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STATE OF LOUISIANA                                                            *   NO. 2011-KA-0369
VERSUS                                                                        *
                                                                                  COURT OF APPEAL
RONALD BUCKLEY                                                                *
                                                                                  FOURTH CIRCUIT
                                                                              *
                                                                                  STATE OF LOUISIANA
                                                                              *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 470-258, SECTION “J”
HONORABLE DARRYL A. DERBIGNY, JUDGE
JUDGE MICHAEL E. KIRBY
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Patricia Rivet
Murray, Judge Michael E. Kirby)
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY
MATTHEW CAPLAN, ASSISTANT DISTRICT ATTORNEY
619 SOUTH WHITE STREET
NEW ORLEANS, LA 70119
COUNSEL FOR APPELLEE
SHERRY WATTERS
LOUISIANA APPELLATE PROJECT
P. O. BOX 58769
NEW ORLEANS, LA 70158-8769
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED




Ronald Buckley was convicted of aggravated battery and multiple billed.
Following a lengthy delay in the proceedings he was ultimately adjudicated a
fourth felony offended and sentenced to serve twenty years in the custody of the
Louisiana Department of Corrections without benefit of parole.  He appeals citing
three assignments of error.  Finding no merit in any of the assigned errors, we
affirm.
FACTS AND PROCEDURAL HISTORY
The State charged Mr. Buckley on April 23, 2007, with having committed
three  counts  of  aggravated  battery  on  April                                                                    8,   2007.    Following  a  trial  on
November 13, 2007, the jury convicted him of only one count.   The trial court
sentenced  him  to  five  years  in  the  custody  of  the  Louisiana  Department  of
Corrections on March 19, 2008.   Immediately following sentencing, the State filed
a multiple bill, alleging Mr. Buckley was a third felony offender.   A multiple bill
hearing was scheduled for May 2, 2008.   In the meantime, on April 14, 2008, Mr.
Buckley appealed the aggravated battery conviction.1
1 This court affirmed the conviction and sentence.   See State v. Buckley, 2008-0777, (La. App. 4 Cir. 1/14/09), 4
So.3d 885.
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The multiple bill hearing scheduled for May 2, 2008 was continued to June
2, 2008, because the State was awaiting the records certification pack.  The June 2,
2008 hearing was also continued on motion of the State, but the defendant filed a
motion to quash the multiple bill, a motion for discovery and a response under La.
R.S. 15:529.1(D)(1).   The next scheduled hearing was June 13, 2008, but it was
continued,  again  by  the  State to  July                                             25,                                                                                2008.    The July  25th  hearing  was
continued because Mr. Buckley was in the Sheriff‟s custody and not brought to
court.   An evidentiary hearing was set for September 3, 2008, and the multiple
hearing for September  17,  2008.    The evidentiary hearing had to be reset to
September 16, 2008, due to Hurricane Gustav.   Meanwhile, on September 9, 2008,
defense counsel had requested the multiple bill hearing be reset pending receipt of
the records certification package.   The trial court granted the motion and set the
evidentiary hearing for September 17, 2008.   On September 17th, the Sheriff failed
to bring Mr. Buckley to court and the multiple bill hearing was delayed to October
28,                                                                                    2008;  however,  on  that  date  defense  counsel  inspected  the  certification
package.    On October  20,  2008, the State again asked for and was granted a
continuance.    The  matter  was  rescheduled  for  November                           18,                                                                                2008,  but  was
continued because Mr. Buckley‟s mental competency was to be determined at a
lunacy hearing on January 15, 2009.   However, the lunacy hearing was continued
by the trial court to January 29, 2009, and then again continued to February 12,
2009, at which time Mr. Buckley was actually examined and interviewed by the
members of the sanity commission.   The lunacy hearing was then set for February
19, 2009, but on that date Mr. Buckley was not brought to court so the trial court
reset the lunacy hearing to March 19, 2009.   Again, the lunacy hearing had to be
rescheduled for April 16, 2009, because Mr. Buckley was not brought to court.
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The defense moved to continue the April 16, 2009 lunacy hearing, but the trial
court denied the request.   Following the lunacy hearing, the trial court found Mr.
Buckley competent and set the multiple hearing for May 21, 2009.   Due to jury
trials in progress, the multiple bill hearing was reset to June 11, 2009, and then
again to July 2, 2009.   On July 2, 2009, Mr. Buckley was not brought to court, so
the matter was reset to August 6, 2009, and again he was not brought to court.   The
subsequently scheduled hearing for September 17, 2009 and November 20, 2009,
did not occur as the court was closed those days.   By joint motion of the State and
defense, the hearing for December 4, 2009, was postponed until March 8, 2010,
because Mr. Buckley was not brought to court.   The hearings scheduled for March
8, 2010, April 13, 2010, and June 28, 2010, were likewise continued because Mr.
Buckley did not appear because the Department of Corrections failed to transport
him.    Finally, Mr. Buckley appeared on August  20,  2010, and the trial court
ordered he remain in the custody of the Orleans Parish Sheriff until the case was
completed.    On a motion by the defense, the multiple bill hearing was then set for
August 27, 2010.
On August 27, 2010, the State filed a second multiple bill, with additional
information.   Mr. Buckley filed motions to quash both the bill of information and
the multiple bill.   The trial court declined to quash the bill of information and went
forward with the multiple bill hearing.
The State called fingerprint expert Officer George Jackson to testify and
both  sides  stipulated  to  his  qualifications.     Officer  Jackson  compared  Mr.
Buckley‟s fingerprints taken that day in court to those found on print cards from
Orleans, East Baton Rouge and Tangipahoa Parishes.    The officer found the
fingerprints taken in court matched those found on the cards. The trial court took
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the motion to quash the multiple bill under advisement, and reset the hearing to
September 24, 2010.
The trial court rendered a written judgment, denying the motion to quash the
multiple bill on October 7, 2010, thirty three months after his November 13, 2007
conviction.   The court found him to be a fourth felony offender and sentenced him
to serve twenty years.
Mr. Buckley appealed the habitual offender adjudication.
ASSIGNMENTS OF ERROR
Mr. Buckley asserts the following assignments of error:
(1) The trial court erred in denying the motion to quash the multiple bill;
(2) The trial court erred in finding Ronald Buckley to be a fourth offender;
(3)The trial court erred in imposing an unconstitutionally excessive sentence
of twenty years, as a "mandatory" sentence, without providing any basis for the
sentence.
STANDARD OF REVIEW
Under State v. Love, 2000-3347, p. 6, (La. 5/23/03), 847 So.2d 1198, 1206-
1207 and State v. Grimes, 2001-0576, p. 6, (La. App. 4 Cir. 5/2/01), 786 So.2d
876, 885, an appellate court employs the abuse of discretion standard in deciding
whether a trial court erred in denying a defendant‟s motion to quash.
Assignment of error No. 1
In the first assignment of error, Mr. Buckley contends the State adversely
affected his due process rights by unreasonably delaying his multiple bill hearing.
The record reflects that the hearing was continued twice because of jury trials in
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progress, three times because the court was not in session, and five times because
the defendant was not transported to court, which included the five month period
while a competency evaluation was pending.   To prevail on his assertion, Mr.
Buckley must establish that the delay violated his due process rights.
La. C.Cr.P. Art. 874, which provides that a “[s]entence shall be imposed
without unreasonable delay[,]” governs the time within which the State shall file a
multiple offender bill of information.     State v. McQueen, 308 So. 2d 752, 754-56
(La. 1975).  Under La. R.S. 15:529.1 D(1)(a), a multiple bill may be filed against a
defendant who has been convicted of a felony “at any time, either after conviction
or sentence.”    While La. R.S. 15:529.1 does not establish a time limit for multiple
offender proceedings, the jurisprudence holds that a multiple offender bill must be
filed within a reasonable time after the State learns the defendant has prior felony
convictions.    State v. Muhammad, 2003-2991, p. 14 (La. 5/25/04), 875 So. 2d 45,
55.   This rationale is based upon a defendant‟s constitutional right to a speedy trial
and to know the full consequences of the verdict within a reasonable time.   State v.
Rainey,  2009-1510, p.3  (La. App.  4 Cir. 2010),  43 So.3d  1090,  1092  (citation
omitted).
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed2d 101 (1972), the
Supreme Court set forth four factors for courts to consider in determining whether
a defendant‟s right to a speedy trial has been violated.  Those factors are the length
of the delay; the reasons for the delay; the accused‟s assertion of his right to a
speedy trial; and the prejudice to the accused as a result of the delay.   See also
State v. Muhammad, 2003-2991 (La. 5/25/04), 875 So. 2d 45, 56.   The Louisiana
Supreme  Court  has  noted  that  while  these  factors  are  neither  definitive  nor
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dispositive in the context of a habitual offender proceeding, they are instructive.
Id. at 15, 875 So. 2d at 55.
In Muhammad, supra, the Louisiana Supreme Court overruled State ex rel.
Williams v. Henderson, 289 So.2d 74 (La. 1974), to the extent that it established a
bright line rule that multiple offender proceedings must be completed before the
defendant satisfies his sentence on the underlying felony.   The Muhammad Court
held that an evaluation of the circumstances surrounding the multiple bill offender
proceedings should be conducted on a case by case basis.   Muhammad, 2003-2991
at                                                                                        13,  875 So.  2d at  54.   The Court further noted that an important factor in
deciding whether the multiple offender bill of information was timely filed requires
a determination of when the State acquired the knowledge that the defendant was a
multiple offender.  Id. at 14, 875 So. 2d at 55.
In Muhammad the Court recognized that “[t]here are two concepts at issue in
this case - the timely filing of a multiple offender bill of information and the timely
hearing or completion of the proceeding.”    Id. at  16,  875 So.  2d at  56.      In
Muhammad, the original multiple offender bill of information was filed on the date
of the defendant‟s sentencing, which was before he was released from custody.
Due to a series of events, including remands following two appeals, the defendant
was not finally adjudicated a multiple offender until four months after his sentence
completion  date.    Id.    The  issue  was  whether  or  not  the  multiple  offender
adjudication was timely completed.   The Court found that the State did not unduly
or unreasonably delay in completing the multiple offender proceedings, noting the
“[d]efendant was never released from prison only to have the State thereafter file
enhancement proceedings.”  Id. at 17, 875 So. 2d at 56.
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In this case, in written reasons for judgment, the trial court acknowledged
that the State significantly delayed the filing of the multiple bill of information for
purposes of receiving additional documentation.   The Court also emphasized that
the multiple bill hearing was continued numerous times on the motions of both the
State and defense, as well as by the court itself.    Nonetheless, the trial court
concluded that the State‟s delay did not rise to such a level as to preclude a fair
multiple bill hearing.   The court further noted that the State had informed Mr.
Buckley at his original sentencing that it would file the multiple bill.    After
reviewing the record and considering the trial court‟s reasons for judgment, we
find the trial court acted within its discretion in denying Mr. Buckley‟s motion to
quash the multiple bill of information.   The first assignment of error is without
merit.
Assignment of error No. 2
In the second assignment of error, Mr. Buckley contends the trial court erred
in adjudicating him a fourth felony offender.    He claims that the State failed
establish that he is a fourth felony offender.   Although he argues in his brief that
the  State‟s  computation  of  the  time  elapsed  between  the  end  of  his             1995
confinement and the date of his next offense in 2005 is incorrect, the trial record
indicates that the issue of improper computation of time was not raised before the
trial court, and, therefore, the issue is waived.
Mr. Buckley further asserts that he is entitled to a jury trial on the multiple
bill charge, citing La. R.S.15:529.1.   However, in State v. Smith 2005-0375 (La.
App 4 Cir. 7/20/05), 913 So.2d 836, this court held that a defendant is not entitled
to a jury trial for factual determinations made at a multiple bill hearing.
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Mr. Buckley contends the State failed to prove he knowingly and voluntarily
waived his rights in the predicate offenses for the multiple bill.   State v. Carter,
630 So. 2d 926, 933, (La.   App. 4 Cir. 1993).   In its written reasons for judgment,
the trial court addressed Mr. Buckley‟s arguments, including the assertion that he
had been promised a “deal” only to have the State go ahead with charging him as a
fourth felony offender.   Mr. Buckley had argued that he would have employed a
different strategy had he been made aware of what he actually faced.   The trial
court in its reasons for judgment stated:
without  a  record  indicating  otherwise,  an  alleged
discussion before the commencement of trial about the
defendant's  potential  exposure  as  a  multiple  offender
cannot be construed as giving rise to a justifiable belief
that a multiple bill would not include certain convictions
the of the defendant from other parishes in the State. …
the  defendant  knew  or  should  have  known  of  his
exposure to the multiple offender statute regardless of the
exponent                                                                                [and  he  therefore]  should  not  have  had  an
expectation of an early release.
Under  the  "presumption  of  regularity,"  the  State  need  not  specifically
enumerate the rights waived in the absence of a contrary showing by the defendant.
The “presumption of regularity” makes it appropriate to assign a proof burden to
the defendant even when a collateral attack rests on constitutional grounds.   Parke
v. Raley, 506 U.S. 20, 21, 113 S. Ct. 517, 518, 121 L. Ed. 2d 391 (1992); State v.
Henry, 96-1280 (La. App. 4 Cir. 3/11/98), 709 So.2d 322.   The State must prove
both the existence of a prior felony conviction and that the defendant is the same
person convicted of that felony.
The record, containing Mr. Buckley‟s certification packets supplied by the
Department of Corrections, provides the following information regarding dates and
offenses:
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On  July  25,  1990, Mr. Buckley pled guilty to
simple burglary in Tangipahoa Parish District Court. The
date of the offense was January 19, 1990. The appellant
was sentenced to serve ten years suspended, and placed
on five years active probation.
On October 3, 1995, Mr. Buckley pled guilty to
theft  over  five  hundred  dollars  in  Orleans  Parish
Criminal, Case number  377-507  “I”. The date of the
offense was May 13, 1995. He was sentenced to serve
five years with the Department of Corrections with credit
for time served.
On August  3,  2006, Mr. Buckley pled guilty to
attempt simple robbery in East Baton Rouge Parish, Case
number 09-05-0253. He was sentenced to serve twenty
months with the Department of Corrections.
On November 13, 2007, Mr. Buckely was found
guilty following a jury trial of aggravated battery in the
instant case.
In addition, the State established that Mr. Buckley is the same person who
pled guilty to these prior convictions. The record amply demonstrates that Mr.
Buckley is a fourth felony offender, as envisioned under La. R.S. 15:529.1, and
that the State has satisfied its burden of proof.    It also demonstrates that Mr.
Buckley had sufficient notice of the multiple bill he faced, and that he was not
harmed or prejudiced by the State‟s delayed filing.  The second assignment of error
is without merit.
Assignment of error No.   3
In his third assignment of error, Mr. Buckley complains that the trial court
did not sufficiently delineate the aggravating and mitigating factors which the court
considered in reaching its sentence.   He argues that the sentence is excessive; that
the trial court abused its discretion; and that the mandatory minimums called for
under La. R.S. 15:529.1 are unconstitutional.
9




This Court addressed these issues in State v. Douglas, 2006-0319, (La. App.
4 Cir. 2/14/07), 952 So. 2d 793, stating:
A trial court need not, however, specify each aggravating
and/or mitigating factor as long as the record indicates
that the                                                                      894.1  guidelines were adequately considered,
because  “the goal of the article is an articulation of a
factual  basis  for  the  sentence  rather  than  rigid  or
mechanical compliance with its provisions.” Lobato, 603
So.2d at  751  [citing State v. Lanclos,  419 So.2d  475
(La.1982)].
*                                                                             *                                               *
Additionally,  the  trial  court's  omission  of  any
reasons   for   judgment   is   irrelevant   under   these
circumstances. In State v. Jefferson, 2004-1960 (La. App.
4 Cir. 12/21/05), 922 So.2d 577, for example, this Court
rejected the appellant's argument that it should vacate the
mandatory minimum sentence imposed because the trial
court  failed  to  mention  any  reasons  for  sentencing,
including   any   sentencing   factors   enumerated   in
La.C.Cr.P.  art.                                                              894.1,  stating  that  although  the            894.1
sentencing factors must be considered in each case,  “
„[w]hen the statute provides for a mandatory sentence, it
is an exercise in futility for the trial court to enumerate its
reasons for sentencing.‟ ”
*                                                                             *                                               *
This  Court  recently  reiterated  the  general  principles
regarding excessive punishment in State v. Robert, 2005-
1315, pp. 3-4 (La. App. 4 Cir. 5/31/06), 931 So.2d 1268,
1271(emphasis added):
Article I, Section                                                            20 of the Louisiana Constitution of
1974 prohibits the imposition of excessive punishment.
La. Const. Art. I, 20; State v. Landry, 2003-1671 (La.
App.  4 Cir.  3/31/04),  871 So.2d  1235,  1239-1240. A
sentence may violate a defendant's constitutional right
against  excessive punishment  even if it is  within the
statutory limit. Id.; State v. Dorthey,  623 So.2d  1276,
1280 (La. 1993). A sentence   within the statutory limit is
constitutionally excessive if it is grossly out of proportion
to the severity of the crime or is nothing more than the
purposeless imposition of pain and suffering. State v.
Landry, 871 So.2d at 1239-1240, citing State v. Johnson,
97-1906 (La. 3/4/98), 709 So.2d 672, 676.
10




*                                                                                       *                     *
It is presumed that a mandatory minimum sentence
under the Habitual Offender Law is constitutional.
State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672,
676.  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. Id. To merit a deviation below the
mandatory minimum sentence, the defendant must
clearly and convincingly show that he is exceptional.
State  v.  Johnson,  supra.  Such  downward  departures
should occur only in rare instances. Id. Jefferson, p. 37,
922 So.2d at 603 (citing State v. Green, 99-2847, p. 8
(La. App. 4 Cir. 11/29/00), 779 So.2d 835, 840; State v.
Brooks, 2000-2337, p. 3 (La. App. 4 Cir. 4/10/02), 817
So.2d 288, 290).
Douglas,                                                                                2006-0319,  pp.3-6,   952  So.   2d  at   796-797   (Emphasis
supplied).
Regarding the multiple offender sentence imposed by the trial court in this
case, pursuant to La.R.S. 15:529.1 A(4)(a), the sentencing range for a fourth felony
offense is between twenty years and   life in prison.   Mr. Buckley was sentenced to
serve twenty years, the mandatory minimum.   He has not established that his case
is in any way exceptional, or that the sentence he received is excessive.   See State
v. Lindsey, 99-3302, p.5, (La. 10/17/00), 770 So.2d 339, 343.    Thus, we conclude
the third assignment of error is without merit.
DECREE
For the above reasons, we affirm the multiple bill adjudication and sentence.
AFFIRMED
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