State of La. v. QUINN

• Decision Date: 12 May 2010
• Docket Number: No. KA 09-1382.,KA 09-1382.
• Citation: 38 So.3d 1102
• Parties: STATE of Louisiana v. Marcus QUINN, Sr.
• Court: Court of Appeal of Louisiana — District of US

38 So.3d 1102

STATE of Louisiana

v.Marcus QUINN, Sr.

No. KA 09-1382.

Court of Appeal of Louisiana,Third Circuit.

May 12, 2010.

James Edgar Boren, Baton Rouge, LA, for Defendant/Appellant, Marcus Quinn, Sr.

Pascal F. Calogero, Jr., New Orleans, LA, for Defendant/Appellant, Marcus Quinn, Sr.

J. Phillip Haney, District Attorney-Sixteenth Judicial District Court, New Iberia, LA, for Plaintiff/Appellee, State of Louisiana.

Jeffrey J. Trosclair, Assistant District Attorney-Sixteenth Judicial District Court, Franklin, LA, for Plaintiff/Appellee, State of Louisiana.

Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, ^* Judges.

EZELL, Judge.

A jury convicted the defendant, Marcus Quinn, Sr., of the offense of possession of cocaine, a Schedule II controlled dangerous substance, a violation of La. R.S. 40:967(C), and of the offense of false imprisonment, a violation of La. R.S. 14:46. After the trial court sentenced the defendant to serve five years at hard labor on the possession conviction and six months in the parish jail on the false imprisonment conviction, the State of Louisiana (state) charged the defendant as a multiple felony offender pursuant to La. R.S. 15:529.1. In response to the multiple offender filing, the trial court vacated the five-year hard labor sentence and then sentenced the defendant to serve twenty years at hard labor on the possession conviction. In both the initial and subsequent sentencing proceedings, the trial court ordered that the hard labor sentence run concurrently with the six-month parish jail sentence.

State v. Quinn, an unpublished opinion bearing docket number 06-1183 (La.App. 3 Cir. 2/7/07), 949 So.2d 677. The Defendant's conviction for possession of cocaine was affirmed, but his sentence was vacated. Due to an error patent, the matter was remanded for resentencing.

A habitual offender hearing was held on May 17, 2007. On August 28, 2007, the Defendant was adjudicated a third offender and sentenced to eight years at hard labor. The State objected to the adjudication as a third offender and made an oral motion for reconsideration of sentence. Another habitual offender bill was filed at that time. ¹

The State filed a motion to reconsider sentence on August 30, 2007, and the Defendant filed one on October 2, 2007. Both motions were denied on November 8, 2007.

On October 10, 2007, the Defendant entered a plea of not guilty to the habitual offender bill filed on August 28, 2007. A habitual offender hearing was held on December 22, 2008. In reasons for judgment issued on April 9, 2009, the trial court adjudicated the Defendant a fourth felony offender. On June 24, 2009, the Defendant was sentenced to serve twenty years at hard labor.

A motion for appeal was filed on June 26, 2009, and subsequently granted. The Defendant is now before this court asserting four assignments of error. Therein, the Defendant contends the trial court erred in sentencing him to an excessive sentence, in allowing the State to have as many “do-overs” as they desired to adjudicate him a habitual offender, and in allowing the State to file its third habitual offender bill of information in violation of his due process rights. The Defendant further contends the evidence was not sufficient to support his conviction for possession of cocaine.

FACTS

The Defendant was convicted of possession of crack cocaine, adjudicated a fourth felony offender, and sentenced accordingly.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, the Defendant contends the petit jury erred in returning a guilty verdict of possession of cocaine without sufficient evidence. This assignment of error will be addressed first in the event the Defendant is entitled to an acquittal. State v. Hearold, 603 So.2d 731 (La.1992).

This court affirmed the Defendant's conviction in his previous appeal. In brief to this court, the Defendant “recognizes” this court has previously ruled on this issue, but “maintains his argument for sufficiency of the evidence.”

“Under the doctrine of ‘law of the case,’ an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Doussan, 05-586 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 339, writ denied, 06-608 La.10/13/06), 939 So.2d 372.” State v. Bozeman, 06-679, p. 6 (La.App. 5 Cir. 1/30/07), 951 So.2d 1171, 1174. As this issue was previously reviewed by this court, we do not consider this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the trial court erred in allowing the State to have as many “do-overs” as it desired to adjudicate him a fifth offender, then as a third offender, and finally as a fourth offender, each of these after he had been convicted and sentenced to a maximum term of imprisonment of five years.

The Defendant asserts that his argument is best made by analogy to State v. Langley, 06-1041 (La.5/22/07), 958 So.2d 1160, cert. denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007), and State v. Goodley, 423 So.2d 648 (La.1982).

In Langley, 958 So.2d 1160, the defendant contended the jury verdict finding him guilty of second degree murder acted as an acquittal to the charged crime of first degree murder. Consequently, he argued that his re-indictment on first degree murder charges violated the prohibition against double jeopardy. The trial court agreed and quashed the indictment for first degree murder.

The supreme court found:

Under these circumstance [sic], and by operation of longstanding double jeopardy law, we hold that the unanimous verdict of guilty of second degree murder returned by Langley's jury in Langley II implicitly acquitted him of first degree murder.... [T]he verdict rendered by the jury was a legal verdict and should be given effect pursuant to La.C.Cr.P. art. 598(A):

When a person is found guilty of a lesser degree of the offense charged, the verdict or judgment of the court is an acquittal of all greater offenses charged in the indictment and the defendant cannot thereafter be tried for those offenses on a new trial.

Consequently, the state is limited in any subsequent prosecution to re-indicting the defendant on a charge of second degree murder.

Id. at 1170.

In Goodley, 423 So.2d 648, the defendant was convicted of manslaughter. He appealed, alleging his sentence was excessive. As the result of an error patent, the defendant's conviction was reversed. The State attempted to retry the defendant for first degree murder. The supreme court concluded:

[T]hat to subject Goodley to a second prosecution for first degree murder would have a chilling effect on the exercise of his right to appeal in violation of La. Const. art. I, § 19 (1974). However, nothing in this opinion should be interpreted to preclude retrial of this defendant for the crime of manslaughter, since on retrial he would not be faced with a more severe charge than he was “convicted” of below.

Id. at 652.

The Defendant asserts that by analogy, to rebill him as a fifth offender when he had previously been found to be a third offender is inconsistent with his right to appeal and to defend himself. Further, he claims that its effect is to penalize him for prevailing in his first habitual offender hearing.

The Defendant's case was remanded after appeal because defense counsel stipulated to the Defendant's identity and the trial court failed to apprise him of his right to remain silent and to have the State prove its case against him at the habitual offender hearing. The State asserts that the cases cited by the Defendant are clearly distinguishable from the case at bar, as they do not pertain to habitual offender bills of information and the sentence enhancement purpose of La. R.S. 15:529.1.

The State's assertion is correct. Langley, 958 So.2d 1160, and Goodley, 423 So.2d 648, are distinguishable because they do not involve habitual offender proceedings. In Langley, 958 So.2d 1160, the supreme court relied on La.Code Crim.P. art. 598. There are no cases in which Article 598 is discussed in regard to habitual offender proceedings. Further, in State v. Mays, 05-2555, p. 1 (La.5/26/06), 929 So.2d 1231, 1232 ( Mays II ), the supreme court found: “The adjudication and sentence of defendant as a second offender for purposes of La. R.S. 15:529.1 in 2003 did not preclude the state from adjudicating and sentencing the defendant as a third offender in a subsequent proceeding conducted in 2004. State v. Denis, 96-2706 (La.4/25/97), 692 So.2d 1055.”

For these reasons stated, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the Defendant contends the trial court erred in allowing the State to file its third habitual offender bill against him in violation of his constitutional right to due process.

The Defendant asserts that courts require the State to strictly comply with its burden of proof and, if the evidence presented by the State is not in order, the adjudication cannot stand. Additionally, allowing three, four, or five “bites at the apple” does not follow the logic of strict compliance with the State's burden of proof. Moreover, “do-overs” should not be allowed, as allowing the State multiple attempts to comply with the requirements of La. R.S. 15:529.1 subjects the Defendant to harassment, expense, and embarrassment while allowing the State to practice its case before the judge. The Defendant further argues that the State is able to violate the public policy concerns which the double jeopardy and res judicata doctrines protect. The Defendant relies on Denis, 692 So.2d 1055, arguing that “If the State fails to strictly comply with evidence requirements, any subsequent habitual offender proceedings cannot rely on evidence previously used to determine a defendant's multiple offender status.”

In Denis, 692 So.2d 1055, the supreme court stated the following:

As long as the punishment...