APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 97-3678, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D.
Connick, Jr., Terry M. Boudreaux, Darren A. Allemand.
COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY O. STOKES Bruce G.
composed of Judges Marc E. Johnson, John J. Molaison, Jr.,
and Robert M. Murphy, Ad Hoc.
E. JOHNSON JUDGE.
Anthony O. Stokes, appeals his habitual offender sentence
from the 24th Judicial District Court, Division
"I". For the following reasons, we vacate the
habitual offender sentence and remand the matter with
AND PROCEDURAL HISTORY
27, 1997, the Jefferson Parish District Attorney filed a bill
of information charging Defendant with possession with intent
to distribute cocaine in violation of La. R.S. 40:967(A).
After a trial by jury on August 15, 1997, Defendant was found
guilty as charged. See State v. Stokes, 99-1287 (La.
App. 5 Cir. 4/13/00); 759 So.2d 980, writ denied,
00-1219 (La. 2/16/01); 802 So.2d 607. On August 20, 1997, the
State filed a habitual offender bill of information, alleging
Defendant was a fourth-felony offender. On August 21,
1997, the trial judge sentenced Defendant to serve seven
years at hard labor. Id. Defendant denied the
allegations in the habitual bill of information, and a
habitual offender hearing was held on October 6, 1997.
Stokes, 759 So.2d at 982. At the conclusion of the
hearing, the trial judge found Defendant to be a
fourth-felony offender and imposed a sentence of life
imprisonment. Defendant's first appeal ensued.
first appeal, this Court affirmed Defendant's conviction
and underlying sentence but vacated his enhanced sentence as
a fourth-felony offender and remanded the matter for the
trial court to resentence him as a third-felony
offender. See Stokes, 759 So.2d at 988. On
error patent review, this Court found, among other errors,
that the second and third predicate offenses in the habitual
offender proceeding were out of sequence. Id. at
987. This Court stated:
In the instant case, the bill of information in the second
predicate offense, 92-4000, charges defendant with committing
simple burglary on July 18, 1992. The commitment and waiver
of rights form reflect that defendant pled guilty to that
offense on November 16, 1992. According to the bill of
information for the third predicate offense, 93-4370,
defendant committed simple burglary of an inhabited dwelling
on March 24, 1992, and pled guilty to that offense on January
28, 1994. Therefore, defendant had not been through the
required sequencing because the commission of the third
offense (March 24, 1992), occurred before the conviction for
the second predicate offense (November 16, 1992). As a
result, defendant should not have been found to be and
sentenced as a fourth felony offender. In such cases, the
remedy is to vacate the enhanced sentence and to remand the
matter for the trial court to correct the problem by
re-sentencing the defendant as a third felony offender. See
State ex rel. Mims v. Butler, 601 So.2d at 655.
Stokes, 759 So.2d at 987-88.
Court further stated in a footnote:
Proof of the discharge dates of these predicate offenses was
not necessary in this case because less than the ten-year
cleansing period had elapsed between defendant's
conviction on each predicate felony and the commission of
each subsequent predicate felony. This is true regardless of
whether the felony in 92-4000 or 93-4370 is used to find
defendant a third felony offender.
Id. at 988 n.3.
concluded that "[b]ecause of the sequencing problem with
the offenses in case number 93-4370 and 92-4000, defendant is
subject to sentencing as a third felony offender only."
Id. at 988. Defendant thereafter sought a writ with
the Louisiana Supreme Court, which was denied. State v.
Stokes, 00-1219 (La. 2/16/01); 802 So.2d 607.
remand, the trial judge for the resentencing, who was not the
same judge who presided over Defendant's trial and
habitual offender adjudication, vacated the original
sentence, stating: "I am also going to find the
defendant a third felony offender rather than a fourth felony
offender, because there was not an arrest conviction, arrest
conviction on the third conviction. So, that one will be no
longer in effect, but the fourth conviction will become a
third conviction." She then resentenced Defendant to life
imprisonment without benefits since "the distribution of
cocaine is one in which under 15:529.1, it requires that a
life sentence be imposed." On second appeal in 2001,
this Court affirmed Defendant's enhanced sentence of life
imprisonment without benefit of parole, probation, or
suspension of sentence as a third-felony offender imposed
after his resentencing.
years that followed, Defendant sought post-conviction relief
and filed motions to correct an illegal sentence and for
downward departure, all of which were denied. See also
State ex rel. v. Stokes, 05-667 (La. App. 5 Cir.
6/29/05) (unpublished writ disposition), writ
denied, 05-2193 (La. 6/16/06); 929 So.2d 1274; and
State ex rel. v. Stokes, 17-277 (La. App. 5 Cir.
6/14/17) (unpublished writ disposition), writ
denied, 17-1282 (La. 11/5/18); 255 So.3d 1051.
February 14, 2018, Defendant filed a pro se Motion
to Vacate Habitual Offender Adjudication, arguing that due to
the 2001 amendments to the Habitual Offender Law, he no
longer qualified under La. R.S. 15:529.1(A)(1)(b)(ii),
mandating a life sentence for a third-felony offender, but
rather, he now fell under the more lenient provisions. He
argued that the maximum sentence he could receive was 60
years of imprisonment.
the trial court denied relief, this Court considered
Defendant's argument. In State v. Stokes, 18-151
(La. 5/8/18) (unpublished writ disposition), this Court
Relator, Anthony Stokes, seeks review of the trial
court's February 22, 2018 denial of his "Motion to
Vacate Habitual Offender Adjudication." In his motion,
Relator argued his third felony offender adjudication of life
imprisonment without the eligibility of parole, probation, or
suspension of sentence should be vacated because 1) the
underlying offenses were not crimes of violence or sex
offenses; 2) the current provisions of the habitual offender
law do not permit a sentence of life imprisonment at hard
labor without the benefit of parole, probation, or suspension
of sentence; and 3) he should have been adjudicated only as a
second felony offender, instead of a third felony offender,
because his attempted simple burglary was considered in
error. The trial court noted that Relator's adjudication
was reviewed on appeal and denied Relator's motion on the
basis that it found no error or legal basis to set aside the
habitual offender adjudication.
After review, we find the trial court did not err in its
ruling. First, Relator's adjudication and enhanced
sentence have been fully litigated, and Relator's claim
that the attempted simple burglary conviction was considered
in error is a repetitive claim. See, La. C.Cr.P. 930.4(A);
State v. Stokes, 99-1287 (La. App. 5 Cir. 4/12/00);
759 So.2d 980, writ denied, 00-1219 (La. 2/16/01);
802 So.2d 607; State v. Stokes, 00-1904 (La. App. 5
Cir. 4/24/0l)(unpublished writ disposition); and State v.
Stokes, 05-667 (La. App. 5 Cir. 7/1/05)(unpublished writ
disposition). Additionally, the habitual offender law in