ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 11-4594, DIVISION " E" . HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Parish of Jefferson; TERRY M. BOUDREAUX, MATTHEW R. CLAUSS, JEROME G. SMITH, III, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR THE STATE OF LOUISIANA.
JANE L. BEEBE, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg.
[14-820 La.App. 5 Cir. 2] HANS J. LILJEBERG,
Defendant appeals his adjudication and sentence as a
third felony offender. For the following reasons, we vacate defendant's multiple
offender adjudication, his sentence and remand.
On September 14, 2011, defendant, Frankie Baskin, was charged by bill of information with having committed aggravated incest upon a known juvenile on or between October 9, 2008 and March 31, 2010. After being convicted of La. R.S. 14:78.1, defendant was adjudicated as a fourth felony offender and was sentenced to 75 years imprisonment at hard labor. He appealed both his underlying conviction and his multiple offender adjudication. This Court affirmed defendant's conviction and adjudication as a fourth felony offender.
We amended his multiple offender sentence to delete the trial court's imposed fine and [14-820 La.App. 5 Cir. 3] remanded the matter for the limited purpose of sending written notice of the sex offender registration requirements to defendant. See State v. Baskin, 13-351 (La.App. 5 Cir. 10/30/13), 129 So.3d 614. Defendant thereafter sought review at the Louisiana Supreme Court. The supreme court granted defendant's writ, in part, ruling that the trial court erred in adjudicating and sentencing defendant as a fourth felony offender for purposes of La. R.S. 15:529.1 on the basis of defendant's 2005 federal conviction for violation of 8 U.S.C. § 1324, where no comparable provision exists in Louisiana law. The supreme court therefore vacated defendant's adjudication and sentence as a fourth offender and remanded the matter to the trial court for resentencing as a third felony offender. The writ was denied in all other respects. See State v. Baskin, 13-2747 (La. 6/13/14), 140 So.3d 712.
On remand, the trial court, without a hearing, resentenced defendant as a third felony offender to imprisonment at hard labor for a term of 40 years to be served without benefit of probation or suspension of sentence. The trial court denied defendant's motion for reconsideration of sentence and granted his motion for appeal.
On appeal, defendant asserts that on remand, the trial court failed to recognize that without defendant's predicate conviction in 2005, his two prior convictions in 1990 and 1992 fall outside the ten-year cleansing period; thus, the two prior convictions ...