State v. Baylor

• Decision Date: 26 November 2008
• Docket Number: No. KA 2008-141.,KA 2008-141.
• Parties: STATE of Louisiana v. Harold Dewayne BAYLOR, Sr.
• Court: Court of Appeal of Louisiana — District of US

998 So.2d 800

STATE of Louisiana v. Harold Dewayne BAYLOR, Sr.

No. KA 2008-141.

Court of Appeal of Louisiana, Third Circuit.

November 26, 2008.

James D. Downs, District Attorney, Numa V. Metoyer, III, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.

Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant, Harold Dewayne Baylor, Sr.

Harold Dewayne Baylor, Sr., Winnfield, LA, In Proper Person.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and MARC T. AMY, Judges.

SAUNDERS, Judge.

On January 27, 2006, the Defendant, Harold Dewayne Baylor, Sr., was charged by bill of information with attempted carjacking, a violation of La.R.S. 14:27 and La.R.S. 14:64.2, and unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4. The Defendant was arraigned on February 10, 2006, and he entered a plea of not guilty to all charges.

Jury selection commenced on June 20, 2006. On June 22, 2006, the jury found the Defendant guilty as charged. The Defendant was sentenced on July 28, 2006, to one year in the Louisiana Department of Corrections for attempted carjacking and to three years with the Louisiana Department of Corrections for unauthorized use of a motor vehicle with said sentences ordered to be served consecutively. Defense counsel then gave oral notice of his intent to appeal.

The State filed a bill of information charging the Defendant as a habitual offender on November 14, 2006. On February 26, 2007, the Defendant was found to be an habitual offender. Thus, the sentences that had been previously imposed were vacated, and he was sentenced to serve seventeen years at hard labor on each count, with each count to be served concurrently.

On March 12, 2007, the Defendant filed a pro se Notice of Appeal and Motion for Appointment of Appellate Counsel. The motions were denied on April 4, 2007. The Defendant filed an Application for Post-Conviction Relief seeking an out-of-time appeal on July 17, 2007. That application was denied on August 7, 2007. By order of the trial court issued on October 25, 2007, the Defendant was granted an out-of-time appeal. On November 16, 2007, the Defendant filed a pro se Motion for Appointment of Appellate Counsel. The trial court issued an order appointing the Louisiana Appellate Project to handle the appeal on December 4, 2007.

The Defendant is now before this court asserting three assignments of error. The Defendant contends the following: 1) the evidence did not support convictions for unauthorized use of a motor vehicle or attempted carjacking; 2) the trial court erred in refusing to order a psychiatric evaluation to determine the Defendant's competency; and 3) the trial court failed to sufficiently articulate a basis for the imposition of a seventeen-year sentence as to each count. We find that the assignments of error alleging insufficient evidence to support the conviction for attempted carjacking and the Defendant's competency merit serious consideration. The remaining assignments of error lack merit.

FACTS:

George Drewitt allowed the Defendant to use his truck in exchange for crack cocaine. The Defendant did not return the truck and was stopped by police while in possession of the truck. Upon exiting the truck, the Defendant fled from police. While fleeing from police, the Defendant jumped through the open window of a car being driven by Freddie Butler. The Defendant was subsequently apprehended and convicted of unauthorized use of a motor vehicle and attempted carjacking.

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 that there are three errors patent and an additional issue requiring discussion.

ERROR PATENT NUMBER 1:

The first error patent concerns the habitual offender proceeding. The record does not indicate the Defendant was advised of his right to remain silent, his right to a formal hearing and his right to have the State prove its case against him.¹ In State v. Coleman, 96-525, pp. 12-13 (La. App. 3 Cir. 10/7/98), 720 So.2d 381, 387, this court explained in pertinent part:

Although the right to remain silent is not specifically set forth in La.R.S. 15:529.1, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on other grounds, 438 So.2d 1113 (La.1983); appeal after remand, 457 So.2d 1251 (La. App. 1 Cir.1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the Louisiana Supreme Court held this statute clearly recognizes the defendant has the right to remain silent, and the statute implicitly provided defendant should be advised by the court of his right to remain silent. The court in Johnson, relying on State v. Martin, 427 So.2d 1182 (La.1983), further stated La.R.S. 15:529.1(D) specifically provides defendant shall be advised of his right to a formal hearing and to demand that the state prove its case.

This court has found such error to be harmless when the defendant is adjudicated a habitual offender after a full hearing, and the defendant does not testify or acknowledge his status as an habitual offender. See State v. Alexander, 05-276, 05-277 (La.App. 3 Cir. 11/2/05), 916 So.2d 303 and State v. Staton, 05-612 (La.App. 3 Cir. 2/1/06), 922 So.2d 1216, writ denied, 06-1249 (La.11/22/06), 942 So.2d 553. In this case, a full hearing was held, and the Defendant did not testify or acknowledge his status as an habitual offender. Accordingly, we find that the trial court's failure to advise the Defendant of these rights was harmless.

ERROR PATENT NUMBER 2:

Second, we find that the Defendant was provided incorrect information regarding the time limitation for filing an application for post-conviction relief. The court minutes of sentencing do not indicate the Defendant was advised of this time limitation; thus, the sentencing transcript was examined to determine whether the Defendant was so advised. An inspection of the transcript revealed the Defendant was told he has two years from the date of sentencing to file an application for postconviction relief. According to La.Code Crim.P. art. 930.8, the two-year prescriptive period begins to run when the defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Thus, we instruct the trial court to inform the Defendant of the correct provisions of article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings.

ERROR PATENT NUMBER 3:

Third, we find that the sentencing minutes require correction. The court minutes of sentencing state in pertinent part, "Court sentenced accused to be committed to the Louisiana Department of Corrections. Accused to serve 017 Year(s). Sentence is to be served at Hard Labor. Sentence is to run concurrent." The sentencing transcript reveals that the judge imposed a sentence of seventeen years on each count, to run concurrently. Thus, we order the trial court to correct the sentencing minutes to accurately reflect the sentences imposed by the court.

ISSUE REQUIRING DISCUSSION; NO ERROR PATENT OCCURRED:

Finally, we find that there is an issue worth discussing even though no error occurred. The Defendant was sentenced as an habitual offender for his convictions of both attempted carjacking and unauthorized use of a motor vehicle. At the conclusion of the habitual offender hearing, the court stated:

The District Attorney, representing the State of Louisiana — Louisiana, has shown you to be an habitual offender, and I find you guilty of being a second offender upon the proof of the prior felony convictions that were presented by the State at this time. And I hereby vacate previous sentences, and hereby sentence you to seventeen years Department of Corrections as an habitual offender for those offenses.

We find that no error occurred in imposing an enhanced sentence for each offense as the convictions were separate criminal offenses committed at separate times and did not arise out of a single criminal act or episode. See State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, and State v. Ward, 94-490 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, writ denied, 97-642 (La.9/19/97), 701 So.2d 165. Furthermore, even if the offenses did arise out of a single criminal act, our supreme court recently held that enhancement of each is permissible:

We therefore hold that the language of LSA-R.S. 15:529.1 contains no prohibition against enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode. Unlike the [State ex rel.] Porter[ v. Butler, 573 So.2d 1106 (La.1991)] court, we find no legislative purpose or policy that is contradicted by failing to read such a prohibition into the statute's language. Nor does a plain reading of the statute generate absurd or unjust results. In clear and unambiguous terms, the statute exposes a person who has previously been convicted of a felony to enhanced penalties for any felony committed after the date of the prior felony conviction. There is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. To the extent that the opinions in Porter and [State v.] Sherer[, 411 So.2d 1050 (La.1982)] are inconsistent with this conclusion, they are overruled.

State v. Shaw, 06-2467, p. 20 (La.11/27/07), 969 So.2d 1233, 1245.²

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant contends the evidence did not support convictions for either unauthorized use of a motor vehicle or attempted carjacking.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing cour...