                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 18th day of October, 2017, are as follows:




PER CURIAM:


2016-K -0797      STATE OF LOUISIANA v. KEITH C. KISACK (Parish of Orleans)

                  Accordingly, we reverse the court of appeal in part to vacate the
                  habitual offender adjudication that immediately followed the
                  failure to observe the statutory sentencing delay and remand this
                  matter to the district court for further proceedings consistent
                  with the views expressed here.
                  REVERSED IN PART AND REMANDED
10/18/17


                      SUPREME COURT OF LOUISIANA


                                   No. 16-K-0797

                             STATE OF LOUISIANA

                                      VERSUS

                                KEITH C. KISACK


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
             FOURTH CIRCUIT, PARISH OF ORLEANS



PER CURIAM

      This case presents the questions of whether defense counsel waived the

sentencing delay required by La.C.Cr.P. art. 873, and whether the State proved that

less than ten years elapsed between defendant’s most recent predicate offense and

the present offense as required by La.R.S. 15:529.1(C). Finding that the State

carried its burden of proof here, we nonetheless emphasize La.R.S. 15:529.1(C)

imposes a requirement on the State to prove beyond a reasonable doubt that the 10-

year period has not elapsed in a habitual offender adjudication in the district court.

In addition, we direct the Fourth Circuit to join the other courts of appeal in

recognizing that the State’s failure to carry that burden is an error patent on appeal.

However, we also find that the court of appeal disregarded the plain language of

Article 873, which requires an explicit waiver of the statutory sentencing delay, by

surmising defense counsel “implicitly waived” the delay by participating in the

sentencing hearing. Therefore, we vacate the habitual offender adjudication and

remand for further proceedings.
       The facts of this case are straightforward. An employee of the Orleans Parish

Sheriff’s Office, while conducting a search of Tier C2 of Orleans Parish Prison,

discovered a cell phone secreted in a crevice of the wall of the day room. An

investigation, including a warrantless search of the phone’s contents, revealed that

defendant used the phone to send text messages and take “selfies” while housed on

that tier.

       Defendant was charged by bill of information with possession of contraband

while in a penal institution, La.R.S. 14:402(E)(7). An Orleans Parish jury found

defendant guilty as charged. The State filed a habitual offender bill of information,

alleging defendant to be a fourth-felony offender. Defendant moved for a new trial

and to quash the habitual offender bill, which the trial court denied before

commencing the hearing on the habitual offender bill of information. The trial

court found defendant to be a fourth-felony offender and sentenced him to life

imprisonment at hard labor without benefit of parole, probation or suspension of

sentence.

       The Fourth Circuit affirmed defendant’s conviction and affirmed the

sentence as amended. 1 State v. Kisack, 15-0083 (La. App. 4 Cir. 3/30/16), 190

So.3d 806. The panel noted that defendant was sentenced on the same date that his

motion for new trial was denied. The panel found, however, that the 24-hour

statutory sentencing delay was implicitly waived when defense counsel

participated in the sentencing hearing. See Kisack, 15-0083, p. 3, 190 So.3d at 809

(“[D]efense counsel’s argument at the sentencing hearing constituted an implicit

waiver of the delay.”).

       The panel rejected two additional assignments of error pertinent to the


       1
          The court of appeal found as an error patent that the trial court erred in denying parole
eligibility. Therefore, the court of appeal amended the sentence to delete the prohibition of
parole.
                                                2
present application. First, the panel found that no warrant was required to search

the contents of the cell phone. The panel distinguished Riley v. California, 573

U.S. —, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), in which the Supreme Court

unanimously held that the warrantless search and seizure of digital contents of a

cell phone during an arrest is unconstitutional, on the basis that defendant was

incarcerated and therefore had a reduced expectation of privacy. See Kisack, 15-

0083, p. 5, 190 So.3d at 810 (“[Defendant] had no reasonable expectation of

privacy as to a cell phone hidden in a crevice in the day room wall.”). Second, the

panel found that 10 years had not elapsed between defendant’s most recent

predicate offense (i.e., a federal conviction for being a felon in possession of a

firearm) and the present offense. While acknowledging that it is the State’s burden

at a habitual offender adjudication to prove the predicate offenses qualify in

accordance with La.R.S. 15:529.1(C), and further recognizing that the State did not

establish in the district court when defendant was released from federal prison or

supervision,2 the court of appeal inferred from the limited information available


       2
           The applicable version of La.R.S. 15:592.1(C) provided:

       The current offense shall not be counted as, respectively, a second, third, fourth,
       or higher offense if more than ten years have elapsed between the date of the
       commission of the current offense or offenses and the expiration of the maximum
       sentence or sentences of the previous conviction or convictions, or between the
       expiration of the maximum sentence or sentences of each preceding conviction or
       convictions alleged in the multiple offender bill and the date of the commission of
       the following offense or offenses. In computing the intervals of time as provided
       herein, any period of parole, probation, or incarceration by a person in a penal
       institution, within or without the state, shall not be included in the computation of
       any of said ten-year periods between the expiration of the maximum sentence or
       sentences and the next succeeding offense or offenses.

In State v. Anderson, 349 So.2d 311, 313–314 (La. 1977), this court interpreted “expiration of
the maximum sentence” as including the date a prisoner is actually discharged from custody.
This provision has been amended to specify that the pertinent interval now extends between “the
commission of the current offense or offenses and the expiration of the correctional supervision,
or term of imprisonment if the offender is not placed on supervision following imprisonment, for
the previous conviction or convictions, or between the expiration of the correctional supervision,
or term of imprisonment if the offender is not placed on supervision following imprisonment, for
each preceding conviction or convictions alleged in the multiple offender bill and the date of the
commission of the following offense or offenses.” La.R.S. 15:529.1(C)(1) (as amended by 2017
La. Acts 257 and 2017 La. Acts 282, eff. Nov. 1, 2017).
                                                3
that the 10-year period could not have expired when defendant committed the

present offense. See Kisack, 15-0083, p. 7, 190 So.3d at 811–12 (“Accordingly,

even if [defendant] was released from federal prison immediately after the sentence

was imposed, he would have been on supervised release for three years . . . , and

the ten year cleansing period would not have been expired when the present

offense was committed . . . .”).

      Although defendant argues Riley v. California, which involved the

warrantless search of a cell phone seized during an arrest that flowed from a traffic

stop, applies here such that the trial court should have suppressed the results of the

warrantless search of the contraband cell phone, it is generally recognized that

prisoners have a reduced expectation of privacy. See, e.g., Hudson v. Palmer, 468

U.S. 517, 525–26, 104 S.Ct. 3194, 3199–3200, 82 L.Ed.2d 393 (1984) (“[S]ociety

is not prepared to recognize as legitimate any subjective expectation of privacy that

a prisoner might have in his prison cell and that, accordingly, the Fourth

Amendment proscription against unreasonable searches does not apply within the

confines of the prison cell.”); see also State v. Williams, 490 So.2d 255, 260 (La.

1986) (reaffirming State v. Patrick, 381 So.2d 501 (La. 1980), which rejected the

notion that a “work-release inmate, while out of prison during the day, has a

reasonable expectation of privacy that would require probable cause before

deputies can conduct a pat down search of the inmate”). The federal courts have

also declined to extend Riley v. California to prisoners. See, e.g., United States v.

Boyce, Criminal Action No. 2014-00029 (D.V.I. 2015), 2015 WL 856943 *6 n.16

(“Accordingly, the Court will not expand the scope of Riley v. California to

warrantless searches of cell phones confiscated as prison contraband.”). Defendant

here offers no convincing reason why this court should do so.

      The Fourth Circuit also scrutinized the record in an effort to ascertain

                                          4
whether too much time had elapsed between the commission of the present offense

and the expiration of correctional supervision for the previous conviction. We note

that the Fourth Circuit is an outlier with regard to the State’s obligation to prove in

the district court that too much time has not elapsed, in accordance with La.R.S.

15:529.1(C), before a defendant can be adjudicated as a habitual offender. Because

the Fourth Circuit does not view the State’s failure to carry its burden of proof as

an error patent, the question of whether too much time elapsed is often not

addressed unless assigned as error on appeal when the record may be inadequate to

answer it.

       In contrast with the Fourth Circuit, the First, Second, and Fifth Circuits

review the State’s proof with regard to the requirements of La.R.S. 15:529.1(C) as

an error patent on the face of the record.3 See, e.g., State v. Robinson, 47,427, p. 7

(La. App. 2 Cir. 10/3/12), 105 So.3d 751, 755 (State’s failure to prove that the

cleansing period has not expired is error patent on the face of the record); State v.

Abdul, 11-0863, pp. 28–29 (La. App. 5 Cir. 4/24/12), 94 So.3d 801, 820–21 (since

the sufficiency of the proof of the cleansing period bears on defendant’s due

process rights, courts can review the issue on appeal as an error patent); State v.

Baker, 452 So.2d 737, 745–46 (La. App. 1 Cir. 1984) (reviewing defendant’s claim

that second felony offender sentence was improper without demonstrating the

cleansing period; “Since this allegation, if proved, would be error patent on the

face of the record under La.C.Cr.P. art. 920, we find it necessary to review this

additional allegation.”).

       We find the approach of the First, Second, and Fifth Circuits more sound. In


       3
         While not viewing the State’s failure to prove that the cleansing period has not expired
as an error patent, the Third Circuit has nonetheless found that the State’s failure to carry its
burden may be considered on appeal in the interests of justice despite the lack of any
contemporaneous objection. See State v. McKithern, 11-1402, pp. 8–10 (La. App. 3 Cir. 5/2/12),
93 So.3d 684, 692–93.
                                               5
the Fourth Circuit, prosecutors have less incentive to devote finite resources to

proving that the time has not elapsed under La.R.S. 15:529.1(C), and defendants

assert less often as a defense that time has run out under La.R.S. 15:529.1(C) until

on appeal, when there is no longer an opportunity for the State to present evidence.

To remedy this unfortunate situation, we adopt the views of the First, Second, and

Fifth Circuits and require the State to prove as an element of the habitual offender

adjudication that the time afforded by La.R.S. 15:529.1(C) has not elapsed, and we

further find that the absence of such proof in the district court must be recognized

as an error patent on appeal.

      However, we also find that the State carried its burden of proof in the district

court here. Defendant was convicted of possessing contraband in a penal institution

between October 11, 2011 and December 26, 2011. The State established at the

habitual offender adjudication that defendant pleaded guilty on February 7, 2001,

in federal court to the charge of felon in possession of a firearm and was sentenced

to 96 months imprisonment in a federal facility plus three years of supervised

release. The potential that defendant could have received an early release before

October 11, 2001, and also been relieved of his probation obligation by receiving

an executive pardon does not suffice to establish a reasonable doubt.

      In addition, the Fourth Circuit found that the district court did not observe

the sentencing delay required by La.C.Cr.P. art. 873 before sentencing defendant to

the maximum term of life imprisonment as a fourth-felony offender for possession

of a contraband cell phone while in a penal institution. See La.R.S. 14:402(E)(7);

La.R.S. 15:529.1(A)(4)(a). Sentencing occurred almost immediately after the

denial of defendant’s motion for new trial. Article 873 provides (emphasis added):

      If a defendant is convicted of a felony, at least three days shall elapse
      between conviction and sentence. If a motion for a new trial, or in
      arrest of judgment, is filed, sentence shall not be imposed until at least

                                          6
      twenty-four hours after the motion is overruled. If the defendant
      expressly waives a delay provided for in this article or pleads guilty,
      sentence may be imposed immediately.

The court of appeal, however, found that “defense counsel’s argument at the

sentencing hearing constituted an implicit waiver of the delay.” Kisack, 15-0083, p.

3, 190 So.3d at 809.

      While some circuits courts, predominantly the Fourth Circuit, have found

that the statutory delay may be “implicitly waived” when a defendant announces

he is ready for sentencing, see, e.g., State v. Foster, 02-0910, p. 2 (La. App. 4 Cir.

12/11/02), 834 So.2d 1188 (“A defendant may implicitly waive the twenty-four

hour delay by announcing his readiness for sentencing.”), the waivers under the

circumstances presented in those decisions are typically not so much implicit as

expressly made (by announcing that defendant is ready to be sentenced) without

being as fully articulated as they should perhaps have been. See, e.g., State v.

Celestain, 13-1262, pp. 11–13 (La. App. 4 Cir. 7/30/14), 146 So.3d 874, 881–82

(finding no error “because Ms. Banks implicitly waived the twenty-four hour delay

in her acknowledgment that she was ready for sentencing.”). Here, however, it

appears that defense counsel simply participated in the sentencing hearing, which

would truly be an implicit waiver if such a waiver were authorized by the Criminal

Code. An implicit waiver, however, runs afoul of the plain language of Art. 873

that requires that the waiver be expressly made.

      Nonetheless, an error in failing to observe the statutory sentencing delay

may still be found harmless. Under the circumstances presented here, in which a

defendant who faced a sentencing range of 20 years to life and received the

maximum sentence authorized for a fourth-felony offender for possession of a




                                          7
contraband cell phone, it is difficult to conclude the error is harmless. 4

       Accordingly, we reverse the court of appeal in part to vacate the habitual

offender adjudication that immediately followed the failure to observe the statutory

sentencing delay and remand this matter to the district court for further

proceedings consistent with the views expressed here.

REVERSED IN PART AND REMANDED




       4
         We need not consider defendant’s claim that the sentence is excessive given that we
vacate the habitual offender adjudication and remand for further proceedings.

                                               8
