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State v. E. J. M.

Court of Appeals of Louisiana, Fifth Circuit

December 16, 2014

STATE OF LOUISIANA
v.
E. J. M., III

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 10-447, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX JULIET L. CLARK ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR PLAINTIFF/APPELLEE

EDWARD MORGAN, DOC# 590862 IN PROPER PERSON DEFENDANT/APPELLANT

PRENTICE L. WHITE ATTORNEY AT LAW Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois and Stephen J. Windhorst

STEPHEN J. WINDHORST, JUDGE

This is defendant's second appeal. Defendant was convicted of three counts of sexual offenses; one count of attempted indecent behavior with a juvenile, La. R.S. 14:27/42, one count of molestation of a known juvenile, La. R.S. 14:81.2, and one count of aggravated incest upon a known juvenile, La. R.S. 14:78.1. The trial court sentenced defendant to imprisonment at hard labor for two years on count one, imprisonment at hard labor for fifteen years on count two, and imprisonment at hard labor for fifteen years on count three, with the sentences on counts two and three to run concurrently, and the sentence on count one to run consecutively to the sentences on counts two and three. The trial court also ordered the first five years of the sentence on count two to be served without benefit of parole, probation, or suspension of sentence.

Thereafter, the State filed a habitual offender bill alleging defendant to be a third felony offender. A hearing was held over several days and at its conclusion, the trial court found defendant to be a second felony offender. The trial court vacated the original sentence on count three and resentenced defendant under the Habitual Offender Statute, La. R.S. 15:529.1, to thirty years in the Department of Corrections, without benefit of probation or suspension of sentence.

Defendant appealed his convictions and sentences, and the State filed a writ application challenging the trial court's ruling that defendant was a second felony offender rather than a third felony offender. The writ application and appeal were consolidated for review in this Court. In the appeal, this Court found that the evidence was sufficient to support the convictions, and affirmed his convictions and sentences. This Court denied the State's writ application. State v. E.J.M., III, 12-774 (La.App. 5 Cir. 5/23/13), 119 So.3d 648.

The State filed a writ application with the Louisiana Supreme Court challenging this Court's denial of its supervisory writ. The Louisiana Supreme Court found that the trial court erred in finding defendant to be only a second felony offender when the State presented sufficient evidence to establish him a third offender. The Supreme Court granted the writ, vacated the sentence, and remanded the case to the trial court for resentencing consistent with defendant's third felony offender status. State v. Morgan, 13-1495 (La. 2/28/14), 134 So.3d 1160 (per curiam).

On remand, defendant filed a motion to reopen the hearing on the habitual offender proceeding that was denied. On that same date, the trial judge, in accordance with the Louisiana Supreme Court's instructions, resentenced defendant as a third felony offender to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

In this appeal, defense counsel assigns as error the trial court's denial of his motion to reopen the habitual offender hearing. Defendant also filed a pro se brief in which he alleges that the trial court erred in denying the motion to reopen the habitual offender hearing. Defendant further contends that the Louisiana Supreme Court erred in granting the State's application for writ of review.

The Louisiana Supreme Court, in granting the State's application for writ of review, found that pursuant to State v. Balsano, 09-735 (La. 6/19/09), 11 So.3d 475,

... the proper consideration for this out-of-state conviction is whether defendant knew and understood what he was waiving, not necessarily who informed him. Since defendant failed to meet his burden of proof, the trial court erred in finding defendant only a second felony habitual offender when ...

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