State v. Muse

• Decision Date: 29 January 1979
• Docket Number: No. 62930,62930
• Citation: 367 So.2d 789
• Parties: STATE of Louisiana v. Lionel MUSE.
• Court: Louisiana Supreme Court

Page 789

367 So.2d 789

STATE of Louisiana v. Lionel MUSE.

No. 62930.

Supreme Court of Louisiana.

Jan. 29, 1979.

Alton T. Moran, Director, Allen J. Bergeron, Jr., App. Counsel, M. Olive Pierson, Trial Counsel, J. Arthur Smith, III, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Mary V. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Chief Justice. ^*

Lionel Muse was charged by bill of information with the August 29, 1976 simple burglary of a structure belonging to Dr. Robert L. Elliott known as Breast Clinic on Convention Street in the city of Baton Rouge. La.Rev.Stat. 14:62 (1972). He pled guilty to the charges on January 10, 1977. The trial judge ordered a presentence investigation and deferred sentencing pending receipt of the report.

The sentencing scheduled for October 31, 1977 was deferred because the presentence report had not been received. Accordingly, the trial judge Ex proprio motu ordered that the accused, his counsel, the District Attorney, the Sheriff, and the Probation and Parole Division of the Department of Corrections be notified that sentence would be imposed on December 2, 1977. On December 2, 1977, because the accused had not been returned from the penitentiary sentencing was again deferred until January 13, 1978. Although the record is silent on the subject, all parties evidently agreed to defer the matter until January 20, 1978.

On January 20, 1978, with the accused present in court and represented by counsel, the District Attorney filed a bill of information charging defendant as an habitual offender. The allegations of the charge were denied by defendant. Sentence was again deferred on the guilty plea of January 10, 1977 pending a hearing under the Habitual Offender Law, which was assigned for March 21, 1978.

At the hearing, as scheduled, counsel for the accused filed a motion to quash the bill of information charging defendant as a multiple offender. The motion was based on the allegation that the multiple offender bill was not timely, and defendant was thereby deprived of the right to a speedy trial and the right to be sentenced without unreasonable delay as guaranteed by Article 874 of the Code of Criminal Procedure. The motion also alleged that defendant's January 10, 1977 guilty plea could not be used to enhance his punishment because defendant was not advised prior to his guilty plea that an enhanced penalty could possibly result from that plea. If he had known this, it is alleged, he would not have entered a guilty plea.

The motion to quash was denied, the hearing was held and the trial judge found defendant to be a second felony offender. Defendant was therefore sentenced to imprisonment at hard labor for eighteen years.

Assignment 1: Louisiana's Habitual Offender Law permits the District Attorney to file an habitual offender charge "at any time, either after conviction or sentence." La.Rev.Stat. 15:529.1D. The open-ended "at any time" latitude granted for filing habitual offender charges is tempered in this case by our decision in State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), where we held that the Habitual Offender Law did not permit an indefinite lapse of time for institution of a proceeding for enhancement of penalty. The holding there was that the proceeding after completion of the term of incarceration was unduly delayed, and the enhanced penalty imposed was vacated.

In State v. McQueen, 308 So.2d 752 (La.1975), we held that an unexplained delay of three years, eight months, in filing a charge to enhance penalty was unreasonable. Our decision in that case recognized the rationale that the enhancement of penalty under the Habitual Offender Law was not a trial on guilt or innocence but was in fact a sentencing procedure which permits enhancement of punishment for recidivist offenders. State v. Rowell, 306 So.2d 668 (La.1975). As such, the Court rationalized, the procedure is subject to the prompt sentence requirement in Article 874 of the Code of Criminal Procedure that "Sentence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the supreme court."

In essence, therefore, the question for decision here is whether the sentence, imposed nineteen months after conviction, was imposed "without unreasonable delay."

Initially it is observed that at no time during the delay from the time of the guilty plea to the enhanced penalty proceeding did defendant avail himself of the right granted by Article 874 to "invoke the supervisory jurisdiction of the supreme court." In order to expedite the sentencing.

Although the record is otherwise silent on the question, it does reflect that the trial judge who received the guilty plea ordered a presentence report. Some permissible delay was undoubtedly attributable to the need to await that report. During this delay defendant had been returned to the penitentiary because of a revocation of parole in connection with another conviction. Sentencing, which had been first scheduled for October 31, 1977, was postponed because the presentence report had not been received. On December 2, 1977 sentencing was again deferred because defendant had not yet been returned from Angola, a delay which it may be inferred was not due to any neglect on the part of the judge or prosecutor.

It should be recalled that defendant did receive a speedy trial within less than five months of the offense, which, when added to the delay for sentencing, constitutes an overall delay of less than twenty months. This delay is well within the two-year delay allowed by the Code of Criminal Procedure in this felony case for commencement of trial after institution of the prosecution. La.Code Crim.Pro. art. 578(2). The delay in the instant case is likewise well within the six-year limitation provided by the Code for the institution of prosecution in such a felony case. La.Code Crim.Pro. art. 572.

Considering the facts and circumstances of this case the delay involved is not unreasonable.

The other issue raised by the motion to quash consists of the allegation that the failure to inform defendant at the guilty plea that his conviction in the instant case could possibly result in a subsequent charge for enhancement of penalty.

The fundamental proposition involved arises from the decision of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, where the Court held that because several constitutional rights are waived when a guilty plea is entered, due process requires that it be affirmatively shown by the record that the plea was intelligently and voluntarily entered.

"What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." 395 U.S. at page 243, 89 S.Ct. at page 1712.

In a colloquy transcribed into 22 pages in this record the trial judge meticulously and laboriously instructed and advised the defendant of the rights he was waiving by his guilty plea. He assured himself by interrogating the defendant that defendant understood those rights and waived them freely and voluntarily. In every respect the Boykin rule was adhered to.

Recent cases in this Court, fully cognizant of the Boykin rule, have held that defendant need not be informed when he enters a guilty plea that it may serve as a basis for an enhanced sentence on a future conviction. One example is State v. Jackson, 362 So.2d 1082 (La.1978), where this Court held:

"(N)o authority has been cited which required the trial judge to advise Jackson (the defendant) that the conviction resulting from a guilty plea could be used in a future multiple offender charge.

"Courts have held that failure to advise of collateral, but foreseeable, adverse consequences of a guilty plea does not permit the withdrawal of the guilty plea. Nor is the trial judge required to anticipate all of the peripheral consequences which may affect the defendant in the future as a result of a guilty plea." Authorities omitted. See also State v. Lewis, 366 So.2d 1355 (La.1978); State v. Hoffman, 345 So.2d 1 (La.1977).

Assignment 2: Defendant urges on appeal that the trial judge committed error when he admitted into evidence at the habitual offender hearing uncertified documents purporting to represent a commitment of defendant as a felon. It is claimed that such a ruling is contrary to Section 529.1 F of Title 15 of the Revised Statutes, which provides:

"The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate."

Aside from evidence offered at the habitual offender hearing, reference to the transcript of the guilty plea examination on January 10, 1977 makes it abundantly clear that defendant was a recidivist offender and had been convicted of a prior felony. At the time of this examination he testified that he was incarcerated in the parish jail for the offense in this case and could not be...