State of Louisiana v. Justin James Badeaux

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1518 consolidated with 11-1519

STATE OF LOUISIANA

VERSUS

JUSTIN JAMES BADEAUX

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR119180
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Marc T. Amy, Judges.

AFFIRMED AND REMANDED FOR
SENTENCING.

Michael Harson
District Attorney – 15th Judicial District Court
P. O. Box 3306
Lafayette, LA 70502-3306
Telephone: (337) 232-5170
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
Telephone: (337) 491-0570
COUNSEL FOR:
Defendant/Appellant - Justin James Badeaux

Allan P. Haney
Assistant District Attorney – 15th Judicial District Court
P. O. Box 4308
Lafayette, LA 70502
Telephone: (337) 291-7009
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

The State charged Defendant Justin Badeaux with illegal possession of

stolen property over $500.00, a violation of La.R.S. 14:69. The State filed a habitual

offender bill, seeking to enhance the illegal possession sentence. Separately, the State

charged Defendant with unauthorized use of an access card for value in excess of

$500.00, a violation of La.R.S. 14:67.3.1 Defendant reached a plea agreement with

the State pursuant to which Defendant pled guilty to the amended charge of attempted

illegal possession of stolen property, to the unauthorized use of an access card, and to

being a habitual offender. The trial court sentenced Defendant to ten years at hard

labor on the attempted illegal possession of stolen property charge.2 He filed a motion

to reconsider sentence, which the trial court denied. Defendant appeals. We affirm

but remand for sentencing on the charge of unauthorized use of an access card.

I.

ISSUES

We shall consider whether:

(1) the trial court erred in imposing excessive sentences; and

(2) the trial court erred in finding that Justin Badeaux was a habitual
offender.

II.

FACTS AND PROCEDURAL HISTORY

Defendant committed two separate offenses which led to the State’s

charges. In March 2008, he knowingly possessed parts of a mixing machine that had

been stolen from the Evangeline Maid Bakery. Later that year, in October 2008,

Defendant knowingly used another individual’s credit card without permission. After

1
The two matters were consolidated on appeal.
2
As discussed in the Error Patent section, the trial court failed to impose a sentence for
unauthorized use of an access card.

the State charged Defendant with both crimes, Defendant negotiated a plea agreement

with the State.

Defendant entered a guilty plea to the amended charge of attempted

illegal possession of stolen property over $500.00 and to the charge of unauthorized

use of an access card for value in excess of $500.00. Additionally, Defendant pled

guilty to being a second felony offender. 3 The trial court ordered a pre-sentence

investigation.

The trial court enhanced the sentence on Defendant’s attempted illegal

possession of stolen property conviction and sentenced him to ten years at hard labor.

The trial court failed to impose a sentence for the charge of unauthorized use of an

access card. After the trial court denied Defendant’s motion to reconsider sentence,

he perfected this appeal.

III.

LAW AND DISCUSSION

Errors Patent and Assignment of Error No. 2

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 several

errors exist regarding the sentencing and habitual offender proceeding, which

encompass assignment of error number two.

Prior to his admission to being a habitual offender, the trial court failed to

advise Defendant of his right to remain silent. Defendant assigns this as an error.

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

1240, 1243, writ denied, 01-342 (La. 12/14/01), 803 So.2d 986, this court discussed

the pertinent case law on this issue:

While La. R.S. 15:529.1 does not specifically
address the issue of a defendant’s right to remain silent,
3
At the guilty plea proceeding, Defendant’s counsel stipulated to the fact that Defendant pled
guilty in September 2004 to the charge of simple burglary.
2

in State v. Johnson, 432 So.2d 815 (La.1983), writ
granted on other grounds, 438 So.2d 1113 (La.1983),
appeal after remand, 457 So.2d 1251 (La.App. 1
Cir.1984), appeal after remand, 471 So.2d 1041
(La.App. 1 Cir.1985), the supreme court concluded that
the statute clearly recognizes that a defendant has the
right to remain silent and thus implicitly provides that a
defendant should be advised by the trial court of this
right before he acknowledges or confesses his status as
an habitual offender. Thus, the trial court erred in failing
to advise the defendant of this right before accepting his
admission that he was the person who was convicted of
the predicate offenses. The question is whether or not
this is harmless error.

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

Admissions of identity at a multiple offender
hearing implicate the defendant’s Fifth
Amendment privilege against self-
incrimination. State v. Johnson, 432 So.2d
815 (La.1983). Nevertheless, multiple
offender proceedings “simply should not be
equated (at least for purposes of determining
the validity of an admission) to trials of guilt
or innocence.” State v. Martin, 427 So.2d
1182, 1185 (La.1983). This Court has
therefore declined to adopt as a
constitutional prerequisite to a valid
admission of identity at a multiple offender
proceeding a procedure analogous to the
Boykin colloquy which must accompany a
valid plea of guilty. Id., 427 So.2d at 1185,
n. 7. In the absence of any allegation or
showing that the admission was involuntary,
compare State v. Johnson, supra, the
availability of post-conviction relief turns on
whether the proceedings as a whole
accorded the petitioner fundamental fairness
and due process of law. See, Holloway v.

3

Lynaugh, 838 F.2d 792 (5th Cir.), cert.
denied, 488 U.S. 838, 109 S.Ct. 104, 102
L.Ed.2d 80 (1988); State v. Firmin, 522
So.2d 1181 (La.App. 4th Cir.), writ denied,
532 So.2d 759 (La.1988).

Id. at 680.

Id. at 1243.

Defendant argues that, based on the trial court’s failure to advise him of

his right to remain silent before his admission as a habitual offender, his adjudication

and enhanced sentence should be reversed. In support of his argument, Defendant

cites State v. Boutte, 09-404 (La.App. 3 Cir. 1/13/10), 27 So.3d 1111.

In Boutte, the defendant was not advised of his right to remain silent, the

right to a hearing, and to have the state prove its case, including identity.

Additionally, the defendant did not waive his right to the hearing. The state

introduced no independent evidence to prove identity except for the defendant’s

stipulation, and the defendant’s stipulation was not part of a plea bargain agreement.

This court found that the defendant was denied a fundamentally fair hearing, and the

defendant’s habitual offender adjudication and enhanced sentence were vacated and

remanded for a new habitual offender hearing and resentencing.

Boutte is distinguishable because the defendant’s admission to identity in

Boutte was not part of a plea agreement as it is in this case. The facts in this case are

similar to State v. Mitchell, 10-934 (La.App. 5 Cir. 4/26/11), 64 So.3d 391, which

supports a finding that the trial court’s error was harmless.

In Mitchell, a similar error patent was discussed in the context of a guilty

plea, as in this case, and the court held in pertinent part:

The record reflects that defendant was not
specifically advised by the trial judge of his right to
remain silent prior to stipulating to the allegations in the
multiple offender bill of information. Before a defendant
stipulates to the charges in a habitual offender bill of
information, the trial court must advise the defendant of
the specific allegations contained in the multiple bill, his

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right to be tried as to the truth thereof, and his right to
remain silent. LSA-R.S. 15:529.1(D)(1)(a) and (3). The
failure of the trial court to comply with the requirements
of LSA-R.S. 15:529.1(D)(1)(a) and (3) is subject to a
harmless error analysis. State v. Dearmas, 606 So.2d
567, 569 (La.App. 5 Cir.1992); overruled on other
grounds by State v. Davis, 01-123 (La.App. 5 Cir.
7/30/01), 792 So.2d 126.

Generally, the failure of the trial court to advise the
defendant of his right to a hearing and his right to remain
silent is considered harmless error where the defendant’s
multiple offender status is established by competent
evidence offered by the State at a hearing rather than by
admission of the defendant. State v. Palmer, 93-1027, p.
4 (La.App. 5 Cir. 4/26/94), 636 So.2d 1091, 1093.
However, when the defendant stipulates to the multiple
offender bill without having been informed of his right to
a hearing or his right to remain silent, by either the court
or his attorney, there is reversible error. State v. Brown,
95-377, p. 6 (La.App. 5 Cir.1995), 665 So.2d 477, 480.

In this case, the trial court addressed defendant as
follows, prior to accepting his stipulation to the multiple
offender bill of information:

THE COURT:

....

Mr. Mitchell, this Waiver of Rights Form that you
signed indicates that the State of Louisiana is relieved of
its obligation to put on proof that you, in fact, had
committed all the crimes that would allow them to charge
you as being a second offender in this case. That would
also include the fact that you had been given, in those
earlier crimes, all your proper Rights that you are, in fact,
the same person who was previously convicted and a
number of other details. Basically, what you’re doing is
you’re waiving them, or in other words, you’re telling the
State of Louisiana they don’t have to put on any of that
evidence.

Is that correct, sir?

MR. HASSON MITCHELL

Yes, sir.

As can be seen from the above, while the court
arguably advised defendant of his right to a hearing, he
did not inform him of the specific allegations contained
in the multiple offender bill or his right to remain silent.

5

However, we find that this error was harmless in light of
the fact that defendant executed a Waiver of Rights--Plea
of Guilty as Multiple Offender under LA R.S. 15:529.1
form, in which he acknowledged with his initials and
signature that he had reviewed a copy of the bill of
information for the multiple bill and understood that he
had a right to a hearing as well as the right to remain
silent throughout such a hearing. See State v.
Wheelwright, 615 So.2d 385 (La.App. 5th Cir.1993), writ
denied, 619 So.2d 576 (La.1993), and State v. Carruth,
94-147, 94-148 (La.App. 5th Cir. 9/27/94), 643 So.2d
1319.

Id. at 396.

At the guilty plea proceeding, the trial court asked Defendant if he had

the habitual offender plea form before him, and Defendant responded affirmatively.

The following exchange occurred between the trial judge and Defendant:

THE COURT:

[T]he lawyers are asking me to . . . convict you of
unauthorized use of an access card over $500 and also
illegal possession of stolen things over $1000, and then
convict you of being a habitual offender, and then I’ll
have to sentence you for these two charges . . . and then
after I give you that sentence I’m going to withdrawn
[sic] that and give you a sentence as a result of being a
habitual offender. Do you understand that?

MR. BADEAUX:

A. Yes, sir.

Additionally, the following pertinent exchange occurred:

THE COURT: Now with regard to Mr. Badeaux,
we have one more thing. Mr. Badeaux, you are also
admitting that you are an habitual offender, and that is in
Docket Number 119180. And so we have a plea of guilty
form for that. So if that matter had gone to trial what
would’ve been proven?

MR. HANEY: Your Honor, had we had an
habitual offender hearing, and just so the record is clear, I
just filed the bill of information for that, the habitual
offender bill of information. Had we had a hearing based
on that bill of information, Your Honor, the State
would’ve proven that the defendant, Justin Badeaux, is,
in fact, the same Justin Badeaux that plead guilty on

6

September 27, 2004, under Docket No. 101830 here in
the 15th Judicial District, Lafayette Parish, to the charge
of simple burglary; and that he is, in fact, the same Justin
Badeaux that just pled guilty in front of Your Honor
under Docket Number 119180 and pled guilty to
attempted illegal possession of stolen goods.

MR. GUIDRY: Judge, we’ll stipulate to that.
We’ll also, if the record is clear, any delays or any
responses we may have to it we will waive at this time
and we can go forward with the sentencing hearing on
May 12th.

THE COURT: Very good. Thank you very much.

MR. HANEY: In connection with that, the State
would just offer, file, and introduce a copy of the minutes
from the September 27, 2004, guilty plea, along with the
bill of information and the defendant’s plea bargain.

Just to make sure the record is clear, should Your
Honor decide if home incarceration were something you
would decide I want the record to be clear that at that
point the State would ask for restitution. I want that to be
part of the record, I want Mr. Badeaux to understand that.
If that is what Your Honor chooses, then -- so he
understands that we will request restitution and that you
could possibly order restitution.

THE COURT: Do you understand?

MR. BADEAUX:

A. Yes, sir.

THE COURT: Outstanding. Adjudicate him
guilty of that offense as well.

Here, the habitual offender guilty plea form which was filed into the

record set forth Defendant’s right to remain silent. On the form, Defendant initialed

the right to remain silent, and he signed the habitual offender guilty plea form.

Defendant was represented by counsel, the admission was part of a plea agreement,

and Defendant acknowledged he had the form at the guilty plea proceeding.

Consequently, this court finds that the trial court’s error of not advising

Defendant of his right to remain silent was harmless. We also find that the trial court

failed to re-impose a sentence for the conviction of unauthorized use of an access card

7

after it vacated the sentence. Accordingly, we remand this matter to the trial court for

imposition of sentence on the conviction of unauthorized use of an access card.

Assignment of Error No. 1

Defendant argues that his sentences are excessive. Because the trial

court failed to impose a sentence for the conviction of unauthorized use of an access

card, this assignment of error is limited to the enhanced sentence imposed on the

conviction of attempted illegal possession of stolen goods.

Defendant admits he has a problem with drugs and alcohol. He argues

that he has accepted responsibility for his actions as evidenced by his guilty pleas.

Moreover, he reasons that a sentence providing for less prison time and substance

abuse treatment served in a non-custodial environment would have been more

appropriate.

Defendant filed with the trial court a Motion to Reconsider Sentence,

asserting his sentences were excessive and his attorney was ineffective. The trial

court issued a written judgment which provided in pertinent part:

As part of his plea agreement, Badeaux agreed that the
sentencing judge should order the Office of Probation
and Parole to conduct a Presentence Investigation and
report the results thereof to the court. He further agreed
that the sentencing judge’s discretion should be limited to
a sentencing range of four to ten years. Badeaux now
argues that the sentence of ten years at hard labor as a
second felony offender, for the crime of attempted illegal
possession of stolen goods makes no measurable
contribution to penal goals, is purposeless, and is a
needless imposition of pain and suffering.

....

This record indicates the offender negotiated a plea
agreement that limited the sentencing judge’s discretion
to an agreed range. It is fair to infer that the offender
hoped he would receive a sentence close to the low end
of the range. As it turns out the offender actually
received the maximum sentence within that range. It is
also fair to say that this offender is suffering from
buyer’s remorse, which of course is not synonymous with

8

either an excessive sentence or the ineffective assistance
of counsel. This offender is not entitled to any of the
relief requested.

The State asserts Defendant is precluded from arguing that his enhanced

sentence is excessive because a sentencing cap of ten years existed.

Louisiana Code of Criminal Procedure Article 881.2 provides in

pertinent part:

A. (1) The defendant may appeal or seek review of a
sentence based on any ground asserted in a motion to
reconsider sentence. The defendant also may seek
review of a sentence which exceeds the maximum
sentence authorized by the statute under which the
defendant was convicted and any applicable statutory
enhancement provisions.

(2) The defendant cannot appeal or seek review of a
sentence imposed in conformity with a plea agreement
which was set forth in the record at the time of the plea.

In this case, the guilty plea form for the habitual offender adjudication

and sentence provided that the sentencing range was two-and-one-half to ten years.

La.R.S. 14:27, 14:69, 15:529.1. Two places on the sentence form indicated a plea

recommendation of four to ten years without benefit of probation, parole, or

suspension of sentence. The trial judge, Defendant, and Defendant’s attorney signed

the plea form. In court, the trial judge referred to the plea form, and Defendant

acknowledged he had a copy of it before him. The trial court ordered Defendant to

serve ten years at hard labor on the enhanced sentence for the charge of attempted

illegal possession of stolen property over $500.00, in accordance with the plea

agreement. Thus, Defendant is precluded from challenging this sentence on appeal.

La.Code Crim.P. art. 881.2. See also, State v. Neville, 95-0547 (La.App. 4 Cir.

5/16/95), 655 So.2d 785, writ denied, 95-1521 (La. 9/29/95), 660 So.2d 851, State v.

Watkins, 97-364 (La.App. 3 Cir. 10/8/97), 700 So.2d 1172, State v. Pickens, 98-1443

(La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577 (La. 11/5/99), 751

9

So.2d 232 and writ denied, 01-2178 (La. 4/19/02), 813 So.2d 1081, and State v.

Young, 96-195 (La. 10/15/96), 680 So.2d 1171.

IV.

DISPOSITION

Defendant’s sentence imposed for the conviction of attempted illegal

possession of stolen property over $500.00 is affirmed. This matter is remanded to

the trial court for imposition of sentence on the conviction of unauthorized use of an

access card for value in excess of $500.00.

AFFIRMED AND REMANDED FOR SENTENCING.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE
2-16.3, UNIFORM RULES—COURTS OF APPEAL.

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