State v. Mallett

• Decision Date: 08 November 1989
• Docket Number: No. CR87-758,CR87-758
• Parties: STATE of Louisiana v. Wilfred James MALLETT. 552 So.2d 28
• Court: Court of Appeal of Louisiana — District of US

Page 28

552 So.2d 28

STATE of Louisiana v. Wilfred James MALLETT.

No. CR87-758.

552 So.2d 28

Court of Appeal of Louisiana,

Third Circuit.

Nov. 8, 1989.

Writ Denied Jan. 19, 1990.

Wilfred J. Mallett, in pro per.

Wendell R. Miller, Dist. Atty., Jennings, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and FORET, JJ.

DOMENGEAUX, Judge.

On July 9, 1986, appellant, Wilfred J. Mallett, was indicted for simple burglary of a chemical warehouse, a violation of La.R.S. 14:62. On March 13, 1987, appellant was found guilty by a six-person jury of simple burglary. Prior to sentencing, the State filed a habitual offender bill, alleging appellant had been convicted of four felonies prior to the instant conviction. On May 18, 1987, appellant was adjudicated a habitual offender and was sentenced to imprisonment at hard labor for the remainder of his natural life. On initial appeal, as a result of procedural defects in appellant's application for review, this court limited its review to errors patent and affirmed the conviction and sentence. The Supreme Court ordered an extension of time within which the pro se appellant could properly perfect assignments of error for review. State v. Mallett, 526 So.2d 1194 (La.App. 3rd Cir.1988), writ. granted, 536 So.2d 1205 (La.1989). Appellant now seeks review of the court's adjudication of habitual offender status and the sentence imposed based on six assignments of error.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error appellant contends the trial court erred in accepting evidence of prior felony convictions because the trial judge failed to advise appellant of his privilege against self-incrimination prior to his admission of being the same individual previously convicted of the prior felonies alleged in the bill.

On original appeal, a panel of this court reviewed as an error patent on the face of the record the essential merit of appellant's assertion. The court referred to State v. Johnson, 432 So.2d 815 (La.1983) where the state Supreme Court emphasized that an individual's privilege against self-incrimination was not dependent on the nature of a proceeding, acknowledged La.R.S. 15:529.1 recognized a defendant's right to remain silent and implied a court should advise the defendant of that right before the defendant acknowledges a prior felony conviction. As mentioned in the earlier review, a majority of appellate circuits have held that La.R.S. 15:529.1(D) requires the defendant to be advised by the court of the right against self-incrimination before an admission can be used as a basis to adjudicate the defendant a habitual offender. See, State v. Perkins, 517 So.2d 314 (La.App. 1st Cir.1987), writ. denied, 519 So.2d 141 (La.1988); State v. Landry, 525 So.2d 534 (La.App. 3rd Cir.1987); State v. Desmond, 524 So.2d 147 (La.App. 4th Cir.1988); State v. Jackson, 527 So.2d 1039 (La.App. 5th Cir.1988).

At the habitual offender hearing, the court advised appellant of his right to be tried as to the truth of the allegations according to law and further advised appellant that should he choose to deny the allegations, the State would be required to prove all allegations. The trial judge did not advise appellant of his privilege against self-incrimination or that by acknowledging his predicate offenses he would be waiving the privilege. Appellant acknowledged that he was the same individual convicted in the predicate felonies listed on the multiple offender bill.

In light of the jurisprudence cited above, the failure of the trial judge to advise appellant of his right to remain silent during the habitual offender hearing seemingly appears to warrant a reversal. However, in addition to an admission, habitual offender status may be established by compliance with La.R.S. 15:529.1(F) or by other competent evidence. State v. Lee, 364 So.2d 1024 (La.1978); State v. Melton, 456 So.2d 192 (La.App. 4th Cir.1984). Therefore, if other competent evidence is introduced which establishes the prior convictions, the failure of the trial judge to advise appellant of his privilege against self-incrimination at the multiple offender hearing would constitute harmless error. In our prior opinion in this matter, we set forth in detail the competent evidence adduced by the State to establish defendant's prior convictions. See State v. Mallett, supra at page 1196. This evidence, we conclude, sufficiently identified defendant as the same person previously convicted of the predicate felonies. Therefore, we determine that the trial court's failure to advise defendant of his privilege against self-incrimination prior to his admission was harmless error.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, appellant insists La.R.S. 15:529.1(B) permits enhancing the status for commission of a given felony only if the commission follows conviction of an earlier felony which caused him to be an offender of a lesser status. Appellant argues the habitual offender statute mandates such a sequential requirement. Particularly, appellant argues that to be adjudicated a fourth felony offender the State must establish that: (1) commission and conviction of the first enumerated offense preceded commission of the second, (2) commission and conviction of the second enumerated felony preceded commission of the third offense, (3) commission and conviction of the third offense preceded commission of the principal offense. The State maintains appellant's position misinterprets the law, which merely requires the conviction for each predicate felony to precede the commission of the principal offense.

In State v. Simmons, 422 So.2d 138 (La.1982), the court reversed an adjudication of fourth offender status because the third felony used for enhancement was committed before the date of conviction for the second predicate felony. The court ruled that La.R.S. 15:529.1, as it read at that time, ¹ was intended to set up a sequential requirement for use of predicate felonies.

Subsequent to Simmons, the Louisiana legislature modified La.R.S. 15:529.1(B) such that it presently provides:

It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.

Despite this modification, the court in State v. Franklin, 501 So.2d 881 (La.App. 5th Cir.1987) stated the substance of the law did not change. In State v. Harris, 510 So.2d 439 (La.App. 1st Cir.), writ. denied, 516 So.2d 129 (La.1987), the court followed the Simmons rationale and reversed an adjudication of a third felony status because the second offense was committed before the guilty plea which constituted the first conviction.

At the habitual offender hearing in the instant case, the prosecution presented evidence of four prior convictions to be used for enhancement, excluding the instant offense which was committed on April 15, 1986.

(1) May 17, 1971, conviction for five counts charging sale of mortgaged property and making false statements;

(2) May 7, 1981, conviction for interstate transportation of stolen property committed on August 24, 1980;

(3) October 15, 1981, convictions for four counts of felony theft committed in July and August, 1980;

(4) June 25, 1982, conviction for felony theft committed June 18, 1980.

Under the holdings of Simmons and Harris it would appear that only one of the final three convictions may be used for enhancement because each was committed before the conviction of any one of the crimes. Under such an analysis, the State could use only two of the four predicate felonies for enhancement of sentence.

However, we decline to follow the First Circuit's holding in Harris, finding that the 1982 amendment to La.R.S. 15:529.1(B) was a repudiation of Simmons, insofar as that case required a sequence of crimes committed and convictions for the use of prior crimes for enhancement purposes. The only sequential requirement in the statute, as it now reads, is that in order to be available for a defendant's adjudication as a multiple offender, a prior conviction must precede the commission of the principal offense. State v. Mims, 535 So.2d 1103 (La.App. 2nd Cir.1988); State v. Lennon, 427 So.2d 860 (La.1983); State v. Franklin, supra. ² Each of the four prior felony convictions in the instant case, therefore, may be used for enhancement of the principal offense because those convictions were entered before the commission of the principal offense.

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

ASSIGNMENTS OF ERROR NOS. 3 AND 4

By these assigned errors, appellant contests the admissibility of the evidence introduced to establish the third and fourth predicate felonies. Appellant also argues the first predicate felony which was a federal offense should not have been used for enhancement because the analogous state offense constitutes a misdemeanor in Louisiana and because the five year cleansing period had elapsed prior to the commission of the instant offense.

In order for a federal conviction to be used to enhance a conviction, the activity which gave rise to the defendant's federal conviction must constitute a felony under the most analogous Louisiana statute. State ex rel Wilson v. Maggio, 422 So.2d 1121 (La.1982); State v. Brown, 452 So.2d 326 (La.App. 4th Cir.1984). Additionally, to use the prior felony there must have not intervened, before the commission of another felony, five years between the end of the previous sentence and the commission of another felony. The date of the defendant's actual discharge from supervision determines the expiration of a given sentence. State ex rel Wilson v. Maggio, supra.

Initially, it should be noted that the prosecution successfully demonstrated that five years had not...