STATE v. PARNELL (2025)

On August 11, 2022, Defendant Reginald Ricardo Parnell was charged by bill of information with one count of armed robbery with a firearm, a violation of La.R.S. 14:64 and 14:64.3, and one count of aggravated second degree battery, a violation of La.R.S. 14:34.7. On April 18, 2024, the State filed an amended bill of information charging Defendant with armed robbery, a violation of La.R.S. 14:64. The amended bill added information regarding the charge of armed robbery and deleted the reference to the firearm enhancement. After the State advised the court that it would proceed to trial on the amended bill only, a trial by jury began on April 30, 2024. On May 2, 2024, a unanimous jury found Defendant guilty as charged. On that same date, the State filed a habitual offender bill charging Defendant as a second felony offender.

Thereafter, on May 9, 2024, the trial court denied Defendant's motions for acquittal and new trial. On June 13, 2024, the trial court sentenced Defendant on armed robbery to fifty years at hard labor, without benefit of parole, probation, or suspension of sentence. On June 18, 2024, the trial court granted Defendant's motion to appeal his conviction and sentence. The trial court stated that it retained jurisdiction to decide the habitual offender issue. On July 29, 2024, an amended habitual offender bill was filed by the State, charging Defendant as a fourth felony offender.

At a hearing held November 6, 2024, Defendant was adjudicated as a fourth habitual offender. On January 9, 2025, the trial court vacated the fifty-year hard labor sentence and sentenced Defendant as a fourth habitual offender to life plus five years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court denied Defendant's oral motion to reconsider sentence. On January 15, 2025, the trial court granted Defendant's motion to appeal his habitual offender adjudication and sentence.

Now before the court is a brief filed by Defendant on April 14, 2025, alleging three assignments of error—one regarding the trial court's refusal to allow defense counsel to impeach a State's witness, one regarding the trial court's adjudication of Defendant as a fourth habitual offender, and one regarding the legality of the sentence imposed. For the reasons discussed below, we find assignments of error number one and two have no merit. Assignment of error number three, however, requires Defendant's sentence be amended to delete the additional five years imposed pursuant to the firearm sentencing enhancement (La.R.S. 14:64.3).

FACTS

The victim, Jimmy Miller, testified that he knew Defendant from Wesley United Methodist Church in Pineville, where the victim played the piano. The victim talked with Defendant at church and on the phone from time to time and visited Defendant at Defendant's home several times. On April 25, 2022, the victim received a phone call from Defendant. Defendant told the victim there was a situation going on that was “a matter of life and death” and asked the victim to come to his house. Believing Defendant was contemplating suicide, the victim drove to Defendant's home. When the victim arrived, Defendant directed the victim to the back of the house for them to talk.

When the victim complied, Defendant started hitting him with a gun. According to the victim, Defendant pushed a shell casing into the gun and continued hitting him several more times. The victim testified that Defendant punched him with one hand while holding the gun in his other hand. Defendant pointed the gun at the victim and demanded the victim give him money. The victim gave Defendant $8.00 from his wallet. Wanting more money, Defendant began hitting the victim again. When the victim told Defendant he had no more money, Defendant told the victim to go to the bank. Surprisingly, Defendant allowed the victim to go to the bank alone. The victim testified that he drove straight to the hospital, where he was treated for his injuries and questioned by police. At trial, the victim identified pictures taken by police that showed the swelling and bruising on his face. The victim identified Defendant as his attacker.

On cross examination, the victim testified that he had blood all over himself and drove straight to the hospital. The victim further testified that he was seventy-two years old at the time of trial. Although the victim did not know Defendant's age, he agreed with defense counsel that Defendant was around forty and was quite a bit younger than the victim. The victim testified that he was treated and released from the hospital without undergoing surgery.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in refusing to allow defense counsel to impeach a State's witness by playing the audio of a preliminary examination held in this case. Defendant contends the witness testified inconsistently in two areas— whether the victim drove himself to the hospital or had his wife take him and whether the victim was knocked unconscious.

Pertinent Testimony at Trial

At trial, Tanner Dryden, formerly a detective with the Alexandria Police Department, testified that he was contacted by two officers who were with the victim at the hospital. Detective Dryden spoke with the victim by phone. According to Detective Dryden, the police officers with the victim stated that the injuries made it painful for the victim to talk. Detective Dryden obtained a statement from the victim and resumed the investigation the following morning.

On cross examination, Detective Dryden testified that the victim told him he drove himself to the hospital. When defense counsel asked if there was ever a time that the victim gave a different story about how and when he got to the hospital, Detective Dryden responded, “Not that I can recall.” Defense counsel then asked the detective if he remembered testifying at a preliminary examination, to which the detective responded, “[I]f I did, I don't remember the details of it.” The following colloquy ensued:

Q. Do you remember ever stating that Mr. Miller had told you that he first drove to his house and then got his wife to take him to the hospital?

A. No, sir, I don't recall that, but - - I don't recall that right now.

Q. Are you denying that you testified that way (interrupted)

A No, no, I'm not denying. I just don't recall. I don't remember. I don't recall that. I'm not denying that that was testified [sic], but I also don't recall it.

Q. Okay.

A. I just - - in general.

Q. Do you remember whether or not Mr. Miller ever told you that he had been knocked unconscious?

A. No, sir. I, I don't recall.

Q. Do you ever remember testifying in the earlier hearing that Mr. Miller told you that he had been knocked unconscious?

A. I, I don't recall. I really, I really don't (interrupted)

Q. You don't remember testifying that way?

A. I don't. I don't.

On re-direct, the following colloquy took place about the preliminary examination:

Q. Okay. Um, I want to ask you about the statements that you don't quite recall making in the preliminary examination. Okay? I know you don't remember it, but I want to ask you in kind of a back doorway. I want to ask you what you remember about what Mr. Miller told you. Do you remember Mr. Miller ever telling you that his wife took him to the hospital?

A. No, sir. I, I don't remember, at this moment, right now. I do not remember him telling me that.

Q. Okay. And, uh, did you review all your documents before you took the stand today to get ready to testify?

A. I reviewed the documents that was [sic] was sent to me - - what I had access to.

Q. I got you. And, that, that includes police narratives, search warrants, stuff like that. Right?

A. Yes, sir.

Q. And those include statements that were recorded by yourself and other policemen during the course of the investigation. Correct?

A. Yes, sir.

Q. All those indicate that Mr. Miller drove himself to the hospital. Do they not?

A. Yes, sir.

Q. No indication of the wife.

A. Correct.

Q. All right. So, if it was said in a PE, would you agree with me that you may have been mistaken if you said that?

A. Yes, if I said that, then I was mistaken.

Q. All right. And that's your statement, not Mr. Miller's statement. Correct?

A. Correct.

At the conclusion of Detective Dryden's testimony, the jury was removed, and the following colloquy took place:

BY MR. GUILLET [(defense counsel)]:

Yes, Your Honor. Um, during the testimony of Detective Dryden - - we took a sidebar - - uh, and I asked him a couple of times whether or not he remembered about testifying in an earlier preliminary examination, uh, as to a couple of issues. Number one that Mr. Miller had said that he had driven home and his wife had driven him to the hospital and number two that he said that he lost consciousness. That's how Detective Dryden testified during the preliminary exam. Uh, we know that because we have the audio of the preliminary exam and listened to that audio here in the courtroom yesterday. I listened to it with Mr. Hall and also with Mr. Doggett, both of which are prosecutors for the State. Uh, I believe that the witness, Detective Dryden, did not admit that he had said that earlier. He could not specifically recall, uh, and so, I asked the Court for permission to play that audio of the preliminary exam, uh, and the Court denied that request. And the reason that I feel like it should be played is that I feel like the statements that he made during [the] preliminary exam are inconsistent with the statements that he made on the witness stand today. And I also feel like that evidence is particularly material to the case because it tends to undercut some of the primary statements that were made by Miller, including in Court this morning. It's not an ancillary issue. Uh, it's an issue that bears directly on the credibility of the witness in this case, and that's the reason why I feel like the Court should have allowed the defense to play that audio, uh, recording.

BY THE COURT:

Mr. Hall?

BY MR. HALL:

Yes, sir. I didn't feel like, uh, Detective uh, Dryden's testimony was, uh, inconsistent, uh, with - - I just don't think that he made a denial that he made those. I think he was in a point of view where he could not remember. Thus, the statements that Mr., uh, Guillet are [sic] referring to are neither consistent nor inconsistent with his lack of memory.

Uh, there was, uh, no PE transcript requested, uh, in this case in a timely fashion such that it could be produced. There was an attempt. That's what led us to, uh, the Court Reporter being good enough to let us hear the recording. However, I don't think anything was lost on the jury about what was said during the PE, and I don't know that it would contribute to anything. Uh, he didn't deny it, and he said that if he did say that, he was mistaken and that he was being cross-examined on what Mr. Miller said that he had no memory of Mr. Miller ever saying the things that, uh, counsel would like to bring out through the PE testimony. So, I don't think it's particularly germane.

He had an opportunity to confront and cross-examine both Mr. Miller and Mr. Dryden. He got his issues in front of the jury and there was no question as to what was being asked or what was purportedly said. And, so, because they were not consistent or inconsistent, I don't think that the recording is admissible under that basis, and there's absolutely no prejudice because he got his entire point across.

BY THE COURT:

The issue of the statements of Detective Dryden, uh, he has testified to what he remembers or not remembers [sic]. The Court does note here is [sic] that he said two times about the issues of Mr. Miller driving and Mr. Miller [sic] unconsciousness, he said he does not remember, um, so in redirect, he was asked about his - - whether that has happened. He has stated that if he said he was mistaken. Uh, I believe the testimony of the officer, of Detective Dryden has cleared up whether that [sic] statements are made or not made and whether he's - - remembers it or denies it, is whether it's inconsistent or not, the further the testimony of the preliminary examination, uh, even though that has been out there for over a year and a half at this time, and only asking it to be produced when trial has actually started. It will also be an untimely [sic], and I think the issue has been resolved as far as whether the jury can decide whether it's a, the state - - is inconsistent or consistent or even the statement at all and there's still other opportunity for it to be further clarified if other witnesses are called. So, the request to play the preliminary examination for the jury is denied.

BY MR. GUILLET:

Your Honor, I object to the ruling, and I would ask to proffer that audio transcript in the record.

BY THE COURT:

I believe that if - - you can ask for the proffer. What I would actually do is that if the case - - depending on if it's appealed - - whether the Third Circuit would need that or not, they'll direct that as far as whether they need a transcript or not and provide it to the Court, so it's not gonna automatically be done. We'd wait for any kind of further orders from the Third Circuit if it needed to be done.

Defendant's Argument in Brief

Defendant contends the trial court erred in not allowing him to proffer the audio of the preliminary examination. Defendant contends the record on appeal is deficient for failing to include the “transcript or audio tape” of the preliminary examination. According to Defendant, trial counsel “should have been allowed to proffer the evidence, and the failure to allow counsel to proffer the evidence cannot be considered harmless error in light of the deficient record.” Because of the insufficient record on appeal, Defendant contends the error is not harmless, necessitating the reversal of his conviction and remand for further proceedings.

State's Argument in Brief

First, the State addresses the credibility of Detective Dryden's trial testimony. Detective Dryden testified that the police narratives, search warrants, and recorded statements collected during the course of the investigation all indicate the victim drove himself to the hospital. Both the search warrant and Defendant's arrest took place on April 26, 2022, the day after the incident took place. According to the State, “[i]t is reasonable to conclude that documents prepared within 24 hours of the event would be more correct in outlining the events of April 25, 2022, which led to Appellant's arrest.” The preliminary examination took place on June 27, 2022. Detective Dryden agreed that he would have been mistaken if he said “in a PE” that the victim's wife drove the victim to the hospital.

The State further asserts that La.Code Crim.P. art. 295(c) provides that a transcript of testimony at a preliminary examination hearing “may be used” for impeachment, indicating the use of such transcript is not mandatory. Despite ample opportunity to do so, the State contends Defendant failed to secure a preliminary examination transcript prior to trial. Further, the State argues Defendant was not prejudiced by his inability to play the audio of the preliminary examination since he was able to explore the potential inconsistency through the testimonies of the victim as well as Detective Dryden.

In the alternative, the State asserts any error was harmless. The State contends the alleged inconsistency was neither relevant nor substantial and would have unnecessarily prolonged an on-going trial.

Legal Standard and Analysis

According to La.Code Crim.P. art. 294(D), “Upon motion of the state or the defendant, a transcript of the preliminary examination proceedings may be made.” “The transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness.” La.Code Crim.P. art. 295(C).

In State v. Benson, 368 So.2d 716, 718–19 (La.1979), cited by Defendant in brief, the supreme court stated the following:

The defendant in a criminal proceeding has a statutory right to a transcript of the preliminary hearing in his prosecution. C.Cr.P. 294; State v. Allen, 276 So.2d 868 (La.1973). However, we held in State v. Allen, supra, that failing to provide the defendant with the transcript of the preliminary examination was not reversible error in the absence of a showing that the cross-examination and impeachment of prosecution witnesses were not hampered at trial.

In the instant case, however, the record does not contain a transcript of the preliminary examination, nor a complete transcript of the trial; it is impossible to determine whether the defense cross-examination and impeachment of state witnesses were impaired by the lack of the transcript of the preliminary examination. We are unable to assume an absence of prejudice from a silent record. The trial judge's conclusion that the transcript would not aid defendant because the prosecutor said that the only witness at the preliminary examination was an investigator may be correct, but we cannot make that determination on appeal because of the deficient record.

This assignment has merit.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the district court for proceedings consistent with the views expressed herein.

Defense counsel asks this court to “follow the reasoning in Benson as the record on appeal is deficient for failing to include the transcript or audio tape of the Preliminary Examination.” “At the very least,” Defendant argues, “Defense counsel should have been allowed to proffer the evidence, and the failure to allow counsel to proffer the evidence cannot be considered harmless error in light of the deficient record.”

In State v. Magee, 11-574, pp. 60-61 (La. 9/28/12), 103 So.3d 285, 326 (alterations in original), cert. denied, 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013), the supreme court stated the following regarding the proffering of evidence:

Louisiana's Code of Evidence provides: “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ․ [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.” La. C.E.art. 103(A)(2). Thus, in order to preserve for review an alleged error in a ruling excluding evidence, counsel must make known to the court the substance of the excluded testimony. This can be effected by proffer, either in the form of a complete record of the excluded testimony or a statement describing what the party expects to establish by the excluded evidence. State v. Adams, 537 So.2d 1262, 1264–65 (La.App. 4 Cir.), aff'd in part, rev'd in part, 550 So.2d 595 (1989).

As set forth previously, Defendant's trial counsel asked to proffer the “audio transcript” of the preliminary examination. The trial court stated the following:

I believe that if - - you can ask for the proffer. What I would actually do is that if the case - - depending on if it's appealed - - whether the Third Circuit would need that or not, they'll direct that as far as whether they need a transcript or not and provide it to the Court, so it's not gonna automatically be done. We'd wait for any kind of further orders from the Third Circuit if it needed to be done.

Despite Defendant's claim that the trial court denied his request to proffer the audio of the preliminary examination, the trial court appears to have allowed the proffer but reserved its production until a request was made by this court on appeal. Furthermore, Defendant's appellate counsel did not request the record be supplemented with the audio, even though trial counsel designated “the entire record” for appeal.¹

“The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary in light of the assignment of errors to be urged.” La. C.Cr.P. art. 914.1(A). “A transcript of any portion of the proceedings which does not relate to anticipated assignment of errors shall not be furnished to a party for purposes of appeal.” La. C.Cr.P. art. 914.1(B). The appellant bears the burden of furnishing the appellate court with a record of the trial proceedings needed for review; and therefore, any inadequacy of the record is imputable to the appellant. State v. Beckley, 18-386 (La. App. 5 Cir. 5/8/19), 273 So.3d 503, 514, writ denied, 19-1003 (La. 12/10/19), 285 So.3d 490.

State v. Sly, 23-60, p. 65 (La.App. 5 Cir. 11/2/23), 376 So.3d 1047, 1095, writ denied, 23-1588 (La. 4/23/24), 383 So.3d 608.

Similar to the present Defendant, Sly designated the entire transcript of each hearing and all pleadings to be included in the appellate record. Id. Asserting the record was missing a transcript of a motion that was not done in open court, Sly claimed the appellate record was incomplete. Id. at 1094–95. Finding Sly's assignment of error lacked merit, the fifth circuit stated:

On review, we find that Sly has not demonstrated or particularized how he has been prejudiced by the alleged inconsequential omissions from the trial transcript. Additionally, we find the appellate record does not contain any material omissions that would deny Sly a complete appellate review, nor is the record so lacking that any of the preserved assignment of errors presented on appeal could not be addressed.

Id.

As the court in Sly determined, we find any inadequacy in the present record is imputable to Defendant. Furthermore, as in Sly, the present record “does not contain any material omissions that would deny [Defendant] a complete appellate review.” Id. The substance of the pertinent preliminary examination testimony was made known to the trial court in the present case. Defense counsel asked Detective Dryden if he remembered testifying at the preliminary examination that the victim told him he first drove home and had his wife then drive him to the hospital. Defense counsel also asked Detective Dryden if he remembered testifying at the preliminary examination that the victim said he had been knocked unconscious. During his argument to the trial court, defense counsel stated that Detective Dryden had testified at the preliminary examination hearing that “[n]umber one that Mr. Miller had said that he had driven home, and his wife had driven him to the hospital and number two that he said that he lost consciousness.” Since the substance of the pertinent preliminary examination testimony was made known to the trial court, this court finds the appellate record does not contain any material omissions that would deny Defendant a complete appellate review.

Even if, as Defendant asserts, the trial court's ruling is interpreted as a denial of the proffer, we find the error is harmless since the substance of the proffer was made known to the court:

Error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected, and when the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel. La.Code Evid. art. 103(A)(2). Additionally, the defendant cites State v. Adams, 550 So.2d 595 (La.1989). Therein, in a concurring opinion, referencing the law in effect prior to the adoption of the Louisiana Code of Evidence, Justice Dennis noted, “it is well settled that when an offer of proof is proper, the trial court must permit it to be made.” Adams, 550 So.2d at 599. Justice Dennis also noted the failure to allow a formal proffer could be harmless when the substance of the proffer is made known to the court by counsel. Id.

In the instant case, the trial court denied the defendant's request to make a proffer of the police report out of the presence of the jury. In questioning the author of the report, Baton Rouge City Police Department Officer, Tafari Beard, defense counsel established that the report contained a brief description by the victim of how the alleged rape occurred. Additionally, defense counsel cross-examined the victim concerning her account of the rape at trial and what she had “[told] the police” and what was “in the police report.” Accordingly refusing to allow the proffer was harmless error, if error at all. See La.Code Crim. P. art. 921.

State v. Dunn, 12-1820, p. 6 (La.App. 1 Cir. 6/7/13) (unpublished opinion) (2013 WL 2490567) (alterations in original), writ denied, 13-1633 (La. 2/7/14), 131 So.3d 855.

As set forth above, Detective Dryden was questioned regarding the inconsistent statements he allegedly made at the preliminary examination. Furthermore, as will be discussed more fully below, the victim was cross-examined about how he traveled to the hospital and specifically denied being driven by his wife. Thus, even if the trial court's ruling was a denial of Defendant's request to proffer, the denial should be considered harmless error.

Although Defendant's argument in brief focuses on the trial court's failure to allow him to proffer the “audio transcript” of the preliminary examination, Defendant's assignment of error states the trial court erred in refusing to allow trial counsel to impeach Detective Dryden and Defendant cites authority for such impeachment. We find that Defendant abandoned his argument as to the merits of the trial court's ruling on the admissibility of the audio to impeach Detective Dryden as he failed to brief it. Uniform Rules—Courts of Appeal, Rule 2–12.4(B)(4). Out of an abundance of caution, however, this court will address the merits of the trial court's ruling.

As shown by the trial court's ruling set forth above, the trial court denied Defendant's request to impeach Detective Dryden with the audio of the preliminary examination, reasoning that the alleged inconsistency was sufficiently brought to the jury's attention, that the request to produce the preliminary examination transcript was untimely, and that the issue could be further clarified through other witnesses. In brief, Defendant cites La.R.S. 15:493 as authority for the use of Detective Dryden's preliminary examination statements to impeach the detective. That statute, which was repealed in 1988, stated:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

State v. Smith, 594 So.2d 467, 474 (La.App. 4 Cir. 1991), writ denied, 600 So.2d 676 (La.1992). It appears that La.R.S. 15:493 was replaced by La.Code Evid. arts. 607(D)(2) and 613. See State v. Owunta, 99-1569 (La. 5/26/00), 761 So.2d 528; State v. George, 95-110 (La. 10/16/95), 661 So.2d 975. Louisiana Code of Evidence Article 607(D)(2) provides:

D. Attacking credibility extrinsically. Except as otherwise provided by legislation:

․

(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

Louisiana Code of Evidence Article 613 provides:

Except as the interests of justice otherwise require, extrinsic evidence of bias, interest, or corruption, prior inconsistent statements, conviction of crime, or defects of capacity is admissible after the proponent has first fairly directed the witness’ attention to the statement, act, or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so.

Defendant also cites La.Code Crim.P. art. 295(C), which states: “The transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness.” “A witness's failure to recall a statement is valid grounds for impeachment.” State v. Washington, 24-308, p. 26 (La.App. 3 Cir. 2/12/25), 406 So.3d 579, 595 (citing State v. Dubroc, 99-730 (La.App. 3 Cir. 12/15/99), 755 So.2d 297).

Since Detective Dryden was specifically asked if he recalled making the pertinent statements and failed to recall making them, the trial court should have allowed defense counsel to impeach Detective Dryden's testimony with the preliminary examination. Although an audio of the preliminary examination was offered instead of a physical transcript, the supreme court has found La.Code Crim.P. art. 295 should not be restricted to a transcript:

We do not read the code article so restrictively. When the preliminary-hearing evidence is admissible at the merit-trial, the “transcript” is admissible under Article 295, not because it is typed on paper, but rather to prove its contents. We do not believe that the article contemplates that, upon penalty of reversal, in no circumstance may the preliminary-hearing evidence be produced before the jury except by reading it from a typed transcript, nor that the article prohibits under any circumstances the jury from hearing the same evidence by any other method, such as through audio or video recordation.

State v. Ford, 336 So.2d 817, 820 (La.1976).

Although Detective Dryden's preliminary examination testimony should have been admitted to impeach his testimony at trial, this court finds no reversible error. In State v. Winn, 412 So.2d 1337, 1346 (La.1982), the supreme court found that “[a]lthough the preliminary hearing testimony of Detective Foster should have been admitted, there is no evidence that the trial court's ruling in any way prejudiced the defendant.” Thus, the supreme court found no reversible error in the trial court's refusal to permit the introduction of the preliminary hearing transcripts. Id. See also State v. Allen, 276 So.2d 868 (La.1973) (on reh'g) (where the supreme court found the error was not prejudicial). Finally, in Benson, 368 So.2d at 718, cited by Defendant in brief, the supreme court noted that “failing to provide the defendant with the transcript of the preliminary examination was not reversible error in the absence of a showing that the cross-examination and impeachment of prosecution witnesses were not hampered at trial.”

Defendant has failed to show that his cross-examination and impeachment of Detective Dryden were hampered in this case. Detective Dryden's alleged prior inconsistent statements were brought to the jury's attention during defense counsel's cross-examination of Detective Dryden. Additionally, defense counsel questioned the victim himself about how he drove to the hospital:

Q. Okay. You said that you drove straight to the hospital.

A. Yes.

Q. Now, Mr. Parnell lives, uh - - do you know the address?

A. I don't. No.

Q. He live[s] over near the Alexandria Zoo?

A. He lives, uh, he lives in a subdivision - - I would say behind the Mall area.

Q. Okay.

A. Yeah.

Q. The closest hospital would have been Cabrini. Right?

A. Uh, probably.

Q. Rapides Regional is actually ten minutes away, but you went to Rapides Regional.

A. But we, uh, ‘cause we usually used - - well, I, when I, I preferred to go to Rapides.

Q. Now, how do you remember that you drove straight to the hospital?

A. Because I had blood all - - I had blood all over me and I didn't know how much damage was done. So, I didn't want to take a chance. I went straight to the hospital.

After the victim testified that he thought he had his cell phone on him when he was driving to the hospital, defense counsel asked the following:

Q. Why was it - - uh, did you ever dial 911?

A. No.

Q. Did you ever call the police?

A. No. I went straight to the hospital.

Q. You didn't go back to your house?

A. No.

Q. What's your wife's name?

A. Hannah Miller.

Q. She didn't drive you to the hospital. Right?

A. No. I drove myself.

Q. Did you ever tell your wife what happened?

A. Yes.

Q. When did you tell her?

A. I, when I got home that evening, after I went to the hospital. They treated my face and all that. Then I went home.

․

Q. Do you know whether or not you've ever provided anyone else different versions of what you just said?

A. Not to - - I don't - - I really talked to very few people about it.

Q. You did talk to the police officers about it.

A. Well, yes, yeah. I mean, they questioned me, and I answered them.

Q. Did you talk to Detective Dryden about what happened?

A. I don't remember the specific officers, but yes, I talked to several officers.

Q. You know that all these details are important. Right?

A. Well, yes.

Q. And so, when you spoke with the police officers, you know that it would be important for you to give them correct information (interrupted)

A. Yes.

Q. - - about what happened. Did you give them correction information about what happened?

A. Yes.

Q. And did everything that you told the police officers match up what you said today in Court.

A. Yes.

Considering defense counsel's cross-examination of both the victim and Detective Dryden, we find Defendant's cross-examination and impeachment of Detective Dryden was not hampered at trial. Furthermore, the trial court's refusal to allow the impeachment would be considered harmless error under the typical harmless error analysis:

Under La.C.Cr.P. art. 921, a judgment or ruling “shall not be reversed ․ because of any error ․ which does not affect substantial rights of the accused.” In State v. Gibson, 391 So.2d 421 (La. 1980), this court adopted the test for “harmless error,” as stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under that test, the question is whether there is a reasonable possibility that the admission or exclusion of certain evidence “might have contributed to the conviction.” Furthermore, the error must be “harmless beyond a reasonable doubt.” Gibson, 391 So.2d at 427.

State v. Young, 20-1041, pp. 7-8 (La. 5/13/21), 320 So.3d 356, 361 (alterations in original). In Young, the supreme court found the exclusion of evidence of Young's extensive tattoos was not harmless beyond a reasonable doubt in light of the importance of the video surveillance evidence to the state's case and in light of the lack of any other evidence connecting Young to the burglary.

Unlike the evidence excluded in Young, we find there is no reasonable possibility that the exclusion of the preliminary examination audio in the present case contributed to Defendant's conviction. The jury was made aware of the alleged inconsistencies through defense counsel's cross-examination of Detective Dryden. The jury also heard defense counsel cross-examine the victim himself about how he got to the hospital after the attack. The victim testified that he drove himself, specifically denying that he went home first and had his wife drive him to the hospital. Moreover, these alleged inconsistencies in Detective Dryden's testimony were insubstantial in attacking the victim's credibility in light of the victim's detailed testimony regarding the attack itself.

Considering the above, this court finds the trial court did not deny Defendant's proffer of the audio of the preliminary examination, and the failure of the appellate record to include such evidence is imputable to Defendant. Furthermore, since the substance of the pertinent testimony was made known in the trial court, this court finds that the appellate record does not contain any material omissions that would deny Defendant a complete appellate review. We further find Defendant was not prejudiced since the substance of the proffer was made known to the trial court.

Finally, although Defendant abandoned any argument on appeal as to the trial court's refusal to allow him to impeach Detective Dryden, we find this assignment lacks merit. Defendant was not prejudiced since his cross-examination and impeachment were not hampered. Furthermore, the error is harmless as there is no reasonable possibility that the trial court's denial of impeachment reasonably contributed to the jury's verdict in this case.

Accordingly, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant asserts the trial court erred in finding him to be a fourth habitual offender. As trial counsel argued in his objections to the habitual offender bill, Defendant asserts that his August 7, 2017 conviction for second degree battery was improperly used as a predicate since the guilty plea transcript indicated that Defendant was advised of his right to “trial by judge and jury of [his] choice.” According to Defendant, “[t]his statement by the trial court is not sufficient to have properly advised Mr. Parnell of his jury trial rights as the statement provides incorrect information regarding the potential mode of trial.” In response, the State contends “that the phrase ‘judge and jury’ does not impair or affect the defendant's constitutional right to a trial by jury.” “At worst,” the State asserts, “it is harmless error for one word to invalidate a conviction that was knowingly and expressly entered into by said defendant.”

Louisiana Revised Statutes 15:529.1(D)(1)(b) provides:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in violation of the constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

The Louisiana Supreme Court discussed the burden of proof at habitual offender hearings in State v. Shelton, 621 So.2d 769, 779–80 (La.1993) (footnotes omitted):

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

In response to the first habitual offender bill of information (charging Defendant as a second felony offender), Defendant filed “Objections to Habitual Offender Bill of Information.” In the objection, Defendant asserted that the State had provided a transcript of his August 7, 2017 plea, and Defendant attached the transcript to his objection. Noting that the August 7, 2017 transcript indicated he was advised of his right to “judge and jury” of his choice, Defendant contended he was not properly advised of his right to jury trial. Defendant cited several cases that he conceded were arguably distinguishable since they typically involved a total failure to advise of a right to jury trial rather than a misstatement of the right. Nonetheless, Defendant argued the cases were similar in that he, like the defendants in the cited cases, was “provided incorrect information about the type of trial that [he] [was] entitled to pursue.” Thus, Defendant asserted that the cases supported a conclusion that his August 7, 2017 plea was invalid and could not be used as a predicate conviction in his habitual offender bill. Defendant incorporated this same objection in his opposition to the amended habitual offender bill of information, in which the State charged him as a fourth habitual offender.

At the habitual offender adjudication held November 6, 2024, the State introduced evidence in support of the predicate convictions charged in Defendant's habitual offender bill. In support of the August 7, 2017 conviction (docket number 327,309), the State introduced a bill, plea form, uniform commitment order, minutes, and a transcript. Defense counsel asked that his objection and the August 7, 2017 guilty plea transcript be admitted into evidence. Noting that the transcript was part of State's Exhibit Number 4, the State asserted that it had no objection to the transcript being part of the record. The trial court noted that the transcript attached to Defendant's habitual offender objection was the same transcript contained in State's Exhibit Number 4 and concluded that there was no reason to “double admit it.”

In response to Defendant's objection, the State asserted the following:

[A]s I understand the objections in this case, they have been to just the State's Exhibit Number 4, 327,309. And that concerns Judge Doggett's advice to him regarding trial by jury and by judge. And it's the conjunctive and that counsel has said makes the advice imperfect to Mr. Parnell. Says that it confused him in such that his plea was not freely given or voluntarily made. Well they have to show an affirmative showing of that and I do not think that they've done that. And so as State versus Sheldon lays out, the first thing that's important for the Court to look at is whether he's convicted and whether he was represented by counsel. And once I have done that, then the burden shifts to them to make some type of an affirmative showing. And their submission on that part was part of my exhibit was that transcript and it was on that language and that's why he's making the objection that he's making. I just don't think that when you tell an offender on his fourth offense you have a right to a trial by judge and a jury trial that is in any way misleading. In fact, I think you have to strain to say it's misleading. And Boykin requires us to inform them of the very important rights that they are giving up. But in that one, he's represented by counsel and he also has a plea form with that. And the plea form doesn't same and [sic]. And it's his fourth offense at that point. Mr. Parnell is more seasoned that [sic], you know, ninety-five percent of the inmates that come through here. And so I think it's a distinction without a difference. I don't think he was confused at all. And there are other documents that you can go to in the event that you find that it's an imperfect transcript that do inform him perfectly. And I do think that where he is in his criminal history you can take that into account to say: Yeah, he knows exactly what he is doing. He's not confused at all by the fact that he can have a trial by judge or a jury trial. And I think it's, you know, the only thing that the defense could find and I think that Mr. Guillet is trying to zealously represent Mr. Parnell, but I don't think his argument has any merit whatsoever. And so if we are at the Court [sic] is satisfied that I've shown you that he is convicted and that he's represented by counsel, and he has not made an affirmative showing, then your analysis is done. If you feel like that is an affirmative showing, I've given you the reasons why Mr. Parnell made a full knowing waiver of his rights that day.

The State cited two cases to the trial court wherein the supreme court stated that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), did not set out “ ‘magic word formula’ which may ‘serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea ․’ ” State v. Mendenhall, 06-1407, p. 1 (La. 12/8/06), 944 So.2d 560, 560 (alteration in original). See also State v. Dodson, 07-57 (La. 11/2/07), 967 So.2d 487. The State further argued:

That's exactly what's being attempted here today. And it's really just on the conjunction and their use of the word and as opposed to or and it really just doesn't – I don't think amount to any kind of an argument that would tend to show that this 327,309 was not a valid guilty plea. Those rules are in place to ensure – and I mean the Boykin rules are in place to ensure that Mr. Parnell receives adequate information about what rights he's giving up. And on this one, his fifth felony offense, we have every reason to believe he knows exactly what he is doing when he has been through the system so many times.

The State then cited State v. Conrad, 94-232, pp. 3-4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064, writ denied, 94-3076 (La. 4/7/95), 652 So.2d 1345, a case in which the court stated: “[T]he State must produce either a ‘perfect’ transcript of the Boykin colloquy between the defendant and the judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an ‘imperfect’ transcript.” The State concluded its argument that the August 7, 2017 transcript was a perfect transcript, but, if found to be imperfect, the plea form should be used to make it perfect.

In response, defense counsel reiterated his argument in his objection, emphasizing that other cases had found “similar language” was deficient. Defense counsel argued that the invalidity of the August 7, 2017 conviction would render the remaining predicate convictions unusable since they would have been outside the cleansing period.

The State responded that the cases cited by Defendant were distinguishable from the present case. According to the State, the cases cited by Defendant concerned “a judge's advice about a trial as opposed to a jury trial,” whereas the trial judge in the present case used the words “judge and jury.” Furthermore, the State argued that the other cases did not involve a plea form containing perfect advice: “This court is very aware of what our plea forms say and they set out the Boykin rights very explicitly and they are gone over before every guilty plea by a lawyer and those forms are signed.”

The trial court issued the following ruling:

The court has taken the exhibits one through five. Also for the defense which includes their objection and also the transcript which is included in State's exhibits numbered one though five. Several issues before the court. One being the transcript associated with Exhibit Number four of a prior plea of whether that would be considered a perfect transcript. According to the law, the State must prove two primary elements. The existence of the defendant's prior felony convictions, whether the defendant is the same person who was convicted of those prior felonies. Convictions that are based upon guilty pleas, the State must prove whether they were represented by counsel when the pleas were taken and also the State must prove whether the prior convictions fall within the applicable cleansing period associated with the habitual offender statute. Further, if the defendant denies the prior convictions the State must prove independent proof that it is the same person. First issue is the identity based upon the testimony of Mr. Weisler and the exhibits that are in the evidence, that being one through five. The court finds that the defendant, Mr. Panrell, is the individual is the individual [sic] that's subject to all the prior felony convictions that are associated with the exhibits. Four prior felony docket numbers plus the current one under this docket number. Finding that Mr. Parnell is that individual then the next step would be him having the prior felony convictions whether the exhibits are the proof that the State has submitted for the issue of the objection noted from the defense, that being an imperfect or not perfect transcript that deals with the words by judge and jury. The court has to look to see whether the purpose of it is whether a waiver at the time was made knowingly and intelligently to ensure that the defendant understands what that individual is actually waiving. Goes to the weight of the defendant's waiver to a right to a trial by jury is made knowingly or intelligently [sic]. It's when the judge interacts with an individual [sic]. Based upon not only the plea form that is submitted to where an individual has signed it, making sure that they have read it and that they understand it. That's part of whether the court confirms to itself whether the defendant understands the waiver and is actually voluntarily waiving the rights that are presented. The language in the transcript, that being by judge and jury, whether that is confusing at the time to Mr. Parnell when he took his guilty plea in that matter, whether there was an understanding of what was being waived. Whether there was any confusion. The court does not see where Mr. Parnell was confused or did not understand that after reviewing the transcript, the trial judge at that time taking the plea went over not only the rights that the individual has – Mr. Parnell had at the time – but also his plea form making sure that he understands the information on the plea form and what he was actually waiving, that being a trial by jury. The court does not see where that was any confusion or effected [sic] what he believed. Also note at that time that was Mr. Parnell's fourth plea agreement that he was taking, not his first criminal offense. That he's had prior criminal record and experience in criminal proceedings and has had pleas read to him knowing exactly what he would be waiving. Also he had counsel at that time that explained to him what he was actually waiving. The court will find that he clearly understood what he was waiving, that being a trial by jury. Taking the exhibits, the testimony, the court has met it's burden and finds that the defendant, Mr. Parnell, is a fourth felony offender.

In State v. Ellison, 15-612, pp. 1-2 (La. 1/25/16), 186 So.3d 634, 634, the supreme court stated the following:

Writ granted. The court of appeal erred in reversing the habitual offender adjudication on the basis of the trial court's failure to advise defendant of his privilege against self-incrimination when he pleaded guilty to a predicate felony. Although defendant carried his burden of producing affirmative evidence showing a procedural irregularity in the taking of the plea, see generally, State v. Shelton, 621 So.2d 769, 779 (La.1993), the trial court did not err in weighing the evidence submitted by the defendant and by the State to determine that the State met its burden of proving that defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. That evidence included a waiver of rights form showing that defendant was advised of his privilege against self-incrimination and waived it, which is evidenced by his initials next to that privilege and his signature on that form, along with the signatures of his attorney and the trial judge. The court of appeal's determination that this waiver form was insufficient because “the trial judge did not refer to the waiver of rights form at any time during the plea colloquy”, State v. Ellison, 14-0790 (La. 2/25/15), 168 So.3d 862, 869, is unsupported by the jurisprudence. See generally State v. Morgan, 13-1495 (La. 2/28/14), 134 So.3d 1160. Therefore, the court of appeal's ruling is reversed to the extent it vacated the habitual offender adjudication and the habitual offender adjudication is reinstated.

Similarly, in State v. Spencer, 04-857, pp. 4-6 (La.App. 3 Cir. 12/8/04), 888 So.2d 1128, 1131, this court addressed the absence of an explicit guilty plea by Spencer in the guilty plea transcript:

The Louisiana Supreme Court has considered whether an “imperfect” guilty plea transcript can support a conviction. The court held that the entire record, without limitation to the transcript of the plea proceeding alone, may be considered in assessing whether a plea was intelligently and voluntarily entered into with full knowledge of its consequences. State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972). The court disapproved of the requirement that a verbatim transcript of the colloquy appear in the record in order to uphold a conviction as intelligent and voluntary. Id. The court stated that in jurisdictions which enforced such a requirement, “the unfortunate lapse of a court reporter defeats the conviction, irrespective of how well the judge handles the guilty plea.” Id. at 560.

In State v. Shelton, 621 So.2d 769 (La.1993), the court considered the matter again in reference to the validity of the underlying guilty pleas used as a basis for a habitual offender bill. During its discussion on whether a “perfect” transcript was necessary to prove the voluntariness of a guilty plea, the supreme court stated:

The dominant thread running through the cases appears only to require that the court must determine from the entire record that the defendant was informed of and specifically waived his three Boykin rights. We have allowed a guilty plea form to supplement an “imperfect” transcript of the colloquy, i.e. one which reveals the judge and the defendant discussed a waiver of only some of the Boykin rights. For example, in State v. Dunn, 390 So.2d 525 (La.1980), this court found the record contained a sufficient affirmative showing of a knowing and express waiver where the record contained a transcript of the plea colloquy indicating an explicit waiver of two of the Boykin rights and a plea of guilty form signed by the defendant, his attorney, and the judge which contained an express waiver, initialed by defendant, of the third right. Likewise, in State v. Halsell, 403 So.2d 688, 690 (La.1981) (emphasis added), we noted that a “colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.”

Id. at 776 (emphasis in original) (footnote omitted). The Shelton court upheld the defendant's guilty plea as a knowing and voluntary waiver of rights where only a minute entry and an executed plea of guilty form were submitted to prove proper Boykinization. Id.

In State v. Dunn, 390 So.2d 525 (La.1980), the trial court inadvertently failed to specifically advise Dunn that he was giving up his privilege against self-incrimination when he pled guilty, although he was informed and agreed to waive his rights to a jury trial and to confront his accusers. The Louisiana Supreme Court upheld his guilty plea as a knowing and voluntary waiver despite the omission. Id.

We find the circumstances of Shelton and Dunn analogous to the present situation, where the word “guilty” was not expressed in the guilty plea hearing transcript. We note further that the evidence contained in the record demonstrates that the defendant intended to plead guilty to count two, even if not captured by the transcript.

The court in Spencer examined the minute entry, which stated the counts to which Spencer pled; the transcript of the guilty plea hearing, wherein Spencer was made aware several times of the nature and number of the counts against him; and a “Certificate Outlining Felony Plea Agreement,” which was signed by Spencer and stated that he agreed to plead guilty to two counts of armed robbery. Id. at 1132. Finally, the court examined the sentencing hearing, wherein the trial court sentenced Spencer on all counts without objection. Id.

At the November 6, 2024 habitual offender adjudication held in the present case, the State introduced a written guilty plea form for Defendant's August 7, 2017 plea. The form, which was signed by Defendant, Defendant's attorney, and the trial judge, specifically advised Defendant of his right to proceed to trial by “judge or jury.” (emphasis added). By his signature, Defendant acknowledged that the form had been explained to him and that he understood all of his constitutional rights. Likewise, by his signature, Defendant's attorney certified that he had explained the contents of the form to Defendant, that he was satisfied that Defendant understood his constitutional rights, and that the guilty plea was being made freely, voluntarily, and intelligently. Additionally, during his August 7, 2017 colloquy with Defendant, the trial judge asked Defendant if his attorney went over his plea agreement, to which Defendant responded, “He did,” and asked Defendant if he understood the rights from the form, to which Defendant responded, “Yes.”

Finally, the trial court in the present case properly considered Defendant's experience with the criminal justice system when it weighed the evidence submitted by the State at the habitual offender adjudication. “We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights”. Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 527, 121 L.Ed.2d 391 (1992). The exhibits introduced by the State show that the August 7, 2017 plea was Defendant's fourth felony plea. The minute entries introduced with State's Exhibits 1 and 2 indicate Defendant was advised of his right to trial by judge or jury before entering guilty pleas, and the guilty plea form introduced with State's Exhibit 3 shows Defendant was advised of his right to trial by judge or jury before entering a guilty plea.

Considering the above, this court finds the trial judge properly weighed the evidence submitted by Defendant and by the State to determine that the State had met its burden of proving Defendant's August 7, 2017 guilty plea was informed, voluntary, and made with an articulated waiver of the three Boykin rights. Accordingly, the August 7, 2017 guilty plea was properly used as a predicate conviction in Defendant's habitual offender adjudication. Thus, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant asserts the trial court erred in imposing a life sentence without benefits plus an additional five years without benefits under La.R.S. 14:64.3. Defendant was originally charged with both armed robbery (La.R.S. 14:64) and the armed robbery with a firearm enhancement provision (La.R.S. 14:64.3). The State filed an amended bill of information, however, charging Defendant with only armed robbery and advised the court that it would proceed to trial on the amended charge only. Consistent with the State's assertion and its concession in brief that La.R.S. 14:64.3 was not part of the charges Defendant faced at trial, the jury was instructed as to the amended bill only. Likewise, the trial court's closing instructions and the jury's verdict sheet included the charge of armed robbery only.

Although the trial court's original sentence for armed robbery did not include the firearm enhancement in La.R.S. 14:64.3, the trial court's habitual offender sentence for the same armed robbery conviction included an additional five year sentence pursuant to La.R.S. 14:64.3.

In support of his claim that the trial court erred in sentencing him to the five-year firearm enhancement, Defendant cites State v. Hardy, 21-105, 21-612 (La.App. 3 Cir. 7/13/22), 344 So.3d 821, writ denied, 22-1264 (La. 11/16/22), 349 So.3d 1001. In Hardy, the defendant argued the trial court erred in applying the five-year firearm enhancement when the State did not charge him with a violation of La.R.S. 14:64.3. This court addressed the issue as follows:

In support of the trial court's utilization of La.R.S. 14:64.3, the State argues that State v. Daniels, 03-1621 (La.App. 3 Cir. 5/12/04), 873 So.2d 822, writ denied, 04-1802 (La. 11/24/04), 888 So.2d 227, allows the trial court to impose a firearm sentencing enhancement without prior notice to Defendant that the enhancement would be at issue.

We have reviewed Daniels and observe a key difference between it and the case at bar. In particular, the facts show that the defendant in Daniels was charged with violating both La.R.S. 14:64 and 14:64.3. In Daniels, 873 So.2d at 829-30, this court specifically noted:

In the case at bar, La.R.S. 14:64.3 was listed in the bill of information, the jury was instructed that a firearm was used as a dangerous weapon, and the only weapon mentioned at trial was a firearm. Based on the jury instructions in the case at bar, the jury's verdict of “guilty as charged,” and the fifth circuit's ruling in [State v.] Walker, [01-51 (La.App. 5 Cir. 5/30/01), 789 So.2d 86, writ denied, 01-1922 (La. 5/10/02), 815 So.2d 834,] we find that the jury could have reasonably inferred that the dangerous weapon used in the armed robbery at issue was a firearm. Accordingly, we find that the jury was not required to render a separate verdict under La.R.S. 14:64.3 and the jury was properly instructed regarding the Defendant's use of a firearm.

In addition to the fact the defendant in Daniels was charged with violating La.R.S. 14:64.3, the fifth circuit's ruling in State v. Walker, 01-51 (La.App. 5 Cir. 5/30/01), 789 So.2d 86, writ denied, 01-1922 (La. 5/10/02), 815 So.2d 834, the case relied upon in Daniels, was based, at least in part, on the fact the State noticed its intent to seek an enhanced sentence prior to trial. The State in the present case neither charged Defendant with violating La.R.S. 14:64.3 nor filed a notice of intent to seek enhancement. Accordingly, we find Daniels is distinguishable.

This court has previously noted that to invoke the provisions of La.R.S. 14:64.3, the statute must be charged in the bill of information or indictment. Daniels, 873 So.2d 822.

As noted above, the only time enhancement of the armed robbery sentences was mentioned was during Defendant's post-verdict motion hearing; at that time the trial court, not the State, invoked this sentencing enhancement for the very first time. Because the trial court cannot trigger enhancement on its own, we find that the trial court lacked authority to impose the enhanced sentence. See State v. Willis, 45,857 (La.App. 2 Cir. 12/15/10), 56 So.3d 362, writ denied, 11-150 (La. 6/17/11), 63 So.3d 1034; State v. Ramsdell, 09-1510 (La.App. 3 Cir. 10/6/10), 47 So.3d 78.

Id. at 837 (alterations in original).

The State argues the following in response to this assignment of error (emphasis added):

The Appellant contends in this Assignment of Error that the trial court's imposition of a lifetime sentence of imprisonment with an additional five year firearm enhancement is in error.

The State asserts that utilizing the four prior convictions supports the trial court's life sentence. To the extent that this assignment of error focuses on the firearm enhancement asserted in the original Bill of Information, the State takes no position on said error. With the amendment of the charge in this matter during the course of the prosecution, the applicable law for this case would change. If the State is required to assert anything further, R.S. 14:64.3 is not a part of the charges the defendant faced in this matter at trial.

Although this case is somewhat distinguishable from Hardy in that the State originally charged Defendant with the firearm sentencing enhancement, this court finds the trial court in the present case erred in including the five-year sentencing enhancement. The State specifically concedes in brief that the firearm sentencing enhancement was not part of the charges Defendant faced at trial. Considering this concession along with the failure of the closing instructions and/or jury verdict to mention the firearm enhancement, the trial court erred in including such enhancement in Defendant's sentence.

With this finding, this court must decide whether amendment of the sentence is appropriate or resentencing is necessary. After quoting Hardy, Defendant asserts his sentence should be vacated and the case remanded for resentencing. In the “Conclusion” section of his brief, however, Defendant suggests in the alternative that the “imposition of the additional five year sentence shoudl [sic] be vacated as Mr. Parnell was not charged with La.R.S. 14:64.3, the State having previously dismissed that charge.”

Continuing its discussion of the error, the court in Hardy found resentencing was necessary for the following reasons:

Although the Ramsdell court simply removed the enhancement and otherwise affirmed the defendant's sentence, we find the present case requires remand for resentencing. In Ramsdell, the trial court imposed the maximum sentence for armed robbery, ninety-nine years, then added the enhancement, thus rendering the defendant's sentence illegal. In the present case, Defendant's sentences of ninety-five years for armed robbery and forty-five years for attempted armed robbery, even with the trial court's enhancement, are both within the legal range of sentences for his offenses. As such, this court will not assume the trial court will simply remove the additional five years. In recognizing this fact, we note that the trial court has wide discretion in sentencing and may ultimately decide to sentence Defendant to the same sentences he currently faces, only without invoking the firearm enhancement statute. Accordingly, we vacate Defendant's sentences and remand for resentencing without application of the firearm enhancement of La.R.S. 14:64.3.

Id. at 837–38.

In the present case, Defendant received a life sentence for armed robbery, fourth habitual offender. For the underlying offense of armed robbery, Defendant was exposed to a penalty of not less than ten years nor more than ninety-nine years at hard labor, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64(B). The penalty provision for a fourth habitual offender is as follows:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

․

(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then the following sentences apply:

(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.

(b) If the fourth felony and no prior felony is defined as a crime of violence under R.S. 14:2(B) or as a sex offense under R.S. 15:541, the person shall be imprisoned for not less than twenty years nor more than twice the longest possible sentence prescribed for a first conviction. If twice the possible sentence prescribed for a first conviction is less than twenty years, the person shall be imprisoned for twenty years.

(c) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), or a sex offense as defined in R.S. 15:541 when the victim is under the age of eighteen at the time of commission of the offense, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

La.R.S. 15:529.1(A)(4).

Since Defendant's current felony (armed robbery) and one of his prior felonies (second degree battery) are defined as crimes of violence (La.R.S. 14:2(B)(21) and (6), respectively), this court finds the appropriate habitual offender penalty provision was La.R.S. 15:529.1(A)(4)(a), causing Defendant's possible penalty to be ninety-nine years to life. Since Defendant received the maximum sentence, life, this case is more like State v. Ramsdell, 09-1510 (La.App. 3 Cir. 10/6/10), 47 So.3d 78, than Hardy. In Ramsdell, 47 So.3d at 81, the court stated:

In this case, the State did not cite La.R.S. 14:64.3 nor set forth that the crime of armed robbery was committed with a firearm in the indictment. As noted above, the first and only time enhancing the armed robbery sentence was mentioned was by the trial judge, not the State, during the defendant's post-verdict motion hearing. Since the trial court cannot trigger enhancement on its own, we find that the trial court lacked authority to impose the enhanced sentence. The maximum sentence for armed robbery in this present matter is ninety-nine years imprisonment at hard labor. La.R.S. 14:64. As such, the trial court's one hundred four years sentence was illegally excessive. State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. Accordingly, we reverse the trial court's inclusion of the five year enhancement and otherwise affirm the defendant's sentence for armed robbery as amended.

Likewise, this court will simply vacate the five-year sentencing enhancement imposed by the trial court in this case rather than remand for resentencing.

For the foregoing reasons, this assignment has merit, necessitating the five-year sentence imposed by the trial court pursuant to La.R.S. 14:64.3 be vacated. We affirm Defendant's sentence for armed robbery as amended.

CONCLUSION

Defendant's conviction is affirmed. Defendant's sentence for armed robbery, fourth habitual offender, however, is amended to delete the five-year sentencing enhancement imposed by the trial court. Defendant's sentence is affirmed as amended.

CONVICTION AFFIRMED; SENTENCE AFFIRMED, AS AMENDED.

FOOTNOTES

1.   A handwritten notation on the order granting Defendant's appeal states that voir dire examination was to be excluded from transcription.

BRADBERRY, Judge.