State of Louisiana v. Raymond Daniel Lowrey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-399

STATE OF LOUISIANA

VERSUS

RAYMOND DANIEL LOWREY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89820
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.

REVERSED AND VACATED.

Asa Allen Skinner
District Attorney
Thirtieth Judicial District
Terry W. Lambright
First Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O.Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Raymond Daniel Lowrey

SAUNDERS, JUDGE.

Defendant, Raymond Daniel Lowrey, was charged by bill of information

filed on August 9, 2016, with failure to comply with the conditions of supervised

release, a violation of La.R.S. 15:561.7. On December 9, 2016, Defendant pled

guilty to the offense, and was sentenced on February 14, 2017, to serve four years

at hard labor. The sentence was to be served without benefit of probation, parole,

or suspension of sentence and concurrently to any other sentence Defendant was

subject to receiving. A motion to reconsider sentence was filed on March 2, 2017,

and was denied. A motion for appeal and designation of record was filed on

March 7, 2017. The motion was granted the following day.

Defendant is now before this court asserting two claims: 1) his conviction

for failure to comply with supervised release conditions constituted double

jeopardy, and 2) his sentence is excessive.

FACTS:

Defendant is a convicted sex offender, as he previously pled guilty in

Vernon Parish to two counts of indecent behavior with juveniles. The victims of

the offenses were under the age of thirteen. Therefore, Defendant was placed on

supervised release with various conditions at the time he was discharged from

prison. Defendant later failed to comply with the conditions of his supervised

release when he committed a criminal act in Calcasieu Parish.

ASSIGNMENT OF ERROR NO. 11:

Defendant contends his conviction for failure to comply with supervised

release conditions constitutes double jeopardy in this case because he had already

pled guilty to the same act that resulted in his conviction for violating a different

statute in another case. We find merit to this contention.

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We have changed Defendant’s “Assigned Error Patent” to “Assignment of Error No. 1.”

The State argues a double jeopardy claim is not an error patent, and because

Defendant improperly labeled the claim an error patent and not an assignment of

error, the claim should not be addressed. The State cites State v. Arnold, 01-1399

(La. 4/12/02), 816 So.2d 289, in support of its claim.

In State v. Sanders, 93-01, p. 14 (La. 11/30/94), 648 So.2d 1272, 1284, cert.

denied, 517 U.S. 1246, 116 S.Ct. 2504 (1996), the supreme court stated: “the title

of a pleading does not matter, but rather ‘courts should look through the caption of

pleadings in order to ascertain their substance and to do substantial justice . . . ’

Smith v. Cajun Insulation, 392 So.2d 398 (La.1980).” In Lomont v. Myer-Bennett,

16-436, p. 5 (La.App. 5 Cir. 12/14/16), 210 So.3d 435, 441, writ denied, 17-88 (La.

2/24/17), 216 So.3d 59, the fifth circuit stated:

[I]n situations where a mistitled pleading clearly identifies the issue
being raised, and adequately sets out the mover’s arguments on that
issue and the relief requested, such that notice and due process
requirements are sufficiently satisfied, this Court, in the interest of
justice, will routinely look beyond the title of the pleading and address
the merits of the issue raised.

Based on these cases, we look beyond Defendant’s classification of the error as an

error patent to address Defendant’s claim.

Double jeopardy stands for the proposition that no person shall
twice be put in jeopardy of punishment for the same offense. U.S.
Const. amend. V. The clause protects against three distinct double
jeopardy situations: a second prosecution for the same offense after
acquittal, a second prosecution for the same offense after conviction,
and multiple punishments for the same offense. North Carolina v.
Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969),
overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109
S.Ct. 2201, 104 L.Ed.2d 865 (1989).

State v. Thomas, 14-820, pp. 5-6 (La.App. 3 Cir. 3/4/15), 159 So.3d 1115, 1119,

writ denied, 15-729 (La. 3/14/16), 189 So.3d 1064.

This court has employed the “same evidence” test. State v.
Solomon, 379 So.2d 1078 (La.1980); State v. Smith, 323 So.2d 797
(La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v.

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Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Knowles, 392
So.2d 651, 654 (La.1980).

The “same evidence “test is used to determine whether double

jeopardy has occurred.

The “same evidence” test depends upon the proof required to
convict, not the evidence actually introduced at trial. State v. Doughty,
supra. Thus, if the evidence necessary to support the second
indictment would have been sufficient to support the former
indictment, double jeopardy prohibits the second prosecution. State v.
Richardson, 220 La. 338, 56 So.2d 568 (1951); State v. Foster, 156 La.
891, 101 So. 255 (1924); State v. Roberts, 152 La. 283, 93 So. 95
(1922).

State v. Knowles, 392 So.2d 651.

This court must look to the charging documents, plea colloquy, and the

applicable statutes to analyze Defendant’s claim. The bill of information charging

Defendant with a violation of La.R.S. 15:561.7 states: “on or about November 9,

2015, defendant did fail to comply with the conditions of supervised release . . . .”

At the time Defendant entered his plea, the following factual basis was provided:

[B]ack on November the 9th, 2015, this defendant did fail to comply
with the conditions of supervised release. State would show that back
on September the 2nd, 2009, this defendant pled guilty to two counts
of indecent behavior with a juvenile where the victim in the case - -
one was eight and the other count, the victim was nine. On August
the 26th, 2011, this defendant signed conditions of his supervised
release. He was to remain on supervised release for life and this
defendant is aware of that. One of his conditions stated that he would
live and remain at liberty and refrain from engaging in any type of
criminal activity. State would be prepared to show that on November
the 9th of 2015, that in the Fourteenth Judicial District down in Lake
Charles, Louisiana this defendant pled guilty to failure to carry sex
offender identification card in violation of R.S. 14:1321J [sic], which
is a violation of condition number eleven of the supervised release
form to which he signed. The State would assert that this all occurred
in Vernon Parish, State of Louisiana, and asks that all of the answers
to discovery be made a part of my factual recitation.

The offense of failure to comply with the conditions of supervised release is

governed by several statutes. In State v. Trosclair, 11-2302, pp. 6-10 (La. 5/8/12),

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89 So.3d 340, 344-47 (footnotes omitted), the supreme court discussed those

statutes as follows:

[W]e begin our discussion with an overview of the regulatory scheme
of supervision and the statutory provisions governing this scheme.
La.Rev.Stat. §§ 15:561 through 15:561.7, added by Acts 2006, No.
242, § 1, effective August 15, 2006, provide for supervised release of
certain sex offenders who committed their crimes upon children under
thirteen years of age. In Section 561, the Legislature sets forth its
findings associated with the enactment of the supervised release laws:

Under Section 561.1, the supervised release provisions apply to any
person convicted, on or after the effective date of the act, of a sex
offense as defined in La.Rev.Stat. § 15:541, when the victim is under
thirteen years of age. According to Section 561.3, supervised release
is administered by the Department of Public Safety and Corrections,
division of probation and parole, and supervised release officers have
the powers and duties of parole officers. Section 561.4 directs the trial
court at sentencing as well as the Department of Public Safety and
Corrections to inform the offender he will be placed on supervised
release and of the conditions of supervision.

Section 561.6 directs the Department of Public Safety and Corrections
to adopt rules necessary to implement these provisions, and Section
561.7 provides the penalties for failing to comply with the conditions
of supervised release, which include fines up to three thousand dollars
and imprisonment with hard labor from two to twenty years “without
benefit.”

[Of particular relevance herein, Section 561.2 governs the
commencement and duration of supervision]

In its present form, La.Rev.Stat. § 15:561.2 now provides:

B. Any person placed on supervised release pursuant to
the provisions of this Section shall be on supervised
release for life from the date of release from incarceration.
Notwithstanding any other provision of law to the
contrary, any person who was placed upon supervised
release pursuant to the provisions of this Section, may
petition the sentencing court for a termination of the
supervision.

For double jeopardy purposes, the second offense at issue herein is failure to

comply with the conditions of supervised release, by failing to carry a sex offender

identification card, which is a violation of the conditions of supervised release.

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Louisiana Revised Statutes 40:1321(J) provides for the issuance of special

identification cards to sex offenders as follows:

(1) Any person required to register as a sex offender with the
Louisiana Bureau of Criminal Identification and Information, as
required by R.S. 15:542 et seq., shall obtain a special identification
card issued by the Department of Public Safety and Corrections which
shall contain a restriction code declaring that the holder is a sex
offender. This special identification card shall include the words “sex
offender” in all capital letters which are orange in color and shall be
valid for a period of one year from the date of issuance. This special
identification card shall be carried on the person at all times by the
individual required to register as a sex offender.

(2) Each person required to carry a special identification card
pursuant to this Subsection shall personally appear, annually, at a field
office of the office of motor vehicles to renew his or her special
identification card but only after he or she has registered as an
offender pursuant to R.S. 15:542 et seq. Reregistration shall include
the submission of current information to the department and the
verification of this information, which shall include the street address
and telephone number of the registrant; the name, street address and
telephone number of the registrant’s employer, and any registration
information that may need to be verified by the bureau. No special
identification card shall be issued or renewed until the office of motor
vehicles receives confirmation from the bureau, electronically or by
other means, that the reregistration of the sex offender has been
completed.

(3) The provisions of this Subsection shall apply to all sex
offenders required to register pursuant to R.S. 15:542 et seq.,
regardless of the date of conviction.

(4) Whoever violates this Subsection shall be fined not less than
one hundred dollars and not more than five hundred dollars, or
imprisoned for not more than six months, or both.

Louisiana Revised Statutes 15:542 states, in pertinent part:

A. The following persons shall be required to register and
provide notification as a sex offender or child predator in accordance
with the provisions of this Chapter:

(1) Any adult residing in this state who has pled guilty to, has
been convicted of, or where adjudication has been deferred or
withheld for the perpetration or attempted perpetration of, or any
conspiracy to commit either of the following:

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(a) A sex offense as defined in R.S. 15:541, with the exception
of those convicted of felony carnal knowledge of a juvenile as
provided in Subsection F of this Section.

The bill of information indicates the violation of La.R.S. 15:561.7 occurred

on about November 9, 2015, which was the date Defendant pled guilty to failing to

carry his sex offender card in Calcasieu Parish. The failure to carry his sex

offender card in Calcasieu Parish was a violation of the conditions of supervised

release in Vernon Parish. Thus, Defendant’s Calcasieu Parish plea was used as the

factual basis for his plea in Vernon Parish. Defendant argues that his conviction

for failing to comply with the provisions of supervised release in Vernon Parish

constitutes double jeopardy since the same act had already been punished through

his conviction for failing to carry his sex offender identification card in Calcasieu

Parish. Consequently, Defendant argues the trial court did not have the power to

enter the conviction at issue herein.

We review Defendant’s claim under the “same evidence” test. Under the

same “same evidence” test, Defendant argues he was twice placed in jeopardy for

failing to carry his identification card for sex offenders on one particular occasion

in Calcasieu Parish. He alleges his failure to carry the card was necessary to

convict him under both statutes.

We find that the single act Defendant committed, failing to carry his sex

offender identification card in Calcasieu Parish, was the determinative factor in a

successful prosecution of failure to carry a sex offender identification card and

failure to comply with the conditions of supervised release in Vernon Parish. In

other words, without the failure to carry his sex offender identification card, both

charges would have failed. Accordingly, after considering State v. McMooain, 95-

2103 (La.App. 1 Cir. 9/27/96), 680 So.2d 1370, State v. Knowles, 392 So.2d 651,

654 (La.1980), and State ex rel. Bradley v State, 08-346 (La. 12/13/09), 1 So.3d
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459, we find that the prosecution of Defendant for failure to comply with the

conditions of supervised release in Vernon Parish constituted double jeopardy.

In McCooain, 680 So.3d at 1375, the first circuit discussed the remedy for a

double jeopardy violation:

The procedure for remedying a violation of double jeopardy is
to vacate the conviction and sentence of the less severely punishable
offense, and affirm the conviction and sentence of the more severely
punishable. State ex rel. Adams v. Butler, 558 So.2d 552, 553-554
(La.1990).

This court also notes that in Bradley, 1 So.3d 459, the supreme court set aside the

defendant’s conviction for armed robbery and ordered his discharge from custody

because he had already been convicted of a misdemeanor arising from the same act.

The Defendant’s conviction for failure to comply with the conditions of

supervised release constitutes double jeopardy. Thus, his conviction and sentence

should be vacated.

ASSIGNMENT OF ERROR NO. 2:

Defendant asserts that the four-year sentence in this case is excessive.

Our finding in Assignment of Error #1 pretermits this Assignment.

CONCLUSION:

For the foregoing reasons, we vacate the trial court’s February 14, 2017,

judgment sentencing Defendant to serve four years at hard labor for failure to

comply with the conditions of supervised release. Defendant’s sentence is hereby

vacated as his conviction constitutes double jeopardy.

REVERSED AND VACATED.

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