State of Louisiana v. Jamarlon W. Pierre

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1333

STATE OF LOUISIANA

VERSUS

JAMARLON PIERRE

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 21,363
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE
VACATED AND CASE REMANDED FOR RESENTENCING;
MOTION TO WITHDRAW GRANTED.

Van H. Kyzar
District Attorney
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
Counsel for Appellee:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Jamarlon Pierre

KEATY, Judge.

Defendant, Jamarlon Pierre, appeals his habitual offender adjudication and

sentence. Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967), requesting that this court grant his accompanying

motion to withdraw. For the following reasons, we affirm Defendant’s habitual

offender adjudication but vacate his life sentence, remanding it to the trial court for

the appointment of defense counsel and for resentencing. Appellate counsel’s

motion to withdraw is granted.

FACTS AND PROCEDURAL BACKGROUND

On December 12, 2011, Conswayla Mitchell was residing at her house in

Natchitoches, Louisiana, where she lived with her fiancé, Tyrell Thomas. Thomas,

a drug dealer, was out of town at the time. At approximately 9:00 a.m., two men

kicked in her front door and entered her house. They proceeded into her bedroom

where one of the men shot Mitchell. Before leaving, the men confiscated a gun

and $2,200 in cash. After the police received a tip, Defendant and other

individuals were arrested.

Defendant was convicted of attempted second degree murder and armed

robbery in Docket Number C18733-1 and was charged as a habitual offender in

Docket Number C21363A. He was adjudicated a habitual offender and sentenced

to life imprisonment at hard labor without benefit of parole, probation, or

suspension of sentence. Defendant is before us appealing his habitual offender

adjudication and sentence. Appellate counsel has filed a brief pursuant to Anders,

386 U.S. 738, alleging that the record contains no non-frivolous issues for appeal;

thus, he requests this court grant his accompanying motion to withdraw.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find it

contains one error patent requiring that Defendant’s life sentence be vacated and

the case remanded for resentencing.

Defendant was convicted of attempted second degree murder and armed

robbery. He was originally sentenced on March 26, 2014, to serve forty-five years

at hard labor for attempted second degree murder and forty-five years at hard labor

without benefit of parole, probation, or suspension of sentence for armed robbery.

The sentences were to run concurrently. In April 2014, the State filed a habitual

offender bill alleging the following:

COUNT 1: COMMIT THE OFFENSE OF BEING A HABITUAL
OFFENDER, HAVING BEEN CONVICTED OF ATTEMPTED
2ND DEGREE MURDER AND ARMED ROBBERY ON
JANUARY 23, 2014, IN THE 10TH JDC; AND HAVING
PREVIOUSLY BEEN CONVICTED OF POSSESSION OF
SCHEDULE II WITH INTENT TO DISTRIBUTE ON JANUARY
23, 2006, IN THE 10TH JDC; AND HAVING PREVIOUSLY BEEN
CONVICTED OF ARMED ROBBERY ON OCTOBER 26, 1998, IN
THE 10TH JDC, IN VIOLATION OF R.S. 15:529.1, A FELONY.

At the habitual offender hearing, the State indicated that Defendant was

charged pursuant to La.R.S. 15:529.1 (A)(3)(b), which provides:

If the third felony and the two prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), a sex offense as
defined in R.S. 15:540 et seq. when the victim is under the age of
eighteen at the time of commission of the offense, or as a violation of
the Uniform Controlled Dangerous Substances Law punishable by
imprisonment for ten years or more, or any other crimes punishable by
imprisonment for twelve years or more, or any combination of such
crimes, the person shall be imprisoned for the remainder of his natural
life, without benefit of parole, probation, or suspension of sentence.

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In finding Defendant a habitual offender, the trial court stated that it found

he had been convicted of felonies on three occasions as required by La.R.S.

15:529.1(A)(3)(b). It stated that “we don’t count each [felony] individually when

two of them occur at the same time.” The trial court noted that Defendant’s

felonies in chronological order included armed robbery; possession with intent to

distribute a narcotic substance; and armed robbery and attempted murder. It stated

that the first and last felonies qualified as crimes of violence, and his second felony

was “a violation of the Controlled Dangerous Substance Law punishable by

imprisonment of ten (10) years or more.” The trial court held that the State proved

that Defendant’s convictions fell within the time periods required by the habitual

offender statute. It found that the State proved beyond a reasonable doubt that

Defendant was the person convicted of the prior felonies, resulting in him being

sentenced as a multiple offender. The trial court held: “The previous sentence in

Docket Number C18733-1A is vacated[,] and the defendant is hereby sentenced to

serve a term of life in prison, without possibility of parole, probation, or

suspension of sentence.”

Louisiana jurisprudence interprets the habitual offender statute as containing

“no prohibition against enhancing multiple sentences obtained on the same date

arising out of a single criminal act or episode.” State v. Shaw, 06-2467, p. 20 (La.

11/27/07), 969 So.2d 1233, 1245. In the case at bar, Defendant’s convictions of

attempted second degree murder and armed robbery were included in the habitual

offender bill and referenced at the hearing, but only a single life sentence was

imposed. The trial court vacated the original “sentence.” Since two concurrent

forty-five year sentences had been imposed, presumably the trial court intended to

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vacate both original sentences, simply viewing them as a single sentence due to

their concurrent nature.

We find that the trial court erred since the record fails to indicate which of

Defendant’s two convictions were enhanced or whether both were enhanced.

Accordingly, Defendant’s life sentence is indeterminate as he was convicted of two

offenses, attempted second degree murder and armed robbery, and only a single

sentence was imposed.

Louisiana jurisprudence provides a map for this court to follow when faced

with a defendant’s indeterminate sentence. In State v. Webster, 95-605 (La.App. 3

Cir. 11/2/95), 664 So.2d 624, the defendant was sentenced as a third felony

offender to seventy-five years at hard labor arising from his conviction on four

counts of armed robbery. In addressing a similar raised issue, this court stated:

By these assignments of error, the defendant contends the trial
court erred in failing to specify which of the four convictions was
being enhanced at sentencing and in failing to sentence him on the
additional three counts within a reasonable amount of time.

The defendant notes that the trial court did not specify which
armed robbery conviction was being enhanced. Nor did the court
sentence the defendant on the remaining three convictions. . . .

We agree, that the trial court erred in that the record does not
reveal which of defendant’s four armed robbery convictions was
being enhanced. Additionally, the trial court should have imposed a
separate sentence on each of the three remaining convictions.
Therefore, defendant’s sentence is indeterminate as he was convicted
of four counts of armed robbery and only a single sentence was
imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3
Cir.1991); La.Code Crim.P. art. 879. Accordingly, defendant’s
sentence will be vacated and the case remanded to the trial court for
clarification as to which count is being enhanced and for imposition of
separate sentences on the remaining three counts. See State v. Parker,
593 So.2d 414 (La.App. 1 Cir.1991).

Id. at 630.

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In State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, the

defendant was convicted of two counts of armed robbery. On appeal, the appellate

court found patent error occurred when the trial court failed to specify which of the

two sentences it intended to enhance:

The second patent error in the record is that the trial court erred
in failing to specify which of defendant’s two sentences it intended to
enhance pursuant to the habitual offender bill. The amended
commitment also fails to indicate which of defendant’s sentences was
enhanced. Because defendant’s two convictions arose from a single
criminal episode, only one could be enhanced. State ex rel. Porter v.
Butler, 573 So.2d 1106, 1108 (La.1991). It is the opinion of this
Court that the [sic] we must vacate the habitual offender sentence and
remand the case to the trial court for re-sentencing, with the
instruction that the trial court specify which of defendant’s two
sentences are to be enhanced. See State v. Stack, 97-1176, (La.App.
5th Cir. 4/15/98), 710 So.2d 841, 845.

Id. at 165.1

In State v. Elie, 10-1494 (La.App. 3 Cir. 10/5/11), 74 So.3d 1216, writ

denied, 11-2786 (La. 4/13/12), 85 So.3d 1246, this court remanded the case for

resentencing due to the defendant’s absence from sentencing, an assigned error.

On error patent review, this court noted:

In accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. We find one such
error. Although the trial court acknowledged that there were two
counts, it appears it enhanced only one of Defendant’s sentences at the
habitual offender proceeding for possession of a firearm by a
convicted felon. For reasons provided below, we remand this matter
to the trial court for resentencing, at which time the trial court must
specify which of Defendant’s two convictions is being enhanced.
State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161;
and State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624.

Id. at 1219.

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It was permissible to enhance only one of multiple convictions arising out of a single
criminal episode at the time of the Webster, 664 So.2d 624, and Clennon, 738 So.2d 161,
opinions. The supreme court subsequently held that La.R.S. 15:529.1 does not prohibit
enhancing multiple sentences obtained the same date arising out of a single criminal episode.
State v. Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233.

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Accordingly, Defendant’s life sentence is vacated, and the case is remanded

to the trial court for the appointment of defense counsel and for resentencing with

the trial court being instructed to clarify which sentence(s) is (are) being enhanced

and for imposition of a separate sentence on the remaining conviction should only

one sentence be enhanced.

II. Anders Analysis

Defendant’s appellate counsel filed an Anders brief stating that he could find

no errors on appeal which would support reversal of Defendant’s convictions or

sentences. Counsel therefore seeks to withdraw.

When presented with an Anders brief, we are required to do the following:

An appellate court must conduct an independent review of the
trial court record to determine whether the appeal is wholly frivolous.
“When counsel files an Anders brief, an appellate court reviews
several items: a) the Bill of Information to ensure that the charge is
proper, b) all minute entries to ensure that defendant was present at all
crucial stages of the prosecution, c) all pleadings in the record, and d)
all transcripts to determine whether any ruling of the trial court
provides a basis for appeal.” State v. Defrene, 07-823, p. 4 (La.App. 5
Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the
reviewing court determines there are no non-frivolous issues for
appeal, it may grant counsel’s motion to withdraw and affirm the
defendant’s conviction and sentence.

State v. Newman, 12-359, p. 7 (La.App. 5 Cir. 12/11/12), 107 So.3d 775, 780, writ

denied, 13-121 (La. 6/21/13), 118 So.3d 407.

An Anders brief must “‘assure the court that the indigent defendant’s

constitutional rights have not been violated.’” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of Appeals of Wisconsin,

Dist. 1, 486 U.S. 429, 442, 108 S.Ct. 1895 (1988)). Counsel must discuss and

analyze the trial record and consider “whether any ruling made by the trial court,

subject to the contemporaneous objection rule, had a significant, adverse impact on

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shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d

at 241. Counsel’s Anders brief, therefore, must review the procedural history, the

evidence presented in the lower court, and “a detailed and reviewable assessment

for both the defendant and the appellate court of whether the appeal is worth

pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d

1176, 1177.

In this case, counsel’s brief provides the suit’s procedural history while

pointing out that the State failed to prove Defendant’s discharge dates for his prior

offenses for purposes of calculating the cleansing period. He claims, however, that

because ten years did not lapse between any of his prior convictions, the State was

not required to prove the discharge date.

In support, counsel cites State v. Bourque, 14-809 (La.App. 3 Cir. 12/10/14)

(unpublished opinion). In Bourque, the defendant alleged that the trial court erred

in adjudicating him a fourth felony offender because the state failed to prove the

discharge dates of his prior offenses. This court held:

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

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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.

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. 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.

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)

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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.

Id. at 4-6 (footnote omitted).

Using the foregoing analysis in the present case, Defendant’s current

offenses were committed on December 12, 2011. His two previous convictions

included possession with intent to distribute cocaine on January 23, 2006, and

armed robbery on October 26, 1998. The commission date of the offense(s) for

which Defendant’s sentence was enhanced was December 12, 2011. Since ten

years did not lapse between the Defendant’s commission of the instant offenses on

December 12, 2011, and his most recent prior conviction of possession with intent

to distribute cocaine, the State was not required to prove the date on which

Defendant was discharged for serving his sentence for possession with intent to

distribute cocaine. Additionally, since ten years did not lapse between Defendant’s

conviction for possession with intent to distribute cocaine and the next previous

conviction which was armed robbery, the State was not required to prove

Defendant’s discharge date for the armed robbery conviction. Thus, counsel is

correct in his assertion that the State was not required to prove Defendant’s

discharge dates pursuant to Bourque.

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In accordance with Anders, 386 U.S. 738, and Newman, 107 So.3d 775, we

have performed a thorough review of the record, including pleadings, minute

entries, the charging instrument, and the transcripts and have confirmed the

statements by counsel. Defendant was properly charged in the habitual offender

bill, and he was present and represented by counsel at all crucial stages of the

habitual offender and sentencing proceedings. As discussed above, Defendant’s

life sentence is vacated due to the presence of an error patent. Other than this

patent error, our review of the record reveals no non-frivolous issues Defendant

could raise on appeal. Accordingly, we grant counsel’s motion to withdraw.

DECREE

Defendant’s adjudication as a habitual offender is affirmed; however, his life

sentence is vacated and the case is remanded to the trial court for the appointment

of defense counsel and for resentencing. The trial court is instructed to clarify

which sentence(s) is (are) being enhanced and to impose a separate sentence on the

remaining conviction should only one sentence be enhanced.

HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE
VACATED AND CASE REMANDED FOR RESENTENCING; MOTION
TO WITHDRAW GRANTED.

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