State of Louisiana v. Curtis Cheley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-538 consolidated with 17-696

STATE OF LOUISIANA

VERSUS

CURTIS CHELEY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89944
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

CONVICTION AFFIRMED, SENTENCE VACATED,
AND REMANDED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Curtis Cheley

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

GREMILLION, Judge.

Defendant, Curtis Cheley, appeals his conviction for aggravated second

degree battery and his sentence therefore and, in a consolidated appeal, his

adjudication as a third felony offender. For the reasons that follow, we affirm his

conviction, vacate his sentence, and remand for proceedings consistent with this

opinion.

FACTS AND PROCEDURAL POSTURE

On June 28, 2016, Sergeant Jerol Morrow of the Leesville Police

Department was dispatched by a 9-1-1 operator to an incident involving Defendant.

Sergeant Morrow knew Defendant and where he was living, so the sergeant

proceeded to that location. On arrival, Sergeant Morrow witnessed Defendant on

the ground struggling with a woman. Defendant was seen striking the woman and

yelling at her, “Where’s my kids? Where’s my kids?” Sergeant Morrow, a trailing

officer, and Deputy Paul Davis of the Vernon Parish Sheriff’s Office, attempted to

restrain Defendant. Sergeant Morrow was forced to administer pepper spray to

effect the arrest of Defendant.

The woman Defendant battered was unresponsive to Sergeant Morrow’s

attempts to speak to her. Her face was very swollen, and her mouth was bloodied.

She was identified as Ms. Mary Pittmon. Ms. Pittmon had been staying at

Defendant’s aunt’s house, where Defendant also was residing.

Defendant and Ms. Pittmon were alone in the house on the morning of June

28, 2016. Ms. Pittmon was seated on the couch. Defendant was talking with

someone on his phone, and stated, “I’m gonna take her out.” Ms. Pittmon had no

idea to whom Defendant was referring until he grabbed a red pipe, tucked it under

his arm, and strode toward her with evident intent to strike her. Defendant struck

Ms. Pittmon twice with the pipe, once on the head and once on her arm. Ms.

Pittmon attempted to stand up, but slipped. Defendant then began to choke Ms.

Pittmon with the pipe. He then lifted Ms. Pittmon and moved her toward the front

door. Outside, Defendant pushed Ms. Pittmon to the ground on her stomach and

began to punch her with his fists. Defendant was angrily asking Ms. Pittmon why

she did not “feed his kids,” whom Ms. Pittmon had never met. The beating

continued until Sergeant Morrow intervened.

As a result of the beating, Ms. Pittmon sustained a broken tooth, mouth

lacerations, and several bruises. She was transported to Byrd Memorial Hospital in

Leesville, then to LSU Medical Center in Shreveport. This hospital move was

necessitated by tachycardia Ms. Pittmon was experiencing following the battering.

On September 6, 2016, the State filed a bill of information charging

Defendant with aggravated second degree battery, a violation of La.R.S. 14:34.7.

The parties selected a six-member jury on January 17, 2017. The jury began

hearing evidence on the same date. Proceedings continued on the following day,

and the jury found Defendant guilty as charged.1

On January 31, 2017, the State filed a bill of information charging

Defendant as a third habitual offender, pursuant to La.R.S. 15:529.1. The trial

court heard the matter on the same date and adjudicated Defendant as charged.2

On March 14, the court sentenced Defendant to twenty-two-and-one-half years at

hard labor. In imposing this sentence, though, the trial court stated that the

sentence was imposed without regard to habitual offender enhancement.

Defendant now seeks review by this court.

1
The appeal of this matter bears our docket number 17-538.
2
The appeal of the habitual offender adjudication bears our docket number 17-696.
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ANALYSIS AND DISCUSSION

Errors patent

We review all appeals for errors patent, pursuant to La.Code Crim.P. art.920.

We find none in this case.

Sufficiency of the evidence

Defendant’s first assignment of error contends that the evidence adduced at

trial was not sufficient to support his conviction of aggravated second degree

battery. This assignment of error lacks merit.

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of aggravated second degree battery are set forth in La.R.S.

14:34.7, which states in pertinent part:

A. Aggravated second degree battery is a battery committed
with a dangerous weapon when the offender intentionally inflicts
serious bodily injury.

B. For purposes of this Section, the following words shall have
the following meanings:

....

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(3) “Serious bodily injury” means bodily injury which involves
unconsciousness, extreme physical pain or protracted and obvious
disfigurement, or protracted loss or impairment of the function of a
bodily member, organ, or mental faculty, or a substantial risk of death.

Defendant contends that the State failed to prove serious bodily injury

occurred. The victim had significant facial injuries. The treating physician, Dr.

Maurice L. Prince, Jr., testified Ms. Pittmon was “an obvious victim of a battery”

and “it’s obvious that she was not only hit once but several times.” One of her

eyes was swollen nearly shut, she had a broken tooth, and badly lacerated lip that

the victim testified required stitches.

In his argument, Defendant asserts: “She had contusions, lacerations, a

broken tooth and some pain, but that does not rise to the level of ‘serious bodily

injury.”’ He adds, “Evidence of extreme physical pain is lacking.” Ms. Pittmon’s

testimony indicates disagreement with Defendant on this point. Defendant struck

her several times with a pipe, which he then used to strangle her. Ms. Pittmon

almost lost consciousness during this attack. While strangling Ms. Pittmon,

Defendant brought his weight to bear on her by kneeling on her neck. Defendant

hurled Ms. Pittmon out of the house and began to pummel her with his fists. Ms.

Pittmon feared for her life.

In State v. Jackson, 02-1250 (La.App. 3 Cir. 2/5/03), 838 So.2d 841, writ

denied, 03-832 (La. 10/17/03), 855 So.2d 759, we conducted an exhaustive

examination of the jurisprudence and rejected similar contentions regarding

whether injuries like Ms. Pittmon’s constituted serious bodily injury. This

assignment of error lacks any merit.

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Excessive sentence and habitual offender status

Defendant’s remaining assignments of error attack his sentence and his

adjudication as a repeat offender. Defendant was adjudicated a third-felony

offender. Under the terms of La.R.S. 15:529.1(A)(3)(a), a person convicted of a

third felony “shall be sentenced to imprisonment for a determinate term not less

than one-half of the longest possible sentence for the conviction and not more than

twice the longest possible sentence prescribed for a first conviction.” A conviction

of aggravated second degree battery is punishable by a fine of not more than

$10,000.00 or imprisonment, with or without hard labor, for not more than fifteen

years, or both. La.R.S. 14:34.7(C). Defendant was sentenced to twenty-two-and-

one-half years, about which the trial court stated, “[P]ursuant to the Code of

Criminal Procedure Article 894.1D, your sentence imposed was not enhanced upon

the basis of any habitual offender proceedings or enhancement statutes.” Because

the sentence was not imposed pursuant to enhancement, it exceeded the maximum

term of imprisonment allowed for the offense of aggravated second degree battery.

Defendant argues that the habitual offender hearing was defective because

the evidence of his guilty plea to one of his previous convictions, possession of

cocaine, did not demonstrate that he waived his right to a jury trial. This,

Defendant argues, fails to show that he was properly advised of his rights under

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969): the protection against

self-incrimination guaranteed by the Fifth and Fourteenth Amendments; the right

to trial by jury guaranteed by the Sixth Amendment; and the right to confront one’s

accusers, also guaranteed by the Sixth Amendment.

The State argues that, at the time he was adjudicated a habitual offender,

Defendant failed to object to the use of this guilty plea. We note that Defendant

indeed failed to object to this evidence at the adjudication hearing. Louisiana
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Revised Statutes 14:529.1(D)(1)(b) requires that a defendant who contends that his

previous convictions was invalid or unconstitutionally-obtained “shall file a written

response to the information. . . set[ting] forth his claim, and the factual basis

therefor, with particularity. . . The person shall have the burden of proof, by a

preponderance of the evidence, on any issue of fact raised by the response.”

However, the Louisiana Supreme Court has held that defendants are allowed to

collaterally attack the validity of a guilty plea used in habitual offender

adjudications, despite not having objected as required in La.R.S. 15:529.1. State v.

Balsano, 09-735 (La. 6/19/09), 11 So.3d 475. If the State proves the existence of a

guilty plea and that the defendant was represented by counsel, the defendant must

come forward with affirmative evidence showing an infringement of his rights or a

procedural irregularity. The burden then shifts to the State. If the State can

produce a “‛perfect’ transcript” of the plea, it meets its burden; if not, the judge

must then weigh whether the State proved that the plea was informed and

voluntary. State v. Shelton, 621 So.2d 769, 775 (La.1993).

In this matter, the court minutes and transcript both reflect that Defendant

was advised of his right to trial. Neither reflect that Defendant was advised of his

right to trial by jury. The waiver of rights form referenced in the transcript was not

entered into evidence at the habitual offender hearing.

Defendant argues that the failure to object to the introduction of this

conviction constitutes ineffective assistance of counsel. We feel it unnecessary to

reach such a determination, because, as noted above, the sentence Defendant

received was impermissibly excessive, as it was not enhanced by his habitual

offender status. Accordingly, we vacate the sentence and remand the matter to the

district court for resentencing. We further remand for a hearing to determine

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whether Defendant’s plea to the possession of cocaine charge was informed and

voluntary.

DECREE

For the foregoing reasons, the conviction of Defendant, Curtis Cheley, of

aggravated second degree battery is affirmed. His sentence of twenty-two-and-

one-half years at hard labor is vacated, and the matter is remanded for an

evidentiary hearing to determine whether Defendant’s plea of guilty to possession

of cocaine was informed and voluntary and for resentencing.

CONVICTION AFFIRMED, SENTENCE VACATED, AND

REMANDED.

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