State of Louisiana v. Ernest D'Wayne Derryberry

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 12-788

STATE OF LOUISIANA

VERSUS

ERNEST D'WAYNE DERRYBERRY

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 211195
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.

HABITUAL OFFENDER SENTENCE AFFIRMED.

James C. Downs
District Attorney - 9th JDC
701 Murray Street
Alexandria, Louisiana 71301
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana
Thomas Rockwell Willson
Assistant District Attorney
Post Office Drawer 1630
Alexandria, Louisiana 71309
(318) 442-8658

COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Ernest D'Wayne Derryberry
Avoyelles Correctional Center C2D2
1630 Prison Road
Cottonport, Louisiana 71327
In Proper Person

CONERY, Judge,

In this criminal case, Defendant, Ernest D’Wayne Derryberry, appeals his

habitual offender adjudication and sentence. He alleges the trial court lost and/or

waived jurisdiction to resentence him, the State vindictively filed an amended

Habitual Offender Bill of Information upon which the court illegally sentenced

Defendant as a third felony offender, and the sentence imposed by the trial court was

excessive. For the following reasons, we affirm the trial court’s jurisdiction to

sentence Defendant as a third felony offender, and affirm his sentence of forty-two

years imprisonment at hard labor.

PROCEDURAL HISTORY AND FACTS

In 1987, Defendant, Ernest D’Wayne Derryberry, who had been charged with

second degree murder, pled guilty to manslaughter, a violation of La.R.S. 14:31,

pursuant to a plea agreement, and was subsequently sentenced to forty-two years

imprisonment at hard labor. This court vacated the sentence on November 3, 2006,

and remanded for further proceedings in State v. Derryberry, an unpublished writ

bearing docket number 06-1063 (La.App. 3 Cir. 11/3/06).1 The basis of this court’s

decision was that at the time the crime was committed the maximum sentence for

manslaughter was twenty-one years. Defendant was sentenced as a multiple offender.

This court found that Defendant had not been properly advised of his rights as a

habitual offender, and that no habitual offender adjudication was ever held.

On March 12, 2007, after remand, the State filed an amended habitual offender

bill alleging that Defendant was a fourth felony offender. On May 6, 2011, Defendant

was adjudicated a third felony offender via written order based on pleadings filed by

Defendant and the State. He was sentenced on December 1, 2011, to forty-two years

imprisonment at hard labor with credit for time served.

1
Hereinafter this case will be referred to as Derryberry I.

Defendant filed a Motion to Reconsider the Sentence on December 27, 2011.

The motion was denied on January 9, 2012. Defendant now appeals the habitual

offender adjudication and the sentence. For reasons which follow, this court affirms

Defendant’s habitual offender adjudication and sentence.

Defendant was originally charged with second degree murder of his step-

brother, Errol Randy Fossett, outside a bus station in Pineville, Louisiana, on

November 18, 1984, the day after Defendant killed his step-father in Texas.

Defendant was taken into custody on November 19, 1984, and charged with second

degree murder on January 3, 1985. Defendant was adjudicated incapable of

proceeding to trial following a sanity commission hearing, and, on August 8, 1985, he

was sent to the East Feliciana Forensic Facility. He was returned to Rapides Parish in

June 1986 and was deemed able to proceed to trial.

On February 9, 1987, Defendant pled guilty to the reduced charge of

manslaughter pursuant to a plea agreement, during which Defendant was informed

that the State intended to file a habitual offender bill. On March 17, 1987, the State

filed a habitual offender bill alleging Defendant was a second felony offender. The

bill alleged that Defendant was convicted on December 8, 1980, of possession of

marijuana with the intent to distribute. No habitual offender hearing was ever held.

On May 4, 1987, Defendant was then erroneously sentenced on the conviction

of manslaughter to forty-two years imprisonment at hard labor. At the time of the

offense in 1984, manslaughter was punishable by no more than twenty-one years

imprisonment.

In August 2006, Defendant filed a writ application alleging the habitual

offender adjudication was defective; therefore, the sentence was illegal. On November

3, 2006, in Derryberry I, this court vacated the sentence and remanded the matter to

the trial court, as follows:
2

WRIT GRANTED AND MADE PEREMPTORY: The record before
this court does not indicate the trial court adjudicated Relator a habitual
offender, that a habitual offender hearing was held, that the State
presented any evidence to prove the allegation in habitual offender bill,
or that Relator admitted to being a habitual offender. Consequently, the
sentence imposed by the trial court was well beyond that authorized by
La.R.S. 14:31 and is illegal. See La.Code Crim.P. art. 882, La.R.S.
14:31, State v. Nguyen, 04-321 (La.App. 5 Cir. 9/28/04), 888 So.2d 900,
writ denied, 05-220 (La. 4/29/05), 901 So.2d 1064. Accordingly,
Relator’s sentence is vacated[,] and the matter is remanded to the trial
court for further proceedings consistent with this opinion.

On March 12, 2007, the State filed an amended habitual offender bill which

alleged Defendant was a fourth felony offender and asserted that he was subject to life

imprisonment pursuant to La.R.S. 15:529.1.

On December 1, 2011, five years and one month after the amended habitual

offender bill of information was filed, Defendant was sentenced to forty-two years

imprisonment at hard labor for the crime of manslaughter as a third felony offender.

ASSIGNMENTS OF ERROR

There are two issues before this court. The first issue is based on the fact that

Defendant completed the underlying sentence of twenty-one years imprisonment prior

to completion of the multiple offender proceeding. Accordingly, Defendant asserts he

was adversely affected by unreasonable delays in his multiple bill hearing and,

therefore, he is entitled to have the habitual offender bill quashed.

The second issue concerns the habitual offender sentence the trial court

imposed on December 1, 2011. Defendant filed a Motion to Reconsider the Sentence

on December 27, 2011, asserting that the trial court did not have jurisdiction to

adjudicate him a third felony offender because of the speedy trial violations;

alternatively, the sentence was excessive under the circumstances of his case. The

trial court denied the motion stating that the motion was untimely filed and that the

trial court did not have the authority to reconsider or modify the sentence once the

sentence was executed.
3

ASSIGNMENT OF ERROR ONE

The underlying offense to which Defendant pled guilty was committed on

November 18, 1984. Defendant was taken into custody on November 19, 1984.

Defendant was in continuous custody until the time he pled guilty on February 9,

1987. At the time the offense was committed, La.Code Crim.P. art. 880 provided

“[t]he court, when it imposes sentence, shall give a defendant credit toward service of

his sentence for time spent in actual custody prior to the imposition of sentence.”

While the trial court did not order credit for time served at the sentencing hearing, this

provision is now to be applied automatically and retroactively. State v. Hebert, 97-

1742 (La.App. 3 Cir. 6/3/98), 716 So.2d 63, writ denied, 98-1813 (La. 11/13/98), 730

So.2d 455, cert. denied, 529 U.S. 1072, 120 S.Ct. 1685 (2000); State v. Johnson, 98-

1407 (La.App. 1 Cir. 4/1/99), 734 So.2d 800, writ denied, 99-1386 (La. 10/1/99), 748

So.2d 439. Thus, Defendant finished the maximum twenty-one year sentence for the

underlying offense in November 2005. The writ which resulted in this court vacating

the illegal forty-two year sentence was filed in June 2006. Derryberry I.

Prior to the supreme court’s decision in State v. Muhammad, 03-2991 (La.

5/25/04), 875 So.2d 45, the rule was that the adjudication and sentencing of a

defendant as a multiple offender had to be completed prior to defendant’s completion

of the underlying sentence. State ex rel. Williams v. Henderson, 289 So.2d 74

(La.1974), and State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986). In

Muhammad, the above “bright line” rule was modified. The defendant in Muhammad

had served the underlying sentence before the final habitual offender bill was filed.

The original bill had been filed on the day of sentencing. However, due to certain

events, including two appeals by the defendant in which the court of appeal vacated

the multiple offender adjudications, the defendant completed the underlying sentence

prior to completion of the multiple offender proceedings. The supreme court discussed
4

whether the adjudication and resentencing of a defendant as a multiple offender must

be completed prior to the defendant’s completion of the underlying sentence, found no

prescriptive period was contained within La.R.S. 15:529.1, and stated as follows:

In order to resolve this issue, we begin by examining the language
of the statute that provides for enhancement of penalty for habitual
offenders. La.R.S. 15:529.1.

The language of the statute pertinent to this case is found in
Section (D)(1)(a) which provides: “If, at any time, either after conviction
or sentence, it shall appear that a person convicted of a felony has
previously been convicted of a felony under the laws of this state . . . the
district attorney of the parish in which subsequent conviction was had
may file an information accusing the person of a previous conviction or
adjudication of delinquency.” The same section further provides:
“Whereupon the court in which the subsequent conviction was had shall
cause the person, whether confined in prison or otherwise, to be brought
before it and shall inform him of the allegation contained in the
information and of his right to be tried as to the truth thereof according to
law and shall require the offender to say whether the allegations are
true.” (Emphasis provided.)

Review of the statute reveals the absence of a prescriptive time
period for completion of the habitual offender proceeding. Wording of
the statute indicates the legislature contemplated the multiple offender
proceeding could be brought against an individual who was not
incarcerated.

Muhammad, 875 So.2d at 50-52 (footnote omitted). The court further stated:

As a general matter, the Supreme Court has set forth four factors
for courts to consider in determining whether a defendant’s right to a
speedy trial has been violated. Those factors are the length of the delay,
the reasons for the delay, the Defendant’s assertion of his right to speedy
trial, and the prejudice to the Defendant resulting from the delay. Barker
v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101
(1972). This court adopted the Barker factors in State v. Reaves, 376
So.2d 136 (La.1979). While these factors are neither definitive nor
dispositive in the context of a habitual offender proceeding, they are
instructive.

We acknowledge that the Sixth Amendment, by analogy, may
superimpose a limitation; however, a case by case evaluation is
warranted to determine whether the proceeding has been promptly
concluded. See State ex rel. Williams v. Henderson, 289 So.2d at 77.
Similarly, relevant speedy trial considerations may be used to assist
extraordinarily long. Abusive or vindictive delay should not be tolerated.
The longer the State delays filing and is responsible for postponing

5

completion of the habitual offender proceeding, the more likely it is that
the delay will be charged against the State.

Id. at 55.

The court in Muhammad found there were “two concepts at issue—the timely

filing of a multiple offender bill of information and the timely hearing or completion

of the proceeding.” Id. at 56. The court then found there was no reason for the court

to “jurisprudentially provide a bright line deadline by which the habitual offender

proceeding must be completed.” Id. at 56.

The first of the four factors cited by the United States Supreme Court in Barker,

the length of the delay, is referred to as the “triggering mechanism,” and if the length

of the delay is not “presumptively prejudicial,” the court need not inquire into the

other three factors. State v. Scott, 04-1142, p. 12 (La.App. 4 Cir. 7/27/05), 913 So.2d

843, 851, writ denied, 06-822 (La. 10/13/06), 939 So.2d 356.

Initially, the State argues that in 1987 it had agreed to reduce the second degree

murder charge to manslaughter in exchange for Defendant’s agreement that he would

be sentenced as a habitual offender. The State further asserted “the sentence imposed

was a ‘bargained for’ sentence. It was merely incorrectly imposed.”

On February 9, 1987, at the guilty plea hearing, the following conversation took

place between the trial court and Defendant:

BY THE COURT: Mr. Derryberry, you understand you’re charged with
second degree murder, do you not?

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: You understand that the District Attorney’s office is
going to amend that charge to manslaughter. Do you understand that?

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: And for them amending that charge to manslaughter
you are going to enter a plea of guilty to that charge. Do you understand
that?
BY MR. DERRYBERRY: Yes, sir.
6

BY THE COURT: And that further they’re going to then multiple bill
you. Do you understand that?

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: Okay. Do you understand all these proceedings and
you have no objections to the District Attorney’s officer reducing these
charges to manslaughter and then subsequently multiple billing you?

BY MR. DERRYBERRY: No, sir.

....

BY THE COURT: Do you understand the nature of the charge against
you?

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: Do you understand that as punishment for this offense
you could be sentenced to the Louisiana State Penitentiary for as much as
twenty-one years?

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: And on the subsequent multiple offender billing that
you could receive up to forty-two additional years. Do you understand
that?

BY MR. DERRYBERRY: NO RESPONSE AUDIBLE

BY THE COURT: Do you, sir?

BY MR. DERRYBERRY: I do now.

BY THE COURT: You didn’t before. . .

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: But you do now?

BY MR. HUMPHRIES: [Prosecutor] Up to forty-two years.

BY THE COURT: Up to forty-two years. You could receive anywhere
from one-third of the twenty-one which is seven . . .

BY MR. DERRYBERRY: Yes, sir.

BY THE COURT: . . . up to twice the twenty-one which is forty-two. Do
you understand that?
BY MR. DERRYBERRY: Yes, sir.
7

It is obvious from this conversation that Defendant was aware that the State

intended to multi-bill him; he agreed that he was a multiple offender and that he could

receive up to a forty-two year sentence at hard labor. Following the Boykinization, the

trial court ordered a presentence investigation report and set sentencing for a later

date. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).

In State v. Grimes, 01-576 (La.App. 4 Cir. 5/2/01), 786 So.2d 876, the State

filed a habitual offender bill on the day of sentencing on the underlying conviction. At

the time of the habitual offender hearing, the defendant had served twenty-three

months of a three year sentence and was out of custody on parole. He filed a motion

to quash the habitual offender bill, asserting that the hearing was reset eighteen times

over a sixteen-month period. The defendant argued that the delay was unreasonable in

his case. The fourth circuit concluded that the sixteen month delay between the filing

of the bill of information and the hearing was not unreasonable even though there

were eighteen continuances. The record indicated that on only one occasion did the

trial court continue the hearing at the state’s request. The remaining continuances

were unexplained in the record, and the defendant failed to show how he was

prejudiced by the delay.

In the current case, it was twenty years from the date the original habitual

offender bill was filed in March 1987 to the amended habitual offender bill filed in

March 2007. It was a little more than twenty-five years from the date the original bill

was filed to the date Defendant was finally adjudicated a habitual offender in May

2011. It was five years and one month from the time this court vacated Defendant’s

habitual offender sentence in November 2006 until Defendant was sentenced in

December 2011. Finally, as noted above, while he has remained incarcerated,

Defendant completed the maximum sentence of twenty-one years for the conviction

8

of manslaughter in November 2005, a year prior to this court vacating the habitual

offender sentence.

The length of the delay in this case is such that it requires review of the

remaining speedy trial factors: the reasonableness of the delays, Defendant’s

assertions to his right to a speedy trial, and the prejudice that resulted from the delay.

See State v. Van Dyke, 03-437 (La.App. 3 Cir. 10/1/03), 856 So.2d 187, writ denied,

03-2777 (La. 2/13/04), 867 So.2d 689.

On March 17, 1987, the State filed a habitual offender bill which alleged

Defendant was a second felony offender. The bill listed as the predicate offense a

1980 Louisiana conviction for possession of marijuana with intent to distribute

(which, as later determined, was an incorrect designation). Defendant was given five

years at hard labor, suspended, and five years active probation. There is nothing in the

record to indicate that Defendant’s probation for the 1980 felony was revoked due to

the manslaughter charge in 1984.

At the May 4, 1987 sentencing hearing, the trial court offered the State and

defense counsel five minutes to review the presentence investigation report, then

proceeded directly to sentence Defendant, as follows:

Okay, as I previously noted you pled guilty to manslaughter, one
count, before me on February the 9th of this year. I’ve received an
extensive Pre-sentence Investigation and Report prepared by the Division
of Probation & Parole, the Louisiana Department of Corrections and, of
course, it reflects a history of criminal acts committed by you, most of
them being violent crimes and of a violent nature. In addition to that, the
District Attorney’s office has seen fit to multiple bill you under the
provision of Title 15, Section 529.1. What this means is had they not
done this the maximum I could have sentenced you to was twenty-one
(21) years in the Louisiana Department of Corrections with no minimum
sentence to be imposed. I[t] could be anywhere from a year which I
would have to impose since you have a prior felony conviction . . . two
prior felony convictions up to twenty-one (21) years. It now increases it
to a minimum of seven (7) years to forty-two (42) years that I can impose
upon you.

9

Due to your previous history of criminal activities, all of which . . .
all of which are of a violent nature, I feel that I have no alternative rather
than to impose upon you the maximum that I could as provided by law.

It is therefore the sentence of the court that you be committed to
the custody of the Louisiana Department of Corrections to serve at hard
labor for a period of FORTY-TWO (42) YEARS[.]

As noted above, the record is clear that Defendant was aware the State was

going to file a multiple offender bill, and the multiple offender bill had been filed. The

record shows that Defendant had never been arraigned on the multiple bill and he had

not been given the opportunity to challenge the alleged predicate offense or offenses.

He had not been advised of the right to remain silent, or advised that the State had to

prove its allegations. Nor does the record show that Defendant waived a habitual

offender hearing. Therefore, as determined by Muhammad, 875 So.2d 45, while the

initial filing of the habitual offender bill was timely, the questions then before this

court are whether Defendant’s right to a speedy trial was violated when he was not

adjudicated a habitual offender until December 2011 and whether the trial court erred

when it allowed the State to add a second predicate offense to the bill more than

twenty years after the original habitual offender bill was filed.

Defendant’s Right to Speedy Trial

In State v. Toney, 02-992, pp. 4-5 (La. 4/9/03), 842 So.2d 1083, 1086, as

discussed above in Muhammad, 875 So.2d 45, the supreme court discussed the issue

of whether a seventeen-month delay between the filing of the multiple bill and the

holding of a hearing on the issue required the bill to be quashed and stated:

This court has not previously expressly considered that issue. However,
given the fact that the rule adopted in [State v.] McQueen [308 So.2d 752
(La.1975)] and [State v.] Broussard[, 416 So.2d 109 (La.1982)] is based
on the requirement of La.Code Crim.P. art. 874 that sentence be imposed
without unreasonable delay, we find that the hearing on a multiple bill
must be held within a reasonable time, under the facts and circumstances
of the specific case, after the filing of the bill.

10

In Toney, to determine the reasonableness of the delay, the supreme court

looked at who---the State or the defendant---and what caused the delays. In this case,

the State argues in brief that “[Defendant] fails to acknowledge that original sentence

was presumptively valid until it was declared invalid nineteen years after being

imposed. The State has to assume the sentence imposed is valid until such time as a

court decides otherwise. Therefore, the State was not the cause of the delay and it

should not be attributed to the State.” This court agrees. The trial judge obviously

thought that Defendant had already been adjudicated as an habitual offender at the

time he imposed the original sentence. Defendant was not prejudiced, as his record

was discussed at length at the original sentencing, and his sentence was based in part

on the presentence investigation report. Also, at the time of his original plea,

Defendant was specifically advised that he would be sentenced as a habitual offender

up to forty-two years at hard labor.

The State correctly claims that the enhanced sentence of forty-two years was a

part of the plea agreement and was only imposed incorrectly. Defendant was aware

he was going to be multiple billed and knew from the beginning that he was going to

be subjected to a habitual offender sentence. At the time of the initial sentencing, there

were only two offenses, the underlying manslaughter conviction and the predicate

offense of possession of marijuana with intent to distribute conviction. Defendant

challenged the latter offense as an incorrect designation immediately after he began

the sentence. Defendant noted in a supplemental brief:

The original sentencing Judge based his sentence on a faulty pre-sentence
report and the State’s filing of a misleading Multiple Offender Bill. The
original sentence was based upon two (2) prior violent convictions.
Defendant was never convicted of “Possession of Marijuana with Intent
to Distribute,” a violent offense as charged in the original Multiple Bill
and Pre-sentence investigation report. The only previous conviction in
defendant’s record is for “Possession of Marijuana with intent to
Produce,” a non-violent act.

11

This error was eventually acknowledged by the trial court in its Written Reasons on

Objection to Habitual Offender Bill of Information.

In State v. Langlois, 96-0084 (La.App. 4 Cir. 5/21/97), 695 So.2d 540, writ

granted in part and remanded, 97-1491 (La. 11/14/97), 703 So. 2d 1281, the fourth

circuit did not find that the trial court erred when it denied the defendant’s motion to

quash the habitual offender bill due to unreasonable delay of fifteen to seventeen

months between the filing of the bill until the defendant was adjudicated a fourth

felony offender due to the “unique and distinctive procedural history” of the case. Id.

at 544. In Langlois, the defendant, who had been convicted of attempted

manslaughter, was also connected to a first degree murder case, and the trial judge’s

daughter was friends with the deceased victim. Therefore, the matter had to be

transferred to a different division, and there was some confusion as to in which

division the matter belonged.

In State v. Zachary, 08-634 (La. 11/21/08), 995 So.2d 631, the supreme court

did not find a delay of five years after the first hearing and seven years after filing the

bill of information unreasonable because of the unique and distinctive procedural

history of the case and denied the defendant’s application for review.

In State v. Davis, 11-137 (La.App. 3 Cir. 5/31/12), 94 So.3d 902, the defendant

was convicted of simple burglary, on March 23, 1994, and, on the same day, the State

filed a habitual offender bill of information. So, from the day of his conviction

defendant had notice that he was in jeopardy of an enhanced penalty if the State

proved his underlying felonies. One year later, the defendant was sentenced to twelve

years at hard labor on the simple burglary charge. One year after that, he was

adjudicated a fourth felony offender and the trial court imposed an enhanced sentence

of ninety years at hard labor. In 1997, the fifth circuit affirmed defendant’s habitual

offender adjudication, but remanded for resentencing only.
12

On October 18, 2010, thirteen years after the Davis court vacated defendant’s

original enhanced sentence and remanded for resentencing, and approximately sixteen

and one half years after the filing of the original multiple offender bill, the trial court

vacated defendant’s underlying twelve year sentence and imposed an enhanced

sentence of thirty-five years. The defendant contested the amount of time that elapsed

before the court resentenced him, and, on November 19, 2010, the trial court denied

the defendant relief. Id.

The fifth circuit affirmed on May 31, 2012, and denied rehearing, finding that

from the date of his conviction, the defendant in Davis knew the State sought to prove

he had previous felonies to support an enhanced penalty. From the time he was

adjudicated in 1997 as a fourth felony offender, the defendant knew he would be

sentenced as a fourth felony offender. Additionally, the circuit court found the

habitual offender resentencing some thirteen years later did not violate the defendant’s

right to speedy trial. The record indicated that the delay was principally caused by

lack of movement of the case in the district court and not by any abuse by the State.

In this case, Defendant’s right to speedy trial was not violated when he was not

adjudicated a habitual offender until December 2011. Defendant knew from the day

of his plea in 1987 that he was subject to the enhanced penalty and that the reduction

of his original charge from second degree murder to manslaughter was based on the

State’s habitual offender bill of information which provided for the enhanced penalty

and the sentence imposed of up to forty-two years imprisonment at hard labor.

Amendment of the Original Habitual Offender Bill Of Information

Defendant argues further in brief that it was error to allow the State to add a

1972 Texas conviction for robbery by assault to the habitual offender proceeding, as

that charge could not be used in an enhancement proceeding. He argues that the Texas

13

conviction was eventually set aside and dismissed; therefore, the conviction could not

be used as a predicate.

In the multiple offender bill of information, filed in March 2007, the State

alleged that Defendant was a fourth felony offender in that he was convicted “in the

177th Judicial District Court in and for Harris County, Texas, Docket Number

164,596, of the offense of Robbery by Assault, a felony.”2 On February 11, 1972,

Defendant pled guilty to the charge. He was sentenced to seven years imprisonment,

suspended, and placed on probation. On November 11, 1974, the Texas trial court

issued the following Order:

It appears to the Court, after considering the report made by the
defendant’s probation officer, and other matters and evidence that the
defendant has satisfactorily fulfilled the conditions of probation during a
period of over one-third of the original probationary period to which he
was sentenced. Therefore, the period of probation is terminated and

It is the order of the Court that the defendant be and he is hereby
permitted to withdraw his plea of guilty, the indictment against defendant
be and the same is hereby dismissed and the Judgment of Conviction be
and the same is thereby set aside as provided by law.

In its written ruling, finding Defendant a third felony offender, the trial court

noted that the above “[o]rder issued by the Texas court is not a full, complete pardon

as it was not issued by the Governor of Texas.” The trial court cited State v. Adams,

355 So.2d 917 (La.1978) as its authority. The fifth circuit in State v. Lemoine, 05-265

(La.App. 5 Cir. 11/29/05), 919 So.2d 727, writ denied, 05-2564 (La. 9/15/06), 936

So.2d 1254, also relied on Adams when it found that the defendant in that case could

not argue that the Louisiana Legislature did not specifically authorize the use of a

pardoned first offense conviction to enhance a subsequent felony conviction. The fifth

circuit noted:
2
The State also alleged that Defendant “was found guilty in the 292 nd Judicial District Court in and for Dallas
County, Texas, Docket Number F846053, of the offense of First Degree Murder[.]” That case involved the murder of his
stepfather occurring the day before the murder of his stepbrother in this case. However, the trial court rejected the
conviction as a predicate since the conviction occurred after Defendant was convicted of the underlying offense and
sentenced.

14

In [Adams], the defendant challenged his enhanced sentence as a second
felony offender. Among those challenges, the defendant argued that his
first felony conviction could not serve as a predicate in the multiple
offender proceeding because he had received an automatic first offender
pardon on his first felony conviction. The supreme court rejected that
argument and ruled that a distinction existed between the governor’s
pardon and the automatic first offender pardon. According to Adams, “It
is clear that a full complete pardon by the governor precludes use of a
pardoned offense to enhance punishment.” 355 So.2d at 921. The
supreme court then examined the automatic first offender pardon and
found that it restored the basic rights of citizenship under Article I,
Section 20 of the Louisiana Constitution and restored certain privileges
and rights under Article IV, Section 5(E)(1) of the Louisiana
Constitution. The court in Adams then concluded, “That does not mean,
however, that the automatic pardon provision restores the status of
innocence to the convict who has merely served out his sentence.” 355
So.2d at 922. According to Adams, if the Louisiana Legislature had
intended that an automatically pardoned first offense could not be used
for enhancement of punishment, it could have easily said so. The
Louisiana Supreme Court thus ruled in Adams that the automatic first
offender pardon did not preclude a first felony conviction from serving as
a predicate in a multiple offender proceeding. Id.

The law of this state has never recognized the automatic first
offender pardon as being a full pardon and restoring the pardoned
individual to the status of innocence. To the contrary, the law has
consistently distinguished between the full and complete scope of the
governor's pardon and the limited scope of the first offender pardon. The
automatic first offender pardon restores the basic rights of citizenship
without the need to appear before the pardon board. State v. Adams,
supra; State v. Lewis, 366 So.2d 1355, 1357-1358 (La.1978); State v.
Selmon, 343 So.2d 720, 721-722 (La.1977); State v. Moore, 03-16
(La.App. 3 Cir. 5/14/03), 847 So.2d 53, 58-60, writs denied, 03-1480
(La.12/12/03), 860 So.2d 1150 and 04-2931 (La.1/21/05), 893 So.2d 55.
See also La. Atty. Gen. Op. No. 95-293.

Id. at 729-30.

Defendant’s conviction in Texas appears to have been subject to a similar

procedure to the one in Louisiana pursuant to La.Code Crim.P. art. 893, wherein the

court defers sentence, subject to a term of probation. If a defendant completes his

probation requirements, that defendant’s charges are dismissed and he is eligible for a

first offender pardon. However, the charge may still be counted in a subsequent

habitual offender proceeding. La.Code Crim.P. art. 893(E)(2); Adams, 355 So.2d 917.

15

Thus, it clear that only a full pardon from the governor will preclude a conviction

from being used as a predicate offense in a habitual offender proceeding. Id. at 922.

Defendant also argues that the trial court erred when it permitted the State to

add the 1972 conviction to the habitual offender bill after the State had known about

the conviction for many years. The record is not clear as to when the State became

aware of the conviction. At the original sentencing hearing, the trial court, without

naming the offenses, discussed two prior felony convictions. The State argues it

makes little difference whether Defendant is a second felony offender or a third felony

offender in that the sentence of forty-two years is the maximum sentence that could

have been imposed in either case at the time the offense was committed. This court

agrees and finds no prejudice to Defendant.

As noted above, La.R.S. 15:529.1 does not establish a time limitation for

multiple offender proceedings, but jurisprudence holds that a multiple offender

proceedings must be completed within a reasonable time after the State has learned of

a prior felony conviction. This reasoning is based on a defendant’s right to a speedy

trial and to know the full consequence of the sentence within a reasonable time. See

State v. Anderson, 01-158 (La.App. 5 Cir. 5/16/01), 788 So.2d 561. In the current

case, Defendant was aware he was going to be charged as at least a second felony

offender originally, and, even though the trial court did not adjudicate him as such, the

trial court noted at the original sentencing hearing that the State had filed a multiple

offender bill and that the trial court was sentencing him as a second felony offender.

In this case, we find that Defendant failed to show prejudice due to the

extraordinary delay. While he was not originally offered the opportunity to challenge

the predicate conviction prior to being given an improperly imposed habitual offender

sentence in 1987, he has since admitted that he was the person who was convicted of

growing marijuana in 1980, and he further admitted he was the person who committed
16

the robbery by assault conviction in 1972. He received the same sentence that was the

subject of his plea agreement and originally erroneously imposed on May 4, 1987. He

is no worse off currently then he was prior to this court vacating the improperly

imposed habitual offender sentence in 2006. In short, Defendant can show no

prejudice from the delay.

ASSIGNMENT OF ERROR TWO

On December 1, 2011, Defendant was sentenced to the maximum habitual

offender sentence of forty-two years imprisonment, with credit for time served, as a

third felony offender pursuant to La.R.S. 15:529.1. On December 27, 2011, he filed a

Motion for Reconsideration of Sentence. In the motion to reconsider, he alleged that

the trial court did not have jurisdiction to adjudicate him a habitual offender because

of speedy trial violations; alternatively, the sentence was excessive under the

circumstances of his case. The trial court erroneously denied the motion for the

reason it was untimely filed and that the trial court was “divested of jurisdiction to

reconsider or modify a felony hard labor sentence once execution of the sentence has

begun. See La.Code Crim.P. art. 881(B)(1).”

Defendant was sentenced on December 1, 2011. He filed the motion to

reconsider on December 27, 2011. Louisiana Code of Criminal Procedure Article

881.1 provides that “[w]ithin thirty days following the imposition of sentence or

within such longer period as the trial court may set at sentence, the state or the

defendant may make or file a motion to reconsider sentence.” Accordingly,

Defendant’s motion was timely filed. The court will now review whether the sentence

is excessive as alleged.

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
17

acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v. Etienne,
99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165
(La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial
court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate. State v. Cook, 95-2784
(La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,
136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied,

99-433 (La. 6/25/99), 745 So.2d 1183, the fifth circuit noted three factors the

appellate court should consider in reviewing a judge’s sentencing discretion. They

are: 1) the nature of the crime; 2) the nature and background of the offender; and 3)

the sentence imposed for similar crimes by the same court and other courts. Finally, in

general, maximum sentences are reserved for cases involving the most serious

violations of an offense charged and the worst type of offender. State v. Stacker, 02-

768 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, writ denied, 03-411 (La. 10/10/03),

855 So.2d 327.

At the sentencing hearing, Defendant read into the record a statement

purportedly written by a Doctor Strickland at the time of the sanity commission

determination of Defendant’s competency. The statement indicated that in the

doctor’s opinion Defendant was not competent when he committed the offense of

murdering his step-brother. Defendant also presented four witnesses, Lieutenant

Colonel Joel Steward; Warden Tim Delaney; Colonel Randy Ducote; and Colonel

Russell Bordelon. Each witness was an employee of Angola prison where Defendant

has been housed since 1987. They testified that they were involved with security at

the prison and interacted with Defendant for various reasons for several years. They
18

stated that Defendant has been a model prisoner and that they would not be concerned

if Defendant was let out of prison.

Margaret McClure, a deputy with the Caddo Parish Sheriff’s Office, made a

victim impact statement. She stated that she knew Defendant because his step-

brother’s wife’s families were friends. She stated that at the time of the killing of his

step-brother, Defendant had threatened her and her family because they were police

officers. She said that even after Defendant was charged with the murder, he

continued to threaten her. Finally, the victim’s wife, Denise Fossett, made a victim

impact statement on her own behalf and on behalf of her young daughter when

Defendant shot and killed the victim.

After argument and discussion, the trial court noted that he had reviewed the

presentence investigation report. The trial court noted that Defendant had also been

convicted of murdering his step-father the day prior to him shooting and killing his

step-brother. Defendant pled guilty to the murder of his step-father on November 17,

1984, and was sentenced by the 292th District Court of Dallas County, Texas, on

October 6, 1988, to five years imprisonment, to be served concurrently with the

Louisiana conviction.

The trial court then concluded:

Under a review of the sentencing guidelines set forth in the Code of
Criminal Procedure Article 894.1 this Court does find that based upon
Mr. Derryberry’s conduct, his, Mr. Derryberry’s action, his conduct
manifested delibera [sic], deliberate cruelty to the victim in the
commission of the murder. The Court further finds that Mr. Derryberry
used his status as stepbrother to facilitate commission of the crime. In
addition to the emotional loss, the Fossett family lost a significant
economic force in their family, and the Court finds that the crime resulted
in significant economic loss to the Fossett family. Mr. Derryberry used a
gun in the commission of the offense, and the Court finds that Mr.
Derryberry has been engaged in violence in the past. Again, in
mitigation, the Court has considered all of Mr. Derryberry’s supporting
evidence that he has become a changed man while at Angola. However,
after careful consideration, Mr. Derryberry, you are sentenced to forty-

19

two years at hard labor for killing Randy Fossett. A lesser sentence
would certainly depreciate the seriousness of the crime.

In State v. Johnson, 09-706 (La.App. 4 Cir. 5/26/10), 41 So.3d 1188, the

defendant was adjudicated a second felony offender and sentenced to the maximum

sentence pursuant to La.R.S. 15:529.1. The underlying offense was manslaughter.

Defendant and a cohort brutally stomped a man unconscious in front of his pregnant

girlfriend and put his body into a dumpster. While the fourth circuit did not name the

predicate offense, it noted that, “Although the sentence imposed on Mr. Johnson is

severe and there is no indication that he has a lengthy prior record or record of violent

offenses, it cannot be said that the sentence is nothing more than the purposeless

imposition of pain and suffering.” Id. at 1210.

In State v. Mickey, 604 So.2d 675 (La.App. 1 Cir. 1992), writ denied, 610 So.2d

795 (La.1993), defendant, who was charged with second degree murder for shooting

the victim in the head during an armed robbery, was convicted of manslaughter and

received a maximum sentence of forty-two years as a habitual offender. Defendant’s

criminal record consisted of a misdemeanor conviction for simple battery and two

felony convictions for attempted simple escape and attempted unauthorized use of a

movable. Finding that the “instant offense was clearly the worst type of offense in the

category of manslaughter, and defendant’s criminal record indicated he is the worst

type of offender,” the fourth circuit concluded that the maximum sentence of forty-

two years was not excessive. Id. at 679.

In State v. Hyman, 10-335 (La.App. 5 Cir. 2/15/11), 62 So.3d 146, writ denied,

11-558 (La. 9/30/11), 71 So.3d 282, wherein the maximum prison term for

manslaughter was raised to forty years, and defendant was sentenced as a second

felony habitual offender to the maximum of eighty years. The fifth circuit affirmed the

sentence, noting:

20

We find the trial court did not abuse its broad discretion in
imposing the maximum habitual offender sentence. First, the evidence at
trial could have supported a conviction for the charged offense, second
degree murder, an offense that carries a mandatory life sentence.
Louisiana courts have found that the fact that the evidence might have
supported a verdict of second degree murder is an appropriate sentencing
consideration where the defendant has been convicted of the lesser
offense of manslaughter. See State v. Roussel, 424 So.2d 226, 231-232
(La.1982), overruled on other grounds by State v. Jackson, 480 So.2d
263, 268; State v. Wooden, 572 So.2d 1156, 1161 (La.App. 1 Cir.1990).

Id. at 155.

In State v. Batiste, 09-521, (La.App. 3 Cir. 12/09/09), 25 So.3d 981, this circuit

reaffirmed its prior holdings affirming forty year sentences, where defendants pled

guilty to manslaughter , although the original charge was either first or second degree

murder. In so doing, this court held that those defendants benefitted greatly from the

plea agreement because a conviction for either first or second degree murder carries a

maximum penalty of life imprisonment. State v. Pickens, 98-1443 (La.App. 3 Cir.

4/28/99), 741 So.2d 696, writ denied, 99-1577 (La. 11/5/99) (citations omitted).

In State v. Wooden, 572 So.2d 1156 (1990), the first circuit affirmed a thirty

year sentence for manslaughter for a defendant who had been adjudicated a second

felony habitual offender. In its ruling, the first circuit found that the sentence of thirty

years imposed on the defendant was not excessive. The defendant’s sentence was

properly based on his conviction for manslaughter, coupled with adjudication as a

second habitual offender; thus, he was exposed to a minimum sentence of seven years

at hard labor and a maximum sentence of forty-two years at hard labor. See La.R.S.

14:31; La.R.S. 15:529.1.

Considering all of the above, this court cannot say that the trial court abused its

considerable discretion when it sentenced Defendant to forty-two years imprisonment

for killing his step-brother. Defendant was originally charged with second degree

21

murder. Had Defendant gone to trial and been convicted of second degree murder, he

would have received a sentence of mandatory life imprisonment.

DISPOSITION

While the delay between the filing of the bill of information and the

adjudication hearing was extraordinary, Defendant has failed to show how he was

prejudiced by the delay. Accordingly, the habitual offender adjudication is affirmed.

Furthermore, the sentence of forty-two years is not excessive considering the facts of

the case, the nature of the crime, and similar sentences imposed for similar crimes by

other jurisdictions.

HABITUAL OFFENDER SENTENCE AFFIRMED.

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