STATE OF LOUISIANA VERSUS OTERREL J. BOUTTE AKA O'TERREL BOUTTE, AKA O'TERRELL BOUTTE, ETC.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-404

STATE OF LOUISIANA

VERSUS

OTERREL J. BOUTTE

AKA O'TERREL BOUTTE,

AKA O'TERRELL BOUTTE, ETC.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR119198
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion,
Judges.

Saunders, J., dissents with written reasons.

SENTENCE VACATED, REMANDED FOR HABITUAL OFFENDER
HEARING & RESENTENCING.

Michael Harson
District Attorney, 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff/Appellee:
State of Louisiana

Allan P. Haney
Assistant District Attorney, 15th JDC
P. O. Box 4308
Lafayette, LA 70502
(337) 291-7009
Counsel for Plaintiff/Appellee:
State of Louisiana

William Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
Counsel for Defendant/Appellant:
Oterrel J. Boutte

GREMILLION, Judge.

The Defendant, Oterrel J. Boutte, was convicted of monetary instrument abuse

and then charged as a habitual offender. He entered a plea of not guilty. The parties

stipulated Defendant had three prior felony convictions. The trial court subsequently

adjudicated Defendant to be a habitual offender and sentenced him to twenty years

at hard labor.

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

errors patent on the face of the record. There is an error patent concerning the

habitual offender proceeding. The trial court erred in failing to advise Defendant of

his right to remain silent, the right to a hearing, and to have the State prove its case

at the habitual offender proceeding.

At the habitual offender proceeding, the State introduced into evidence

certified copies of Defendant’s pleas in three other matters to prove the existence of

Defendant’s prior convictions. Counsel then stipulated that Defendant was properly

identified as the person who had those prior convictions. The State offered no

independent evidence or testimony to prove Defendant’s identity. The trial court

subsequently found Defendant to be a multiple felony offender, and sentenced him

to twenty years at hard labor.

In State v. Fletcher, 00-968, pp.3-4 (La.App. 3 Cir. 12/6/00), 776 So.2d 1240,

1243, writ denied, 01-342 (La. 12/14/01), 803 So.2d 986, this court, addressing an

assigned error, discussed the pertinent case law on this issue:

While La.R.S. 15:529.1 does not specifically address the issue of
a defendant’s right to remain silent, 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 supreme court
concluded that the statute clearly recognizes that a defendant has the

1

right to remain silent and thus implicitly provides that a defendant
should be advised by the trial court of this right before he acknowledges
or confesses his status as an habitual offender. Thus, the trial court
erred in failing to advise the defendant of this right before accepting his
admission that he was the person who was convicted of the predicate
offenses. The question is whether or not this is harmless error.

This very issue was addressed by the supreme court in State v.
Harris, 95-0900 (La.5/19/95); 654 So.2d 680. In that case, the state
introduced a sworn affidavit from a representative of the Department of
Corrections to establish that the defendant was the same person who had
been convicted of the predicate offenses. Additionally, the defendant’s
counsel stipulated “in open court and in the presence of the [defendant]”
that he was the same person. In an application for post-conviction relief,
the defendant sought to have his adjudication as a multiple offender set
aside because the trial court had failed to advise him of his rights as
required by La.R.S. 15:529.1(D). In rejecting this argument, the supreme
court 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).

Id. at 680.

The supreme court concluded that the petitioner was given a
fundamentally fair hearing despite the fact that the trial court failed to
advise him of his rights.

In Fletcher, the defendant agreed to plead guilty to two unrelated charges in

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exchange for concurrent sentences with the habitual offender sentence. On appeal,

he challenged his habitual offender adjudication and sentence on the ground that the

trial court failed to advise him of his right to remain silent. The defendant admitted

to identity and the state did not introduce any evidence to prove identity. However,

relying on Harris and State v. Payne, 94-1628 (La.App. 3 Cir. 5/22/96), 677 So.2d

527, this court found the defendant’s hearing was fundamentally fair, thus, the error

lacked merit. The facts of Fletcher reflected that the trial court advised the defendant

of his right to a hearing for the State to prove its case, and the defendant waived the

hearing.

In Payne, this court reached the conclusion that a proceeding was

fundamentally fair even though the defendant was not advised of his right to remain

silent in a habitual offender adjudication and despite the fact that the only evidence

of his multiple offender status was his own admission. In doing so, the court made

the following statement:

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.

Id. at 530.

The court in Payne referred to the Harris decision and concluded that the

proceedings were fundamentally fair and met due process standards. In Payne, the

defendant was advised by the trial court he had the right to a hearing, and the right

for an attorney to represent him at the hearing. Additionally, the trial court advised

the defendant, “You have a right to have the state come and prove that you are the

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same George Payne that had the other convictions,” and “[i]f you plead guilty and

accept this at this time, then you're waiving the right to that particular hearing, which

would be with all due process and all the rest.” Id. at 529.

In State v. Boswell, 96-801 (La.App. 3 Cir. 2/12/97), 689 So.2d 627, this court

found the habitual offender hearing was fundamentally fair despite the defendant’s

admission of his status as a habitual offender without being informed of his right to

remain silent and in the absence of additional evidence being presented to prove his

status. In concluding the hearing was fundamentally fair, this court noted that the

defendant was represented by capable counsel who explained the habitual offender

charges to him and the defendant admitted his prior offense in the presence of his

attorney “after being extensively informed of his right to a hearing where the State

would have to prove his identity as a habitual offender beyond reasonable doubt.”

Id. at 636. (emphasis added).1

In State v. Roberson, 94-1570 (La.App. 3 Cir. 11/2/95), 664 So.2d 687, this

court reversed a habitual offender adjudication, concluding that the proceeding was

not fundamentally fair when the defendant was not advised of his right to remain

silent and the state failed to introduce independent evidence of his identity before he

admitted to his status as a habitual offender. Although the trial court advised the

defendant he had the right to a trial where the state would have to prove beyond a

1
In State v. Frazier, an unpublished case bearing docket number 99-780 (La.App. 3 Cir.
12/8/99), this court noted as error patent that the defendant was not apprised of his right to silence
and to have a hearing before he admitted his status as a habitual offender. After reviewing the
pertinent case law, this court concluded the defendant was afforded a fundamentally fair hearing.
The state introduced additional evidence to prove the existence of the defendant’s prior guilty pleas,
but no evidence to prove the defendant’s identity. The colloquy between the defendant and the court
was not extensive, but defense counsel informed the court that the matter had been discussed with
his client and the prosecutor informed the judge that the defendant was aware of his rights (with no
objection from the defense). This court noted that the defendant admitted his status in the presence
of his attorney and that the defendant did not allege that his admission was involuntary.

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reasonable doubt that he was the person that committed the prior crimes, this court

pointed out that the trial court did not state that the defendant had the right to remain

silent. Additionally, this court distinguished Harris because, unlike the affidavit

introduced in Harris, “[n]o independent evidence or testimony was introduced to

prove the defendant’s identity.” Id. at 690.

In State v. Coleman, 96-525 (La.App. 3 Cir. 10/7/98), 720 So.2d 381, this court

distinguished Harris, and concluded that the defendant was not afforded a

fundamentally fair hearing. The trial court did not advise the defendant of his right

to remain silent or have the state prove its case. Before the defendant’s admission to

his status as a habitual offender, the trial court stated, “‘[r]ather than [having] a

hearing on habitual offender, you admit to being a habitual offender. . . .’” Id. at 387.

No proof other than the defendant’s admission was offered to prove his status as a

habitual offender. 2

In this case, Defendant was not advised of his right to remain silent, the right

to a hearing, and to have the State prove its case, including identity. Defendant did

not waive his right to the hearing. No independent evidence was introduced by the

State to prove identity except for Defendant’s stipulation. Additionally, Defendant’s

stipulation was not part of a plea bargain agreement. Consequently, we find that

Defendant was denied a fundamentally fair hearing. Accordingly, Defendant’s

habitual offender adjudication and enhanced sentence for the conviction of monetary

instrument abuse is vacated and remanded for a new habitual offender hearing and

2
In State v. Quinn, an unpublished opinion bearing docket number 06-1183 (La.App. 3 Cir.
2/7/07), the trial court failed to advise the defendant of his right to remain silent and to have the state
prove the case against him at the multiple offender proceeding. The defendant stipulated that he was
the same person convicted of the predicate offenses. The state presented no other evidence
concerning the identity of the prior felony offender. This court, following Roberson and Coleman,
vacated the defendant’s multiple offender sentence and remand the matter for resentencing.

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resentencing.

ASSIGNMENTS OF ERROR

Defendant’s three assignments of error are addressed in appellate court docket

number 09-583, as they pertained to Defendant’s underlying conviction.

DECREE

Defendant’s habitual offender adjudication and enhanced sentence on the

conviction of monetary instrument abuse are vacated, and the matter is remanded to

the trial court for a habitual offender hearing and resentencing.

SENTENCE VACATED, REMANDED FOR HABITUAL

OFFENDER HEARING & RESENTENCING.

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SAUNDERS, Judge

The majority has concluded that we vacate the Defendant’s habitual offender

adjudication and enhanced sentence and that we remand for a new hearing and re-

sentencing. I disagree.

At the Defendant’s habitual offender proceeding, certified copies of the

Defendant’s pleas in three other matters were used to evidence the Defendant’s status

as a habitual offender. No independent evidence was used to prove his identity. The

Defendant was informed of the allegations against him in the multiple offender bill

that was read in open court. The Defendant was accompanied by an attorney at the

proceeding, and said attorney stipulated that the Defendant was properly identified

as the person who had the prior convictions. The court did not notify the Defendant

that he had the right to remain silent or that he had the right to a hearing wherein the

state would prove its case against him.

As noted in the majority opinion, the supreme court has not adopted a

requirement similar to a Boykin colloquy in habitual offender proceedings. So long

as there is not a showing that the admission was involuntary, the question comes

down to whether the proceeding was fundamentally fair.

The present matter varies very little, if at all, from the scenarios in State v.

Frazier, 99-780 (La.App. 3 Cir. 12/8/99), and State v. Roberson, 01-1171 (La.App.

3 Cir. 2/27/02), 809 So.2d 1173. In both cases, this court found the proceedings to

be fundamentally fair despite a failure to advise the defendant of his right to remain

silent and to a hearing. In State v. Payne, 94-1628 (La.App. 3 Cir. 5/22/96), 677

So.2d 527, another case similar in facts to the present matter, this court found the

proceeding to be fundamentally fair despite an absence of independent evidence

identifying the defendant. While no mention was made to his right to remain silent,

the court did alert the defendant to his right to a hearing.

In the matter before us, I think great significance lies in the fact that the

Defendant was accompanied by his attorney and that he was apprised of the charges

against him by the reading of the multiple offender bill. I believe that there is nothing

to suggest that the admission was involuntary, and I feel that the Defendant was given

a fair hearing. For these reasons, I respectfully dissent from the majority opinion.