State of Louisiana v. Leonidas Dean Lowry

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-361

STATE OF LOUISIANA

VERSUS

LEONIDAS DEAN LOWRY

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 10-1452
HONORABLE LEO BOOTHE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Bradley R. Burget
District Attorney − Seventh Judicial District
David R. Opperman − Assistant District Attorney
4001 Carter Street, Suite 9
Vidalia, Louisiana 71373
(318) 336-5526
COUNSEL FOR APPELLEE:
State of Louisiana

Leonidas D. Lowry #400723
Camp D, Falcon Unit − 4
Louisiana State Penitentiary
Angola, Louisiana 70712
In Proper Person

Peter John
O’Neal Legal, L.L.C.
10925 Perkins Road, Suite C
Baton Rouge, Louisiana 70810
(225) 757-8496
COUNSEL FOR DEFENDANT/APPELLANT:
Leonidas Dean Lowry

GENOVESE, Judge.

In this criminal case, Defendant, Leonidas Lowry, appeals his multiple-

offender adjudication and sentence. For the following reasons, we affirm

Defendant’s adjudication and sentence.

FACTS AND PROCEDURAL HISTORY

Defendant, Leonidas Lowry, was convicted of simple burglary on May 27,

2010, and was charged by bill of information with being a multiple offender on

June 16, 2010. At a hearing on September 15, 2010, the trial court adjudicated

Defendant a fourth felony offender and sentenced him to a term of sixty-five years

with the Louisiana Department of Corrections.

Defendant filed a motion to reconsider his sentence which was denied.

Defendant now appeals his adjudication and his sentence.1

ASSIGNMENTS OF ERROR

1. Mr. Lowry was denied effective assistance of counsel.

2. Mr. Lowry was denied a fair trial due to a conviction with
insufficient evidence.

PRO SE ASSIGNMENTS OF ERROR

I. The trial court infringed on Appellant’s 5th and 14th Amendment
Rights to the United States Constitution and Article I §§ 2 & 16 of the
Louisiana Constitution when the court failed to apprise Appellant of
his right to remain silent at the habitual offender hearing.

II. The State of Louisiana failed to establish its burden at the habitual
offender hearing that the Appellant was represented by defense
counsels on each of his alleged prior convictions or that he was
properly Boykinized.[2]

III. Was Appellant denied effective assistance of counsel at the
habitual offender hearing when defense counsel failed:

1
Although Defendant’s brief mentions that Defendant’s sixty-five-year sentence “is all
but equivalent to a death sentence,” he does not allege an excessive sentence as an assignment of
error.
2
See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).

(A) To object to the trial court failure to advise Appellant of his right
to remain silent.

(B) To object to the State’s failure to meet it’s [sic] burden of proof
that Appellant was represent [sic] by counsel on the allege [sic] prior
convictions.

(C) To object to the State’s failure to meet it’s [sic] burden of proof
that Appellant was Boykinized on the allege [sic] prior convictions.

(D) To inform the court of Appellant’s desire to testify at the hearing.

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 one

error patent which will be addressed in Defendant’s pro se assignment of error

number one.

ASSIGNMENT OF ERRORS NO. 1 AND NO. 2

This case and its companion case, bearing number 11-314 on this court’s

docket, were consolidated for briefing purposes. Defense counsel’s brief in docket

number 11-314 alleged ineffective assistance of counsel and insufficient evidence

to support the underlying conviction. We find, as in docket number 11-314, that

Defendant’s claim of ineffective assistance of counsel is a more appropriate issue

for post-conviction relief and that his insufficiency of the evidence claim is

abandoned because it was not briefed.

PRO SE ASSIGNMENT OF ERROR NO. 1

Defendant alleges his constitutional rights were violated because the trial

court failed to apprise him of his right to remain silent at the multiple offender

hearing. The record shows Defendant in fact was not advised of his right to remain

silent, and it is the State that bears the responsibility of proving its case. However,

“[a] trial court’s failure to advise the defendant of his rights will result in harmless

error if the defendant remains silent throughout the proceeding[,] and the state

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presents competent evidence to prove the existence of the defendant’s prior

conviction as well as his identity as the person previously convicted.” State v.

Kittlin, 97-92, p. 3 (La.App. 3 Cir. 6/4/97), 695 So.2d 1137, 1139 (citing State v.

Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575).

To establish Defendant’s status as a multiple offender, the State called

Wesley Bruce, who was accepted as an expert in the field of latent fingerprint

examination. Mr. Bruce obtained Defendant’s fingerprints two days prior to the

multiple offender hearing. He also examined the fingerprints from State’s Exhibits

1, 2, and 3 and found they matched the prints he took.

State’s Exhibit 1 pertained to Defendant’s guilty plea to simple burglary on

November 10, 2003, in Jefferson Parish. The clerk’s minutes showed Defendant

was represented by counsel when he changed his plea to guilty and waived his

constitutional rights.

Items from State’s Exhibit 2 showed Defendant was represented by counsel

when he pled guilty to possession of cocaine on February 5, 2004, in Jefferson

Parish. In that case, he was sentenced as a multiple offender to four years at hard

labor.

State’s Exhibit 3 showed Defendant pled guilty to two counts of simple

burglary on March 2, 1998, in Jefferson Parish. He was also represented by

counsel in that matter.

Defendant argues he was not advised of his right to remain silent while, at

the same time, contending he was denied the opportunity to address the court. The

record shows Defendant was represented by counsel at the hearing and waited until

after the trial judge pronounced his sentence to attempt to say anything. At that

point, the trial judge informed Defendant that the matter was concluded and did not

allow him to speak. We find that Defendant waived his opportunity to address the

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court by not speaking up prior to the pronouncement of his sentence. La.Code

Crim.P. art. 841.

We also find that the exhibits and Mr. Bruce’s testimony established that

Defendant was the same person convicted of the prior felony offenses. Therefore,

we find that the evidence was sufficient to adjudicate Defendant a multiple

offender in this matter and that the record shows Defendant remained silent during

the sentencing proceeding. Accordingly, we find that the trial court’s failure to

advise Defendant of his right to remain silent and have the State prove its case

against him was harmless error.

PRO SE ASSIGNMENT OF ERROR NO. 2

Defendant argues the State failed to establish that he was represented by

counsel or properly advised of his Boykin rights in his prior convictions. The

exhibits discussed above all indicate that Defendant had counsel present at the time

of each guilty plea. Minutes of the court clerk in each case show Defendant was

advised of his Boykin rights, i.e., his right to trial by judge or jury, the right to

confront his accusers, and his right against self-incrimination. Further, Defendant

did not raise any objection during his multiple offender hearing, and thus, he has

failed to preserve the issue for appeal. Kittlin, 695 So.2d 1137.

PRO SE ASSIGNMENT OF ERROR NO. 3

Defendant complains his counsel was ineffective at the multiple offender

hearing: (1) for failing to object when the court failed to advise him of his right to

remain silent; (2) when the State failed to show he was represented by counsel or

was advised of his Boykin rights on the prior convictions; and, (3) for failing to

inform the court of his desire to testify. The issue of ineffective counsel is more

appropriately addressed in an application for post-conviction relief, where an

evidentiary hearing can be conducted in the trial court. State ex rel. A.B., 09-870

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(La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance

claim is raised on appeal, this court may address the merits of the claim if the

record discloses sufficient evidence to rule on it. Id.

After a thorough review of the record on appeal, we find that the record is

not sufficient to determine whether counsel was ineffective with regard to

Defendant’s claim regarding his counsel’s failure to inform the court of his desire

to testify. Determination of that issue may require testimony from defense counsel

at an evidentiary hearing. We, therefore, relegate the issue of ineffective assistance

of counsel to post-conviction relief.

DISPOSITION

Defendant’s adjudication and sentence as a multiple offender are affirmed.

Defendant’s claim of ineffective assistance of counsel is relegated to post-

conviction relief.

AFFIRMED.

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