendant’s offense, the

State was required to prove beyond a reasonable doubt that he had the intent to

distribute the Schedule V CDS in his possession. In State v. Spencer, 29,993, pp. 4-5

(La.App 2 Cir. 1/21/98), 707 So.2d 96, 100, writ denied, 98-627 (La. 8/28/98), 722

So.2d 294, the court discussed intent as it related to the distribution of narcotics and

stated:

Intent is a fact which may be inferred from circumstantial
evidence. State v. Hall, 602 So.2d 256 (La.App. 2d Cir.), writ denied
609 So.2d 254 (1992). Factors which are useful in determining whether
the circumstances are sufficient to prove an intent to distribute cocaine
or a controlled dangerous substance (“CDS”) include (1) whether the
defendant ever distributed or attempted to distribute a CDS; (2) whether
the CDS was in a form usually associated with distribution to others; (3)
whether the amount was such as to create a presumption of intent to
distribute; (4) expert or other testimony that the amount found in the
defendant’s possession was inconsistent with personal use only; and (5)
the presence of paraphernalia, such as baggies or scales, evidencing an
intent to distribute. State v. House, 325 So.2d 222 (La.1975); State v.
Hall, supra. Testimony of street value and dosage units of the drug is
also relevant to the issue of intent. State v. Appacrombie, [616 So.2d
285 (La.App. 2 Cir.), writ denied, 623 So.2d 1302 (La.1993)].

In the instant case, evidence was presented at trial showing that the package

containing the narcotics included 15 bottles of codeine. Moreover, evidence was

introduced at trial that each bottle contained 16 ounces of codeine with a street value

between $20.00 and $40.00 per ounce. In light of Spencer and House, and

considering the fact that the defendant had in his possession 15 pints of codeine with

a street value between $4,800.00 and $9,600.00, we find that the presumption to

distribute could be inferred by a reasonable trier of fact. Accordingly, sufficient

evidence was presented at trial to find the Defendant guilty of the offense of

10

possession with intent to distribute a Schedule V CDS.

With respect to the possession of a Schedule III CDS, our previous discussion

of Lathers regarding constructive possession, in conjunction with the Defendant’s

admission that the package containing the Schedule III CDS was his, is sufficient to

show Defendant’s guilt of possession. Accordingly, Defendant’s allegations of

insufficiency of evidence with respect to both convictions are without merit.

ASSIGNMENT OF ERROR NO. 3:

In his third assignment of error, the Defendant alleges that the trial court erred

in its issuance of jury instructions, thus confusing the jury and violating the

Defendant’s rights to a fair trial and due process.

Specifically, the Defendant alleges that the trial court erred when it instructed

the jury that a responsive verdict for possession with intent to distribute a Schedule

V CDS was guilty of attempted possession of a Schedule III CDS. Our review of the

jurisprudence associated with responsive verdicts, as outlined in La.Code Crim.P. art.

814, confirms the Defendant’s allegation that attempted possession of a Schedule III

CDS is not a responsive verdict for possession with intent to distribute a Schedule V

CDS. However, our review of the trial transcript reveals that the Defendant failed to

object to the improper jury instruction at the time it was given. Louisiana Code of

Criminal Procedure Article 841(A) states, in pertinent part: “[a]n irregularity or error

cannot be availed of after verdict unless it was objected to at the time of occurrence.”

See State v. Collor, 99-175 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, writ denied, 00-

1487 (La. 3/9/01), 786 So.2d 116, where the appellate court held that the defendant

waived his right to challenge the fact that the jury was allowed to take a transcript of

his confession into deliberations because he failed to contemporaneously object.

11

In the instant matter, because the Defendant failed to contemporaneously object

to the improper jury instruction, he is precluded from arguing on appeal that the

erroneous instruction was error. Accordingly, we find that the Defendant failed to

preserve his right of review of this assignment of error.

ASSIGNMENT OF ERROR NO. 4:

In his fourth assignment of error, the Defendant alleges that the trial court erred

in denying his motion for continuance after the jury had been selected, but prior to

opening arguments.

In the instant matter, after the jury was selected, but prior to opening

arguments, the Defendant requested a continuance due to the discovery of new

evidence. The newly discovered evidence was purportedly provided by the

Defendant’s wife, Renee Marie Samuel, who, on the evening prior to the

commencement of trial, advised defense counsel that her husband had received a

Social Security check. The Defendant alleges that a continuance would have given

him the opportunity to withdraw his plea of not guilty and enter a plea of not guilty

by reason of insanity, file a motion to suppress certain statements made by the

Defendant as such statements were allegedly made under duress, and file a motion in

limine to preclude the use of any statements made by the Defendant. The trial court

denied the motion.

It is well-settled jurisprudence that the granting of a continuance is within the

discretion of the trial court. State v. Gipson, 28,113 (La.App. 2 Cir. 6/26/96), 677

So.2d 544, writ denied, 96-2303 (La. 1/31/97), 687 So.2d 402. Moreover, on

appellate review, the denial of a continuance by the trial court should not be disturbed

without a showing of abuse of discretion and a showing of specific prejudice. See

12

State v. Bartley, 03-1382 (La.App. 5 Cir. 3/30/04), 871 So.2d 563, writ denied, 04-

1055 (La. 10/1/04), 883 So.2d 1006.

In the instant case, the Defendant fails to specifically allege or provide any

proof of how he was prejudiced by the trial court’s denial of a continuance. Because

the granting of a continuance is within the discretion of the trial court, and because

the Defendant failed to specifically allege how he was prejudiced by the trial court’s

ruling, we find that the trial court did not err in denying the continuance.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5:

In his fifth assignment of error, the Defendant alleges that the trial court erred

in adjudicating him as a third felony offender. In response to the filing of the habitual

offender bill, the Defendant filed an objection and motion to quash said bill. In his

motion to quash, the Defendant alleges that his date of release from the Department

of Correction (“DOC”) for his second felony occurred on November 23, 1994; and,

based on this date, the ten-year cleansing period had elapsed; and, therefore, the state

was precluded from adjudicating him as a third felony habitual offender.

However, our review of the habitual offender proceedings transcript reveals

that the Defendant was released from incarceration on November 23, 1994, but did

not reveal that he was completely released from the DOC on this date. See State v.

Davis, 41,245 (La.App. 2 Cir. 8/9/06), 937 So.2d 5, where the court held that the

cleansing period under the habitual offender statute begins to run from the date that

a defendant is actually discharged from state custody and supervision of the DOC.

At the habitual offender proceedings, the State introduced evidence of the

Defendant’s prior felony convictions through introduction of copies of the clerk’s

13

records. The Defendant’s first felony conviction, docket number 228,540, indicates

that on August 17, 1990, he pled guilty to two counts of theft of goods between

$100.00 and $500.00; and, in accordance with the terms of his plea agreement, he was

placed on supervised probation for two years and sentenced to two months in the

parish prison. The second felony conviction, docket number 230,111, indicates that

on July 23, 1991, the Defendant pled guilty to simple robbery; and, in accordance

with his plea agreement, the Defendant was sentenced to seven years at hard labor.

Also, on July 23, 1991, the Defendant’s supervised probation for the theft charge was

revoked, and a two-year sentence was imposed and ordered to be served concurrently

with the sentence for simple robbery.

The following colloquy occurred between the District Attorney, Mr. Lampert,

defense counsel, Mr. Burns, the trial court, and the Defendant (“Witness”) at the

habitual offender proceedings:

BY MR. LAMPERT:

Q You were sentenced to seven years on that Simple Robbery
charge, when you plead guilty to Simple Robbery, correct?

A That’s correct.

Q And, then you were actually released from custody in 1994?

A I was released from the halfway house in 1994.

Q Correct.

A Yes, sir.

Q Which is how many years after you started serving?

A It’s been fourteen years since I’ve been out.

Q No, no, listen to me. You plead guilty in 1991, when in August
or July of 1991, right?

14

A I went to prison in 1991; is that what you’re saying?

Q All right. July 23rd, I think. Was that right?

BY THE COURT:

No, it says - - that was the date of the - -

BY THE WITNESS:

I was released in July, on the 23rd.

BY MR. LAMPERT:

When did you go to prison? When did you plead guilty?

A July 23rd.

Q All right. And, you got seven years?

A I got seven years.

Q You went to prison and was [sic] released from custody in
November of 1994?

A I was released in 19 - - November 23, 1994.

Q Which is a little over three years from you going to prison, right?

A I don’t understand what your saying.

BY THE COURT:

You were sentenced in 1991; you were released in 1994, so that’s
about three years from the year of when you plead guilty?

BY THE WITNESS:

Yes, yes.

BY THE COURT:

But you got a seven year sentence is his question?

BY THE DEFENDANT:

Yes, that was three and a half years.

15

FURTHER EXAMINATION BY MR. LAMPERT:

Q So, you did about half of the time of your seven years, you did
about half of that in prison?

A Yes.

Q The remaining three and a half years you were on parole?

A Yes, I was.

BY MR. LAMPERT:

Nothing further.

BY MR. BURNS:

One question, Your Honor.

BY THE COURT:

All right.

REDIRECT EXAMINATION

BY MR. BURNS:

Q And, with respect to the theft charge, you did all of the time on
that, you didn’t owe them anymore when you were released on it,
released from the halfway house?

A No sir.

BY MR. BURNS:

Thank you.

BY THE COURT:

So, you would have been on parole until November of ‘97, would
have been three years, and that would have been November - - I mean
May of ‘98, somewhere around there, you were released from paroled
[sic]?

BY THE WITNESS:

Yes.

16

In cases where more than ten years has elapsed between release from DOC for

a predicate felony and commission of a felony sought to be enhanced pursuant to

La.R.S. 15:529.1, the State has the burden of proof that the ten-year cleansing period

has not elapsed. State v. Thomas, 05-2210 (La.App. 1 Cir. 6/9/06), 938 So.2d 168,

writ denied, 06-2403 (La. 4/27/07), 955 So.2d 683. See also Davis, 937 So.2d 5.

“For a defendant who has been released from custody on parole, [his] date of

discharge from parole supervision is equated with the expiration of the maximum

sentence” for purposes of the habitual offender statute’s cleansing period. State v.

Gamberella, 633 So.2d 595, 607 (App. 1 Cir.1993), writ denied, 94-200 (La.

6/24/94), 640 So.2d 1341.

The record in this case clearly reveals that the Defendant pled guilty and was

sentenced on July 23, 1991 to seven years with the Louisiana Department of

Corrections. He was released from prison in 1994, pursuant to parole, for the

remainder of his seven-year sentence. His seven-year sentence would have been

served by July of 1998. The instant crime was committed in August of 2006, and, as

such, was clearly within the ten-year cleansing period. Accordingly, we find no error

in the trial court’s adjudication of the Defendant as a third felony habitual offender

as the State proved that ten years had not expired between the Defendant’s discharge

from DOC for his second felony conviction and the commission of the instant offense

sought to be enhanced.

DISPOSITION

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

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