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

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0928

STATE OF LOUISIANA

VERSUS

OTERRELL BOUTTE
AKA O’TERREL BOUTTE
AKA O’TERRELL BOUTTE, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 119198
HONORABLE GLENNON EVERETT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

AFFIRMED.

Alan P. Haney
Assistant District Attorney
Fifteenth Judicial District
P. O. Box 4308
Lafayette, LA 70502
(337) 291-7009
COUNSEL FOR APPELLEE:
State of Louisiana

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
COUNSEL FOR DEFENDANT/APPELLANT:
Oterrel Joseph Boutte

PETERS, J.

This matter is before us for a second time on the issue of the defendant’s

habitual offender status. Previously, the defendant, Oterrel Joseph Boutte,1 appealed

his conviction for monetary instrument abuse, a violation of La.R.S. 14:72.2, as well

as his adjudication as a fourth felony offender. This court, in separate opinions,

affirmed his conviction but vacated his adjudication as a fourth felony offender and

remanded the matter to the trial court for further proceedings. State v. Boutte, 09-583

(La.App. 3 Cir. 12/16/09), 27 So.3d 312; State v. Boutte, 09-404 (La.App. 3 Cir.

1/13/10), 27 So.3d 1111. After holding a new hearing, the trial court again

adjudicated the defendant as an habitual offender.2 The trial court then sentenced him

to serve twenty years at hard labor. The defendant again appeals his adjudication and

sentence. For the following reasons, we affirm the adjudication and sentence in all

respects.

Of the five assignments of error before this court, the defendant’s counsel

raises two. The remaining three are pro se assignments of error. The defendant’s

counsel asserts that:

1. The trial court erred in adjudicating Mr. Boutte a fourth felony
habitual offender.

2. The sentence imposed is excessive for Mr. Boutte and this offense.

In his pro se assignments of error, the defendant asserts that:

1. the trial court [erred] in adjudicating him a fourth felony offender
in absence of the State’s proof at the multiple offender hearing
that the predicate pleas were made with the assistance of counsel.

2. the trial court committed error patent on the face of the record
when it relied on a predicate offense that was never in existence
for the purpose of finding him to be a fourth felony offender. In

1
The defendant is known by a number of aliases.
2
Although the trial court did not specifically state that it was adjudicating the defendant a
fourth felony offender, it found that the defendant had at least three prior felony convictions, and the
defendant asserts in his brief to this court that the trial court adjudicated him a fourth felony offender.

this matter as the information charging that a non-existent offense
suffered an unwaivable substantial defect that cannot be cured at
this late state of the proceedings by noting the correct date the
predicate conviction was obtained.

3. it was error for the trial court to use a non-finalized conviction for
the purpose of sentence enhancement.

Assignment of Error Number 1

In this assignment of error, the defendant challenges the evidence supporting

his adjudication as a fourth felony offender. Specifically, he asserts that the State of

Louisiana (state) failed to produce any evidence to establish the discharge date of any

of his prior convictions, and that this failure is fatal to his adjudication as an habitual

offender.

Louisiana Revised Statutes 15:529.1(C) provides that:

The current offense shall not be counted as, respectively, a
second, third, fourth, or higher offense if more than ten years have
elapsed between the date of the commission of the current offense or
offenses and the expiration of the maximum sentence or sentences of the
previous conviction or convictions, or adjudication or adjudications of
delinquency, or between the expiration of the maximum sentence or
sentences of each preceding conviction or convictions or adjudication
or adjudications of delinquency alleged in the multiple offender bill and
the date of the commission of the following offense or offenses. In
computing the intervals of time as provided herein, any period of
servitude by a person in a penal institution, within or without the state,
shall not be included in the computation of any of said ten-year periods
between the expiration of the maximum sentence or sentences and the
next succeeding offense or offenses.

The record before us establishes that the defendant pled guilty to possession

of cocaine on February 7, 1994; to accessory after the fact to attempted second degree

murder on February 28, 1994; and to possession of cocaine on February 4, 2002.

These three convictions, together with the conviction for monetary instrument abuse,

constitute the basis for the defendant’s adjudication as a fourth felony offender. The

defendant committed the offense of monetary instrument abuse on March 25, 2003,

and was convicted of that offense on July 2, 2008.

2

The defendant correctly points out that the state presented no evidence to

establish the discharge dates for any of his prior convictions, and cites us to State v.

Davis, 41,245 (La.App. 2 Cir. 8/9/06), 937 So.2d 5, as support for his position that

the evidence is insufficient to support his adjudication.

The defendant in Davis had been sentenced in 1983 to ten years at hard labor

by the State of Texas for a rape conviction. The Texas court suspended Davis’

sentence and placed him on probation. However, his probation was revoked on April

25, 1985, and he was ordered to serve his ten year sentence, but subject to credit for

time served. The offense for which he was being adjudicated an habitual offender

occurred on April 28, 2004. Thus, as pointed out by the second circuit, the discharge

date was critical in determining whether the cleansing period had run. In finding that

Davis’ habitual offender adjudication and sentence should be vacated, the second

circuit relied on its holding in a previous case, State v. Boykin, 29,141 (La.App. 2 Cir.

01/31/97), 688 So.2d 1250. The second circuit stated in Boykin that:

This “cleansing period” begins to run from the date that a defendant is
actually discharged from state custody and supervision. State v.
Anderson, 349 So.2d 311 (La.1977); State v. Metoyer, 612 So.2d 755
(La.App. 5th Cir.1992). The state has the burden of proving the date of
defendant’s discharge from state supervision. See State v. Lorio,
94,2591 (La.App. 4th Cir. 9/28/95), 662 So.2d 128. Where a defendant
has been adjudicated a habitual offender, the state’s failure to prove the
defendant’s date of discharge and thus prove that the “cleansing period”
has not expired is error patent on the face of the record. See State v.
Bullock, 311 So.2d 242 (La.1975); see also State v. Baker, 452 So.2d
737 (La.App. 1st Cir.1984).

Id. at 1257-58.

The state asserts that the matter now before us is distinguishable from Davis

because the record establishes without any additional evidence that the cleansing

period has not lapsed in the defendant’s case. That being the case, the state argues,

it was not necessary to prove the discharge dates. In support of its argument, the state

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cites us to our holding in State v. Sanders, 542 So.2d 1134, 1137 (La.App. 3 Cir.

1989), where this court held that if the time since a defendant’s last conviction was

less than the statutory cleansing period, “the State need not prove the date of

discharge on the earlier sentence in the Habitual Offender proceeding.”3

We reached a similar result in State v. Webster, 95-605, pp. 8-9 (La.App. 3 Cir.

11/2/95), 664 So.2d 624, 630, wherein this court stated:

In our opinion the drafters of La.R.S. 15:529.1 intended for the five year
cleansing period to apply only to a defendant who is able to live five
years without being convicted of a felony. See Bennett, The Work of the
Louisiana Supreme Court for the 1947-1948 Term--Criminal Law and
Procedure, 9 La.L.Rev. 247, 271-72 (1949); Wilson, The Louisiana
Criminal Code--Making the Punishment Fit the Criminal, 5 La.L.Rev.
53, 61-62 (1942). See also State v. Anderson, 349 So.2d 311 (La.1977).
The Louisiana Supreme Court has interpreted La.R.S. 15:529.1(C) in
State ex. rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La.1982),
wherein the Court stated:

. . . in order to use a prior felony offense to support a
multiple offender adjudication there must not have
intervened, before commission of another felony, a five
year “cleansing” period, that is, five years between the end
of the previous sentence and the commission of another
felony. (Emphasis added.)

The second circuit reached a similar conclusion in State v. Wallace, 44,831, pp. 7-8

(La.App. 2 Cir. 10/28/09), 26 So.3d 176, 181, where it stated:

Although the state has the burden of proving that the 10-year
period has not expired, the state need not prove the discharge date when
less than 10 years have elapsed between the last conviction and the
subsequent conviction. State v. Smith, (La.App. 4 Cir. 7/20/05), 913
So.2d 836; State v. Collins, 2001-1459 (La.App. 4 Cir. 8/21/02), 826
So.2d 598.

See also State v. Mosley, 08-1319 (La.App. 5 Cir. 5/26/09), 16 So.3d 398; State v.

Smith, 05-375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, writ denied, 07-811 (La.

1/11/08), 972 So.2d 1159; State v. Gaines, 93-1554 (La.App. 1 Cir. 6/24/94), 639

3
At the time of the Saunders decision, La.R.S. 15:529.1 provided for a five-year cleansing
period. By 1994 La. Acts 3rd Ex.Sess. No 85 the cleansing period was increased to seven years. It
was increased to ten years by 1995 La. Acts No. 839, § 1.

4

So.2d 458, writs denied, 94-1921 (La. 11/4/94), 644 So.2d 1058, and 94-1980 (La.

11/4/94), 644 So.2d 1058.

We agree with the state’s position on this issue and find no merit in the

defendant’s assignment of error. At no time between the four convictions is there a

ten-year cleansing period. Each of the first three convictions occurred within ten

years of each other, and the fourth offense was committed less than ten years after the

third offense.

Assignment of Error Number 2

The maximum incarceration period for a conviction for monetary instrument

abuse is ten years at hard labor. La.R.S. 14:72.2. Because the maximum sentence is

a term less than the defendant’s natural life, the penalty for his fourth offense

adjudication is “a determinate term not less than the longest prescribed for a first

conviction but in no event less than twenty years and not more than his natural life.”

La.R.S. 15:529.1(A)(1)(c)(i). Thus, the defendant’s twenty-year hard labor sentence

is the statutory minimum for his adjudication. Nevertheless, the defendant asserts in

this assignment of error that the sentence is excessive and that the trial court erred in

not deviating from the statutory minimum and imposing a lesser sentence that would

not be constitutionally excessive.

Although the minimum sentences imposed upon multiple offenders pursuant

to the Habitual Offender Law are presumed constitutional, a court has the power to

declare such a sentence excessive under Article I, Section 20 of the Louisiana

Constitution. State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339. “A court may

only depart from the minimum sentence if it finds that there is clear and convincing

evidence in the particular case before it which would rebut this presumption of

constitutionality.” State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676.

5

To rebut the presumption of constitutionality, the defendant must show that he is

“exceptional, which in this context means that because of unusual circumstances [he]

is a victim of the legislature’s failure to assign sentences that are meaningfully

tailored to the culpability of the offender, the gravity of the offense, and the

circumstances of the case.” Id. at 676.

As pointed out by the state, the defendant presented no evidence to show that

his particular case was so exceptional that it deserved a downward departure from the

mandatory minimum sentence as set forth in La.R.S. 15:529.1. Therefore, we find no

merit in this assignment of error.

Pro Se Assignment of Error Number 1

In his first pro se assignment of error, the defendant asserts that the transcript

is void of any evidence to establish beyond a reasonable doubt that he was

represented by counsel when he entered his pleas to the predicate offenses. This

assertion is not correct. Minutes of court introduced by the state at the habitual

offender hearing establish that the defendant was represented by an attorney on each

occasion he entered his guilty pleas in the underlying convictions. Thus, this

assignment of error has no merit.

Pro Se Assignment of Error Number 2

In his second pro se assignment of error, the defendant asserts that the trial

court erred in relying on a predicate offense that did not exist in finding him to be a

fourth felony offender. He bases this argument on the fact that the habitual offender

bill of information states that he pled guilty to the possession of cocaine charge on

February 2, 2002, while that the correct date of his conviction for that offense was

February 4, 2002. The state acknowledges this error in the bill of information

charging the defendant as an habitual offender, but asserts that the error is harmless.

6

The fifth circuit, in State v. Carey, 04-1073 (La.App. 5 Cir. 3/29/05), 901 So.2d

509, reached a decision supportive of the state’s position when it was faced with a

situation where the habitual offender bill stated that the defendant had been tried for

the underlying offense on February 20, 2004, when the actual trial date was February

12, 2004. Additionally, the bill of information listed the conviction date for the

underlying offense as April 23, 1997, but that date was actually the date the defendant

was convicted of the predicate offense. In its discussion of these errors, the fifth

circuit stated:

The purpose of a bill of information is to inform a defendant of
the nature and cause of the accusation against him as required by the
Louisiana Constitution, Article 1, § 13. A clerical error does not require
a dismissal of the bill or reversal of a conviction if the error or omission
does not mislead the defendant to his prejudice. La.C.Cr.P. art. 464;
State v. Varnado, 01-367, p. 7 (La.App. 5th Cir.9/13/01), 798 So.2d 191,
194. In State v. Jason, 99-2551, p. 13 (La.App. 4th Cir.12/6/00), 779
So.2d 865, 873, writ denied, 01-0037 (La.11/9/01), 801 So.2d 357, the
court held that a typographical error in the habitual offender bill of
information which listed the wrong date of one of the defendant’s
convictions was not prejudicial to the defendant because it contained the
correct case number and section of court. Thus, the defendant knew
which prior plea was being used in the bill of information.

Id. at 513.

In the matter now before us, the only error concerning the underlying

conviction complained of was the erroneous conviction date, and there is nothing to

suggest that the defendant did not know which prior conviction was being used in his

adjudication proceedings, or that the error mislead him to his prejudice. As did the

fifth circuit in Carey, we find that the clerical error complained of by the defendant

was harmless, and we find no merit in this assignment of error. See also, State v.

Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, writ denied, 04-1605 (La.

11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554 (2005) and State

v. Jason, 99-2551 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, writ denied, 01-37 (La.

7

11/9/01), 801 So.2d 357.

Pro Se Assignment of Error Number 3

In his final pro se assignment of error, the defendant asserts that the trial court

erred in using a non-finalized conviction for the purpose of sentence enhancement.

He bases this argument on the fact that his conviction for monetary instrument abuse

had not become final, and directs our attention to the supreme court’s decision in

Townley v. Dep’t. of Pub. Safety & Corr., 96-1940 (La. 11/1/96), 681 So.2d 951, as

support for his argument. We do not find Townley to be supportive of the defendant’s

position.

In Townley, the defendant had been convicted of simple burglary of a pharmacy

and three counts of simple burglary in 1984, and of simple burglary and simple

criminal damage to property in 1988. He was remanded to the custody of the

Louisiana Department of Public Safety and Corrections on March 2, 1988, and

escaped on June 6, 1988. He was later apprehended, and was subsequently convicted

of simple escape on September 27, 1998. The prior convictions, together with the

simple escape conviction, constituted the basis for his adjudication as a third felony

offender. However, at the time of his adjudication, appeals were still pending on the

1988 convictions and, therefore, they were not final. The supreme court concluded

that the 1988 convictions could not be used to have him adjudicated as an habitual

offender and have his sentence enhanced pursuant to La.R.S. 15:529.1 because they

were not yet final.

While the holding in Townley remains the rule of law with regard to the use of

a prior conviction, the supreme court rejected the defendant’s position that the

underlying conviction must be final before an enhanced sentence for that offense

could be imposed through an adjudication proceeding in State v. Martin, 316 So.2d

8

740, 742-43 (La.1975). In Martin, the supreme court stated:

Considered in the light of the statute [the Louisiana Habitual
Offender Law], defendant’s argument is patently specious. The multiple
offender law merely prescribes enhanced penalties for a basic
conviction. The sentencing of defendant is pursuant to the basic
conviction and is in no way related to any prior offense. Hence, the
sentencing procedure is the same whether defendant is sentenced
according to the standard penalty or the enhanced penalties prescribed
for multiple offenders. Extended to its logical extreme, defendant’s
reasoning would prevent a trial judge from sentencing any duly
convicted criminal defendant until all avenues of appeal on the validity
of the conviction alone had been exhausted. This argument is contrary
to the procedures set forth in the Code of Criminal Procedure and the
Louisiana Habitual Offender Law.

Accordingly, we find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s adjudication as a fourth

felony offender and affirm the sentence imposed.

AFFIRMED.

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