State of Louisiana v. Dewayne Sylvester -Aka- Dwayne Anthony Sylvester, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-527

STATE OF LOUISIANA

VERSUS

DWAYNE ANTHONY SYLVESTER, SR.,
AKA DEWAYNE SYLVESTER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 10402-17
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.

HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED;
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.

Douglas Lee Harville
Louisiana Appellate Project
Post Office Box 52988
Shreveport, LA 71135-2988
(318) 222-1700
COUNSEL FOR DEFENDANT/APPELLANT:
Dwayne Anthony Sylvester, Sr., (AKA Dewayne Sylvester)

Dwayne Anthony Sylvester
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, LA 70648
IN PROPER PERSON

John F. DeRosier
District Attorney
Hope W. Buford
Assistant District Attorney
Karen C. McLellan
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

John E. Turner
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

Defendant, Dwayne Anthony Sylvester, Sr. (also known as Dewayne

Sylvester), is before this court appealing his sentence as a third habitual offender.

On appeal, we vacate Defendant’s habitual offender adjudication and sentence and

remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY:

In a previous appeal, this court affirmed Defendant’s attempted second

degree murder conviction and sentence of fifteen years at hard labor, without

benefit of probation, parole, or suspension of sentence. State v. Sylvester, 18-144

(La.App. 3 Cir. 9/26/18) (unpublished opinion), writ denied, 18-1742 (La. 4/8/19),

267 So.3d 606.1 The court detailed the facts as follows:

On February 18, 2016, Defendant, Shirley Manuel, and a child
were traveling to Lake Charles from Lafayette and stopped at a video
poker casino to use the restroom. After parking the car, they were
approached by Gerald Carter, the victim, claiming that Defendant and
Ms. Manuel were following him. Mr. Carter then went inside the
casino. When Ms. Manuel returned from the restroom, Defendant
entered the casino. Inside the casino, he approached Mr. Carter, the
two began arguing, and both Defendant and Mr. Carter exited the
casino. When Mr. Carter swung a beer can at him, Defendant stabbed
him twice with a box cutter. Mr. Carter was injured as a result, and
Defendant was arrested and charged with the attempted murder of Mr.
Carter.

Defendant was formally charged by indictment filed on March
31, 2016, with one count of attempted second degree murder, a
violation of La.R.S. 14:27 and La.R.S. 14:30.1. At trial, on April 26,
2017, the jury found Defendant guilty as charged.

On May 22, 2017, Defendant filed a motion for a new trial,
which was denied. Defendant was then sentenced to fifteen years
imprisonment at hard labor, without benefit of probation, parole, or
suspension of sentence, for one count of attempted second degree
murder. Defendant filed a pro se motion to reconsider sentence on

1
The record in Defendant’s original appeal is an exhibit to the current appeal.

July 11, 2017, which was subsequently denied based on its
untimeliness.

The State then filed a habitual offender bill of information
charging Defendant as a second and subsequent felony offender.
Defendant entered a plea of not guilty to the habitual offender bill at
the May 22, 2017 hearing.[2] The habitual offender hearing is set for
October 17, 2018.

Sylvester, 18-144, p. 1.

On October 17, 2018, the trial court found Defendant to be a third habitual

offender, vacated the previously imposed sentence for attempted second degree

murder, and sentenced Defendant to forty years, to be served “without benefit.”3

Defense counsel objected to the sentence imposed.

On October 29, 2018, Defendant filed a pro se Motion to Reconsider

Sentence that was denied by the trial court on November 13, 2018. Thereafter, on

December 10, 2018, Defendant filed a pro se motion to appeal his habitual

offender sentence and the trial court’s denial of his motion to reconsider sentence.

On December 13, 2018, the trial court denied Defendant’s motion to appeal his

habitual offender sentence as being untimely but granted Defendant’s motion to

appeal the denial of his motion to reconsider sentence.

Pursuant to a writ application filed by Defendant, this court ordered the trial

court to grant Defendant’s appeal of his habitual offender adjudication. State v.

Sylvester, 19-57 (La.App. 3 Cir. 3/14/19) (unpublished opinion). In accordance

2
We note that the heading of the habitual offender bill, which was filed on May 22, 2017,
states Defendant was being charged as a “Second and Subsequent Habitual Offender 15:529.1.”
In the body of the habitual offender bill, however, the State prayed that Defendant be sentenced
as a “Third Habitual Offender, in accordance with LSA-R.S. 15:529.1A(3)(a), in violation of
LSA-R.S. 15:529.1A(3)(a).” At the habitual offender hearing, the State informed the trial court
that it was seeking to have Defendant sentenced as a third habitual offender, and the trial court
found Defendant to be a third habitual offender.
3
The previously imposed sentence was fifteen years at hard labor, without benefit of
probation, parole, or suspension of sentence. Sylvester, 18-144, p. 1.

2

with this court’s ruling, on March 15, 2019, the trial court granted Defendant’s

appeal of his habitual offender sentence. Defendant now appeals through counsel,

alleging that Defendant’s habitual offender sentence is excessive, and appeals pro

se, alleging various errors regarding his habitual offender adjudication and

sentence. However, this court finds two errors patent that require Defendant’s

habitual offender adjudication and sentence to be vacated and the matter remanded

for further proceedings. Consequently, the assignments of error raised in both

appellate counsel’s brief and in Defendant’s pro se brief are pretermitted.

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 there

are errors patent necessitating Defendant’s habitual offender adjudication and

sentence be vacated and the case remanded for further proceedings consistent with

this court’s opinion.

This court finds that the wrong cleansing period was applied to Defendant’s

predicate convictions. At the habitual offender hearing, the State informed the trial

court that the ten-year cleansing period applied to Defendant’s predicate

convictions. However, as will be discussed, the five-year cleansing period should

have been applied to Defendant’s predicate convictions. In State v. Kisack, 16-797

(La. 10/18/17), 236 So.3d 1201, cert. denied, ___ U.S. ___, 138 S.Ct. 1175 (2018),

the supreme court recognized as an error patent the State’s failure to prove beyond

a reasonable doubt that the cleansing period had not lapsed. Thus, we have

reviewed, as error patent, the cleansing period applied in the present case.

In determining the correct cleansing period to be applied in this case, the

Louisiana Supreme Court’s recent decision in State v. Lyles, 19-203 (La.

3

10/22/19), __ So.3d __ is pertinent. On October 22, 2019, the supreme court

rendered the following per curiam opinion in Lyles, a case in which the legality of

the habitual offender sentence was raised:

We granted the application to determine whether defendant’s
habitual offender status and sentence are governed by La.R.S.
15:529.1 as it existed at the time of the commission of the crime, as it
was amended by 2017 La. Acts [No.] 282, or as it was amended by
2018 La. Acts [No.] 542. Finding Act 282 applies, we reverse the
court of appeal, vacate the habitual offender adjudication and
sentence, and remand with instructions to the district court for further
proceedings.

On November 11, 2016, a St. John the Baptist Parish jury found
defendant guilty of an aggravated battery, La.R.S. 14:34, he
committed on February 1, 2015. On November 16, 2016, the State
filed a habitual offender bill of information alleging two predicate
offenses—a 1991 distribution of cocaine conviction and a 2004
manslaughter conviction. On February 13, 2017, the district court
adjudicated defendant a third-felony offender and sentenced him to
the life sentence mandated by La.R.S. 15:529.1(A)(3)(b) (effective
August 15, 2010). The court of appeal vacated the habitual offender
sentence and remanded for resentencing because of the trial court’s
failure to vacate the underlying aggravated battery sentence. State v.
Lyles, 17-0405 (La. App. 5 Cir. 2/21/18), 239 So.3d 1055. After
remand, the district court resentenced defendant on March 12, 2018,
to the same term of imprisonment under the same provision of law.
Defendant appealed.

On appeal, defendant contended that the Habitual Offender law,
as amended by 2017 La. Acts 282, should be applied to him. Among
other changes, this act reduced from ten to five years the time
allowed—commonly known as the cleansing period—between
expiration of correctional supervision for one offense and commission
of the next offense on the habitual offender ladder.1 Defendant’s
probation for distribution of cocaine expired in 1996 and he did not
commit manslaughter until 2003. Therefore, defendant contended he
was a second-felony offender subject to a sentencing range of 3 1/3 to
20 years imprisonment under the amended law.

Defendant relied on Section 2 of Act 282, which provides,
“This Act shall become effective November 1, 2017, and shall have
prospective application only to offenders whose convictions became
final on or after November 1, 2017.” The State, however, relied on a
subsequent amendment to the Habitual Offender Law in 2018 La.
Acts [No.] 542 to argue that the district court applied the correct
version of the Habitual Offender Law (i.e., the one in effect when

4

defendant committed the crime in 2015). According to the State,
despite the language of Act 282, the legislature subsequently clarified
its intent with Act 542, which added La.R.S. 15:529.1(K).

The court of appeal agreed with the State, and found the district
court sentenced defendant under the correct version of the Habitual
Offender Law:

Upon review, we rely on the well settled
jurisprudence that the law in effect at the time of the
offense is determinative of a defendant’s punishment,
including for habitual offender proceedings. [State v.
Parker, 03-0924 (La. 4/14/04), 871 So.2d 317; State v.
Sugasti, 01-3407 (La. 06/21/02), 820 So.2d 518; State v.
Williams, 03-0571 (La. App. 5 Cir. 11/12/03), 862 So.2d
108.] Further, we find that by enacting subsection K, the
legislature clarified its original intent that the date of
commission of the underlying offense be used to
determine the sentencing provision applicable to a
habitual offender, except as otherwise explicitly provided
in the statute. Therefore, after review, we find that the
Habitual Offender Law in effect at the time of the
commission of defendant’s underlying offense of
aggravated battery should be applied in determining
defendant’s habitual offender sentence, and the trial court
did so correctly when imposing defendant’s enhanced
sentence of life imprisonment without benefits.

....

Accordingly, we find that the 2015 version of La.
R.S. 15:529.1(A)(3)(b) is the sentencing provision
applicable to defendant herein because his third felony
(the aggravated battery conviction) and his predicate
conviction of manslaughter are crimes of violence under
La. R.S. 14:2(B)(5) and La. R.S. 14:2(B)(4), respectively.
Additionally, defendant’s 1991 conviction for
distribution of cocaine in violation of La. R.S. 40:967(A)
was a violation of the Uniform Controlled Dangerous
Substance Law punishable by ten years of imprisonment
or more. La. R.S. 40:967(B)(4). Under the habitual
offender statute as it existed at the time of the
commission of the underlying offense of aggravated
battery, defendant was subject to an enhanced mandatory
sentence of life imprisonment without the benefit of
parole, probation, or suspension of sentence. See La. R.S.
15:529.1(A)(3)(b). For the foregoing reasons, we find
that the trial court correctly applied the Habitual
Offender Law in effect in 2015 in sentencing defendant.

5

State v. Lyles, 18-0283, pp. 9–10 (La. App. 5 Cir. 12/27/18), 263
So.3d 930, 938–939.

The question presented is one of statutory interpretation, which
begins “as [it] must, with the language of the statute.” Bailey v. United
States, 516 U.S. 137, 143, 116 S.Ct. 501, 506, 133 L.Ed.2d 472
(1995). “Unequivocal provisions are not subject to judicial
construction and should be applied by giving words their generally
understood meaning.” State v. Oliphant, 12-1176, p. 5 (La. 3/19/13),
113 So.3d 165, 168; see also Connecticut Nat. Bank v. Germain, 503
U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“In
any event, canons of construction are no more than rules of thumb to
help courts determine the meaning of legislation, and in interpreting a
statute a court should always turn first to one, cardinal canon before
all others. We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute
what it says there. When the words of a statute are unambiguous, then,
this first canon is also the last: ‘judicial inquiry is complete.’ ”)
(citations omitted).

As noted above, the relevant portion of Act 282 provides: “This
Act shall become effective November 1, 2017, and shall have
prospective application only to offenders whose convictions became
final on or after November 1, 2017.” 2017 La. Acts [No.] 282, § 2. By
contrast, Act 542 added new Subsection (K) to R.S. 15:529.1:

K. (1) Except as provided in Paragraph (2) of this
Subsection, notwithstanding any provision of law to the
contrary, the court shall apply the provisions of this
Section that were in effect on the date that the
defendant’s instant offense was committed.

(2) The provisions of Subsection C of this Section as
amended by Act Nos. 257 and 282 of the 2017 Regular
Session of the Legislature, which provides for the amount
of time that must elapse between the current and prior
offense for the provisions of this Section to apply, shall
apply to any bill of information filed pursuant to the
provisions of this Section on or after November 1, 2017,
accusing the person of a previous conviction.

2018 La. Acts [No.] 542, § 1 (effective August 1, 2018).

We note at the outset, from the plain language of these
provisions in conjunction with the effective dates of the acts, the
legislature appears to have created three categories of persons
potentially affected by these provisions:

6

1. There are persons—like the present defendant—
whose convictions became final on or after
November 1, 2017, and whose habitual offender
bills were filed before that date. Those defendants
would be eligible to receive the benefits of all
ameliorative changes made by Act 282.

2. There are persons whose convictions became final
on or after November 1, 2017, and whose habitual
offender bills were filed between that date and
August 1, 2018 (the effective date of Act 542).
Those persons would be eligible to receive the
benefit of the reduced cleansing period,2 and they
may also have colorable claims to the other
ameliorative changes provided in Act 282,
although we need not decide that question today.

3. Finally, there are persons whose convictions
became final on or after November 1, 2017, and
whose habitual offender bills were filed on or after
August 1, 2018. They would receive the reduced
cleansing period by operation of Subsection K(2)
added by Act 542 but their sentences would be
calculated with references to the penalties in effect
of the date of commission in accordance with
Subsection K(2) added by Act 542.

The State urges, and the court of appeal found, essentially, that
the legislature intended what it wrote in Act 542 but did not intend
what it wrote in Act 282, and therefore Act 542 should be applied
because it “clarifies” Act 282. However, the language indicating that
Act 282 “shall become effective November 1, 2017, and shall have
prospective application only to offenders whose convictions became
final on or after November 1, 2017” is quite clear. Therefore, we must
presume the legislature meant what it said, and the judicial inquiry
ends there.

The State, however, attempts to breathe ambiguity into this
language by questioning when a conviction becomes final. That
question is readily answered by Code of Criminal Procedures articles
914 and 922, and the State’s desire that finality be determined
differently for purposes of the Habitual Offender Law than in other
contexts does not suffice to introduce ambiguity into the clear
language the legislature chose.3

We find that 2017 La. Acts [No.] 282, § 2, which provides that
Act 282 “shall become effective November 1, 2017, and shall have
prospective application only to offenders whose convictions became
final on or after November 1, 2017” is unequivocal, and therefore not

7

subject to further judicial construction. For persons like defendant,
whose convictions became final on or after November 1, 2017, and
whose habitual offender bills were filed before that date, the full
provisions of Act 282 apply. Accordingly, we find defendant was
adjudicated and sentenced pursuant to the wrong version of the
Habitual Offender Law. We reverse the court of appeal, vacate the
habitual offender adjudication and sentence, and remand for further
proceedings. On remand, the district court is directed to apply the
version of the Habitual Offender Law, La.R.S. 15:529.1, as it was
amended by 2017 La. Acts. [No.] 282, and before its amendment by
2018 La. Acts [No.] 542.

REVERSED, HABITUAL OFFENDER ADJUDICATION AND
SENTENCE VACATED, AND REMANDED WITH
INSTRUCTIONS
____________________
1
In addition to the reduction from ten to five years, the court of appeal
noted that Act 282 also removed persons with a current or prior felony that was a
violation of the Uniform Controlled Dangerous Substance Law punishable for ten
or more years from the group of persons subject to a life sentence as a third felony
offender. State v. Lyles, 18-0283, pp. 4 (La. App. 5 Cir. 12/27/18), 263 So.3d 930,
935. Furthermore, Act 282 significantly reduced the sentencing ranges at each
rung of the habitual offender ladder.

2
Notably, such a person would receive the reduced cleansing period
regardless of whether Act 282 or Act 542 is applied.

3
The State cites La.C.Cr.P. art. 934(3) for the proposition that “[c]onvicted
means adjudicated guilty after a plea or after trial on the merits,” and the State
contends that this convicted status equals finality, at least for the purposes of the
Habitual Offender Law. But had the legislature wished to craft Act 282 to reach
convictions occurring after November 1, 2017, it could have easily done so by
stating that Act 282 would become effective and have prospective application
only to offenders “convicted on or after” that date. We further note that the text of
the Habitual Offender Law has made no mention of finality from its inception
until the adoption of Act 282.

In the current case, Defendant falls within the first category discussed in

Lyles because his conviction is not yet final, and his habitual offender bill was filed

May 22, 2017. Thus, according to Lyles, Defendant receives all the ameliorative

changes made by 2017 La. Acts No. 282. These changes include a reduction in

sentencing exposure as well as a reduction in the applicable cleansing period. The

legislature reduced the cleansing period from ten years to five years for predicate

offenses that are non-violent and non-sex-offenses. Although Defendant’s current

8

offense (attempted second degree murder) is a violent offense, Defendant’s

predicate offenses (both possession of controlled dangerous substances) are neither

violent offenses nor sex offenses. Thus, the five-year cleansing period applies to

Defendant’s predicate offenses.

It is clear in the present case, however, that the parties believed the ten-year

cleansing period applied to Defendant’s predicate convictions. Specifically, the

State explained to the trial court: “Also, Judge, as far as 18 years being a long time,

it’s a ten-year cleansing period. Mr. Sylvester did not make those ten years - -

2000, 2007, and then again in 2016.” Moreover, the State failed to prove beyond a

reasonable doubt that at least one of Defendant’s predicate convictions was not

cleansed by the five-year cleansing period. As amended by 2017 La. Acts No.

282, La.R.S. 15:529.1(C)(1) (emphasis added) provides:

Except as provided in Paragraph (2) of this Subsection, the
current offense shall not be counted as, respectively, a second,
third, fourth, or higher offense if more than five years have
elapsed between the date of the commission of the current offense
or offenses and the expiration of the correctional supervision, or
term of imprisonment if the offender is not placed on supervision
following imprisonment, for the previous conviction or
convictions, or between the expiration of the correctional supervision,
or term of imprisonment if the offender is not placed on supervision
following imprisonment, for 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 in this Paragraph, 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 the
five-year periods between the expiration of the correctional
supervision, or term of imprisonment if the offender is not placed
on supervision following imprisonment, and the next succeeding
offense or offenses.

According to the habitual offender bill, Defendant was convicted of his first

predicate convictions (two counts of Possession of CDS II) on April 3, 2000. The

habitual offender bill further states that Defendant was sentenced on that same date

9

to three years at hard labor on each count, to run concurrently. According to the

habitual offender bill, Defendant subsequently committed possession of CDS III on

November 17, 2005. For that offense, the habitual offender bill states that

Defendant was convicted on October 15, 2007, and sentenced on that same date to

one year in parish jail. Defendant then committed the current offense on February

18, 2016.

Thus, the State failed to prove that the five-year cleansing period did not

lapse between Defendant’s October 15, 2007 conviction for possession of CDS III

and the commission of Defendant’s current offense on February 18, 2016. The

latest Defendant could have been released from correctional supervision was

October 15, 2008. Since Defendant’s current offense was committed on February

18, 2016, the State failed to prove the five-year cleansing period did not lapse.

Accordingly, Defendant’s habitual offender adjudication and sentence is vacated

and the case remanded for further proceedings.

As a second error patent, we note that the trial court applied the wrong

penalty provision in sentencing Defendant. As previously stated, all the 2017

ameliorative changes apply to Defendant. See Lyles, __ So.3d at __. The trial

court found that for his current conviction of attempted second degree murder,

Defendant was a third habitual offender. In accordance with the 2017 ameliorative

changes, the following habitual offender penalty provision applies to third habitual

offenders:

3) If the third felony is such that upon a first conviction, the
offender would be punishable by imprisonment for any term less than
his natural life then the following sentences apply:

(a) The person shall be sentenced to imprisonment for a
determinate term not less than one-half of the longest possible

10

sentence for the conviction and not more than twice the longest
possible sentence prescribed for a first conviction.

La.R.S. 15:529.1(A).

The third felony in this case was attempted second degree murder. The

penalty range for that offense is the following:

(D)(1)(a) If the offense so attempted is punishable by death or
life imprisonment, he shall be imprisoned at hard labor for not less
than ten nor more than fifty years without benefit of parole, probation,
or suspension of sentence.

La.R.S. 14:27.

Considering the penalty provision for attempted second degree murder and

the 2017 penalty provision for a third habitual offender, the penalty range that

should have been applicable to Defendant is twenty-five to 100 years. The trial

court, however, found the penalty range was thirty-three to 100 years, which is

provided by the habitual offender provision that was in effect at the time Defendant

committed the third felony (February 18, 2016).4

However, because we vacate the habitual offender adjudication, we also

vacate Defendant’s sentence. Therefore, this error patent is moot.

ASSIGNMENTS OF ERROR:

On appeal, Defendant’s appellate counsel contends that the trial court

imposed an excessive sentence, while Defendant’s pro se brief alleges various

errors as to his habitual offender adjudication and sentence. These assignments of

error are pretermitted by the errors patent discussed above.

4
At that time, the habitual offender penalty range for a third habitual offender was not
less than two-thirds the longest possible sentence and not more than twice the longest possible
sentence.

11

DECREE:

Considering the foregoing errors patent, Defendant’s habitual offender

adjudication and sentence are vacated and the case is remanded for further

proceedings consistent with this opinion.

HABITUAL OFFENDER ADJUDICATION AND SENTENCE
VACATED; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.

12