State v. Barker
| Decision Date | 30 May 2018 |
| Docket Number | NO. 2017–KA–0469,2017–KA–0469 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STATE of Louisiana v. Samuel J. BARKER, Jr. |
Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, Kyle Daly, ASSISTANT DISTRICT ATTORNEY, Mithun Kamath, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 1677, Abita Springs, LA 70420–1677, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
Defendant, Samuel Barker, was charged on several felony counts and two misdemeanor counts arising out of a series of incidents which occurred in June, 2015. Following a simultaneous jury trial (on felony charges) and bench trial (on misdemeanor charges), Samuel Barker was found guilty on all but one of those counts (and guilty of a lesser included offense on one charge). After he was sentenced, Mr. Barker was then found to be a multiple offender and re-sentenced. Mr. Barker has appealed his conviction and sentences. In addition to his counseled appellate brief, Mr. Barker has filed several pro se briefs of his own.
As discussed more fully herein, we find that Mr. Barker was properly convicted on all counts and we affirm his convictions and sentences.
On August 7, 2015, Samuel Barker was charged by bill of information with nine counts:
At his arraignment on August 12, 2015, Mr. Barker entered a plea of not guilty as to all charges. Between the date of the arraignment and Mr. Barker's trial, Mr. Barker filed no less than sixty-five pro se written notices, statements, pleadings and motions.1
A trial on all counts took place on November 6, 2016. On November 9, 2016, the jury returned verdicts of guilty on all charges except count 8 (attempted simple burglary of an inhabited dwelling), for which the jury found Mr. Barker guilty of the lesser included offense of criminal trespass, a violation of La. R.S. 14:63. The following day, the court found Mr. Barker guilty of possession of burglars' tools, and not guilty of simple criminal damage to a table.
Mr. Barker's counsel then filed a Motion for Post Judgment Verdict of Acquittal or in the Alternative a New Trial.2 The motion was denied after a hearing on January 6, 2017. On the same day, Mr. Barker was sentenced to twelve years imprisonment at hard labor on counts 1 and 4; six months at Orleans Parish Prison on counts 2 and 8; two years imprisonment at hard labor on count 3; ten years imprisonment at hard labor on counts 5 and 6; and six years imprisonment at hard labor on count 9. He objected to both the sentences and the sentencing procedure. At the sentencing hearing, the State noticed its intent to file a multiple offender bill.
A multiple bill offender hearing was held on July 13, 2017, after which Mr. Barker was adjudicated a fourth felony offender. The court then sentenced Mr. Barker as a fourth felony offender to life imprisonment at hard labor with no benefit of parole, probation, or suspended sentence on both counts of simple burglary (counts 1 and 4), and to twenty years imprisonment at hard labor with no benefit of parole, probation, or suspended sentence on the remaining felony counts of simple criminal damage to property, attempted simple burglary of an inhabited dwelling, and both counts of theft (Counts 3, 5, 6, and 9).
As is our practice, we have reviewed the record for errors patent,3 and have detected several patent errors.
First, La. C.Cr.P. art 873 requires that, for a felony conviction where a motion for new trial has been filed, "sentence shall not be imposed until at least twenty-four hours after the motion is overruled," unless a defendant "expressly waives a delay ... or pleads guilty," in which case, the "sentence may be imposed immediately."
The record of this matter reflects that the court failed to observe the twenty-four hour delay between the denial of a motion for a new trial and sentencing, as required in La. C.Cr.P. 873. On the morning of the sentencing hearing, Mr. Barker's counsel filed a motion for a judgment of acquittal or in the alternative a new trial. The trial court heard argument on the motions and denied both. It then proceeded to sentence Mr. Barker.
Our jurisprudence indicates that a defendant is not prejudiced by a court's failure to observe the delay in connection with the original sentencing when a defendant is subsequently adjudicated as a multiple offender. State v. Everidge , 02-0309, p. 6 (La. App. 4 Cir. 12/11/02), 834 So.2d 1197, 1201 ; State v. Carter , 07-196, p. 13 n.3 (La. App. 5 Cir. 12/27/07), 976 So.2d 196, 204. In such a case, the failure to observe the twenty-four hour period is deemed harmless error. Id. Accordingly, in this case, because Mr. Barker was subsequently adjudicated as a multiple offender, we find that Mr. Barker was not prejudiced by the trial court's failure to wait twenty-found hours before sentencing him and further find that the error is harmless.
Second, we note that the trial court's initial sentence on the two counts of theft where the value exceeds $750 but is less than $5,000 was twice the length allowed by statute. La. R.S. 14:67 (B)(3) provides that when the "taking amounts to a value of one thousand dollars or more, but less than a value of five thousand dollars, the offender shall be imprisoned with or without hard labor, for not more than five years, or fined not more than three thousand dollars, or both." The trial court, here, sentenced Mr. Barker to ten years at hard labor for these counts. It appears that the trial court mistakenly sentenced Mr. Barker under subpart (B)(2) of La. R.S. 14:67 which provides a maximum sentence of ten years imprisonment with or without hard labor, where the value of the taking exceeds $5,000.
While there was clearly error on the trial court's part as to this sentence, we find no reversible error. Because the trial court subsequently imposed the minimum habitual offender sentence as allowed by law on those counts, there is no prejudice to Mr. Barker and we find the error to be harmless.
Third, there is no indication in the minute entry or the transcript of the multiple offender proceeding that the district court vacated the original sentences before imposing sentence pursuant to the multiple offender statute. While some cases have held that the failure to vacate the original sentence warrants the setting aside of the multiple offender sentence and a remand for resentencing,4 more recent cases have held that "where it is clear that the district court intended to replace the original sentence with the multiple offender sentence, any failure of the district court to vacate the original sentence before imposing the multiple offender sentence does not affect a defendant's substantial rights." State v. Wilson , 02-0776, pp. 4-5 (La. App. 4 Cir. 1/22/03), 839 So.2d 206, 210, citing State v. Norwood , 01-0432, p. 4-5 (La. App. 4 Cir. 8/29/01), 802 So.2d 721, 724–725, State v. Mayer , 99-3124 (La. 3/31/00), 760 So.2d 309, 316 and citing State v. Jackson , 00-0717 (La. App. 1 Cir. 2/16/01), 814 So.2d 6. In Wilson , this Court noted:
Id. , 02–0776, pp. 5–6, 839 So.2d at 210. The Court then held that the "failure of the district court to vacate Wilson's original sentence was an oversight, and the district court intended for the multiple offender sentence to replace the original sentence." Id. , 02–0776,p. 7, 839 So.2d at 210. The Court likewise, noting that the defendant "did not...
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...mere filing of a lawsuit against a judge as sufficient grounds to recuse the judge. State v. Barker , 17-469 (La.App. 4 Cir. 5/30/18), 317 So.3d 422, writ denied , 18-968 (La. 3/18/19), 267 So.3d 85 ; State v. McGill , 50,994 (La.App. 2 Cir. 1/11/17), 213 So.3d 1181. Likewise, Defendant's c......