State of Louisiana v. Christopher Guillory

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1473

STATE OF LOUISIANA

VERSUS

CHRISTOPHER GUILLORY

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 86511FA
HONORABLE JOHN LARRY VIDRINE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

SENTENCE VACATED;
REMANDED WITH INSTRUCTIONS.

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Christopher Guillory

Trent Brignac
District Attorney, 13th Judicial District Court
Julhelene E. Jackson
Assistant District Attorney
P. O. Drawer 780
Ville Platte, LA 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

Christopher Guillory
Louisiana State Penitentiary
CBB L/L #14
Angola, LA 70712
PRO SE

GREMILLION, Judge.

In response to a reported offense, three police officers observed Defendant,

Christopher Guillory, exit his house while rolling a marijuana cigarette. Officers

handcuffed Defendant and conducted a pat-down search that uncovered a .22

caliber revolver in Defendant’s back pocket.

Defendant was charged with and convicted of possession of a firearm by a

convicted felon in violation of La.R.S. 14:95.1. He was originally sentenced to

twelve years at hard labor without benefit of probation, parole, or suspension of

sentence and ordered to pay a fine of $3,000. The State then filed a habitual

offender bill seeking an enhanced sentence for the conviction of possession of a

firearm by a convicted felon, listing three prior offenses. At the hearing, the State

relied on the fourth offender section of the habitual offender statute, which

mandated a life sentence. At the close of the hearing, the trial court vacated the

original sentence, and Defendant was sentenced as a habitual offender to life in

prison. Although the trial court did not specifically find that Defendant was a

fourth felony offender, it agreed with the State that a life sentence was mandatory.

Defendant is before this court challenging this sentence.

Defendant contends the trial court erred in imposing an illegally excessive

sentence of life imprisonment under La.R.S. 15:529.1(A)(4)(b) because the prior

conviction used as a basis for his conviction of possession of a firearm by a

convicted felon (possession with intent to distribute marijuana) was also used as a

predicate for habitual offender enhancement of his sentence for possession of a

firearm by a convicted felon. Defendant cites State v. Baker, 06-2175, pp. 16-17

(La. 10/16/07), 970 So.2d 948, 958, cert. denied, 555 U.S. 830, 129 S.Ct. 39

(2008), in which the Louisiana Supreme Court held:

We find that a sentence imposed under La. R.S. 14:95.1 may be
enhanced under the habitual offender law, as long as the prior felony
conviction used as an element in the firearm conviction is not also
used as a prior felony conviction in the multiple offender bill of
information. To the extent that cases state to the contrary, including
State v. Sanders, 337 So.2d 1131 (La.1976) and State v. Firmin, 354
So.2d 1355 (La.1978), they are overruled.

Defendant contends that the mandatory life provision of La.R.S.

15:529.1(A)(4)(b) was not applicable to him because the possession with intent to

distribute marijuana conviction, which satisfied the “violation of the Uniform

Controlled Dangerous Substance Law punishable by imprisonment for ten years or

more,” could not be utilized.

The State concedes that “the sentence imposed exceeds what is appropriate

under the sentencing provision of the habitual offender statute” and agrees that the

case must be remanded for correction of the sentence.

Defendant further contends that trial counsel was ineffective in failing to file

a motion to quash the habitual offender bill and in failing to object to the

imposition of a life sentence. Defendant contends that if trial counsel had sought

to quash the habitual offender bill, the State would have been prohibited from

amending the bill, as was done in State v. Foster, 09-617 (La. 11/25/09), 23 So.3d

885, and the possession with intent to distribute marijuana charge would have been

stricken from the habitual offender bill. Had this conviction been stricken from the

bill, the most Defendant could have been sentenced for was that applicable to a

third felony offender without special circumstances. Defendant contends that the

mandatory life sentence as a third felony offender would not have applied without

the use of the prior conviction of possession with intent to distribute marijuana.

Accordingly, Defendant would have been exposed to a sentence of thirteen years

and four months to forty years rather than a mandatory life sentence.

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The State contends that Defendant has not shown that trial counsel’s

performance was deficient given the complexity of the habitual offender statute

provisions, and “it is not unreasonable under the circumstances that all the actors in

this case made a mistake in its application.”

The improper use of this predicate offense was not raised in the trial court;

however, Defendant’s claim that counsel was ineffective in failing to raise this

claim in the trial court has merit.

The issue of ineffective counsel is more appropriately addressed
in an application for post-conviction relief, where an evidentiary
hearing can be conducted in the trial court. State in the Interest of
A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However,
where an ineffective assistance claim is raised on appeal, this court
may address the merits of the claim if the record discloses sufficient
evidence to rule on it. Id. If this court considers a claim of ineffective
counsel on appeal, Defendant must satisfy a two-part test. He must
first show that counsel’s performance was deficient and next, that the
deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

State v. Teno, 12-357, p. 10 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1075.

The record is sufficient to address Defendant’s ineffective assistance of

counsel claim. Defendant’s prior conviction for possession with intent to distribute

marijuana was charged in the bill of information and proven by the State as an

element of the offense of possession of a firearm by a convicted felon. As

established by the supreme court in Baker, this prior conviction could not also be

used as a prior felony conviction for purposes of enhancement of Defendant’s

sentence for possession of a firearm by a convicted felon pursuant to La.R.S.

15:529.1. Counsel’s performance was deficient in failing to object to the use of

this prior offense for habitual offender purposes. Additionally, Defendant was

clearly prejudiced because he was sentenced to a mandatory life sentence as a

fourth felony offender when the evidence presented at the hearing supported a

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finding that Defendant was only a third felony offender. Defendant’s habitual

offender adjudication and sentence must be vacated.

In State v. Godfrey, 08-828, 08-1231 (La.App. 3 Cir. 3/3/10), 32 So.3d 1020,

writ denied, 10-758 (La. 10/29/10), 48 So.3d 1097, this court found the defendant

was improperly adjudicated a fourth felony offender because a Texas conviction,

which would not have been a felony in Louisiana, should not have been used for

enhancement purposes. This court held:

We find that the trial court erred in adjudicating the defendant
as a fourth felony offender and, hereby, vacate the defendant’s
adjudication and sentence. In doing so, we recognize that the
evidence does support a finding that the defendant is a third felony
offender. However, because double jeopardy does not apply to
habitual offender adjudications, the state has the option of
reestablishing the defendant’s third felony status or of attempting to
establish the defendant’s fourth felony offender status at a new
hearing. See Kennerson, [96-1518 (La.App. 3 Cir. 5/7/97),] 695
So.2d 1367.

Id. at 1024.

Accordingly, as did the Kennerson court, we vacate Defendant’s

adjudication as a fourth felony offender and set aside the sentence imposed.

DECREE

We hereby vacate Defendant’s adjudication as a fourth felony offender and

set aside the sentence imposed. Although the evidence supports a finding that

Defendant is a third felony offender, the State has the option of either

reestablishing Defendant’s third felony offender status or attempting to establish

the defendant’s fourth felony offender status at a new hearing. We remand the

matter to the trial court for proceedings consistent with this opinion.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

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