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State v. Bailey

Court of Appeal of Louisiana, Second Circuit

November 19, 2014

STATE OF LOUISIANA, Appellee
v.
GARY ANTHONY BAILEY, JR., Appellant

Page 1057

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana. Trial Court No. 189924A. Honorable Michael O. Craig, Judge.

DOUGLAS L. HARVILLE, Counsel for Appellant.

GARY ANTHONY BAILEY, JR., Appellant, Pro se.

J. SCHUYLER MARVIN, District Attorney; JOHN M. LAWRENCE, Assistant District Attorney, Counsel for Appellee.

Before WILLIAMS, CARAWAY and DREW, JJ.

OPINION

Page 1058

[49,362 La.App. 2 Cir. 1] WILLIAMS, J.

The defendant, Gary Anthony Bailey, Jr., was charged by bill of information with simple burglary, in violation of LSA-R.S. 14:62. He was found guilty as charged and was sentenced to serve 10 years in prison at hard labor with credit for time served. Subsequently, the defendant was adjudicated a fourth-felony offender and was sentenced to serve life in prison without the benefit of parole, probation or suspension of sentence.

For the following reasons, we hereby vacate the 10-year sentence imposed in the underlying conviction. We remand this matter to the trial court with instructions

Page 1059

to amend the minutes to correctly reflect that, pursuant to LSA-R.S. 15:529.1(D)(3), the defendant's 10-year sentence is vacated. As amended, we affirm.

FACTS

On May 22, 2012, a jury found the defendant guilty as charged of simple burglary. Subsequently, the defendant was sentenced to 10 years at hard labor. This Court affirmed the defendant's conviction and sentence. State v. Bailey, 48,042 (La.App.2d Cir. 5/15/13), 115 So.3d 739, writ denied, 2013-1385 (La. 12/6/13), 129 So.3d 530.

On June 18, 2013, while the defendant's writ application was pending in the supreme court, the state filed a habitual offender bill of information, alleging that the defendant had five prior felony convictions: (1) attempted unauthorized entry of a business on August 8, 1990, Docket No. 68,593 in the 26th Judicial District Court; (2) simple burglary of an inhabited dwelling on May 12, 1994, Docket No. 77,692 in the 39th Judicial District Court; (3) simple escape on August 10, 1995, Docket No. 79,888 in the 39th Judicial District Court; and (4)-(5) two counts of molestation of a juvenile on [49,362 La.App. 2 Cir. 2] November 15, 2007, Docket No. 37,604 in the Second Judicial District Court.

On July 2, 2013, the defendant was arraigned as a fifth-felony offender and entered a plea of not guilty. On July 10, 2013, the defendant filed a pro se objection to the habitual offender bill of information, asserting the following arguments: (1) he did not qualify as a habitual offender because the prior offenses were not the " same or like" offenses; (2) he had not committed the " same or like" offenses within a 10-year period; (3) the habitual offender bill was " defective and meritless" ; and (4) the state had not provided him with the bill of information or responses to discovery prior to the deadline for filing his objections.

On July 11, 2013, the defendant filed a request for discovery of items, including " medical examinations or psychological evaluations of the defendant." The trial court granted the defendant's request for discovery, and the state provided the defendant with a copy of the following documents:

Docket No. 77692 -- Red River Parish -- 39th Judicial District Court, Bill of Information No. 77692 -- Simple Burglary Inhabited Dwelling, Transcript of Colloquy of Guilty Plea -- May 12, 1994
Docket No. 79888 -- Red River Parish -- 39th Judicial District Court, Bill of Information No. 79888 -- Simple Escape, Transcript of Colloquy of Guilty Plea -- August 10, 1995
Docket No. 37604 -- Bienville Parish -- 2nd Judicial District Court, Indictment -- 37604 -- Molestation of a Juvenile (2 Counts), Indictment 37604 -- Sexual Battery, Minutes of Court -- 37604, Fingerprints of Gary A. Bailey
Docket No. 189924 -- Bossier Parish -- 26th [49,362 La.App. 2 Cir. 3] Judicial District Court, Bill of Information No. 189924 -- Simple Burglary, Minutes of Court -- 189924, Transcript of Sentencing -- August 14, 2012

Thereafter, the defendant, through counsel, filed a motion to quash three of the convictions enumerated on the habitual offender bill, arguing that the state had not provided a means to identify the defendant as the same person who pled guilty to the prior offenses.[1] After defense counsel

Page 1060

filed the motion to quash, the defendant terminated her services. At an appearance before the trial court on August 6, 2013, the defendant informed the court that he had terminated counsel's services and had chosen to represent himself. The trial court advised the defendant of his right to be represented by an attorney. In open court, defense counsel provided the defendant with a copy of the motion to quash that had been filed on his behalf.

On August 14, 2013, the defendant filed a pleading entitled " Motion to Dismiss and Accept." In that document, the defendant requested that the motion to quash, filed by his prior counsel, be withdrawn. He argued that counsel had been " fired" for " intentional deception and betrayal" and that he disagreed with her decision to seek to quash only a portion of the habitual offender bill. Again, the defendant asserted that he was not eligible for an enhanced sentence.

Thereafter, the defendant filed a myriad of motions, including a motion for a preliminary examination, change of venue and responses to discovery. The court denied the motion for a preliminary examination, [49,362 La.App. 2 Cir. 4] finding that the defendant was not entitled to a preliminary exam in a habitual offender proceeding. The court also denied the motion for change of venue, finding that a motion for change of venue was a pre-trial motion, and was not appropriately filed following a conviction. Further, the court denied the defendant's requests for discovery, in which he had requested the victims' contact information, psychiatric reports, medical records, criminal records, police reports and transcripts of all proceedings. The defendant did not assert an argument with regard to the motion to quash, alleging that he was unable to do so because he had not been provided with proper responses to requests for discovery. He also argued that he was not eligible for an enhanced sentence because " [the offense] has to be a same or like offense within those ten years."

The habitual offender hearing was held on October 29, 2013. Again, the trial court advised the defendant of his right to counsel; however, the defendant expressly waived that right and chose to continue representing himself.

On morning of trial, the defendant requested a continuance, stating that he had not received all necessary responses to his requests for discovery. The state advised that all discovery documents had been forwarded to the public defender's office. Defendant's prior counsel was called to testify regarding the motion for continuance. She testified that she had provided the defendant with the entire public defender's office file on October 1, 2013. The trial court denied the motion to continue and the trial commenced.

Detective Jonathan Jackson, of the Bossier Parish Sheriff's Office, [49,362 La.App. 2 Cir. 5] was called to testify as an expert in the field of fingerprint identification and comparison. The defendant stated that he did not have any objections to Detective Jackson's qualification as an expert in that field. Thereafter, Detective Jackson obtained the defendant's fingerprints in open court and compared them to the fingerprints contained in the defendant's records of prior convictions. Before Detective Jackson could respond to questions regarding comparison of the fingerprints, the defendant stated:

I'm not contesting probably any of the convictions. I'm contesting the charges

Page 1061

themselves in accordance with R.S. 15:529.1. It has to be a same [or] like offense and it has to be within ten years.

The trial court instructed the district attorney to proceed with questioning Detective Jackson. The detective testified that the fingerprints obtained from the defendant in open court were the same as those in the 2012 conviction for simple burglary. The fingerprint card from the 2012 conviction was introduced into evidence. Also introduced into evidence was the record of the 1989 conviction for attempted unauthorized entry of a business, the record and fingerprints of the defendant's 1994 conviction for burglary of an inhabited dwelling, and the record of the defendant's 2004 conviction of molestation of a juvenile. The defendant specifically stated that he did not have any objections to the fingerprint cards and records pertaining to the prior convictions being placed into evidence.

The trial continued and the defendant did not present any evidence. Rather, he relied on his legal argument, which was based on his own interpretation of LSA-R.S. 15:529.1. The defendant argued that the statute provided that the time spent in jail is not included in the computation of the [49,362 La.App. 2 Cir. 6] ten-year period between the expiration of a sentence and the next succeeding offense under LSA-R.S. 15:529.1(C). The district court noted the defendant's objection misinterpreting the statute and stated:

[The statute] talks about the calculation of probation while you're incarcerated -- and not the fact that you were incarcerated. So, the fact that and -- and the conclusion of your sentence doesn't simply conclude upon your release from jail. If you had additional parole time or anything, all of that time is calculated and that -- that period of ten years -- there was no one period of ten years where you went without some, being on some type of sentencing be it either probation or parole or incarceration.

The trial court adjudicated the defendant as a fourth-felony habitual offender based upon the convictions for simple burglary, attempted unauthorized entry of a business, simple burglary of an inhabited dwelling, and molestation of a juvenile. Thereafter, the defendant waived the sentencing delays and was sentenced to life imprisonment at hard labor, without the benefit ...


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