State v. Ruiz

• Decision Date: 24 May 2006
• Docket Number: No. KA 06-30.,No. KH 05-1098.,No. KH 05-1261.,KA 06-30.,KH 05-1098.,KH 05-1261.
• Citation: 931 So.2d 472
• Parties: STATE of Louisiana v. Gregory John RUIZ.
• Court: Court of Appeal of Louisiana — District of US

931 So.2d 472

STATE of Louisiana v. Gregory John RUIZ.

No. KA 06-30.

No. KH 05-1098.

No. KH 05-1261.

Court of Appeal of Louisiana, Third Circuit.

May 24, 2006.

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James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant Gregory John Ruiz.

J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff State of Louisiana.

Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Plaintiff State of Louisiana.

Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

SAUNDERS, Judge.

On July 11, 2002, the State filed a bill of information charging Defendant, Gregory Ruiz of New Iberia, with possession of cocaine, second offense, in violation of La. R.S. 40:967 and La.R.S. 40:982, and distribution of cocaine, second offense, in violation of La.R.S. 40:967 and La.R.S. 40:982. Defendant's first trial ended in a mistrial. The jury in his second trial found him guilty as charged on March 16, 2005.

Subsequently, Defendant was billed and adjudicated to be a second habitual offender. The court sentenced him to five years at hard labor for possession of cocaine, second offense, and to thirty years for distribution of cocaine, pursuant to his adjudication as a habitual offender.

Defendant now seeks review of his convictions. His appellate counsel assigns a single error on appeal. We observe that the appeal has been consolidated with two pro se writs, in which Defendant argues a combined total of five errors.

Based on our analysis of Defendant's arguments, both counsel-filed and pro se, we vacate only the second-offense portions of Defendant's convictions and order the entry of convictions for the underlying offenses.

FACTS:

Defendant sold cocaine to an undercover officer in Iberia Parish.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed on the face of the record for errors patent. After reviewing the record, we find that there are several errors patent involving the habitual offender adjudication and sentences. We find, however, that these errors are mooted by our finding, based on an assigned error, that the Defendant's convictions are vacated only as to his second offender status. Therefore, Defendant's habitual offender adjudication and sentences are vacated and the case is remanded for further proceedings.

ASSIGNMENTS OF ERROR:

As already noted, two pro se writs have been consolidated with Defendant's counsel-filed appeal. We will address the counsel-filed assignment first, then proceed to the pro se assignments.

ASSIGNMENT OF ERROR (Appeal, 06-30):

Defendant argues that the "ends of justice require the granting of a new trial" due to the supreme court's ruling in State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399. The Skipper court held that allegations of prior offenses must not appear in charging instruments of subsequent offenses. Id.

In the present case, the State charged Defendant with second-offense possession of cocaine and second-offense distribution of cocaine, both in violation of La.R.S. 40:967 and La.R.S. 40:982. The bill of information contained allegations that Defendant had been convicted of prior drug offenses in 1995. Defendant argues that this was improper under Skipper.

As defense counsel observes, in Skipper, the defendant filed a successful motion to quash the bill, which charged him under La.R.S. 40:982. As the trial court's ruling included a declaration that the statute was unconstitutional, the prosecution appealed directly to the supreme court. In reaching its decision, the Skipper court explained:

Unlike criminal statutes which contain their own enhancement provisions for multiple violations of the same criminal act, La.R.S. 40:982 is a completely separate statute which does not in and of itself define a crime. In addition, La.R.S. 40:982, like La.R.S. 15:529.1, is applicable to numerous different and unrelated felonies. Although all of the felonies must be prohibited under the Uniform Controlled Substances Law in order for La.R.S. 40:982 to be applicable for sentence enhancement, the felonies are not required to be violations of the same criminal act. La.R.S. 40:982 does not transform the prior felonies into an element of the most recently committed offense, nor does the statute effect the grade of the offense, the trial procedure for the adjudication of that offense or the consequences, except to allow enhancement of sentence.

In Louisiana, sentencing is strictly a function performed by the trial judge. See La.C.Cr.P. art. 871(A) ("A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty or upon a judgment of guilt.")(emphasis supplied). Thus, we find no rational basis or compelling state interest for a jury to be apprised of a defendant's prior conviction during the trial of the second or subsequent drugrelated offense for purposes of sentence enhancement under La.R.S. 40:982. This sentence enhancement provision can still be enforced without presenting the allegations of a defendant's prior convictions to the jury before a determination of guilt for the instant offense is made.

CONCLUSION

For the foregoing reasons, we hold that La.R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, like La. R.S. 15:529.1, and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drugrelated offense nor may evidence of the prior offense be presented to the jury determining the defendant's guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement under La.R.S. 40:982.

State v. Murray, 357 So.2d 1121 (La. 1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under La.R.S. 40:982, are hereby overruled.

So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied La.R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.

Id. at 416-17, (footnotes omitted) (emphasis added).

We observe that Skipper's language raises the possibility that Defendant's convictions for second offenses under La.R.S. 40:982 constituted convictions for non-existent crimes. Defendant does not appear to have raised this specific issue below, and does not squarely present it on review. However, we observe that he attempted to bring Skipper to the trial court's attention at sentencing, in oral pro se remarks. As Skipper was rendered on June 29, 2005, and the sentencing hearing was conducted on August 8, 2005, the latter date was likely Defendant's earliest opportunity to raise Skipper. Further, the issue of conviction for a non-crime is discoverable by a mere inspection of the record. La.Code Crim.P. art. 920(2). We observe the Comments under La.Code Crim.P. art. 535, "Time to file motion to quash," which state, in pertinent part:

(b) Paragraph A states the time for filing a motion to quash on fundamental grounds that are not waived by failure to urge them by a motion to quash. These grounds are:

(1) The offense is not punishable under a valid statute.

This is Ground (1) of Art. 532. It may also be urged as a ground for a motion in arrest of judgment under Art. 859(2), and is within the scope of appellate review without prior objection, under Art. 920(2), since it is an error discoverable by a mere inspection of the pleadings and proceedings and without the inspection of evidence.

Therefore, we will proceed with the analysis. However, to definitively state whether Defendant has been convicted of a non-crime, it is necessary to decide whether Skipper applies retroactively to the present case. When the Skipper ruling was issued, Defendant had been convicted and was waiting to be sentenced. The State argues Skipper should not apply retroactively, citing State v. Beer, 252 La. 756, 214 So.2d 133 (1968).

Our research has located no cases in which this aspect of Skipper has been discussed. In an unpublished case, State v. Butler, an opinion bearing docket number 05-297 (La.App. 3 Cir. 11/2/05), 914 So.2d 146, we recently discussed Skipper, although we did not address the retroactivity issue, or La.R.S. 40:982's apparent status as a non-crime. In Butler, we stated, "Defendant's conviction for possession of a controlled dangerous substance, second offense, is within the purview of State v. Skipper. Accordingly, potentially prejudicial other crimes evidence was put before the jury which constituted trial error in this case. However, this trial error is subject to a harmless error analysis." Id. at 12, 906 So.2d at 408.

Thus, we found error, conducted a harmless error analysis, and affirmed the defendant's conviction for possession of a controlled dangerous substance, second offense. As previously mentioned, the opinion did not address retroactivity. In view of the information presented, we now find that the omission of that issue, and thus, the decision to affirm the defendant's conviction for second-offense possession of a controlled dangerous substance, was in error. We note that a writ application is pending before the supreme court in Butler; however, no action had been taken at the time this opinion was written.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the supreme court traced the evolution of United States Supreme Court cases addressing the retroactivity of new rulings to cases final at the time the new ruling...