State of Louisiana v. Brendall Louis Bourque

NOT FOR PUBLICATION
STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-809

STATE OF LOUISIANA

VERSUS

BRENDALL BOURQUE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 145425
HONORABLE MARILYNN CARR CASTLE, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
J. David Painter, Judges.

AFFIRMED.

Michael Harson, District Attorney
Alan P. Haney, Assistant District Attorney
P.O. Box 4308
Lafayette, LA 70502
(337) 291-7009
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Brendall Bourque

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COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

The facts established Defendant, Brendall Bourque, failed to renew his sex

offender registration timely and failed to notify law enforcement of a change in his

employment.

On January 21, 2011, Defendant was charged by bill of information with

two counts of failure to register, violations of La.R.S. 15:542(B). Defendant pled

not guilty to the charges on January 24, 2011. Subsequently, on January 4, 2012,

the State amended the bill of information to charge Defendant with one count of

failure to renew registration, a violation of La.R.S. 15:542.1.1, and one count of

failure to notify law enforcement of change of registration information, a violation

of La.R.S. 15:542.1.2. On January 11, 2012, the State filed another amended bill

of information, but the charges remained the same. Defendant pled not guilty to

the amended charges on January 12, 2012. After a jury trial, Defendant was found

guilty as charged on January 18, 2012. Subsequently, on May 31, 2012, Defendant

was sentenced on each count to eight years at hard labor without benefits, to run

concurrently with one another. Defendant was also charged as a habitual offender,

adjudicated a fourth habitual offender as to count one, and sentenced to twenty

years at hard labor on count one, to run concurrently with the sentence imposed on

count two. State v. Bourque, 12-1359 (La.App. 3 Cir. 6/5/13), 114 So.3d 649.

Defendant appealed both his conviction and habitual offender adjudication.

Finding the trial court erred in granting the State’s “reverse-Batson” motion, this

court vacated Defendant’s convictions, his sentences, and his habitual offender

adjudication, and remanded the case for further proceedings. State v. Bourque, 12-

1358 (La.App. 3 Cir. 6/5/13), 114 So.3d 642, writ denied, 13-1598 (La. 3/14/14),

134 So.3d 1187, and State v. Bourque, 114 So.3d 649. Upon remand, on April 29,

2014, a jury once again found Defendant guilty as charged. On May 13, 2014, the

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trial court sentenced Defendant on each count to eight years at hard labor without

benefits, to run concurrently with one another. Defendant filed a motion to

reconsider sentence, which was denied without a hearing on May 27, 2014.

Defendant was granted an appeal of his convictions and sentences on May 29,

2014.

In a separate docket number, the State filed a habitual offender bill, charging

Defendant as a fourth habitual offender. On June 26, 2014, the trial court

adjudicated Defendant a fourth habitual offender, vacated the sentence previously

imposed on count one, and imposed an enhanced sentence of twenty years at hard

labor on count one, to run concurrently with the sentence imposed on count two.

Defendant filed a motion for appeal of his habitual offender adjudication and

sentence, which was granted on July 11, 2014.

By order of this court dated August 26, 2014, Defendant’s two appeals were

consolidated for briefing purposes only; they will be handled as two separate

appeals. In the previous appeal, this court’s docket number 14-780, we affirmed

Defendant’s convictions for failure to renew his sex offender registration, a

violation of La.R.S. 15:542.1.1, and failure to notify law enforcement of change of

registration information, a violation of La.R.S. 15:542.1.2. In this appeal,

Defendant asserts the trial court erred in adjudicating him a fourth felony offender.

For the following reasons, we find no merit in this assignment of error.

ANALYSIS

Defendant asserts the trial court erred in adjudicating him a fourth felony

offender. Defendant argues the State failed to prove the discharge dates of his

prior offenses. Citing La.R.S. 15:529.1(C), Defendant argues:

The state failed to prove that ten years had not elapsed between
Mr. Bourque’s release from state custody and supervision for any of
the prior convictions on October 2, 2003, December 11, 2003, or
February 22, 1990, and the current offense which occurred on April
29, 2014. Although a new basis for an objection cannot be raised for

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the first time on appeal, La.Code Crim.P. art. 841, State v. Cressy, 440
So.2d 141 (La.1983), La.Code Crim.P. art. 920 provides for appellate
review for errors patent on the face of the record. The ten year
cleansing period begins to run from the date a defendant is actually
discharged from state custody and supervision. State v. Metoyer, 612
So.2d 755 (La.App. 5 Cir. 1992). The state’s failure to prove a
defendant’s discharge date, thus proving that the cleansing period has
not expired, is error patent on the face of the record. State v. Davis,
41,245 (La.App. 2 Cir. 8/9/06), 937 So.2d 5, rehearing denied, appeal
after remand, (La.App. 2 Cir. 1/9/08).

As the State failed to meet its burden of proving the ten year
cleansing period had not elapsed, Brendall Bourque’s sentence as a
habitual offender should be vacated and the matter remanded to the
trial court for further proceedings.

In response, the State argues that it proved there was no ten-year gap between

Defendant’s previous convictions and the date of the offense for which the

sentence was enhanced.

It is not necessary to determine whether the alleged error should be

addressed as an error patent even though it was not objected to in the lower court.

Louisiana Revised Statutes 15:529.1(C) provides:

The current offense shall not be counted as, respectively, a
second, third, fourth, or higher offense if more than ten years have
elapsed between the date of the commission of the current offense or
offenses and the expiration of the maximum sentence or sentences of
the previous conviction or convictions, or between the expiration of
the maximum sentence or sentences of each preceding conviction or
convictions alleged in the multiple offender bill and the date of the
commission of the following offense or offenses. In computing the
intervals of time as provided herein, any period of parole, probation,
or incarceration by a person in a penal institution, within or without
the state, shall not be included in the computation of any of said ten-
year periods between the expiration of the maximum sentence or
sentences and the next succeeding offense or offenses.

In State v. Thomas, 05-2210, p. 10 (La.App. 1 Cir. 6/9/06), 938 So.2d 168,

176, writ denied, 06-2403 (La. 4/27/07), 955 So.2d 683, the first circuit stated the

following about the above statutory provision:

The statutory revision makes it clear that each step of the defendant’s
multiple offender ladder must be examined to determine whether the
State may link his first conviction to his second, his second conviction
to his third, and his third conviction to his fourth to charge the
defendant as a fourth felony offender.

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In “linking” up the defendant’s prior convictions, the date that a defendant is

actually discharged from state custody and supervision is the date upon which the

cleansing period begins. State v. Boutte, 10-928, p. 3 (La.App. 3 Cir. 3/9/11), 58

So.3d 624, 627, writ denied, 11-689 (La. 10/7/11), 71 So.3d 314 (quoting State v.

Boykin, 29,141 (La.App. 2 Cir. 1/31/97), 688 So.2d 1250). While a defendant is

on parole, he is still in state custody. State v. Vincent, 387 So.2d 1097 (La.1980).

Thus, the cleansing period does not begin until the defendant’s parole ends.

In the present case, the State charged Defendant with three previous felony

convictions: (1) possession of cocaine (conviction date October 2, 2003); (2) false

impersonation of a police officer (conviction date December 11, 2003); and (3)

distribution of dihydrocodeinone (conviction date February 22, 1990). The

commission date of the offense for which Defendant’s sentence was enhanced

(failure to renew registration as a sex offender) was November 19, 2010.1 Since

ten years did not lapse between Defendant’s commission of failure to renew his

registration (November 19, 2010) and Defendant’s most recent prior conviction

(false impersonation of a police officer – December 11, 2003), the State was not

required to prove the date on which Defendant was discharged for serving his

sentence for falsely impersonating a police officer. See Boutte, 58 So.2d 624.

Additionally since false impersonation of an officer and the next previous

conviction (possession of cocaine) occurred within a few months of each other

(December 11, 2003 and October 3, 2003, respectively), the State was not required

to prove Defendant’s discharge date for the possession of cocaine conviction. It is

clear that ten years did not lapse between any of these convictions.

1
We note that in brief, Defendant asserts the commission date of the sentence being
enhanced was April 29, 2014. That date, however, was the date on which Defendant was
convicted of failure to renew registration. The pertinent date is the date on which the offense
was committed. La.R.S. 15:529.1(C). That date is November 19, 2010.
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Thus, the only remaining “link” in the ladder is the link between the

discharge date for his first previous conviction (distribution of dihydrocodeinone--

conviction date February 22, 1990) and the commission of Defendant’s next

previous conviction (possession of cocaine--conviction date October 2, 2003). As

the State notes in its brief, it introduced a letter from the Department of Public

Safety and Corrections dated June 26, 2012, which shows that Defendant’s parole

for distribution of dihydrocodeinone (conviction date February 22, 1990) ended on

June 14, 1999. This exhibit was introduced at Defendant’s first habitual offender

hearing without any objection. At Defendant’s most recent habitual offender

proceeding, the State asked the trial court to take judicial notice of the first habitual

offender proceeding, which the trial court did without any objection from

Defendant. It is apparent from the record that less than ten years lapsed between

Defendant’s June 14, 1999, discharge date for distribution of dihydrocodeinone

and Defendant’s conviction for possession of cocaine (October 2, 2003); thus, the

State satisfied its burden of proving that less than ten years lapsed between these

two previous offenses. Accordingly, the period between each of the “links” in the

“ladder” were each less than ten years.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are

affirmed.

AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules–Courts of
Appeal, Rule 2-16.3.

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