State of Louisiana v. Robert Wayne Leger

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1127

STATE OF LOUISIANA

VERSUS

ROBERT WAYNE LEGER

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 29804-10
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Elizabeth A. Pickett, Judges.

REMANDED WITH INSTRUCTIONS.

John Foster DeRosier
District Attorney, Fourteenth Judicial District Court
Karen C. McLellan
Carla Sigler
Assistant District Attorneys
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR STATE-APPELLEE:
State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT-APPELLANT:
Robert Wayne Leger

Robert Wayne Leger
Avoyelles Correctional Center
1630 Prison Rd.
Cottonport, LA 71327

PICKETT, Judge.

FACTS

The following facts were set forth by the state at the guilty plea proceeding:

Your Honor, between January 1st of 2006 and May 11th of 2007,
this defendant touched a juvenile, who’s [sic] initials are T.J., his date
of birth is August 11th, 1991. At the time he would have been 15
years of age. Touched him on more than one occasion in his genital
area. When the defendant was questioned, he revealed that during
wrestling with the victim, he did touch him in his genital area, and
that he would later masturbate after having touched the victim. And
this did occur in Calcasieu Parish.

The defendant, Robert W. Leger, was charged by bill of indictment with

three counts of sexual battery, violations of La.R.S. 14:43.1 under district court

docket number 07-14444. On May 14, 2008, the defendant entered a guilty plea to

one count of sexual battery. In exchange, the state dismissed the other two counts.

The defendant and the state had a joint recommendation of twenty-five years at

hard labor. The trial court imposed the twenty-five year hard labor sentence

without benefit of probation, parole, or suspension of sentence.

Two years later, the defendant filed a motion seeking to correct an illegal

sentence. A hearing was held on June 18, 2010. The trial court corrected the

illegal sentence to ten years at hard labor without benefit of probation, parole, or

suspension of sentence.

On September 21, 2010, the state filed a habitual offender bill under district

court docket number 10-29804 charging the defendant as a second offender. On

November 10, 2010, a hearing was held at which the trial court adjudicated the

defendant a second offender. The trial court sentenced him to twenty years.

On December 6, 2010, the defendant filed a Motion for Reconsideration of

Sentence alleging his sentence was vindictive and excessive, the state breached the

plea agreement, and he was not afforded a Presentence Investigation Report (PSI).

The trial court denied the motion as untimely. The defendant sought review by this

court, and this court held in pertinent part:

WRIT NOT CONSIDERED, IN PART; WRIT GRANTED AND
MADE PEREMPTORY, IN PART: Relator seeks relief from a
ruling in the trial court denying his motion to reconsider sentence. In
his pleadings filed in the trial court, he did not present or argue that he
was entitled to a reconsideration of sentence. The issues he presents to
this court cannot be raised in a motion to reconsider sentence and are
appropriately raised in an appeal. Accordingly, Relator’s request for
relief for reconsideration of sentence is not considered.

In the pleading filed in the trial court, Relator did give notice of
appeal and request action by the court, including the granting of an
appeal. The trial court failed to address the issues raised in the
pleading titled “Notice of Appeal.” Accordingly, Relator’s writ
application is granted, in part, and this matter is remanded for
consideration of all issues raised therein.

State v. Leger, an unpublished writ bearing docket number 11-173 (La. App. 3 Cir.

5/25/11).

The defendant filed a motion seeking appeals under both district court

docket numbers, 07-14444 and 10-29804, which are pending before the court.

This appeal will address the issues under district court docket number 10-29804,

the habitual offender proceeding.

ASSIGNMENT OF ERROR

The defendant asserts the following pro se assignment of error:

Did the District Court error [sic] in allowing the State to file a
multiple bill over two years after Petitioner’s plea and then only after he
exercised his right to legal redress on a motion to correct an illegal sentence
which was granted by the Court.

The defendant, through his attorney, sets forth the following assignments of

error:

1. The twenty (20) year sentence imposed in this case should
be vacated and this case remanded for re-sentencing.

A. The trial court erred in denying Mr. Leger’s Pro Se Motion
for Reconsideration of Sentence as untimely.

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B. The trial court failed to comply with Louisiana Code of
Criminal Procedure Article 894.1.

C. The trial court failed to vacate the ten-year sentence imposed
for one count of sexual battery prior to imposing the enhanced
sentence of twenty years as a second-felony offender pursuant to the
Habitual Offender Law.

2. The trial court failed to properly advise Robert Leger of the
time limitation for filing an application for post-conviction relief.

ERRORS PATENT

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

court for errors patent on the face of the record. After reviewing the record, we

find a procedural issue worth noting.

The defendant entered a guilty plea under district court docket number 07-

14444. The state filed a habitual offender bill charging the defendant as a second

offender under district court docket number 10-29804. A hearing was held on

November 10, 2010. The transcript of the hearing indicates it was held under

district court docket number 10-29804. At the conclusion of the hearing, the trial

court imposed the habitual offender sentence. The minute entry of the November

10, 2010 proceeding does not include the sentence imposed. Therefore, we order

the minute entry of the November 10, 2010 proceeding be amended to include the

entire proceeding held that day as reflected by the November 10, 2010 transcript.1

PRO SE ASSIGNMENT OF ERROR

The defendant contends that the trial court erred in allowing the state to file

a multiple offender bill over two years after his plea and after he exercised his right

to “legal redress” on a motion to correct an illegal sentence which was granted by

the trial court. The defendant explains that the state filed the multiple offender bill

two years after he entered a guilty plea, and the state did it to punish him for
1
The minute entry reflecting the November 10, 2010 sentencing was included in the
record in 11-1126 and the minute clerk mistakenly captioned the proceeding under the incorrect
docket number.
3

seeking correction of the illegal sentence. The transcript of the guilty plea

proceeding indicates the state advised that it would dismiss two counts of sexual

battery and recommend a sentence of twenty-five years in exchange for the

defendant entering a guilty plea to one count of sexual battery. The trial court

advised the defendant the penalty for the offense was twenty-five years to life.2

Additionally, the trial court informed the defendant in pertinent part: “I understand

that a conviction or multiple convictions in this case may become [sic] the basis for

the enhancement of the penalty I may be subject to in the event of another

conviction, or convictions, under the current habitual offender jurisprudence.”

The state pointed out that the defendant was currently on parole in Texas for

the crime of murder. The trial court imposed the recommended sentence of

twenty-five years at hard labor. There was no mention that the state was filing a

habitual offender bill to enhance the sexual battery sentence or planned to do so.

At the hearing on motion to correct illegal sentence held in June 2010, the

parties acknowledged the defendant had been sentenced under the incorrect

provision of La.R.S.14:43.1; the proper sentence was zero to ten years. The

following pertinent exchange occurred between the parties:

MR. DEPUY:

Your Honor can correct the sentence, but at the same time, the
State would like to explore and look into whether we have grounds to
file a habitual offender, and request Your Honor to sentence him as a
habitual offender, because he has a prior conviction for murder --

THE COURT:

Well, --

MR. DEPUY:

-- out of Texas.

2
This was the incorrect penalty; the correct was zero to ten years. La.R.S. 14:43.1.
4

THE COURT:

-- that would be reopening -- that would be reopening the case,
after he’s -- what did he plead guilty to?

MR. LEGER:

For one count, Your Honor.

MR. DEPUY:

He pled guilty to one count of sexual battery, Your Honor.

THE COURT:

Well, how can we -- how can we go back after sentencing and
do the habitual offender aspect of it? I’m just -- well, here’s -- we do
have the court records. Because he requested the minutes. Let me
look at it.

MR. DEPUY:

Your Honor, the State has not been prejudiced with having the
opportunity to file a habitual offender. Your know, if I do not -- if I
have waived that for some reason, then I’d like to be able to explore
that before -- nothing in my file indicates that the State agreed not to
file a habitual offender.

THE COURT:

This was a -- this is a joint recommendation as to the sentence?

MR. DEPUY:

By Mr. Wilson and by the Public Defenders’ Office.

THE COURT:

The events occurred January 1, 2006, and May 11, 2007.

MR. DEPUY:

Correct, Your Honor.

THE COURT:

Does that put him under the old law, or the new law, and is that
an issue?

MR. DEPUY:

Well, the issue would be -- it would not be an issue, because
either way, the victim would not have been under 13 at the time; the

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victim would have been under 15 at the time. Which, under the statue,
obviously, he would have violated, and been guilty of sexual battery.

And the State’s concern that I would like to address to the
Court is: if Your Honor were to impose a sentence under the range of
zero to 10, the State would like to look into at least having whether I
can explore filing a habitual offender, given there was a
recommendation that was not proper. And I think Mr. Williams did
represent Mr. Leger at the time.

THE COURT:

So you’re saying if I would correct the sentence to less than 10?

MR. DEPUY:

Your Honor would have the sentencing range of zero to 10.

THE COURT:

You’re agreeing to that?

MR. DEPUY:

No, I’m not agreeing to anything, Your Honor. But Your
Honor would have to – would have to correct the sentence that was
imposed.

MR. WILLIAMS:

Your Honor, I’ve just asked Mr. Leger who represented him
when Ms. Wilson was prosecuting this. He indicated that I did. If
this -- and based on the statements made to you, in fact, that this is an
illegal sentence, then the Court goes back and sentences him under the
conviction that was put in place at the time, merely changing the
range. Now, if we’re going to -- if the D.A. wants to go back and
consider whether they can habitualize him, then we just throw
everything out and start from scratch. Your job with regards to the
illegal sentence is to merely --

THE COURT:

What do you mean --

MR. WILLIAMS:

Now, if the D.A. wants to go back and consider habitualizing
him, then that’s -- that’s not proper at all.

6

THE COURT:

Then the sentence is gone, the guilty plea is withdrawn; is that
what you’re saying?

MR. WILLIAMS:

That’s what would have to happen. Your job, as correcting the
illegal sentence, is to look to see -- it should not have been 25, it
should have been zero to 10, and to go back and correct it under that
basis. Now, if the D.A. wants to consider habitualizing, then we have
to go back from scratch, because in any sentence that any defense
attorney would put forth in agreement would be to agree not to
habitualize, okay. So, if they want to change the rules of the game,
after both the prosecutor and the defense attorney did not catch this --
if they want to change the rules of the game, then that starts the game
all over.

THE COURT:

I tend to agree, but I want to give the State time to -- there’s
two issues: one, do they even disagree that the maximum sentence
was 10 years. You have to -- you have to take a position on that. And
if you’re going to argue that the range was as much as 25, we need to
know what the basis is. Okay?

MR. DEPUY:

Okay, Your Honor.

THE COURT:

I mean, to me, I’ve heard nothing to indicate anything other
than we made a mistake as to the range of sentencing.

Then the second issue is, if you want to bring in a habitual
offender, how do you do that? Do you start all over, or is there a
process for the Court to allow that process to take place now, and to
consider adding time to an otherwise illegal sentence?

MR. DEPUY:

Yes, Your Honor. And I’m not trying to be disingenuous with
the Court. I don’t know that I have the ability to file a habitual
offender. I’m just saying to the Court, you know, before Your Honor
would -- would decide to impose a sentence, I want to be able to look
at the transcript, you know, and get that together.

THE COURT:

That’s why I’m giving you that opportunity, --
7

MR. DEPUY:

Okay.

THE COURT:

-- and I’m telling you what the issues are, so that you can come
back next month when I’m back on the Crim II bench in a couple of
weeks --

MR. DEPUY:

Okay.

THE COURT:

-- and let’s deal with this.

MR. DEPUY:

Okay, Your Honor.

THE COURT:

But those are the issues. One, I need -- I need you to take a
position on was this sentence legal, or illegal. And if it was legal, you
need to tell me why.

MR. DEPUY:

Okay, Your Honor.

THE COURT:

Because, you know, I got the feeling it was probably illegal to
sentence him to 25 years if the statute only had a maximum of 10.

MR. DEPUY:

Yes, Your Honor. And, again, I don’t know what the basis was
for that 25 year --

THE COURT:

It’s in here. Here’s the record.

MR. DEPUY:

-- so . . .

8

THE COURT:

And if you want to --

MR. DEPUY:

I would like, just for the record, to request, officially, the
transcript from that day for the sentencing --

THE COURT:

He’s already done that. It’s in the record.

MR. DEPUY:

The full transcript from the court reporter?

THE COURT:

Yes.

MR. DEPUY:

Oh, okay.

THE COURT:

So, let the record reflect I am providing you the record.

MR. DEPUY:

Yeah, I might be able to resolve it today, if I can look at it,
Your Honor.

THE COURT:

I’m giving you the confidential record here in Open Court, so
you can review it right now.

[Recess]

9

MR. DEPUY:

Your Honor, if I may call back up, for the record, Robert Leger,
under Docket No 14444-07.

THE COURT:

All right.

MR. DEPUY:

He had filed a motion to correct an illegal sentence.

As we discussed before, Your Honor, the State’s conceding that
the imposition of the sentence under that range was illegal, was
incorrect.

THE COURT:

All right. So I’m going to correct that sentence, and it’s now a
10-year sentence, correct?

MR. DEPUY:

It’d be zero to 10 would be the sentencing range, Your Honor.

THE COURT:

I would impose a 10-year sentence then as the new corrected
sentence, as the maximum; especially since the defendant had agreed
to 25 years. So, the new sentence is 10 years.

And now the issue is whether or not the State can proceed with
the habitual offender, either with that new sentence, or they want to
pursue it whether we then vacate the old sentence and let him start
over.

MR. WILLIAMS:

On the 10 years, Your Honor, would you add to the record that
there would be credit for time served.

10

THE COURT:

Credit for time served. Now, the Prosecutor did show me the
statutes that indicated they can do it even after a conviction. Did you
show that to Mr. Williams?

MR. DEPUY:

Under 15:429.1, Subsection D. And just to clarify, I guess, for
the record, Your Honor, this is -- you’re imposing a sentence of 10
years without benefit, or just 10 years Department of Corrections?

MR. REGGIE:

What’s the charge?

MR. DEPUY:

Sexual battery. 14:43.1, for sexual battery. The habitual
offender’s under 15:429.

MR. REGGIE:

It’s gotta be with or without hard labor, and it’s without
benefits.

MR. WILLIAMS:

Your Honor, under the 43.1, shall be punished by imprisonment
with or without hard labor, without benefit of parole, probation, or
suspension of sentence for not more than 10 years. And I want to
look -- look at any other part of the statute that may address --

THE COURT:

So it’s without benefit.

MR. WILLIAMS:

That is correct, Your Honor, yes, sir.

THE COURT:

All right.

11

MR. REGGIE:

Ralph, we’re going to take care of all that. I should have told
you that. We need to finish this because we’ve got to get a -- we’ve
got to get a correct sentence imposed first, and then we’ll take care of
that, all right. Thanks. I understand, and I need to make sure the
Judge specifically says without those benefits, each of those three
words, so the Third Circuit doesn’t send it back.

MR. WILLIAMS:

And it’s with or without hard labor.

THE COURT:

With or without hard labor, and without benefit of probation,
parole, or suspension of sentence.

MR. REGGIE:

Thank you, Judge.

THE COURT:

And 10 years.

MR. WILLIAMS:

Okay. Now – and –

THE COURT:

That’s the new sentence.

MR. WILLIAMS:

-- and it would -- you would have to make a distinction as to
whether it is with or without; and, of course, my request is going to be
without hard labor.

THE COURT:
I have to -- I have to declare whether it’s with or without hard
labor?

12

MR. REGGIE:

Yes, sir.

MR. WILLIAMS:

Yes, sir.

THE COURT:

What’s the -- what’s the argument on that? I understand your
argument, he’s in a wheelchair.

MR. WILLIAMS:

Yes, sir.

THE COURT:

I don’t mean to take words out of your mouth, but it’s obvious.

MR. WILLIAMS:

Exactly, Judge.

THE COURT:

So, how does the State feel about that? I don’t know if he can
do hard labor in a wheelchair. If you can --

MR. REGGIE:

Sure you can, Judge, we do it all the time. We did one in Judge
Canaday’s courtroom, they just sentenced a guy to 10 years.

THE COURT:

I’ll order it with hard labor, to the extent that it can be done in a
wheelchair.

MR. DEPUY:

And as indicated before, the State will look into whether it
intends to file a habitual offender, Your Honor -- a bill of information
for a habitual offender.

THE COURT:

I don’t think you have to make that decision today. Based on
what I read, you can do it at any time, and then I’ll -- if the State
objects -- I mean, if the Defense objects to the State taking that action,
then you can prepare whatever opposition, including the argument that
13

we have to start over. You were sort of making that argument on the
fly, but I --

MR. WILLIAMS:

Your Honor, I think the intent of the -- of coming back with an
illegal sentence is to address the illegal sentence, not give the State a
second chance at the bite of the apple.

THE COURT:

No, sir. We’ve done that, Ralph.

MR. WILLIAMS:

Then I think that’s -- I think that’s as far as the Court can go.

THE COURT:

We’re done as far as today, but the State believes -- and I saw
the language in the statute that indicates at any time, even after
sentencing, the State can come back with a habitual offense motion.

MR. WILLIAMS:

That’s when it’s done, Judge. Generally, it’s done once the
person is convicted, of course.

THE COURT:

Well, I mean, I thought it was as a part of the sentencing.

MR. WILLIAMS:

Yes.

THE COURT:

Okay. The statute says even after sentencing. That’s what he
just showed me.

MR. WILLIAMS:

So the State gets a second bite at the apple with the --

THE COURT:

I’m just telling you what the law says.

MR. WILLIAMS:

-- with the sentence as illegal?

14

THE COURT:

We’re past the illegality issue; we’ve cured that.

MR. WILLIAMS:

Right.

THE COURT:

We now have a legal sentence in place.

MR. WILLIAMS:

Right.

THE COURT:

The State wants to then come back on a habitual offender
motion. Then I think -- based on what he just showed me, I think they
can, but we’re not going to deal with that right now. If they want to
file it, they can file it, we’re going to deal with it then. Okay.

MR. WILLIAMS:

Very well. I’ll reserve all rights on behalf of Mr. Leger.

THE COURT:

You have all rights; you’ve got them.

In September 2010, the state filed the habitual offender bill, a hearing was

held, the trial court found the defendant to be a second offender, and he was

sentenced to twenty years. The defendant filed a Motion to Reconsider Sentence

arguing his sentence was vindictive and excessive and the state breached the plea

agreement. As noted above, after the trial court denied it as untimely, the

defendant sought a writ of review with this court. This court held the issues

presented in the motion to reconsider sentence should be raised on appeal.

In order to properly preserve the issue of prosecutorial vindictiveness, the

defendant should have filed a motion to quash the habitual offender bill or objected

on that basis at the habitual offender proceeding.

15

However, the defendant attempted to preserve it by filing the motion after

the habitual offender sentence was imposed, and we will review the issue. See

State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, writ denied, 02-

481 (La. 3/14/03), 839 So.2d 26, where the court, in dicta, may have been

suggesting this issue may be raised in a motion to reconsider sentence.

In State v. Lewis, 461 So.2d 1250 (La.App. 1 Cir. 1984), the court explained,

in pertinent part:

The leading case on prosecutorial vindictiveness is Blackledge
v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In
Blackledge, the defendant was convicted of a misdemeanor by a North
Carolina State court. After the defendant claimed his right to a trial de
novo in a higher court, the prosecutor obtained a superseding
indictment charging the defendant with a felony rather than a
misdemeanor. Both the original misdemeanor (assault with a deadly
weapon) and the subsequent felony (assault with a deadly weapon
with intent to kill) charges were based on the same set of facts.

In Blackledge, 94 S.Ct. at 2102-3, the Court stated:

A person convicted of an offense is entitled to pursue his
statutory right to a trial de novo, without apprehension
that the State will retaliate by substituting a more serious
charge for the original one, thus subjecting him to a
significantly increased potential period of incarceration.
[citation omitted]

Due process of law requires that such a potential
for vindictiveness must not enter into North Carolina’s
two-tiered appellate process. We hold, therefore, that it
was not constitutionally permissible for the State to
respond to Perry’s invocation of his statutory right to
appeal by bringing a more serious charge against him
prior to the trial de novo.

In applying Blackledge, the 5th Circuit Court of Appeals in
Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434
U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), noted that there is a
broad ambit to prosecutorial discretion, most of which is not subject to
judicial control. However, the court went on to state that a
prosecutor’s discretion to reindict a defendant is constrained by the
due process clause. Thus, once a prosecutor exercises his discretion
to bring certain charges against a defendant neither he nor his
successor may, without explanation, increase the number or severity
of those charges in circumstances which suggest that the increase is in
16

retaliation for defendant’s assertion of statutory or constitutional
rights.

The court in Hardwick stated that a prosecutor could negate
allegations of vindictiveness by proof of mistake or oversight in his
initial action, a different approach to prosecutorial duty by a successor
prosecutor, or public demand for prosecution on additional crimes
allegedly committed, a list the court noted was illustrative rather than
exhaustive.

The most recent statement of the law on prosecutorial
vindictiveness by the 5th Circuit Court of Appeals appears in U.S. v.
Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) cert. denied, 465 U.S.
1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984). In that case, at 718
F.2d 1365, the court stated:

If the defendant challenges as vindictive a
prosecutorial decision to increase the number or severity
of charges following a successful appeal, the court must
examine the prosecutor’s actions in the context of the
entire proceedings. If any objective event or combination
of events in those proceedings should indicate to a
reasonable minded defendant that the prosecutor’s
decision to increase the severity of charges was
motivated by some purpose other than a vindictive desire
to deter or punish appeals, no presumption of
vindictiveness is created. In trying the issue of
vindictiveness, the prosecutor may offer proof of the sort
suggested in Hardwick that as a matter of fact his actions
were not vindictive. The burden of proof (by a
preponderance of the evidence) remains on the defendant
who raised the affirmative defense. If, on the other hand,
the course of events provides no objective indication that
would allay a reasonable apprehension by the defendant
that the more serious charge was vindictive, i.e., inspired
by a determination to “punish a pesky defendant for
exercising his legal rights,” a presumption of
vindictiveness applies which cannot be overcome unless
the government proves by a preponderance of the
evidence that events occurring since the time of the
original charge decision altered that initial exercise of the
prosecutor’s discretion.

The procedural history in the instant case is rather straight
forward. Defendant was initially indicted by a grand jury for
manslaughter. More than a year later he pled guilty to manslaughter
and was then sentenced to twenty-one years at hard labor. Defendant
then sought to withdraw his guilty plea. Ultimately, he appealed to
the Louisiana Supreme Court, and his case was remanded to the trial
court where he was allowed to withdraw his guilty plea. A second

17

indictment was then brought against defendant charging him with
second degree murder.

The sequence of events as outlined above provides no
“objective indication” as to the reason for the increase in the severity
of the charges. Therefore, a presumption of vindictiveness applies
which cannot be overcome unless the government proves by a
preponderance of evidence that events occurring since the time of the
original charge decision altered the initial exercise of the prosecutor’s
discretion. U.S. v. Krezdorn, 718 F.2d at 1365.

We remand this case to the trial court for a hearing to allow the
district attorney an opportunity to rebut the presumption of
vindictiveness.

Id. at 1252-53.

In United States v. Walker, 514 F.Supp. 294 (E.D. La. 1981), the court held

as follows:

In a series of cases following [North Carolina v.] Pearce[, 395
U.S. 711, 89 S.Ct. 2072 (1979)] and Blackledge[ v. Perry,417 U.S. 21,
94 S.Ct. 2098 (1974)] , the Fifth Circuit has adopted a procedure for
reviewing the government’s exercise of its charging discretion to
determine whether the government has legitimately exercised its
authority in a constitutionally forbidden manner. Because this test was
designed to cover the multitude of situations of which Pearce and
Blackledge were only two particular instances, it is necessary to
examine this rule.

2. The Fifth Circuit Rule

The rule in this circuit to assess the validity of the government’s
exercise of its charging authority has developed over a series of cases
attempting to accommodate the state’s constitutionally protected
authority to prosecute Defendants for crime and the Defendant’s
constitutional right as set forth in the Blackledge case. See Hardwick v.
Doolittle, 558 F.2d 292 (5th Cir.), on petition for rehearing and
rehearing en banc, 561 F.2d 630 (1977) (per curiam), cert. denied, 434
U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978); Jackson v. Walker,
585 F.2d 139 (5th Cir. 1978); Miracle v. Estelle, 592 F.2d 1269 (5th
Cir. 1979); United States v. Thomas, 593 F.2d 615 (5th Cir.), modified
on rehearing, 604 F.2d 450 (1979) (per curiam), appeal after remand,
617 F.2d 436 (1980); United States v. Shaw, 615 F.2d 251 (5th Cir.
1980) (per curiam). This test sets forth both the elements of proof of
and defense to a claim of prosecutorial vindictiveness as well as the
allocation of burdens and order of proof on this claim.
The Defendant bears the burden of establishing a prima facie
case of prosecutorial vindictiveness. . . . The defendant’s

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establishment of a prima facie case of vindictiveness, in effect, creates
a presumption that the government did act vindictively in bringing the
second prosecution. The nature of this presumption varies according
to the balance struck between the government’s interests in enforcing
the law and allocating wide discretion to individual prosecutor’s to
make charging decisions, and the Defendant’s interests in being free
from both actual vindictiveness and the apprehension of
vindictiveness as the consequence of challenging his original
conviction. Where the Defendant’s interests outweigh the
government’s interests, the presumption created by the Defendant’s
establishment of a prima facie case is irrebuttable, and the Defendant
is entitled to prevail based entirely upon his initial showing. This
occurs where the government baldly escalates the original charge as in
Blackledge. But where the balance weighs in favor of the government,
as occurs where the escalation of the second charge was possible only
because of events occurring between the first and second prosecutions
or where the second charge accuses the Defendant of “different and
distinct” offenses from the first charge, even despite a common origin
in the same “spree of activity,” the government is entitled to rebut the
presumption of vindictiveness by going forward to demonstrate
legitimate, nonvindictive reasons for the second charge. In these
situations, if the government fails to come forward with any such
reasons or fails adequately to rebut the presumption of vindictiveness,
the Defendant is entitled to a judgment in his favor based upon the
presumption created by his establishment of a prima facie case. But if
the government successfully carries its burden of rebutting the
presumption, the Defendant must then demonstrate actual vindictive
motivation by the government to prevail on his claim. Alternatively,
where the government institutes a second prosecution against a
Defendant who has had his first conviction set aside but who cannot
establish a prima facie case because the second charge carries a less
severe penalty than the first, the Defendant may still challenge the
second prosecution as vindictive but must demonstrate actual
vindictive motivation by the government.

Id. at 313-15 (footnotes omitted).

In State v. Tassin, 08-752 (La.App. 3 Cir. 11/5/08), 998 So.2d 278, writ

denied, 08-2909 (La. 9/18/09) 17 So.3d 385, the defendant challenged his habitual

offender enhancement on the basis of prosecutorial vindictiveness, and it held, in

pertinent part:

The defendant bears the burden of proving
prosecutorial vindictiveness. State v. Darensbourg, 06-
572 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128. In
determining whether there has been prosecutorial
vindictiveness, the court examines the state’s actions in
the context of the entire proceeding. Id. If, to a
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reasonable mind, the filing of the habitual offender bill
can only be explained by a desire to deter or punish the
defendant’s exercise of legal rights, the events in the case
will create a presumption of vindictiveness. Id.

The district attorney has the discretionary power to
charge a defendant under the habitual offender law just as
he has the initial unlimited power to prosecute “whom,
when, and how” he chooses. State v. Dorthey, 623 So.2d
1276, 1279 (La.1993); LSA-C.Cr.P. art. 61. The district
attorney’s use of the habitual offender laws “provides an
ancillary sentencing factor designed to serve important
and legitimate societal purposes.” State v. Orange [State
ex rel. State v. Orange], 02-711 (La.App. 1 Cir. 4/11/03),
845 So.2d 570, 578, writs denied, 03-1352 (La.5/21/04),
874 So.2d 161, and 03-2195 (La.7/2/04), 877 So.2d 137.
The use of the habitual offender law alone does not
create a presumption of prosecutorial vindictiveness. Id.

State v. Dauzart, 07-15, p. 6 (La.App. 5 Cir. 5/15/07), 960 So.2d
1079, 1084-85.

....

The Defendant argues that in either case, the choice to seek
enhancement against him when it has not been done to other habitual
offenders leads to arbitrary results based upon the decision of a sole
prosecutor.

The trial court did not rule on this claim at the habitual offender
hearing or at the time of sentencing. However, the Defendant
produced no evidence at the hearing or in brief to this court to suggest
that the State filed the habitual offender bill of information for the
purpose of deterring or punishing the exercise of his legal rights.
Therefore, he failed to prove the State’s pursuit of the habitual
offender bill against him was vindictive. Accordingly, this
assignment of error lacks merit.

Id. at 293.

In State v. Wilson, 44,586 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, writ

denied, 09-2655 (La. 1/28/11), 56 So.3d 973, the court found no vindictiveness,

and it held in pertinent part:

A presumption of vindictive prosecution arises if the habitual
offender bill can be explained only by a desire to punish or deter the
exercise of legal rights. See State v. Tassin, 2008-752 (La.App. 3d
Cir.11/5/08), 998 So.2d 278, writ denied, 2008-2909 (La.9/18/09), 17

20

So.3d 385. The use of the habitual offender law alone does not create
a presumption of prosecutorial vindictiveness.

If the prosecutor’s conduct is equally attributable to legitimate
reasons, the defendant must prove actual vindictiveness. A mere
opportunity for vindictiveness does not suffice. State v. Heard,
36,191 (La.App. 2d Cir.7/17/02), 823 So.2d 454. A defendant has the
burden of proving, by a preponderance of the evidence, the
affirmative defense of prosecutorial vindictiveness. In that regard, the
court will examine the state’s actions in the context of the entire
proceedings.

Discussion

The defendant argues that the state’s choice to charge him as a
habitual offender amounted to improper prosecutorial vindictiveness.
He claims the habitual offender bill of information was filed solely
due to the state’s suspicions that the defendant was involved in
another unprosecuted crime many years before this present offense.
The defendant argues that the trial court erred in denying his motion
to compel answers to a bill of particulars regarding the motives for the
filing of the habitual offender bill of information and in failing to
grant his motion to quash the habitual offender bill of information due
to prosecutorial vindictiveness. The defendant has failed to carry his
burden of proof on this issue.

There is no showing of a presumption of vindictiveness because
the decision in this case to file a habitual offender bill of information
was not explained only by a desire to punish or deter the exercise of
legal rights. Further, the record shows that the choice to charge the
defendant as a habitual offender was based upon legitimate reasons.
The defendant had prior convictions for attempted distribution of
cocaine, attempted simple burglary, simple burglary, unauthorized
entry of a place of business, and possession of stolen things. The
Habitual Offender Law only provides for four prior felonies.
Therefore, the defendant was adjudicated a fourth felony offender.

In addition, the defendant had an extensive criminal record
containing many more arrests and convictions not used in adjudicating
him a fourth felony offender. The record shows that the defendant
was not only a proven habitual felony offender, but had a criminal
history spanning 30 years. Due to the defendant’s proven record of
recidivism, the state had legitimate reasons to file the habitual
offender bill of information in this case.

The defendant has also failed to show actual vindictiveness. He
makes the bare allegation that the habitual offender bill of information
was filed solely due to his suspected involvement in a prior offense
for which he had not been prosecuted. The defendant offered no
evidence to prove this allegation. He made the bare allegation that he
has been treated differently from similarly situated defendants, but has
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offered no proof of this claim. Examining the state’s actions in the
context of the entire proceedings, particularly in light of the fact that
the defendant has a significant history of prior felonies, there is no
showing of actual prosecutorial vindictiveness in this case. The trial
court did not err in denying the motion to quash the bill of information
or in failing to compel answers to the bill of particulars in this matter.

Id. at 220-21 (citations omitted).

Although not directly on point because it pertains to whether or not the trial

court increased the defendant’s sentence due to vindictiveness, State v. Merrell,

511 So.2d 1234 (La.App. 2 Cir. 1987), lends guidance on this issue. In Merrel, the

court held, in pertinent part:

We conclude the trial judge erred in increasing defendant’s
original sentence by ordering it to be served consecutive to any other
sentence because the trial judge failed to articulate, for the record, any
conduct on the part of defendant occurring subsequent to the original
sentencing proceeding which would justify increasing the original
sentence. There can be no doubt that the trial judge increased
defendant’s original (legal) sentence which should have been twelve
years upon resentencing, although he agreed defendant’s original
sentence had been improperly enhanced by six years. Defendant’s
original eighteen year sentence was ordered to run concurrently with
his prior six year sentence and the twelve year sentence imposed upon
resentencing, was ordered to run consecutive to any prior sentence.
The trial judge, therefore, in resentencing defendant to serve a twelve
year hard labor sentence to be served consecutive to his prior six year
sentence, has reimposed, for all practical purposes, a prison term
equal in length to the original eighteen year illegal sentence.

The trial judge, in resentencing defendant, relied upon the same
factual information considered by the trial judge who imposed the
original illegal sentence. Increasing defendant’s original sentence,
without new and additional justification, therefore, violated
defendant’s due process rights because it creates the appearance of
vindictiveness against defendant for successfully attacking his
sentencing. The sentence must be vacated and the case remanded for
resentencing.

Id. at 1236-37 (citations omitted).

The present case is distinguishable from Tassin and Wilson and more in line

with Lewis and Merrel. The record before this court indicates that over two years

had elapsed between the time the defendant entered a guilty plea and was

22

sentenced to twenty-five years and the time the state filed the habitual offender bill.

Although at the guilty plea hearing, the state informed the trial court that the

defendant had been convicted of murder in Texas and was on parole, the state did

not seek to enhance the defendant’s sentence under the habitual offender statutes at

the guilty plea proceeding. In fact, the state, along with the defendant,

recommended the defendant be sentenced to twenty-five years. The first mention

of a habitual offender bill being filed was at the motion to correct illegal sentence.

The record does not reflect an “objective indication” as to the reason for seeking

enhancement of the sentence. Therefore, a presumption of vindictiveness applies

which cannot be overcome unless the state proves by a preponderance of evidence

that events occurring since the time of the original decision altered the initial

exercise of the state’s discretion. Accordingly, this court is remanding this case to

the trial court for a hearing to allow the state an opportunity to rebut the

presumption of vindictiveness.

The trial court is instructed to (1) conduct an evidentiary hearing within

thirty days and (2) lodge an appellate record, containing the transcript of the

hearing, within fifteen days of the hearing. See State v. Clark, 97-1064 (La.App. 3

Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of

supplemental filing, 98-1180 (La. 9/25/98), 726 So.2d 2, and State v. Fuslier, 06-

1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866. The remaining issues are

pretermitted pending the evidentiary hearing and lodging of the new record in this

court.

CONCLUSION

The matter is hereby remanded to the trial court for an evidentiary hearing

on the issue of prosecutorial vindictiveness in accordance with the opinion. The

evidentiary hearing is to be held within thirty days of issuance of this opinion.
23

Following the hearing, the trial court shall lodge an appellate record containing the

transcript of the hearing, within fifteen days of the hearing.

The remaining issues are pretermitted.

REMANDED WITH INSTRUCTIONS.

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