State of Louisiana v. Marcus Quinn, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-1382

STATE OF LOUISIANA

VERSUS

MARCUS QUINN, SR.

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 04-1397
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of John D. Saunders, Billy Howard Ezell, and David E. Chatelain,
Judges.

AFFIRMED.
Chatelain, J., dissents and assigns written reasons.

James Edgar Boren
830 Main Street
Baton Rouge, LA 70802
(225) 387-5786
Counsel for Defendant/Appellant:
Marcus Quinn, Sr.

*Honorable David E. Chatelain participated in this decision by appointment of
the Louisiana Supreme Court as Judge Pro Tempore.

Pascal F. Calogero, Jr.
1100 Poydras Street, Suite 1500
Energy Centre
New Orleans, LA 70163-1500
Counsel for Defendant/Appellant:
Marcus Quinn, Sr.

J. Phillip Haney
District Attorney - Sixteenth Judicial District Court
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
Counsel for Plaintiff/Appellee:
State of Louisiana

Jeffrey J. Trosclair
Assistant District Attorney - Sixteenth Judicial District Court
500 Main Street, 5th Floor
Franklin, LA 70538
(337) 828-4100
Counsel for Plaintiff/Appellee:
State of Louisiana

EZELL, JUDGE.

A jury convicted the defendant, Marcus Quinn, Sr., of the offense
of possession of cocaine, a Schedule II controlled dangerous substance,
a violation of La.R.S. 40:967(C), and of the offense of false
imprisonment, a violation of La.R.S. 14:46. After the trial court
sentenced the defendant to serve five years at hard labor on the
possession conviction and six months in the parish jail on the false
imprisonment conviction, the State of Louisiana (state) charged the
defendant as a multiple felony offender pursuant to La.R.S.15:529.1. In
response to the multiple offender filing, the trial court vacated the five-
year hard labor sentence and then sentenced the defendant to serve
twenty years at hard labor on the possession conviction. In both the
initial and subsequent sentencing proceedings, the trial court ordered
that the hard labor sentence run concurrently with the six-month parish
jail sentence.

State v. Quinn, an unpublished opinion bearing docket number 06-1183 (La.App. 3

Cir. 2/7/07). The Defendant’s conviction for possession of cocaine was affirmed, but

his sentence was vacated. Due to an error patent, the matter was remanded for

resentencing.

A habitual offender hearing was held on May 17, 2007. On August 28, 2007,

the Defendant was adjudicated a third offender and sentenced to eight years at hard

labor. The State objected to the adjudication as a third offender and made an oral

motion for reconsideration of sentence. Another habitual offender bill was filed at

that time.1

The State filed a motion to reconsider sentence on August 30, 2007, and the

Defendant filed one on October 2, 2007. Both motions were denied on November 8,

2007.

On October 10, 2007, the Defendant entered a plea of not guilty to the habitual

offender bill filed on August 28, 2007. A habitual offender hearing was held on

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In the original habitual offender bill of information filed on June 2, 2005, the State alleged
the Defendant had committed four felony offenses. In a second bill filed on December 9, 2005, the
State alleged the Defendant had committed five felony offenses. In the third bill, the State listed the
five felony offenses that were set forth by the State in the second habitual offender bill.

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December 22, 2008. In reasons for judgment issued on April 9, 2009, the trial court

adjudicated the Defendant a fourth felony offender. On June 24, 2009, the Defendant

was sentenced to serve twenty years at hard labor.

A motion for appeal was filed on June 26, 2009, and subsequently granted.

The Defendant is now before this court asserting four assignments of error. Therein,

the Defendant contends the trial court erred in sentencing him to an excessive

sentence, in allowing the State to have as many “do-overs” as they desired to

adjudicate him a habitual offender, and in allowing the State to file its third habitual

offender bill of information in violation of his due process rights. The Defendant

further contends the evidence was not sufficient to support his conviction for

possession of cocaine.

FACTS

The Defendant was convicted of possession of crack cocaine, adjudicated a

fourth felony offender, and sentenced accordingly.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, the Defendant contends the petit jury erred

in returning a guilty verdict of possession of cocaine without sufficient evidence.

This assignment of error will be addressed first in the event the Defendant is entitled

to an acquittal. State v. Hearold, 603 So.2d 731 (La. 1995).

This court affirmed the Defendant’s conviction in his previous appeal. In brief

to this court, the Defendant “recognizes” this court has previously ruled on this issue,

but “maintains his argument for sufficiency of the evidence.”

“Under the doctrine of ‘law of the case,’ an appellate court will generally refuse

to reconsider its own rulings of law on a subsequent appeal in the same case. State

v. Doussan, 05-586 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 339, writ denied, 06-608

2

(La.10/13/06), 939 So.2d 372.” State v. Bozeman, 06-679, p. 6 (La.App. 5 Cir.

1/30/07), 951 So.2d 1171, 1174. As this issue was previously reviewed by this court,

we do not consider this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the trial court erred

in allowing the State to have as many “do-overs” as it desired to adjudicate him a fifth

offender, then as a third offender, and finally as a fourth offender, each of these after

he had been convicted and sentenced to a maximum term of imprisonment of five

years.

The Defendant asserts that his argument is best made by analogy to State v.

Langley, 06-1041 (La. 5/22/07), 958 So.2d 1160, cert. denied, 552 U.S. 1007, 128

S.Ct. 493 (2007), and State v. Goodley, 423 So.2d 648 (La.1982).

In Langley, 958 So.2d 1160, the defendant contended the jury verdict finding

him guilty of second degree murder acted as an acquittal to the charged crime of first

degree murder. Consequently, he argued that his re-indictment on first degree murder

charges violated the prohibition against double jeopardy. The trial court agreed and

quashed the indictment for first degree murder.

The supreme court found:

Under these circumstance [sic], and by operation of longstanding
double jeopardy law, we hold that the unanimous verdict of guilty of
second degree murder returned by Langley’s jury in Langley II
implicitly acquitted him of first degree murder. . . . [T]he verdict
rendered by the jury was a legal verdict and should be given effect
pursuant to La.C.Cr.P. art. 598(A):

When a person is found guilty of a lesser degree of the
offense charged, the verdict or judgment of the court is an
acquittal of all greater offenses charged in the indictment
and the defendant cannot thereafter be tried for those
offenses on a new trial.

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Consequently, the state is limited in any subsequent prosecution
to re-indicting the defendant on a charge of second degree murder.

Id. at 1170.

In Goodley, 423 So.2d 648, the defendant was convicted of manslaughter. He

appealed, alleging his sentence was excessive. As the result of an error patent, the

defendant’s conviction was reversed. The State attempted to retry the defendant for

first degree murder. The supreme court concluded:

[T]hat to subject Goodley to a second prosecution for first degree
murder would have a chilling effect on the exercise of his right to appeal
in violation of La. Const. art. I, § 19 (1974). However, nothing in this
opinion should be interpreted to preclude retrial of this defendant for the
crime of manslaughter, since on retrial he would not be faced with a
more severe charge than he was “convicted” of below.

Id. at 652.

The Defendant asserts that by analogy, to rebill him as a fifth offender when

he had previously been found to be a third offender is inconsistent with his right to

appeal and to defend himself. Further, he claims that its effect is to penalize him for

prevailing in his first habitual offender hearing.

The Defendant’s case was remanded after appeal because defense counsel

stipulated to the Defendant’s identity and the trial court failed to apprise him of his

right to remain silent and to have the State prove its case against him at the habitual

offender hearing. The State asserts that the cases cited by the Defendant are clearly

distinguishable from the case at bar, as they do not pertain to habitual offender bills

of information and the sentence enhancement purpose of La.R.S. 15:529.1.

The State’s assertion is correct. Langley, 958 So.2d 1160, and Goodley, 423

So.2d 648, are distinguishable because they do not involve habitual offender

proceedings. In Langley, 958 So.2d 1160, the supreme court relied on La.Code

Crim.P. art. 598. There are no cases in which Article 598 is discussed in regard to

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habitual offender proceedings. Further, in State v. Mays, 05-2555, p. 1 (La. 5/26/06),

929 So.2d 1231, 1232 (Mays II), the supreme court found: “The adjudication and

sentence of defendant as a second offender for purposes of La.R.S. 15:529.1 in 2003

did not preclude the state from adjudicating and sentencing the defendant as a third

offender in a subsequent proceeding conducted in 2004. State v. Denis, 96-2706

(La.4/25/97), 692 So.2d 1055.”

For these reasons stated, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the Defendant contends the trial court erred in

allowing the State to file its third habitual offender bill against him in violation of his

constitutional right to due process.

The Defendant asserts that courts require the State to strictly comply with its

burden of proof and, if the evidence presented by the State is not in order, the

adjudication cannot stand. Additionally, allowing three, four, or five “bites at the

apple” does not follow the logic of strict compliance with the State’s burden of proof.

Moreover, “do-overs” should not be allowed, as allowing the State multiple attempts

to comply with the requirements of La.R.S. 15:529.1 subjects the Defendant to

harassment, expense, and embarrassment while allowing the State to practice its case

before the judge. The Defendant further argues that the State is able to violate the

public policy concerns which the double jeopardy and res judicata doctrines protect.

The Defendant relies on Denis, 692 So.2d 1055, arguing that “If the State fails to

strictly comply with evidence requirements, any subsequent habitual offender

proceedings cannot rely on evidence previously used to determine a defendant’s

multiple offender status.”

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In Denis, 692 So.2d 1055, the supreme court stated the following:

As long as the punishment imposed on the defendant does not exceed
what the legislature has prescribed, and in the absence of any evidence
that the state sought separate hearings to oppress or harass the
defendant, principles of res judicata or double jeopardy do not preclude
the state in a single prosecution from adjudicating the defendant a third
offender and then adjudicating him a fourth offender in a subsequent
proceeding on the basis of a conviction and documentary evidence not
used previously to determine his multiple offender status. Cf. State v.
Hill, 340 So.2d 309, 312 (La.1976) (To the extent that “[a] hearing on
a multiple offender bill is a trial in only a very broad sense. . . . [and] is
more pertinently an inquiry into defendant’s prior criminal conviction
or convictions, as part of the sentencing process . . .,” technical
deficiencies in the state’s documentation may require a negative
determination by the court but do not preclude relitigation of the
defendant’s multiple offender status at a subsequent hearing.)

In brief to this court, the Defendant argues the following:

In this case, the State held an habitual offender hearing in 2007
alleging four prior convictions and the State introduced documentary
evidence and testimony in an effort to prove all four convictions. The
[S]tate failed to prove two of the four convictions. Quinn was sentenced
as a third offender. On the day of sentencing, the state filed a third
habitual offender bill, which was identical to the first and second bills.
At the third habitual offender hearing, the State adopted all prior
testimony and documentary evidence used in the 2007 hearing and
added only the evidence they failed to provide the first time. Quinn was
then sentenced as a fourth offender. All of the above occurred in a
single prosecution. According to Denis, principles of res judicata
precluded the State from bringing their third habitual offender bill
because the State obtained fourth offender status on the basis of
convictions and documentary evidence used previously, i.e. the 2007
hearing, to determine his status as a third offender.

In State v. Mays, 05-116 (La.App. 5 Cir. 11/29/05), 917 So.2d 1185 (Mays I),

rev’d by, 05-2555 (La. 5/26/06), 929 So.2d 1231 (Mays II), the defendant was

convicted of possession of cocaine, and the State filed a habitual offender bill,

alleging he was a third offender. After a hearing, Mays was found to be a third felony

offender and sentenced to life imprisonment. On appeal, the court found that more

than ten years had elapsed between Mays’s conviction for the first predicate offense

and the commission of the second predicate offense and concluded the State failed

6

to prove his discharge date from the first predicate offense. Thus, Mays’s sentence

was vacated, and the matter was remanded for a hearing and resentencing.

On remand, a second habitual offender hearing was held. At that hearing, the

State introduced testimony that Mays’s fingerprints matched those fingerprints in the

certified copy of records in Docket Numbers 80-66 and 96-7458, which related to

armed robbery and simple burglary. The State then offered a certified copy of records

from the Department of Corrections, also known as a “pen pack,” as prima facie

evidence, pursuant to La.R.S. 15:529.1(F), of the imprisonment of Mays on May 13,

1980, and his discharge on August 1, 1983, in connection with Docket Number

80-66, or the armed robbery conviction. Mays objected to the admission of the pen

pack because it did not contain a photograph of him and, therefore, did not comply

with the statutory requirements of La.R.S. 15:529.1(F). The trial court found the

State failed to prove Mays was a third felony offender but determined the evidence

was sufficient to prove he was a second felony offender. The trial court found the pen

pack, which the State used to prove the discharge date for the armed robbery

conviction, was inadmissible because the State failed to include a photograph of

Mays.

The State subsequently filed a second habitual offender bill of information,

relying on the same predicate offenses listed in the original habitual offender bill.

Mays filed a motion to quash the second habitual offender bill on the basis that he

had already been adjudicated and sentenced as a second felony offender. The motion

was denied after a hearing. A hearing was held on the second habitual offender bill

of information, and Mays was adjudicated a third felony offender and sentenced

accordingly.

In Mays I, the fifth circuit discussed the applicable law as follows:

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In State v. Dorthey, 623 So.2d 1276 (La.1993), the Louisiana Supreme
Court stated that the legal principle of res judicata does not apply to
multiple offender proceedings. The Supreme Court stated that the
Habitual Offender statute is simply an enhancement provision and
explained that the ruling at a multiple offender hearing is not “a
definitive judgment,” but merely “a ‘finding’ ancillary to the imposition
of sentence.” Id. at 1279, quoting State v. Stott, 395 So.2d 714
(La.1981). However, in two prior cases, the Louisiana Supreme Court
has suggested that under certain circumstances a subsequent multiple
offender proceeding might be barred.

In the first case, State v. Hill, 340 So.2d at 312 (La.1976), the trial
court initially determined the defendant was “not guilty as a multiple
offender” on the basis the documents presented by the State, as allowed
by La. R.S. 15:529.1(F), were not properly authenticated. Less than one
month later, the State filed a second identical Bill of Information. The
defendant filed a Motion to Quash on the basis of res judicata, which
was granted by the trial court. The State appealed the granting of the
Motion to Quash.

The Supreme Court reversed the granting of the Motion to Quash
explaining:

A hearing on a multiple offender bill is a trial in only a
very broad sense. It is more pertinently an inquiry into
defendant’s prior criminal conviction or convictions, as
part of the sentencing process. Technical inadequacies in
the state’s documentation at such ‘trial’ mandates a
negative determination by the court. On the other hand,
such a determination is not a conclusive one ‘on a fact
distinctly put in issue,’ as is the case where, relative to
prosecution for [c]ommission of a criminal offense, there
is a judgment that defendant be freed ‘as a matter of
substantive law’.

State v. Hill, supra at 312. Although the Hill court ultimately held res
judicata was inapplicable to bar the second multiple bill, it expressly
stated:

We do not mean to suggest there can be no ruling of any
character on the trial of a multiple offender bill which is
entitled to finality in the res judicata sense, such for
instance, as a ruling that ‘more than five years have elapsed
since expiration of the maximum sentence or sentences, of
the previous conviction, or convictions, and the time of the
commission of the last felony for which he had been
convicted.’ R.S. 15:529.1(C) . . . . .

A court determination, favorable to a defendant that a
given earlier offense was legally stale or that described

8

convictions were suffered by a person other than
defendant, just might as a matter of law be entitled to
finality and be the proper subject of res judicata.

Later, in State v. Stott, 395 So.2d 714 (La.1981), the Supreme
Court again suggested that under certain circumstances a subsequent
multiple offender proceeding might be barred. In Stott, the State filed
a multiple bill alleging the defendant was a third offender. After a
hearing, the trial court determined that the defendant was not a multiple
offender. The State moved to re-open the multiple offender hearing
arguing that the trial court erred in its ruling and pointed out that the
underlying crime was committed within five years of the defendant’s
discharge from custody. The trial court subsequently reversed its former
ruling and found defendant to be a multiple offender.

The Stott court held the trial court had initially made an error of
law in failing to find the defendant was a multiple offender. The court
noted that at the subsequent hearing the error was pointed out to the trial
court, which then reversed its position. Noting that “[t]he ruling of the
court in an habitual offender proceeding is not a definitive judgment as
is required before res judicata can apply,” the Supreme Court held that
the trial court was not barred by res judicata from reversing its position.
Id., at 718. The Stott court stated that the finding of the trial court was
not conclusive prior to sentencing. However, it noted that “[i]f sentence
had been imposed after the first hearing, the result might be different
. . .” Id.

Id. at 1189-90.

The court went on to discuss Mays’s argument as follows:

In the present case, the defendant was found to be a second
offender and was sentenced as a multiple offender prior to the re-filing
of the second identical multiple bill. As suggested by Stott, the actual
imposition of an enhanced sentence under La. R.S. 15:529.1 prevents
the filing of a second multiple bill based on the same underlying offense
and predicate convictions as the first multiple bill.

As explained by the Hill court, “[p]rinciples of res judicata dictate
that a fact or matter distinctly put in issue and directly determined by a
court of competent jurisdiction cannot thereafter be disputed between
the same parties.” State v. Hill, supra at 312. Res judicata affords a
finality to judgments. The imposition of a sentence has the effect of
finality on a proceeding as evident from the long-standing jurisprudence
that a conviction cannot be appealed as a final judgment until a sentence
has been imposed. State v. Chapman, 471 So.2d 716 (La.1985).
Although a determination of multiple offender status is not a
“conviction”, the actual imposition of an enhanced sentence compels a
necessary finality of the multiple offender proceedings and affords the
determinations of the trial court a sense of definitiveness. Had the State

9

wished to challenge the determination that the defendant was a second
offender as opposed to a third offender, the correct procedural remedy
would be to file a Motion for Appeal or a Motion to Reconsider
Sentence. We, therefore, reverse the denial of the Motion to Quash the
Third Habitual Offender Bill and vacate the life sentence and reinstate
the defendant’s sentence as a second felony offender.

Id. at 1190 (alteration in original).

The supreme court reviewed the fifth circuit’s ruling and reversed its findings.

In Mays II, 929 So.2d 1231, 1232-33, the supreme court issued the following ruling:

The adjudication and sentence of defendant as a second offender
for purposes of La.R.S. 15:529.1 in 2003 did not preclude the state from
adjudicating and sentencing the defendant as a third offender in a
subsequent proceeding conducted in 2004. State v. Denis, 96-2706
(La.4/25/97), 692 So.2d 1055. Although the state relied on the same
convictions alleged in the original habitual offender bill, it produced
photographic evidence at the 2004 proceeding to satisfy the trial court’s
ruling in 2003 that it had failed to prove defendant’s identity as the
offender previously convicted of armed robbery in 1980. The state
thereby corrected a perceived defect in its evidence by the simple
expedient of obtaining additional photographic evidence from the
Department of Corrections, although it maintained throughout the
proceedings that defendant’s identity as the previously convicted
offender could be proved by any competent evidence.

Principles of res judicata generally do not apply to habitual
offender proceedings, State v. Dorthey, 623 So.2d 1276, 1279
(La.1993); State v. Hill, 340 So.2d 309, 312 (La.1976), and the
circumstances of the present case do not justify according finality to the
2003 adjudication and sentence of defendant as a second offender. This
Court has repeatedly stated that R.S. 15:529.1(F) does not require the
state to use a specific type of evidence to carry its burden at an habitual
offender hearing; prior convictions may be proved by any competent
evidence. See State v. Blackwell, 377 So.2d 110, 112 (La.1979); State
v. Curtis, 338 So.2d 662 (La.1976). Various methods of proof
establishing identity have been recognized as sufficient to sustain the
state’s burden of proof, including testimony of witnesses, expert opinion
as to fingerprints, and photographs contained in duly authenticated
records. State v. Brown, 5l4 So.2d 99, 106 (La.1987); State v. Jones,
408 So.2d 1285, l294-1295 (La.1982); State v. Curtis, 338 So.2d 662,
664 (La.1976). See also State v. Hawthorne, 580 So.2d 1131 (La.App.
4th Cir.1991) (defendant’s identity sufficiently proven at multiple bill
hearing by evidence that fingerprints matched prints on arrest register,
and register contained same name, crime, date of offense, and victim as
in conviction documents); State v. Lee, 97-1035, pp. 3-4 (La.App. 5th
Cir.2/11/98), 709 So.2d 226, 228-229 (defendant’s identity sufficiently
proven by matching his fingerprints to prints on arrest register, and by

10

linking arrest register to certified copy of conviction based on case
number and defendant’s name).

Thus, in the present case, given introduction of documentary and
fingerprint evidence otherwise adequately supporting the allegations of
the habitual offender bill at the 2003 hearing, omission of a photograph
of the defendant from the materials obtained from the Department of
Corrections should not have precluded defendant’s adjudication and
sentence as a third offender. The proceedings conducted in 2004
afforded the trial court the opportunity to correct that error. See State v.
Stott, 395 So.2d 714, 718 (La.1981).

In brief to this court, the Defendant asserts the State failed to introduce

documentary and fingerprint evidence to support the allegations at the habitual

offender hearing in 2007. He asserts that his case is distinguishable from Mays II,

929 So.2d 1231, in that the evidence in the case at bar was completely defective. The

Defendant contends the State was unable to prove his 2000 conviction after three

attempts to do so. The Defendant further asserts that the only purpose for the 2009

hearing was to amend the State’s previous efforts by introducing testimony by a

fingerprint expert.

The Defendant asserts that his 2007 adjudication as a third offender is final

because the State failed to introduce competent evidence for half of the alleged prior

convictions. He argues that when a sentence is final, the State is precluded from

rebilling the Defendant in an effort to cure the defective evidence from the first

hearing.

The Defendant notes the State may not file a habitual offender bill after an

unreasonable time. He cites State v. Broussard, 416 So.2d 109 (La.1982), in support

of his argument. In Broussard, the supreme court found that a habitual offender bill

of information filed thirteen months after sentence and about three months prior to

the date the defendant was eligible for parole was not timely, where the necessary

11

information regarding the defendant’s prior felony convictions was available to the

State at the time of the original sentencing.

The Defendant asserts that following similar logic, courts should recognize that

the State may not bring a habitual offender hearing if an unreasonable number of

attempts have been made at filing one single multiple offender bill.

The Defendant asserts that double jeopardy’s underlying policy is that the State

should not be allowed to make repeated attempts to convict an individual for an

alleged offense, thus, subjecting him to embarrassment, expense, and ordeal, and

compelling him to live in a continuous state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent, he may be found guilty. In

support of his argument, the Defendant cites Green v. U.S., 355 U.S. 184, 78 S.Ct.

221 (1957), and U.S. v. Jorn, 400 U.S. 470, 91 S.Ct. 547 (1971).

The Defendant additionally asserts that res judicata applies when, (1) the thing

demanded is the same; (2) the demand is founded on the same cause of action; and

(3) the demand is between the same parties and formed by them against each other in

the same quality. In support of this assertion, the Defendant cites State v. Cormier,

378 So.2d 448 (La.App. 3 Cir. 1979). The Defendant asserts that if a habitual

offender hearing is quasi-criminal in nature, the requirements of res judicata should

apply. The Defendant argues that res judicata applies in the case at bar because:

(1) the State demanded he be adjudicated a fifth offender in all three habitual offender

bills of information; (2) the bills are founded on his underlying conviction of

possession of cocaine; and (3) all three hearings are between himself and the State

and are formed in the same quality.

The Defendant argues that as in State v. Stott, 395 So.2d 714 (La.1981),

abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301

12

(1990), the imposition of sentence has the effect of finality on a proceeding based on

the long-standing jurisprudence that a conviction cannot be appealed as a final

judgment until sentence has been imposed. Accordingly, when he was sentenced as

a third offender in the 2007 hearing, the State’s remedy was the same as his, to file

a motion for appeal.

We note that in Stott, the supreme court stated:

The ruling of the court in an habitual offender proceeding is not a
definitive judgment as is required before res judicata can apply. It is a
“finding” ancillary to the imposition of sentence, and is therefore
interlocutory in nature. If sentence had been imposed after the first
hearing, the result might be different, but, as in this case, the finding of
the court is certainly not conclusive prior to imposition of sentence, and
the trial judge committed no error in finding defendant Ledet to be an
habitual offender.

Id. at 718.

The Defendant reads Denis, 692 So.2d 1055, to mean that the State cannot use

convictions and documentary evidence presented at the 2007 habitual offender

hearing, at which the Defendant was adjudicated a third offender, to prove he was a

fourth offender at a habitual offender hearing held in 2009.

In Mays I, 917 So.2d 1185, the State filed a second habitual offender bill of

information, alleging Mays was a third offender based on the same two predicate

offenses listed in the original bill of information. As previously noted, in Mays II,

929 So.2d at 1232, the supreme court stated: “The adjudication and sentence of

defendant as a second offender for purposes of La.R.S. 15:529.1 in 2003 did not

preclude the state from adjudicating and sentencing the defendant as a third offender

in a subsequent proceeding conducted in 2004. State v. Denis, 96-2706 (La.4/25/97),

692 So.2d 1055.” Based on the supreme court’s remarks, the Defendant’s

interpretation of Denis is incorrect.

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The case at bar is almost identical to the scenario in Mays. In Mays, the court

clearly stated that the second habitual offender bill relied on the same prior

convictions as the first. Based on the supreme court’s ruling in that case, nothing

precludes the State from filing multiple habitual offender bills of information in the

case at bar. See Denis, 692 So.2d 1055.

In State v. Davis, 98-1019 (La.App. 4 Cir. 12/29/99), 751 So.2d 326, writ

denied, 00-1093 (La. 11/17/00), 774 So.2d 972, the State attempted to establish the

defendant was a third offender and produced a fingerprint expert who testified the

defendant’s fingerprints matched those of the arrest registers for two prior offenses.

The defendant argued that in one of the prior convictions there was no necessity for

him to have been Boykinized because he had been found guilty after a trial. However,

in the other, he pled guilty, and there was no evidence that he had been properly

Boykinized. Based on the defendant’s argument, the trial court found the defendant

was a second offender.

The State immediately filed a second habitual offender bill of information

because it had failed to meet its burden of proof. The opinion did not indicate

whether the second habitual offender bill of information relied on the same predicate

offenses that were set forth in the original bill. The trial court quashed the habitual

offender bill, stating the following:

I don’t think that the law is that the State can proceed with a
hearing on a motion, fail, and then just file another one. I can’t imagine
that being the spirit and the letter of the law; fairness, equity, you know.

Defense counsel don’t (sic) get an opportunity to lose a trial and
then say, “Well, okay, Judge. Come on. Give me another one.” And
then give me another one.

You had your Multiple Bill hearing today, you failed to give your
burden of proof, you proved that he was a double and not a triple. Now
you want to file another one.

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Well, I don’t think it goes like that. Trial — multiple trial isn’t
until the State gets it right. Let me find that one in the code. You had
your hearing, you fail[ed], take it up.

Id. at 329 (last alteration added).

The State appealed the trial court’s ruling. On appeal, the defendant conceded

the filing of the second habitual offender bill of information did not violate double

jeopardy. The fourth circuit found the concession was correct, citing Denis, 692

So.2d 1055, and reversed the trial court’s ruling.

In State v. Picot, 98-2194 (La.App. 4 Cir. 11/10/98), 724 So.2d 236, the

defendant was convicted of second degree battery and sentenced to serve five years

at hard labor. The State filed a habitual offender bill of information, and the

defendant was adjudicated a second offender. The defendant appealed, and the court

affirmed his conviction, but vacated the adjudication because the State failed to

introduce evidence that the defendant was the same person convicted of the prior

offense. The defendant’s original sentence of five years was reinstated.

The State filed a second habitual offender bill of information, and the defense

made an oral motion to quash. The trial court granted the defendant’s motion and

dismissed the habitual offender bill of information on the grounds that double

jeopardy prohibited the State from filing a habitual offender bill, failing to prove it,

and then getting another chance to present evidence on the matter.

The fourth circuit reversed the trial court’s ruling, stating the following:

It is well-established by the Louisiana jurisprudence that a second
multiple bill hearing does not place a defendant in double jeopardy
because “[s]uch a proceeding is merely a part of sentencing.” State v.
Langendorfer, 389 So.2d 1271, 1277 (La.1980). See also State v.
Bennett, 544 So.2d 661 (La.App. 3rd Cir.1989). In State v. Johnson,
432 So.2d 815 (La.1983), the Court held that the defendant could be
tried again on the multiple bill, even though the State failed to prove his
identity as the perpetrator of the prior crimes. In Johnson, the Court
noted: “Defendant is not protected by principles of double jeopardy from
being tried again on the question of the prior felony conviction.” Id. at

15

817. The Habitual Offender Law creates no independent offense, but
rather prescribes the conditions under which there is an enhanced
penalty for the current offense and does not violate constitutional
prohibitions against double jeopardy. State v. Boatner, 304 So.2d 661
(La.1974).

Id. at 237-38 (alteration in original).

In State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, this

court found that a conviction obtained in Texas was not the equivalent of a felony in

Louisiana; thus, the defendant was proven, at most, to be a second felony offender

and should be resentenced as such. This court further noted that the State would have

the option to once again attempt to prove the defendant was a third offender, as

double jeopardy did not apply to habitual offender adjudications.

In Kennerson, this court cited State v. Martin, 599 So.2d 422 (La.App. 4 Cir.

1992), writ denied, 99-1129 (La. 10/8/99), 750 So.2d 177. In Martin, the fourth

circuit stated:

[T]he conviction under the Habitual Offender Statute was defective and
the case will be remanded. The State is not barred from presenting
additional evidence, because a defendant is not protected by principles
of double jeopardy from being tried again on the question of a prior
felony conviction. See State v. Johnson, 432 So.2d 815 (La.1983);
Jones, [516 So.2d 396 (La.App. 5 Cir. 1987)].

Id. at 425 (footnote omitted).

Although the Defendant asserts there should be a limit on the number of

attempts the State has to prove he is a habitual offender, there is nothing in La.R.S.

15:529.1 or jurisprudence to support the Defendant’s argument. Based on the ruling

in Mays II, 929 So.2d 1231, and Denis, 692 So.2d 1055, the State may file multiple

habitual offender bills and rely on previously asserted predicate offenses when filing

same. Additionally, the State may, based on Kennerson, 695 So.2d 1367, and Martin,

599 So.2d 422, attempt to prove a predicate offense at a subsequent habitual offender

hearing after a failed attempt to do so. Further, in Stott, 395 So.2d 714, the supreme

16

court did state that if sentence had been imposed after the first habitual offender

hearing, the result might be different. However, we note that a sentence was imposed

in Mays I, 917 So.2d 1185.

Although the supreme court has stated there may be situations where res

judicata would apply in habitual offender proceedings, this case does not justify

according finality to the 2007 judgment. Further, double jeopardy is inapplicable to

the case at bar. Denis, 692 So.2d 1055.

For the reasons asserted herein, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends his minimum

mandatory sentence is constitutionally excessive.

The Defendant did not object to the sentence at the time it was imposed or file

a motion to reconsider sentence. In State v. Bamburg, 00-675 (La.App. 3 Cir.

11/2/00), 772 So.2d 356, the defendant failed to object to the sentence imposed at the

sentencing hearing and did not timely file a motion to reconsider sentence. Thus, this

court found his claim of excessiveness of sentence was barred.

However, this court has reviewed claims of excessiveness where no objection

was made and no motion to reconsider sentence filed. See State v. Thomas, 08-1358

(La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3 Cir.

5/6/09), 9 So.3d 342; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d

338, writ denied, 09-606 (La. 12/18/19), 23 So.3d 936. Accordingly, we will review

the Defendant’s claim as a bare claim of excessiveness. This bare claim preserved

only issues of constitutional excessiveness. State v. Vollm, 04-837 (La.App. 3 Cir.

11/10/04), 887 So.2d 664. Therefore, we will not consider the Defendant’s claim that

17

he is exceptional, and, thus, the trial court had a duty to reduce the minimum

mandatory sentence. See La.Code Crim.P. art. 881.1(E).

This court discussed the standard of review applicable to claims of

excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247,

250, as follows:

A sentence which falls within the statutory limits
may be excessive under certain circumstances. To
constitute an excessive sentence, this Court must find that
the penalty is so grossly disproportionate to the severity of
the crime as to shock our sense of justice or that the
sentence makes no reasonable contribution to acceptable
penal goals and[,] therefore, is nothing more than the
needless imposition of pain and suffering. The trial judge
has broad discretion, and a reviewing court may not set
sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158,
1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d
786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations
omitted), this court discussed the factors it would consider in order to
determine whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes
no meaningful contribution to acceptable penal goals, an
appellate court may consider several factors including the
nature of the offense, the circumstances of the offender, the
legislative purpose behind the punishment and a
comparison of the sentences imposed for similar crimes.
While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” Additionally, it
is within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.”

The Defendant was convicted of possession of cocaine and adjudicated a fourth

offender. He was sentenced to the mandatory minimum of twenty years. La.R.S.

40:967(C); La.R.S. 15:529.1(A)(1)(c)(i).

18

At sentencing, the trial court noted the Defendant was convicted on May 6,

1993, of simple robbery; on May 9, 1996, of simple robbery; on May 20, 2002, of

possession of cocaine; and on February 17, 2005, of possession of cocaine. The

Defendant had also been convicted of false imprisonment. The trial court then noted

the presentence investigation report listed the following:

Quinn was arrested for simple burglary, amended to criminal
trespassing, on 5/9/90 . . . . Another unauthorized use of a movable over
one thousand . . . was nolle prossed. There was a simple robbery, one
in 1992, I think, that I’ve referred to previously. There was another
simple robbery in 1995, which I’ve referred to previously. The
possession of cocaine . . . . He was sentenced in St. Martinville on a
simple robbery, simple kidnapping - it was amended to contributing to
delinquency of a minor . . . . On November 10th of 2001, he was
convicted of possession of cocaine, which I’ve referenced previously as
one of the convictions under which he’s been charged as a multiple
offender and the Court found as a multiple offender. Additionally, on
6/29/04, he was charged. On February 16th, ‘05, he was found guilty of
that charge of false imprisonment and the possession of cocaine.

The trial court went on to note the Defendant could not be given a suspended

sentence or probation, the Defendant was in need of correctional treatment, and a

lesser sentence would deprecate the seriousness of the offense. The trial court

subsequently declined to find the Defendant was exceptional under State v. Dorthey,

623 So.2d 1276 (La.1993), because of his criminal history and the fact that he had

committed several crimes of violence.

The Legislature enacted the Habitual Offender Law pursuant to
its sole authority under Article 3, § I of the Louisiana Constitution to
define conduct as criminal and to provide penalties for such conduct.
State v. Johnson, [97-1906 (La. 3/4/98), 709 So.2d 672] at 675; State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Taylor, 479 So.2d
339, 341 (La.1985). This Court has repeatedly held that the statute is
constitutional and therefore, the minimum sentences the statute imposes
upon multiple offenders are presumed to be constitutional, and should
be accorded great deference by the judiciary. State v. Johnson, supra;
State v. Dorthey, supra.

State v. Lindsey, 99-3302, 99-3256, p. 4 (La. 10/17/00), 770 So.2d 339, 342, cert.

denied, 532 U.S. 1010, 121 S.Ct. 1739 (2001).

19

The Defendant received the mandatory minimum sentence, which is presumed

to be constitutional. Thus, the Defendant’s sentence is not excessive. Accordingly,

this assignment of error lacks merit.

CONCLUSION

The Defendant’s adjudication and sentence is affirmed.

AFFIRMED.

20

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-1382

STATE OF LOUISIANA

VERSUS

MARCUS QUINN, SR.

CHATELAIN, J., dissenting.

I respectfully dissent from the majority opinion. As I read the supreme court’s

decisions in State v. Mays, 05-2555 (La. 5/26/06), 929 So.2d 1231, and State v.

Denis, 96-2706 (La. 4/25/97), 692 So.2d 1055,1 the principles of double jeopardy or

res judicata would not preclude the State in a single prosecution from adjudicating

this defendant a multiple offender, utilizing three habitual offender bills of

information, each of which was basically the same, in two specific instances: (a) if

documentary evidence not used previously is relied upon to determine the defendant’s

multiple offender status; or (b) if the subsequent multiple offender bill is filed to

afford the trial court the opportunity to address and correct an earlier error it made

in its appreciation of evidence the State relied upon in the previous habitual offender

proceedings. Finding neither exception applicable in the present case, I would

reverse the trial court, reinstate its August 28, 2007 ruling that adjudicated the

defendant a third offender, and reinstate the imposition of the eight-year sentence at

hard labor imposed in connection with that adjudication.

1
I believe some confusion may have arisen because of the reference in Denis to that court’s
earlier decision in State v. Hill, 340 So.2d 309 (La.1976). I note that in Denis the supreme court
qualified its citation to Hill when it utilized the signal “Cf.” Use of that signal indicates that Hill
“supports a proposition different from the main proposition but sufficiently analogous to lend
support.” Rule 1.2(a), THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review
Ass’n, et al. Eds., 18th ed. 2005). Although Hill generally supports that a multiple offender hearing
is a trial only in a very broad sense and it involves an inquiry into the defendant’s prior criminal
conviction or convictions, I perceive that Denis qualifies relitigation of the defendant’s multiple
offender status at a subsequent hearing to instances where documentary evidence not previously
relied upon is used. To find otherwise would have obviated the necessity for the court to have used
a qualified signal.