State of Louisiana v. Bill Eric Winters

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-581

STATE OF LOUISIANA

VERSUS

BILL ERIC WINTERS

CONSOLIDATED WITH

12-205

STATE OF LOUISIANA

VERSUS

BILL ERIC WINTERS

AND WITH

13-303

STATE OF LOUISIANA

VERSUS

BILL ERIC WINTERS

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 123,989
HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE1

**********

JIMMIE C. PETERS
JUDGE

**********

1
Originally, Judge Edwin D. Rubin was the district judge assigned to this matter.
However, on the first remand, he recused himself, and Judge Earles was appointed to hear the
case.

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION
AFFIRMED; SENTENCE VACATED; AND REMANDED WITH
INSTRUCTIONS.

Michael Harson
District Attorneyaz
Alan P. Haney
Assistant District Attorney
Fifteenth Judicial District
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
P. O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Bill Eric Winters

Bill Eric Winters
West Carroll Detention Center
P.O. Box 307
Epps, LA 71237-0307
DEFENDANT/APPELLANT:
Pro Se

PETERS, J.

This matter is before us for the third time, and for the purpose of disposing

of the issues raised by the original appeals, we consolidate herein this court‟s

Docket Numbers 11-581, 12-205, and 13-303. The issues before us arise from a

June 7, 2009 incident wherein the defendant, Bill Eric Winters, entered the

Lafayette, Louisiana business office of Oncologics, Inc. without authorization.

The State of Louisiana (state) charged the defendant with simple burglary, a

violation of La.R.S. 14:62. A jury convicted the defendant of the offense, and the

trial court initially sentenced him to serve seven years at hard labor. Thereafter,

the state charged the defendant as a multiple or habitual offender pursuant to

La.R.S. 15:529.1. This action by the state was based on the defendant‟s eight prior

felony convictions. After a hearing, the trial court adjudicated the defendant as a

multiple offender, vacated the original sentence, sentenced him to serve twelve

years at hard labor, and ordered that the sentence be served without the benefit of

probation, parole, or suspension of sentence. Both the defendant and the state

appealed. The defendant‟s appeal was filed as Docket Number 11-581 in this court

and was consolidated with the state‟s appeal which was filed in this court as

Docket Number 12-205.

In his appeal, the defendant filed four assignments of error: (1) that the

evidence is insufficient to support his conviction of simple burglary; (2) that the

trial court erred in not considering his complaint of ineffective assistance of

counsel; (3) that the trial court erred in refusing to consider his challenges to the

jury based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986); and (4) that

the trial court record was incomplete, thereby depriving him of his constitutional

record on appeal. In its appeal, the state asserted in its single assignment of error

that the trial court imposed an illegally lenient sentence when it sentenced the

defendant as a multiple offender pursuant to La.R.S. 15:529.1.

When the matter was first before us, we considered only the defendant‟s

third and fourth assignments of errors in concluding that the lack of a record of the

trial court‟s consideration of the defendant‟s Batson challenge required a remand to

the trial court for an evidentiary hearing. State v. Winters, 11-581, 12-205

(La.App. 3 Cir. 6/6/12), 92 So.3d 1194. Having reached that conclusion, we

pretermitted consideration of the remaining assignments of error raised in the

consolidated appeals and remanded the matter to the trial court “with instructions

to (1) conduct an evidentiary hearing on the Batson issue within thirty days and (2)

lodge an appellate record, containing the transcript of the hearing, within fifteen

days of the hearing.” Id. at 1200.

Our intent in remanding the matter to the trial court was to allow the trial

court to provide this court with a complete record of the jury selection process as

well as a decision on the Batson issue for us to review. When the matter returned

to the trial court, the presiding judge recused himself based on the concern that he

might be called as a witness in the Batson hearing.

When the matter returned to us, it was filed under Docket Number 12-1149.

Upon review of the requested transcript, we discovered that the appointed trial

judge interpreted our instructions to mean that it should develop a transcript to

submit to this court so that we could make an initial determination on the Batson

issue. Because we only review decisions of the trial court and do not render

decisions on legal issues in the first instance, we remanded the matter again to have

the trial court rule on the Batson issue. State v. Winters, 12-1149 (La.App. 3 Cir.

3/6/13) (unpublished opinion).

2

On March 19, 2013, the trial court rendered a ruling to the effect that “the

defendant failed to carry his burden of proving purposeful discrimination.” Based

on that ruling, the matter is again before us, now as Docket Number 13-303. The

record is in such a posture that we can now consider all of the assignments of error

raised by the defendant and the state in Winters, 92 So.3d 1194.

OPINION

Assignment of Error Number One

Louisiana Revised Statutes 14:62(A) provides that “[s]imple burglary is the

unauthorized entering of any dwelling, vehicle, watercraft, or other structure,

movable or immovable, or any cemetery, with the intent to commit a felony or any

theft therein, other than as set forth in R.S. 14:60.” In this assignment of error, the

defendant does not dispute that he entered the Oncologics, Inc. business office on

June 7, 2009, without authorization. Instead, he argues only that the evidence

presented at trial was insufficient to prove beyond a reasonable doubt that he had

the specific intent to commit a felony or theft after he entered the structure.

It is well settled that when the sufficiency of evidence is raised on appeal,

the critical inquiry of the reviewing court falls under what is generally referred to

as the Jackson standard. That inquiry is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State ex rel. Graffagnino v. King,

436 So.2d 559 (La.1983). In fact, the Jackson standard has been legislatively

embodied in La.Code Crim.P. art. 821. In applying the Jackson standard, the

reviewing court cannot “substitute its own appreciation of the evidence for that of

the fact-finder.” State v. Pigford , 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521.

3

Furthermore, a court may not reweigh the evidence or assess the credibility of the

witnesses on appeal. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

It is equally well settled that the state must prove that the defendant had the

specific intent to commit a felony or theft in the building he entered.

Specific intent is required under LSA-R.S. 14:62, and it may be
inferred from the circumstances and actions of the accused. State v.
Arceneaux, 07-692, pp. 10-11 (La.App. 5 Cir. 3/25/08), 983 So.2d
148, 153, writ denied, 08-0892 (La.11/10/08), 996 So.2d 1067.
Specific criminal intent is defined as “„that state of mind which exists
when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.‟”
Arceneaux, 07-692 at 11, 983 So.2d at 153-54 (quoting LSA-R.S.
14:10(1)). Whether a criminal defendant possessed the requisite
intent is for the trier of fact, and a review of the correctness of that
determination is guided by the Jackson standard.

State v. Naquin, 10-474, p. 9 (La.App. 5 Cir. 2/15/11), 61 So.3d 67, 71-72.

To that end, “[d]isplacement of the victim‟s possessions may be indicative of the

specific intent to commit a theft under La.R.S. 14:62.” State v. Vortisch, 00-67, p.

6 (La.App. 5 Cir. 5/30/00), 763 So.2d 765, 768.

We summarized the trial court evidence in Winters, 92 So.3d at 1195-96, as

follows:

There is little dispute concerning the facts in this matter. While
on patrol on Sunday morning, June 7, 2009, Officer Forrest Blanton of
the Lafayette Police Department, was ordered to proceed to 210
Coolidge Street. He arrived around 7:40 a.m. and observed a brown
bicycle laid up against a wooden railing at the entrance to the
Oncologics, Incorporated business office. Officer Nathan Thorton
joined him, and he and Officer Thorton found the front office door
unlocked and the lights inside off. Standing in the foyer of the office,
Officer Blanton heard “rustling in one of the offices.” When he
looked down a long hallway in the direction of the noise, he observed
the defendant peering into the hallway from one of the offices. He
and Officer Thorton took the defendant into custody and initially
charged him with unauthorized entry of a place of business. When
they physically searched the defendant, they found that he was in
possession of some “snacks and things.”

The officers then had the dispatcher contact the alarm company
providing security for the office to have someone with a key come to
the scene because the building remained unsecured. John Ferguson
4

responded to the request and, upon his arrival at the scene, he walked
through the building with the officers. They observed no pry marks
around the door and found no tools on the premises to suggest a
physical break-in. However, [they] did find that the automatic-lock
door had not functioned properly; it left the plunger stuck inside,
causing the door to be unlocked. They freed the plunger and secured
the door. At the request of the officers, Mr. Ferguson performed a
cursory examination of the office space to determine if anything was
missing or out of place. He did not notice any equipment missing, but
did notice that “[s]ome cabinets and drawers were opened and had
been rummaged through.”

Mr. Ferguson testified the office is not open on Sunday, no
employees are present on Sunday, and the building houses the
company‟s accounts receivable department and serves other corporate
functions. On Monday after the Sunday break-in, Mr. Ferguson asked
the employees at the Coolidge Street office to check for anything that
might be missing. While he never received a direct report addressing
this request, Kimberly Smith, one of the employees at the Coolidge
Street office, testified that when she arrived for work on Monday, her
desk drawer was open and “some Gobstoppers and some special dark
chocolate” were missing from her desk, and her calendar on her desk
had been moved. However, Ms. Smith did not provide the officers
with a statement concerning the candy until July 28, 2009, or some
forty-eight days after the incident.

Officer Thorton testified that the snacks found on the defendant
at the time of his arrest included Gobstopper candy. Although both
officers recalled the snacks found on the defendant, neither officer
took those items into evidence. In fact, according to Officer Thorton,
they were left at the scene.

The defendant entered the building at a time when no one was present and

without authorization. The responding officers heard “rustling” before they

apprehended the defendant, and Mr. Ferguson observed that opened cabinets in the

office had been “rummaged through.” Some candy was reported missing, and the

missing candy corresponded to the candy found on the defendant by the arresting

officers. Considering the evidence in a light most favorable to the state, we find

that a rational trier of fact could have found that the state proved beyond a

reasonable doubt that the defendant had the specific intent to commit a theft after

entering the business office. Therefore, we find no merit in this assignment of

error.
5

Assignment of Error Number Two

In this assignment of error, the defendant asserts that the trial court erred in

not considering his claim of ineffective assistance of counsel made on the morning

of trial. On that day, immediately after the trial court denied his trial counsel‟s

motion for continuance based on the defendant‟s medical condition, the defendant

asked to address the trial court. The trial court granted his request, and the

defendant complained that his trial counsel had spent little time preparing him for

trial, that he had failed to file relevant motions, and that he only gave the

defendant‟s a day‟s notice that they were going to trial. Specifically, the defendant

informed the trial court that he did not believe his lawyer adequately prepared for

trial.

The defendant, however, did not ask that new counsel be appointed or that

the trial be continued on this basis. In fact, despite his complaints to the trial court,

he did not ask that the trial court make any ruling on his comments, nor did he

object when the trial court ended the discussion and called the prospective jurors

into the courtroom.

Failure to make a contemporaneous objection to a perceived error of the trial

court waives a defendant‟s right to complain of error on appeal. La.Code Crim.P.

art. 841. Because the defendant neither requested nor objected to any action of the

trial court, we will not consider this assignment of error at this time. In declining

to consider the assignment of error, we further note that an ineffective assistance of

counsel claim may be addressed in an application for post-conviction relief. State

ex rel. of A.B., 09-870 (La.App. 3 Cir. 12/9/09) 25 So.3d 1012.

Assignment of Error Number Three

The defendant‟s third assignment of error relates to his Batson challenge to

the composition of the jury. On the first remand, the trial court did conduct a
6

hearing and the transcript of this hearing adequately addressed the arguments at

trial arising from the defendant‟s Batson challenge. We summarized the evidence

presented at that hearing in Winters, 12-1149, pp. 2-4, as follows:

Thereafter, counsel for the State of Louisiana (state) and the
defendant stipulated that those considered for this jury included four
black males, five black females, six white males, eight white females,
and one Hispanic male; that the jury ultimately selected included one
black male, two white males, three white females; and that the
alternate was the Hispanic male. The litigants also stipulated that the
state peremptorily challenged three black males and two black
females.

The state then called Randall McCann, the defendant‟s counsel
at trial, as a witness. Mr. McCann testified that the state used only
five of its peremptory challenges, all on black prospective jurors. He
then stated the following concerning these challenges:

I made the Batson challenge claiming that none of
those jurors should have been stricken for any particular
reason. And then [counsel for the state] offered his
reasons and Judge Rubin denied my Motion.

The state then called Alan Haney, counsel for the state in the
defendant‟s trial, as a witness. He recalled that when the defendant‟s
counsel first raised the Batson challenges, Judge Rubin did not wait
for the state to present race-neutral reasons for exercising its
challenges before ruling. Instead, Judge Rubin immediately rejected
the Batson challenge. However, Mr. Haney testified that he
recognized that if the record did not contain race-neutral reasons, the
matter would be remanded by the reviewing court for failure to
comply with the Batson three-prong analysis. That being the case, he
testified that even after the ruling, he recited his race-neutral reasons
to Judge Rubin. According to Mr. Haney, Judge Rubin did not
comment concerning the sufficiency of his race-neutral reasons.
Thus, the proceeding was left without a consideration of the second
prong of the Batson analysis.

With regard to the race-neutral reasons provided to Judge
Rubin, Mr. Haney testified that while the trial had occurred two years
before his testimony and he was unable to find the notations he had
made at the time, he did recall the basic reasons he had provided to
Judge Rubin at the time of the Batson challenge. His basic
recollection was that with regard to Ms. Hill, she had testified that her
sister was a drug addict; and with regard to the remaining four jurors,
he was concerned with their response to questions concerning whether
someone should be punished for stealing to feed his family. Based on
this information, he decided to peremptorily challenge all five jurors.

7

We set forth the elements of a Batson challenge in Winters, 92 So.3d 1194,

and will not repeat that analysis herein. Based on our review of the transcript now

before us, we find no error in the trial court‟s determination that “the defendant

failed to carry his burden of proving purposeful discrimination.” Therefore, we

find no merit in this assignment of error.

Assignment of Error Number Four

The defendant‟s complaint in this assignment of error was that the appellate

record was not complete in that it did not contain a transcript of the Batson

argument. Our remand as well as the trial court‟s response to that remand renders

this assignment of error moot.

State of Louisiana’s Assignment of Error

In its sole assignment of error, the state asserts that the trial court erred in

imposing an illegally lenient sentence on the defendant. Specifically, the state

asserts that because of the defendant‟s particular multiple offender status, the law

mandates a minimum sentence of life in prison without benefit of parole,

probation, or suspension of sentence. We agree.

The habitual offender hearing established that the defendant had been

convicted of the following felony offenses in the Fifteenth Judicial District Court

prior to the June 7, 2009 simple burglary:

Simple burglary on March 26, 1991, in Docket Number 59356.

Possession of cocaine on August 31, 1992, in Docket Number 62736.

Simple burglary on May 12, 1997, in Docket Number 71266.

Possession of cocaine on December 4, 1997, in Docket Number
75906.

Unauthorized entry of a place of business on March 27, 2003, in
Docket Number 97031.

Simple burglary on March 16, 2008, in Docket Number 99342.
8

Simple burglary on December 16, 2008, in Docket Number 113242.

Thus, his conviction arising from the June 7, 2009 simple burglary constituted the

defendant‟s eighth felony conviction and his fifth felony conviction for simple

burglary.

At the time of the June 7, 2009 offense, La.R.S. 14:62(B) provided a

maximum incarceration sentence of twelve years with or without hard labor for

conviction of simple burglary. At that same time, La.R.S. 15:529.1 2 provided in

pertinent part:

A. (1) Any person who, after having been convicted within
this state of a felony . . . thereafter commits any subsequent felony
within this state, upon conviction of said felony, shall be punished as
follows:
....
(b) If the third felony is such that upon a first conviction, the
offender would be punishable for imprisonment for any term less than
his natural life then:

(i) The person shall be sentenced to imprisonment for a
determinate term not less than two-thirds of the longest possible
sentence for the conviction and not more than twice the longest
possible sentence prescribed for a first conviction; or

(ii) If the third felony and the two prior felonies are . . . crimes
punishable by imprisonment for twelve years or more . . . the person
shall be imprisoned for the remainder of his natural life, without
benefit of parole, probation, or suspension of sentence.

(c) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then:

(i) The person shall be sentenced to imprisonment for the
fourth or subsequent felony for a determinate term not less than the
longest prescribed for a first conviction but in no event less than
twenty years and not more than his natural life; or

(ii) If the fourth felony and two of the prior felonies are
felonies defined as a crime . . . punishable by imprisonment for twelve
years or more . . . the person shall be imprisoned for the remainder of

2
This statute has undergone various legislative changes since the defendant was charged.
9

his natural life, without benefit of parole, probation, or suspension of
sentence.

Clearly, given the defendant‟s record, the mandated sentence is life in prison

without the benefit of parole, probation, or suspension of sentence. While a trial

court should normally defer to a statutorily mandated sentence, it may deviate from

that statutorily mandated sentence if it determines that a particular sentence

(including one mandated by the Habitual Offender Law) is excessive under Article

I, Section 20 of the Louisiana Constitution. State v. Johnson, 97-1906, (La.

3/4/98), 709 So.2d 672. However:

A sentencing judge must always start with the presumption that
a mandatory minimum sentence under the Habitual Offender Law is
constitutional. See State v. Dorthey, [623 So.2d 1276, (La.1993)] at
1281 (Marcus, J., concurring); State v. Young, [94-1636 (La.App. 4th
Cir. 10/26/95), 663 So.2d 525]. 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.

A trial judge may not rely solely upon the non-violent nature of
the instant crime or of past crimes as evidence which justifies
rebutting the presumption of constitutionality. While the
classification of a defendant‟s instant or prior offenses as non-violent
should not be discounted, this factor has already been taken into
account under the Habitual Offender Law for third and fourth
offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as
third or fourth offenders may receive a longer sentence if their instant
or prior offense is defined as a “crime of violence” under LSA-R.S.
14:2(13). Thus the Legislature, with its power to define crimes and
punishments, has already made a distinction in sentences between
those who commit crimes of violence and those who do not. Under
the Habitual Offender Law those third and fourth offenders who have
a history of violent crime get longer sentences, while those who do
not are allowed lesser sentences. So while a defendant's record of
non-violent offenses may play a role in a sentencing judge‟s
determination that a minimum sentence is too long, it cannot be the
only reason, or even the major reason, for declaring such a sentence
excessive.

Instead, to rebut the presumption that the mandatory minimum
sentence is constitutional, the defendant must clearly and
convincingly show that:

10

[he] is exceptional, which in this context means that
because of unusual circumstances this defendant 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.

Young, 94-1636 at pp. 5-6, 663 So.2d at 528 (Plotkin, J., concurring).

When determining whether the defendant has met his burden of
proof by rebutting the presumption that the mandatory minimum
sentence is constitutional, the trial judge must also keep in mind the
goals of the Habitual Offender Law. Clearly, the major reasons the
Legislature passed the Habitual Offender Law were to deter and
punish recidivism. Under this statute the defendant with multiple
felony convictions is treated as a recidivist who is to be punished for
the instant crime in light of his continuing disregard for the laws of
our state. He is subjected to a longer sentence because he continues to
break the law. Given the Legislature‟s constitutional authority to
enact statutes such as the Habitual Offender Law, it is not the role of
the sentencing court to question the wisdom of the Legislature in
requiring enhanced punishments for multiple offenders. Instead, the
sentencing court is only allowed to determine whether the particular
defendant before it has proven that the mandatory minimum sentence
is so excessive in his case that it violates our constitution.

Finally, if a sentencing judge finds clear and convincing
evidence which justifies a downward departure from the minimum
sentence under the Habitual Offender Law, he is not free to sentence a
defendant to whatever sentence he feels is appropriate under the
circumstances. Instead, the judge must sentence the defendant to the
longest sentence which is not constitutionally excessive. This requires
a sentencing judge to articulate specific reasons why the sentence he
imposes instead of the statutory mandatory minimum is the longest
sentence which is not excessive under the Louisiana Constitution.
Requiring a sentencing judge to re-sentence a defendant in this
manner is in keeping with the judiciary‟s responsibility to give as
much deference as constitutionally possible to the Legislature‟s
determination of the appropriate minimum sentence for a habitual
offender.

We emphasize to sentencing judges that departures downward
from the minimum sentence under the Habitual Offender Law should
occur only in rare situations. As Chief Justice Calogero noted in a
prior case:

The substantive power to define crimes and prescribe
[sic] punishments lies in the legislative branch of
government. [citation omitted]. Our decision in State v.
Dorthey, 623 So.2d 1276 (La.1993), did not purport to
grant a district court the power to usurp that legislative
11

prerogative or to impose what the court believes is the
most appropriate sentence for a particular offender in a
particular case. Dorthey gives the district court the
authority to depart from the mandatory minimum
sentences provided by the legislature only in those
relatively rare cases in which the punishment provided
violates the prohibition of La. Const. art. I, § 20 against
excessive sentences.

State v. Hamilton, 95-2462 at p. 1 (La.2/2/96), 666 So.2d 655, 656
(Calogero, C.J., concurring); see also State v. Dorthey, supra (Marcus,
J., concurring) (noting that situations where sentencing courts should
sentence defendants below the minimum mandated by the Habitual
Offender Law are “rarely presented”).

Id. at 676-77 (alternations in original).

Two of the defendant‟s brothers testified on his behalf at the habitual

offender hearing. His older brother, Dennis Winters, testified that while the

defendant is very intelligent, he has made many mistakes. According to Dennis

Winters, the defendant was homeless at the time of the incident, was in generally

poor health, and his only source of income was workers‟ compensation benefits.

James Winters, the defendant‟s younger brother, testified that his goal was to help

his brother overcome his drug addiction. He suggested that the defendant is not a

violent person and volunteered to “take him in and work with him the way [his

own] older brother worked with [him, James Winters]” to get him straight.

Members of law enforcement also offered their opinions regarding the

defendant. One former officer of the Lafayette City Police Department, Gary

Copes, knew the defendant and James Winters both in his capacity as an officer

and as the overseer of a correctional facility where they were once inmates. He

knew little about the defendant, but explained that his lack of familiarity suggested

that the defendant probably did very well while incarcerated. He testified further

that there were “no issues” and “no write-ups,” and that the defendant “didn‟t

cause problems.” He believed the defendant to be more intelligent than the

12

average inmate and that this attribute would make him a better candidate for

rehabilitation. However, in comparing the defendant to other inmates, he found

nothing exceptional about him.

Lafayette Police Chief Jim Craft testified that he had investigated the

defendant “well over ten times” and that he believed the defendant had over

twenty-two arrests over the span of his life. He considered the defendant

exceptional only in how many more burglaries the defendant had committed than

the average burglar. Chief Craft categorized the defendant “as a career criminal

who victimized a lot of citizens in our City.”

In this case, the trial court did not conclude that the defendant‟s situation

was exceptional under the holding in Johnson, 709 So.2d 672. Instead, the trial

court concluded that the version of La.R.S. 15:529.1(A)(1)(b)(i) in effect on June

7, 2009, was the appropriate section of the habitual offender statute under which

the defendant should be sentenced. Application of this provision mandated a

sentence of not less than eight years and not more than twenty-four years. Thus,

the trial court sentenced the defendant to serve twelve years as a multiple offender.

In reaching this conclusion, the trial court failed to recognize that the

defendant was an eight-time felony offender and not a third-felony offender. Even

assuming that the third-felony-offender portion of the statute was applicable (and

we do not so assume), the trial court further failed to consider that the defendant‟s

simple burglary conviction would have fallen within the sentencing range of

La.R.S. 15:529.1(A)(1)(b)(ii) in that the maximum sentence applicable to simple

burglary under La.R.S. 14:62 is twelve years.

Based on the record before us, we find no extraordinary circumstances to

allow the trial court to deviate from the sentencing requirements of La.R.S.

15:529.1; we find that the trial court erred in sentencing the defendant as a third-
13

felony offender; and we find that the proper sentencing provision applicable to the

defendant is La.R.S. 15:529.1(A)(1)(c)(ii). Thus, we find merit in the state‟s

assertion that the defendant should have been sentenced to life imprisonment at

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

We vacate the defendant‟s twelve-year sentence and remand the matter to

the trial court for resentencing pursuant to La.R.S. 15:529.1(A)(1)(c)(ii).

Errors Patent

In accordance with La.Code Crim.P. art. 920, we review appeals for errors

patent on the face of the record. After reviewing the record, we recognize one such

error patent that requires correcting.

The record before us reflects that the trial court failed to advise the

defendant of the prescriptive period for filing an application for post-conviction

relief as required by La.Code Crim.P. art. 930.8. That being the case, we also

remand the matter with instructions to the to the trial court judge to inform the

defendant of the provisions of La.Code Crim.P. art. 930.8 by sending the

appropriate written notice to him within thirty days of the rendition of this opinion

and to file written proof of the receipt of this notice by the defendant in the record;

or in this case, because the defendant is to be resentenced, by advising the

defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing rather

than by written notice. See generally 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.

DISPOSITION

We affirm the defendant‟s conviction and adjudication as a multiple

offender. We vacate the defendant‟s sentence and remand the matter to the trial

court for resentencing pursuant to the requirements of La.R.S.

15:529.1(A)(1)(c)(ii). We also remand the matter to the trial court with
14

instructions to inform the defendant, in writing and within thirty days of the

rendition of this opinion (or at the discretion of the trial court, orally at the

resentencing hearing), of the appropriate prescriptive period for filing an

application for post-conviction relief pursuant to La.Code Crim.P. art. 930.8. In the

event the trial court should choose to inform the defendant in writing before the

resentencing hearing, the trial court is ordered to file written proof in the record

that the defendant received the notice.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION
AFFIRMED; SENTENCE VACATED; AND REMANDED WITH
INSTRUCTIONS.

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