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STATE OF LOUISIANA VERSUS FREDERICK M. KNIGHT, SR.

NO. 01-KA-881 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE 242" JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 99-5559, DIVISION "F" THE HONORABLE PATRICK J. MCCABE, JUDGE PRESIDING FEBRUARY 13, 2002

SOL GOTHARD JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Sol Gothard and Clarence E. McManus

PAUL D. CONNICK, JR. District Attorney TERRY M. BOUDREAUX CHURITA H. HANSELL BRAD BURGET Assistant District Attorneys 24th Judicial District Parish of Jefferson Courthouse Annex Building Gretna, Louisiana 70053 Attorneys for Plaintiff/Appellee DWIGHT DOSKEY 2601 Tulane Avenue, Suite 413
New Orleans, Louisiana 70119 Attorney for Defendant/Appellant

AFFIRMED AND REMANDED

Defendant, Frederick M. Knight, Sr., appeals his multiple offender
adjudication and sentence. For reasons that follow, we affirm.

Defendant was charged by bill of information with theft of goods from

Home Depot valued between $100.00 and $500.00 in violation of LSA-R.S.
14:67.10. He initially pled not guilty, but later retracted that plea and entered
a plea of guilty. In due course he was sentenced to two years at hard labor.

Subsequently, the State filed a multiple bill of information charging defendant as a fourth felony offender. Defendant filed objections to the multiple bill, in which he admitted he was the same person who was previously convicted in the predicate offenses listed in the multiple bill. In the same pleading defendant maintained that, while LSA-R.S. 15:529.1 on its face would mandate a sentence of life imprisonment, the sentence would be
unconstitutional as applied in this case. Defendant also filed a motion to

quash the multiple bill of information on the basis that allowing the district
attorney the authority to choose between a charge of 14:67 (a misdemeanor)

or 14:67.10, (a felony), and then to multiple bill is a violation of equal
protection and due process guarantees. The trial court denied the motion to
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quash, but agreed the imposition of the mandatory life sentence was unconstitutional as applied to this defendant. Accordingly, the trial court
vacated defendant's sentence of two years at hard labor and imposed an

enhanced sentence of twenty years at hard labor without benefit of probation
or suspension of sentence.

Defendant appeals his adjudication as a multiple offender and his
enhanced sentence to this court. Defendant assigns two errors. In the first,

defendant avers the trial court erred in not informing him of his right to invoke a hearing on the multiple bill of information and of his right to remain

silent at that hearing as required by LSA-R.S. 529.1(D)(1)(a). Defendant
admits he was advised of his right to a multiple bill hearing by defense counsel, but argues he was not advised of the right by the trial court. He further maintains the record is completely devoid of any advice of his right to remain silent. The State responds that the failure of the trial court to advise defendant of his right to a multiple bill hearing is irrelevant because defendant testified he understood he had a right to a hearing and that he was specifically waiving that right. The State further contends it met its burden of proof regarding the predicate convictions. Before a defendant stipulates to the charges in an habitual offender bill of information, the trial court must advise the defendant of the specific allegations contained in the multiple bill, his right to be tried as to the truth

thereof, and his right to remain silent. LSA-R.S. 15:529.1(D)(1)(a) and (3).
The failure of the trial court to comply with the requirements of LSA-R.S.

15:529.1(D)(1)(a) and (3) is subject to a harmless error analysis. State v.
Dearmas, 606 So.2d 567, 569 (La. App. 5 Cir. 1992); overruled on other

grounds by State v. Davis, 01-123 (La.App. 5 Cir.7/30/01), 792 So.2d 126.
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Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is considered harmless error where the defendant's multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Palmer, 93-1027 (La. App. 5 Cir. 4/26/94), 636 So.2d 1091, 1093. However, when the defendant stipulates to the multiple bill without having been informed of his right to a hearing or his right to remain silent, by
either the court or his attorney, there is reversible error. State v. Brom, 95-

377 (La. App. 5 Cir. 1995), 665 So.2d 477, 480.
In the present case, defense counsel stipulated to the multiple bill. Defense counsel and the trial judge went through the specific convictions alleged in the multiple bill and then defense counsel stated that there were no objections to any of the factual questions contained in the multiple bill.
However, counsel objected to the mandatory life sentence and requested a

downward departure. Defendant then took the stand and testified. At the very beginning of
his testimony it was made clear by questioning of defense counsel that

defendant understood he had a right to a hearing and to force the State to prove the allegations made in the multiple bill. It is also clear from defendant's testimony that he waived that right. However, there was no specific mention of the right to remain silent. Defendant further testified that he had other convictions in addition to those alleged in the multiple bill of
information. He stated that he has been addicted to drugs since 1973. He

explained his conviction of distribution of Pethidine, one of the predicate offenses charged in the multiple bill, resulted from the sale of two tablets of the drug he received on a legitimate prescription to an undercover police
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officer. He stated that all of his convictions either involved drugs, or theft for the purpose of obtaining drugs.
At the conclusion of defendant's testimony, defense counsel argued his

motion to quash the multiple bill as unconstitutional, and argued for a downward deviation from the mandatory life sentence. After denying the motion to quash, the trial court sentenced defendant as a fourth felony offender. The trial court did deviate from the mandatory sentence and
sentenced the defendant to twenty years at hard labor.

While defendant testified that he understood he was waiving his right to a hearing on the multiple bill, there was no evidence he was advised of his right to remain silent or that he waived that right. That forms the basis of this assignment of error. We believe the transcript is sufficient to show that defendant intelligently and knowingly waived his rights, and admitted his guilt to the multiple bill, and we find the failure to specifically inform defendant of his right to remain silent is harmless error. In making this decision, we have
considered the stipulations by counsel, the defendant's testimony, and the exchange between the court, counsel and defendant. See, State v. Jackson, 96-

783 (La. App. 5 Cir. 1/28/97), 688 So.2d 123, and cases cited therein. We find no merit in this assignment.
In the second assignment of error, defendant argues that his sentence of twenty years on the multiple bill is excessive. Defendant's predicate offenses

listed in the multiple bill of information are, theft of goods between $100.00
and $500.00, distribution of Pethidine, and possession of cocaine. The

underlying offense was a guilty plea on a charge of theft of goods valued at

between $100.00 and $500.00. Pursuant to LSA-R.S. 15:529.1 (A)(c)(ii) as it
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existed at the time of sentencing, a mandatory life sentence is required if the

fourth, or any of the predicate crimes was a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more
than five years. In defendant's case, the predicate offense of distribution of Pethidine makes this mandatory sentence applicable.'

Defendant concedes the law required the mandatory life sentence, and that the trial court deviated downward from the mandatory sentence.
However, he argues the twenty-year sentence imposed is excessive. Defendant argues that several factors, including the fact that none of the crimes were

violent in nature, and that the crimes were either ones involving his use of drugs, or his effort to obtain money for drugs, justify a further deviation from
the life sentence.

Both the United States and Louisiana Constitutions prohibit the
imposition of excessive or cruel punishment. A sentence is constitutionally

excessive, even if it is within the statutory limits, if it is grossly
disproportionate to the severity of the offense or is nothing more than the

needless and purposeless imposition of pain and suffering. State v.

Robicheaux, 412 So.2d 1313 (La.1982); State v. Wickem, 99-1261 (La. App. 5 Cir. 4/12/00), 759 So.2d 961, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.
It is presumed that a mandatory minimum sentence is constitutional. The burden is on the defendant to rebut the presumption of constitutionality by
showing that he is exceptional. He must show he is a victim of the legislature's

failure to assign sentences that are meaningfully tailored to the culpability of
the offender, the gravity of the offense, and the circumstances of the case.

* This section of the statute was changed by Act 403 effective June 15,

2001.
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State v. Lindset, 99-3256 c/w 99-3302 (La. 10/17/00), 770 So.2d 339, cert denied, 121 S.St. 1739, 149 L.Ed.2d 663, 69 U.S.L.W. 3700 (2000); State v. Johnson,
supra, 709 So.2d at 676. The absence of violent offenses in defendant's record
cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive.

A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption

of constitutionality. State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676; State v. Neal, 00-41 (La. App. 5 Cir. 5/30/00), 762 So.2d 281, 286. A deviation
from the mandated sentence should only occur in rare cases. State v. Lindset,

supra; State v. Johnson, supra. If there is a finding by the trial court that an enhanced punishment mandated by the Habitual Offender Law, LSA-R.S. 529.1, makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the
crime, "the court has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorther, 623 So.2d 1276, 1280

(La. 1993).
In this case the trial court did exercise its option to reduce the mandatory sentence to one that it deemed not to be constitutionally excessive.

In so doing the trial court obviously took into consideration the nature of the predicate and underlying offenses and the fact that the one predicate offense
which required the mandatory life sentence was the sale of two tablets of a

prescription drug legitimately obtained by the defendant. Under these circumstances we find the trial court's downward deviation from the statutory
minimum is correct. However, we do not agree that the twenty-year sentence
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imposed is excessive under the circumstances of this case. Accordingly, we

affirm the multiple offender adjudication and the sentence. Upon review of the record for errors patent pursuant to LSA-C.Cr.P. art. 920, we have discovered that the trial court failed to properly advise defendant of the prescriptive period for post-conviction relief as required by LSA-C.Cr.P. art. 930.8 after imposing the enhanced sentence. Thus, the matter is remanded to the trial court to inform the defendant of the prescriptive period by sending written notice to defendant within ten days of the rendition of this opinion and to file written proof in the record that defendant received such notice. State v. Cordero, 99-444 (La. App. 5 Cir. 6/1/99), 738 So.2d 84, 93, writs denied, 99-1877 and 99-1878 (La. 11/24/99), 750 So.2d 981.

AFFIRMED AND REMANDED

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