State of Louisiana v. Michael W. Hood

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 12-282

STATE OF LOUISIANA

VERSUS

MICHAEL WAYNE HOOD

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76571
HONORABLE JOHN C. FORD, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED WITH INSTRUCTIONS.

Asa Allen Skinner
District Attorney, Thirtieth Judicial District Court
ADA Terry Wayne Lambright
P. O. Box 1188
Leesville, LA 71446-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2806
Monroe, LA 71207-2806
(318) 388-4205
COUNSEL FOR DEFENDANT/APPLICANT:
Michael Wayne Hood

Michael Wayne Hood, 402384
Mercury, D-2, ALC
3751 Lauderdale Woodyard Road
Kinder, LA 70648

EZELL, Judge.

On June 4, 2009, the Defendant, Michael Wayne Hood, was charged by bill of

information as a third felony offender, in violation of La.R.S. 15:529.1.1 On May 19,

2011, the trial court adjudicated the Defendant to be a habitual offender and issued

written reasons for ruling. At sentencing held on August 4, 2011, the trial court

confirmed that the Defendant was a third felony offender. After vacating his sentence

for manslaughter in docket number 73,309, his third offense, the trial court sentenced

the Defendant to serve two-thirds of forty years, or 320 months, at hard labor, without

benefit of parole, probation or suspension of sentence. He was also given credit for

time served on the vacated sentence. The Defendant’s motion to reconsider sentence

filed on August 10, 2011, was summarily denied on October 21, 2011.

The Defendant is now before this court on appeal, arguing that he was

erroneously adjudicated as a third felony offender and that his sentence is excessive.

The Defendant also argues pro se that he was deprived of effective assistance of

counsel. The Defendant’s habitual offender adjudication and sentence are affirmed.

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, the court finds

there is one error patent.

This court finds the trial court failed to properly advise the Defendant of the

time limitation for filing an application for post-conviction relief. At sentencing, the

court stated, “You have 30 days within which to appeal and two years within which to
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The Defendant was convicted of manslaughter, his third felony offense, on April 20, 2009,
and was sentenced to fifteen years at hard labor, without benefit of parole, probation, or suspension
of sentence. The Defendant appealed his conviction and sentence which were affirmed by this court
in State v. Hood, an unpublished opinion bearing docket number 10-70 (La.App. 3 Cir. 10/6/10).
His sentence was also amended to delete the denial of parole eligibility. The disposition of the
instant habitual offender bill was still pending at the time of his appeal.

file an application for post conviction relief.” Louisiana Code of Criminal Procedure

Article 930.8 provides the defendant has two years after the conviction and sentence

become final to seek post-conviction relief. The trial court is directed to inform the

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice

to the Defendant within thirty days of the rendition of this opinion and to file written

proof that the Defendant received the notice in the record of the proceedings. State v.

Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.

2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that the trial court erred in

adjudicating him a third felony habitual offender. The Defendant contends that the

use of his conviction in Sabine Parish docket number 50334 cannot be used against

him to enhance his sentence because he was “inaccurately” advised by the trial court

during his Boykinization that the offense could not be used against him in a future

habitual offender proceeding. The Defendant also objects to the introduction of a pen

pack by the State for a number of reasons.

In State v. Shelton, 621 So.2d 769, 779-80 (La.1993) (footnotes omitted), the

supreme court explained:

If the defendant denies the allegations of the bill of information,
the burden is on the State to prove the existence of the prior guilty pleas
and that defendant was represented by counsel when they were taken. If
the State meets this burden, the defendant has the burden to produce
some affirmative evidence showing an infringement of his rights or a
procedural irregularity in the taking of the plea. If the defendant is able
to do this, then the burden of proving the constitutionality of the plea
shifts to the State. The State will meet its burden of proof if it introduces
a “perfect” transcript of the taking of the guilty plea, one which reflects a
colloquy between judge and defendant wherein the defendant was
informed of and specifically waived his right to trial by jury, his privilege
against self incrimination, and his right to confront his accusers. If the
State introduces anything less than a “perfect” transcript, for example, a

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guilty plea form, a minute entry, an “imperfect” transcript, or any
combination thereof, the judge then must weigh the evidence submitted
by the defendant and by the State to determine whether the State has met
its burden of proving that defendant’s prior guilty plea was informed and
voluntary, and made with an articulated waiver of the three Boykin rights.
We note that this new procedure will not only give appropriate
significance to the presumption of regularity which attaches to judgments
of conviction which have become final, but will also provide an
advantage to defendants who were previously under Lewis unable to
introduce any extra-record evidence and whose guilty pleas were
heretofore under Tucker found constitutionally valid by mere proof of a
minute entry and a guilty plea form.

The habitual offender bill was filed by the State on June 4, 2009. The

Defendant filed a response and objection to the bill on June 21, 2010, wherein he

objected to the use of his conviction in Eleventh Judicial District Court, Sabine Parish,

docket number 50334.

On the day of the habitual offender hearing, June 24, 2010, the State filed an

objection to the Defendant’s response, asserting that the Defendant’s response should

be stricken from the record and that he be prohibited from asserting the defense that

his conviction in Sabine Parish was invalid. The State argued that the response was

delivered to the State on June 21, 2010, a total of 272 days after the Defendant’s

denial on September 22, 2009, and three days before trial, without a request for an

extension of time within which to assert such defense.

At the habitual offender hearing, the parties stipulated to the identification

testimony of Detective Randy Murray in Sabine Parish docket number 50334,

Detective Ronald Wiggins in Vernon Parish docket number 73,309, and Detective

Ronnie Hagan docket number 54,153.

Additionally, it was stipulated that Detective Sumney and Michael Stelly of the

Louisiana Crime Lab would testify that a comparison was made of the Defendant’s

fingerprint cards in these three dockets and that all fingerprints were confirmed to be

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those of the Defendant. The fingerprints were then introduced into evidence as State’s

exhibits 1, 2, and 3.

Next, the State referred the trial court to the pen pack introduced into evidence

that was included with the habitual offender bill of information, directing the court’s

attention to the bill of information in Sabine Parish docket number 50334. The State

then offered certified true copies of the bill of information and detailed minutes

setting forth the Boykinization, colloquy, and dialog between the Defendant and the

trial court, along with his acceptance of the plea agreement wherein he entered a plea

of guilty to a felony offense. The bill of information charging three separate

burglaries was amended to reflect one count of theft of property in excess of $100,

less than $500, occurring on or about April 10, 1998. The minutes also reflected the

Defendant’s sentence in the matter.

The Defendant objected to the pen pack from the Department of Corrections

(DOC), arguing that the affidavit on the pen pack certified that documents were

attached but did not identify the documents attached. Defense counsel maintained

that in his experience, the custodian numbers the pages and certifies that the numbered

documents are true and correct records. In this instance, however, the Defendant

complained that a form affidavit was signed without identifying the attachments.

The State argued that pursuant to La.R.S. 15:529.1, it was proper to use DOC

records certified by the warden or custodian of records to prove convictions that took

place in Sabine and Vernon Parish. The Defendant’s objection was overruled, and the

records were admitted as State’s exhibit 4.

The State also introduced certified copies of the bill of information, guilty plea

transcript, and sentencing transcript in docket number 54153. In docket number

73,309, the State introduced certified copies of the grand jury indictment, an excerpt

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of the trial transcript showing the return of the jury’s guilty verdict of manslaughter,

and sentencing transcript.

The Defendant objected again with regard to the documentation of docket

number 50334 in Sabine Parish. Referring to Shelton, the Defendant argued that the

State had not introduced a perfect transcript of the Defendant’s guilty plea.

After the State rested its case, the Defendant took the stand to offer testimony

for consideration by the trial court in sentencing him. On cross-examination, the State

questioned him about his 1998 conviction in Sabine Parish. The Defendant recalled

being charged with at least three burglaries, and as a result of his plea agreement, the

charges were amended to one count of theft. The Defendant admitted that the plea

agreement resulted in his conviction in Sabine Parish. As part of his sentence, the

Defendant was ordered to pay restitution with credit given to him for items returned.

The Defendant specifically admitted that he was the same person that was convicted

in Sabine Parish for the theft of more than $100 but less than $500, and in Vernon

Parish for theft.

The matter was then taken under advisement, and the parties were given the

opportunity to submit additional briefs. The State maintained that it had met its

burden of proof as required by La.R.S. 15:529.1(D)(1)(b), which reads, in pertinent

part:

Except as otherwise provided in this Subsection, the district
attorney shall have the burden of proof beyond a reasonable doubt on any
issue of fact. The presumption of regularity of judgment shall be
sufficient to meet the original burden of proof.

With regard to the requirement of a perfect transcript, the State stressed that the

Defendant’s own testimony established that he was the same person convicted of the

two prior felonies alleged in the habitual offender bill of information. The State also

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asserted that the Defendant had offered no evidence showing an infringement of his

rights or a procedural irregularity in the taking of his guilty pleas. The State urged

that its burden of proof was to prove the prior convictions. For convictions obtained

by a guilty plea, the State had to show that the Defendant was represented by an

attorney at the time of the plea. The State added that Shelton revised the prior scheme

for allocating burdens of proof in habitual offender proceedings, and the substance

and procedure was codified in an amendment of La.R.S. 15:529.1(D) by Act 896 of

1993.

The State also stressed that the Defendant was required to file a written

response denying the allegations in the habitual offender bill of information within

fifteen days, setting forth his challenge to a previous conviction. As such, it was the

Defendant’s burden to show by a preponderance of the evidence that a claimed defect

in a prior conviction existed; the allegation alone was insufficient. The State

contended that at the Defendant’s habitual offender hearing, he did not offer any

evidence of an irregularity or deficiency of any conviction to shift the burden to the

State to prove the constitutionality of an alleged defective guilty plea.

In the Defendant’s memorandum filed on April 6, 2011, the Defendant

maintained it was the State’s burden to prove beyond a reasonable doubt all the facts

necessary to adjudicate him as a third felony offender. The Defendant stressed that he

objected to the pen pack introduced by the State on the grounds that it was hearsay,

that it contained minutes, not verbatim transcripts, and that it contained unnumbered

pages with no identification or listing of attachments. The Defendant complained that

it was a computer generated print-out without any certification from a custodian of

records and without certified court minutes. The Defendant added that even if the

trial court found that the Defendant was the individual involved in the offense in

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Sabine Parish, the State was still required to prove the constitutionality of his guilty

plea. Absent a transcript of the plea, the Defendant urged that the State had not met

its burden and should be barred from using the conviction to enhance his sentence.

In finding the Defendant to be a habitual offender, the trial court reasoned:

In a habitual offender hearing, if the defendant denies the allegations of
the bill of information, the burden is on the State to prove the existence
of the prior guilty pleas and that defendant was represented by counsel
when they were taken. If the State meets the burden, the defendant has
the burden to produce some affirmative evidence showing an
infringement of his rights or a procedural irregularity in the taking of the
plea. (State v. Armstrong, 683 So. 2d 1261, 95-1665, La. App. 3 Cir.
10/11/96) The State proved the existence of the prior pleas and that the
defendant was represented by counsel at the earlier proceedings. The
defendant made no affirmative showing of irregularities in the prior
proceedings nor made any argument showing an infringement of his
rights.

Considering a lack of affirmative evidence showing that the Defendant’s guilty

plea to theft in Sabine Parish docket number 50334 was invalid, we find the burden

did not shift to the State to produce a verbatim transcript. Accordingly, the

Defendant’s claim that the State was required to introduce a verbatim transcript to

prove this prior conviction is without merit.

The Defendant maintains that the State’s introduction of the pen packet was

improper because Ella Peterson, who appears to be a custodian of records for the

DOC, was not a warden or chief officer, etc., of any prison; thus, she was not

qualified to sign the affidavit. As such, the Defendant contends that any certification

as to the accuracy and completeness of any record of a prison would be hearsay within

hearsay. Had the records been directly certified by a prison warden or chief officer,

the Defendant maintains that the hearsay exception regarding business records would

be applicable. Section F of La.R.S. 15:529.1 provides:

The certificates of the warden or other chief officer of any state
prison, or of the superintendent or other chief officer of any penitentiary

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of this state or any other state of the United States, or of any foreign
country, or of any chief officer of any parish or county jail in this state or
any other state of the United States, or of the clerk of court of the place of
conviction in the state of Louisiana, under the seal of his office, if he has
a seal, containing the name of the person imprisoned, the photograph,
and the fingerprints of the person as they appear in the records of his
office, a statement of the court in which a conviction was had, the date
and time of sentence, length of time imprisoned, and date of discharge
from prison or penitentiary, shall be prima facie evidence of the
imprisonment and of the discharge of the person, either by a pardon or
expiration of his sentence as the case may be under the conviction stated
and set forth in the certificate.

As noted by the State, a similar argument was raised in State v. Lewis, 576

So.2d 1106 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991), wherein the

defendant argued that the trial court erred in admitting, over his objection the entire

contents of a pen pack offered by the State at the habitual offender hearing. The court

observed that the record containing the affidavit of Ella M. Peterson, the Records

Custodian for the Louisiana Department of Public Safety and Corrections, Corrections

Service, certified that the defendant’s pen pack contained true and correct copies of

the records from the Louisiana Department of Public Safety and Corrections regarding

the defendant. Since the affidavit accompanied the defendant’s pen pack, the court

ruled that it was properly admitted into evidence.

Likewise, in the instant case, the affidavit of Ella Peterson indicates that she

was employed as the custodian of records for the Louisiana Department of Public

Safety and Corrections (Corrections Services, at the Office of Probation and Parole),

and that the attached documents were true copies of the records of the Louisiana

Department of Public Safety and Corrections regarding Michael Hood #402384. The

affidavit was signed by Ms. Peterson, notarized, and dated May 4, 2009. In light of

this court’s ruling in Stewart, we find that Ms. Peterson was qualified under La.R.S.

15:529.1 to sign the affidavit certifying the records in the Defendant’s pen pack. Since

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this affidavit accompanied the Defendant’s pen pack, the court finds it was properly

admitted into evidence.

The Defendant does not refer this court to any statutory requirement, nor are we

aware of any statutory requirement, that the pages of a pen pack be numbered and/or

that a list of the attachments be included in the affidavit. Although the Defendant

raises a valid concern with regard to the completeness of the pen pack, he does not

claim that it was missing pages or was incomplete. Also, the Defendant does not

challenge any of the information in the pen pack or deny that he was the same person

convicted of the offenses.

Considering the totality of the evidence presented by the State at the

Defendant’s habitual offender hearing, there is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that his sentence is excessive

under the facts and circumstances of this case. The Defendant asserts that the trial

court had the option of sentencing him for up to forty years for manslaughter, but after

a thorough analysis of the circumstances and facts of the case, it concluded that fifteen

years was appropriate. The Defendant contends that nothing in the habitual

proceeding altered the basis for the previously imposed sentence for manslaughter.

Additionally, the Defendant maintains that the trial court failed to sufficiently

articulate the factors it considered in particularizing his sentence.

In the Defendant’s prior appeal, the excessiveness of his original sentence of

fifteen years for manslaughter was raised and addressed by this court. His sentence

was not found to be excessive. State v. Hood, an unpublished opinion bearing docket

number 10-70 (La.App. 3 Cir. 10/6/10). Following his adjudication as a third felony

offender, the Defendant’s fifteen-year sentence was vacated, and trial court imposed

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the minimum possible sentence under La.R.S. 15:529.1(A)(3), two-thirds of the

longest possible sentence for manslaughter, 320 months (two-thirds of forty years).

In State v. Boutte, 10-928, pp. 5-6 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, 629,

writ denied, 11-689 (La. 10/7/11), 71 So.3d 314 (alteration in original), this court

stated:

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. 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.

On appeal, the Defendant urges this court to consider his youth, eighteen years

of age, at the time the prior offenses were committed and that both prior felony

offenses were non-violent theft offenses. With regard to the theft in Vernon Parish,

the Defendant refers this court to his response and objection to the habitual offender

bill of information wherein he asserts he was a principal to the theft but did not profit

from the theft. Additionally, the Defendant stresses that almost ten years had elapsed

between the commission of the second and third offenses.

As pointed out by the State, the trial judge was familiar with the Defendant’s

case, having presided over the original trial, sentencing, and habitual offender hearing.

The trial court carefully considered the mitigating and aggravating factors of the

Defendant’s case at the time he was originally sentenced. In the instant appeal, the

Defendant has presented no evidence to show that his particular case was so

10

exceptional that it deserved a downward departure from the mandatory minimum

sentence as set forth in La.R.S. 15:529.1. Accordingly, there is no merit in this

assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE (Pro Se):

By this assignment of error, the Defendant argues, pro se, that he was deprived

of effective assistance of counsel during the habitual offender proceeding. He

maintains that defense counsel’s “ill-advice” induced him into entering a plea of

guilty to the habitual offender bill of information. In his conclusion, the Defendant

states that defense counsel’s advice for him to voluntarily admit he was the person in

the pen pack presented by the State for the sole purpose of identification at the

habitual offender hearing was nothing less than a complete failure of defense

counsel’s obligation to him.

In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701,

this court stated:

A claim for ineffective assistance of counsel is properly raised in
an application for post-conviction relief because this allows the trial court
to order a full evidentiary hearing on the matter. State v. Burkhalter, 428
So.2d 449 (La.1983). However, where the record contains sufficient
evidence to decide the issue, and the issue is raised by an assignment of
error on appeal, it may be considered by the appellate court. State v.
Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v.
James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

The record is sufficient in this case to consider the issue of whether defense counsel

was ineffective.

As noted in State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d

461, 465 (citations omitted), ineffective assistance of counsel claims must meet two

separate criteria in order to have merit:

The right of a defendant in a criminal proceeding to the effective
assistance of counsel is constitutionally mandated by the Sixth

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Amendment of the U.S. Constitution. In order to prove that counsel was
ineffective, the defendant must meet the two-pronged test enunciated by
the Supreme Court. First, the defendant must show that counsel's
performance was deficient. Second, the defendant must show that this
deficiency prejudiced the outcome of the trial. To establish a claim of
ineffective assistance of counsel, a defendant must demonstrate that his
defense attorney failed to meet the level of competency normally
demanded of attorneys in criminal cases.

In considering allegations of ineffectiveness, defense attorneys are
entitled to a strong presumption that their conduct fell within the broad
range of reasonable professional assistance. The United States Supreme
Court has held that the benchmark for judging a charge of ineffectiveness
is whether the attorney’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be considered to have
produced a just result.

It is not enough for an accused to make allegations of
ineffectiveness; the accused must couple these allegations with a specific
showing of prejudice. A claim of ineffective assistance of counsel may
be disposed of based upon a failure to satisfy either criteria of the
established two-pronged test; if the accused’s claim fails to satisfy one,
the reviewing court need not address the other.

In the instant case, the Defendant’s assertion that he entered a guilty plea to the

habitual offender bill of information is factually incorrect. The record indicates that

defense counsel filed a response and objection to the habitual offender bill of

information and continued to dispute the bill at the hearing and in memoranda after

the hearing.

The record also reflects that after the State rested its case at the habitual

offender hearing, defense counsel stated, “I have very brief testimony from Mr. Hood,

Your Honor.” When the trial court inquired about the relevance of the Defendant’s

testimony, defense counsel indicated that it would be directed toward the trial court’s

determination of his sentence. Defense counsel followed with questions typically

intended to mitigate a sentence.

On cross-examination, the State began with similar questions but then seized

the opportunity to ask the Defendant about his arrest and conviction in Sabine Parish.

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Counsel for the Defendant objected to the relevance of questions regarding the content

of the bill of information, stressing that his prior convictions formed the basis for

enhancing his sentence. The objection was overruled, and the State continued with

questions about the original charges and ultimate plea. The Defendant admitted that

his guilty plea to one charge of theft resulted in his conviction in Sabine Parish. He

denied his involvement in the offenses as charged, stating he just happened to be there

when the offenses occurred. Although he was ordered to pay restitution with credit

for items returned, the Defendant maintained that he did not steal anything. The

Defendant also denied committing theft in Vernon Parish, stating that he was unaware

that a friend had committed the offense, and he was helping his friend load furniture

that had been given to his friend. Again, the Defendant just happened to be present

and did not intend to steal anything. According to the Defendant, although he entered

a guilty plea to the offense, he never admitted to committing the offense during the

investigation.

As impeachment evidence, the State offered into evidence a two-page transcript

of the Defendant’s statement in conjunction with the investigation of the burglary and

theft leading to his prosecution and guilty plea in Vernon Parish docket number

54153. The statement was admitted over the Defendant’s objection as State’s Exhibit

13. The State then confirmed that the Defendant, recently convicted of manslaughter,

was the same person previously convicted in Sabine and Vernon Parishes.

Considering the record before this court of the habitual offender hearing, the

facts therein do not support the Defendant’s contention on appeal that he was advised

by defense counsel to voluntarily admit he was the person in the pen pack. The State

had rested its case when the Defendant was called to testify in mitigation of his

habitual offender sentence. Even if this court found defense counsel’s decision to call

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the Defendant to testify in mitigation of his habitual offender sentence deficient, the

State had already identified him, with sufficient evidence adduced at the hearing, to be

the same individual that committed all three offenses; thus, he was not prejudiced in

the outcome of the hearing. Accordingly, there is no merit in this assignment of error.

CONCLUSION

The Defendant’s habitual offender conviction and sentence are affirmed. The

trial court is directed to inform the Defendant of the provisions of La.Code Crim.P. art.

930.8 by sending written notice to the Defendant within thirty days of the rendition of

this opinion and to file written proof in the record that the Defendant received the

notice.

AFFIRMED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

RulesSCourts of Appeal. Rule 2S16.3.

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