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State v. Montgomery

Court of Appeal of Louisiana, Third Circuit

December 17, 2014

STATE OF LOUISIANA
v.
KENNETH WAYNE MONTGOMERY

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 10195-13. HONORABLE CLAYTON DAVIS, DISTRICT JUDGE.

AFFIRMED.

John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorney, Fourteenth Judicial District, Lake Charles, LA, COUNSEL FOR APPELLEE: State of Louisiana.

Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, COUNSEL FOR APPELLANT: Kenneth Wayne Montgomery.

Kenneth Wayne Montgomery, Pro se, Kinder, LA.

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges. COOKS, J., dissents and assigns written reasons.

OPINION

Page 79

[14-389 La.App. 3 Cir. 1] PETERS, J.

The defendant, Kenneth Wayne Montgomery, appeals his adjudication as a second felony offender.[1] For the following reasons, we affirm his adjudication in all respects.

DISCUSSION OF THE RECORD

In a trial which began on January 10, 2013, a jury convicted the defendant of two counts of distribution of cocaine, violations of La.R.S. 40:967. Thereafter, the trial court sentenced him to serve two concurrent thirty-year hard-labor sentences on the convictions. Subsequently, the State of Louisiana (state) charged the defendant in this separate proceeding as a habitual offender in violation of La.R.S. 15:529.1. After considering the evidence presented at the July 26, 2013 habitual-offender proceeding, the trial court adjudicated the defendant as a second-felony offender and sentenced him to the same sentence previously imposed, two concurrent thirty-year sentences at hard labor. The defendant appeals the adjudication, asserting in his one assignment of error raised by his appellate counsel, that " [t]he prosecution failed to prove that the defendant was the same person who was convicted of the prior felonies on May 24, 2010 and January 10, 2013."

OPINION

The offense of distribution of cocaine is subject to a possible incarceration sentence of not less than two, nor more than thirty years at hard labor, with the first two years of the sentence imposed to be served without benefit of probation, parole, or suspension of sentence. La.R.S. 40:967(B)(4)(b). Thus, the defendant received the maximum sentence for each count before imposition of the habitual [14-389 La.App. 3 Cir. 2] offender provisions of La.R.S. 15:529.1.[2] Additionally, La.R.S. 15:529.1(A)(1) provides an enhanced sentencing range of " a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction." Furthermore, La.R.S. 15:529.1(G) provides that " [a]ny sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence."

After adjudicating the defendant a habitual offender, the trial court sentenced him to the same sentence as before, which is still within the mandatory-minimum range for the habitual-offender conviction. Thus, because the defendant's sentence is still subject to parole, it is basically the same sentence as that imposed in the underlying proceeding, and the defendant has not raised an excessiveness claim in either his appeal addressing the convictions

Page 80

themselves or in this appeal. That is to say, the defendant does not challenge the length of the sentences, nor does he explain how a reversal of this adjudication proceeding will benefit him from a sentencing standpoint. Still, given the content of the record before us, we will consider the sole assignment of error.

At the July 26, 2013 habitual offender hearing, the state introduced the following exhibit with regard to the prior conviction:

Exhibit S1: Certified copies of an amended bill of information in docket number 18150-08 charging Kenneth Wayne Montgomery, a black male whose date of birth was listed as April 2, 1961, with possession of cocaine occurring on June 30, 2008; minutes of court dated May 24, 2010, reflecting the entry of a guilty plea before Judge Clayton Davis in docket number 18150-08 to possession of cocaine by Kenneth Wayne Montgomery, who was represented by an attorney and who gave his date of birth as April 2, 1961, and his address as 2003 N. Prater St., Lake Charles, Louisiana; and a waiver of [14-389 La.App. 3 Cir. 3] constitutional rights and plea of guilty form signed by Kenneth Wayne Montgomery, whose date of birth was listed as April 2, 1961.

The state also introduced the following exhibits with regard to the two distribution of cocaine convictions, which gave rise to the habitual offender proceeding:

Exhibit S2: Certified copies of a grand jury indictment in docket number 26952-12 charging Kenneth Wayne Montgomery, whose date of birth was listed as April 2, 1961, with two counts of distribution of cocaine; a bill of information in docket number 10195-13 (the proceeding now before us) charging Kenneth Wayne Montgomery, a black male who was born on April 2, 1961, as a habitual offender; jury verdicts of guilty on each count of distribution of cocaine in docket number 26952-12 dated January 11, 2013; minutes of court dated April 1, 2013, reflecting that Kenneth Wayne Montgomery was sentenced by Judge Clayton Davis to thirty years at hard labor on each count of distribution of cocaine to be served concurrently, and the filing of a habitual offender bill of information in docket number 10195-13.
Exhibit S3: Certified copy of an " Appeal Motion for Bond Reduction" to the Third Circuit Court of Appeal by Kenneth W. Montgomery dated October 4, 2012, wherein he stated he was convicted two years ago and he was last arrested on June 30, 2008, and gave his address as P.O. Box 2017, Lake Charles, Louisiana.

Finally, the state requested that the trial judge presiding in the habitual offender proceeding take judicial notice that he had presided in both prior trials at issue. The trial judge responded affirmatively to that request.

The defendant argues on appeal that the state failed to carry its burden of proving beyond a reasonable doubt that he is the same person convicted of the felony on May 24, 2010, and the two felonies on January 10, 2013. Specifically, he points out that the state did not produce expert fingerprint evidence and that the record contains no admission by him that he was the same person. Thus, the issue before this ...


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