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State v. Dixon

Court of Appeals of Louisiana, Third Circuit

January 24, 2018

STATE OF LOUISIANA
v.
MARVIN DIXON

         APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 90481 AM HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

          Paula Corley Marx Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Marvin Dixon

          Asa Allen Skinner District Attorney, Thirtieth Judicial District Court Terry Wayne Lambright Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.

          SHANNON J. GREMILLION JUDGE.

         Defendant, Marvin Dixon, has previously sought review by this court of a related matter. In connection with an earlier guilty plea to one count of attempted aggravated crime against nature, we vacated Defendant's illegally excessive sentence and remanded the case for resentencing. State v. Dixon, 16-132 (La.App. 3 Cir. 9/28/16) (unpublished opinion).

         On December 20, 2016, the State filed a bill of information charging Defendant with two counts of aggravated incest and one count of aggravated crime against nature. On March 10, 2017, Defendant filed a motion to quash, which was denied on March 15, 2017. On the same date, he entered an Alford plea[1] to one count of aggravated incest, a violation of La.R.S. 14:78.1.[2] He waived sentencing delays and received a sentence of twenty years at hard labor. The trial court dismissed the other two counts pursuant to a State motion.

         Defendant appeals and assigns a single error, but breaks it into three main arguments. For the following reasons, we affirm the trial court's denial of Defendant's motion to quash, and we affirm Defendant's sentence.

         FACTS

         At the plea hearing, the State recited the following facts, without objection by Defendant:

Your Honor, this offense happened between January 1st, 2012 and June 1st, 2012. The victim's date of birth is April 5th, 2000, making her between eleven and twelve years of age at all times herein, and the victim was related to Mr. Dixon as his granddaughter. And at times when she was exposed to him and in his presence, he did commit a sexual battery upon her, also indecent behavior with juveniles, and molestation of a juvenile in that he would lewdly fondle and touch her with the intent to arouse and satisfy his sexual desires. Specifically, the behavior that he did with this victim, who's [sic] initials are E.D., was touch her breast, vagina, and buttocks with his hand. In support of that I'd like to offer, file, and introduce the documents filed in discovery in this matter and the actual filing of discovery relates to 87, 680, but is also related to the new docket number, 90, 481. And I would like to rely on those as part of my factual basis, but I would submit to the Court that were this case to go to trial, that is what the State would prove at trial.

         ASSIGNMENT OF ERROR

         Defendant assigns a single error, but divides it into three major arguments. His general argument is that the trial court erred by denying his motion to quash.

         Double Jeopardy

         Defendant first argues the current case was a second prosecution which violated the constitutional protection against double jeopardy. Although double jeopardy was mentioned in the written motion, the State observes that Defendant did not argue it at the March 15 hearing. However, we will address the argument because double jeopardy can be raised at any time. La.Code Crim.P. art. 594. Further, a double jeopardy error would require dismissal of the conviction.

         As the State points out, Defendant pled guilty to a sex offense involving the victim, E.D.[3] In the prior case, he pled to a sex offense committed against D.D.[4]The present appeal and the previous appeal address two pleas to two different offenses against two different victims. Thus, it is clear that double jeopardy is not implicated in the guilty plea. To the extent Defendant's argument raises concerns regarding the bill of information, any argument regarding the bill is moot given the ultimate plea.

         Plea Agreement

         Defendant next argues that the present prosecution violates the plea agreement from the earlier case. In the earlier case, the State agreed to dismiss two counts: one count of aggravated crime against nature, which was alleged to have been committed against D.D. between July 11, 2010 and February 14, 2015, and another count of aggravated crime against nature, alleged to have been committed against E.D. between May 1, 2012 and September 30, 2012. The dismissal of the latter count appears problematic in the context of the current argument because, as already noted, Defendant entered an Alford plea to a sex offense, aggravated incest, against E.D.

         Thus, Defendant contends he was prosecuted for conduct that was dismissed pursuant to the plea agreement in the earlier case. It is true that both bills alleged that he committed improper sexual acts against the victim: "sexual battery, indecent behavior with juveniles and molestation of a juvenile." The second bill also charged that Defendant "did lewdly fondle and touch" E.D. The former bill alleged the acts occurred between May 1, 2012 and September 30, 2012; the present bill alleged acts between January 1, 2012 and June 1, 2012. Thus, both bills alleged the same general sex acts against the same victim and both alleged that at least some of the acts occurred in May and June of 2012.

         Although the record is difficult to decipher, after a careful analysis of the facts and circumstances surrounding the pleas, we find Defendant is not being prosecuted again for conduct dismissed as part of the plea agreement in the previous case. Rather, as discussed below, the second bill was brought to correct errors that resulted from all parties relying on an incorrect version of a statute.

         Vindictive Prosecution

         Defendant's third and final argument is that the current prosecution violates constitutional due process protections because the State is punishing him for his success in his earlier appeal. As he points out, vindictive prosecution is prohibited by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969). This court has discussed Pearce:

However, the fact that he received harsher treatment, i.e., being charged with the previously dismissed crimes after he successfully appealed his prior guilty pleas and received a longer sentence, requires a determination as to whether he has suffered a deprivation of due process. Id. (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

         The Pearce court explained the due process issue raised, as such:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge.

Pearce, 395 U.S. at 725, 89 S.Ct. 2089. State v. Cloud, 06-877, p. 3 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, 268-69, writ denied, 07-86 (La. 9/21/07), 964 So.2d 331.

         In State v. Leger, 11-1127, pp. 16-19, 23 (La.App. 3 Cir. 5/2/12), 92 So.3d 975, 984-86, 989, a panel of this court summarized the ...


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