State of Louisiana v. Keith C. Kisack

236 So. 3d 1201 · Supreme Court of Louisiana · 2017

Facts

Defendant Keith C. Kisack, an inmate, was convicted of possessing contraband (a cell phone) and subsequently adjudicated a fourth-felony habitual offender, receiving a life sentence. The Fourth Circuit affirmed but amended the sentence, finding an implicit waiver of the statutory sentencing delay and inferring the 10-year cleansing period for habitual offender status was met. The Supreme Court reviewed these two issues.

Issue

Did defense counsel implicitly waive the statutory sentencing delay required by La.C.Cr.P. art. 873 by merely participating in the sentencing hearing? And did the State sufficiently prove that less than ten years elapsed between defendant’s most recent predicate offense and the present offense for habitual offender adjudication under La.R.S. 15:529.1(C)?

Holding

The Supreme Court reversed the court of appeal in part, vacating the habitual offender adjudication because the statutory sentencing delay was not expressly waived. The case was remanded to the district court for further proceedings. The court also held that, in this specific case, the State *did* carry its burden of proof regarding the 10-year cleansing period.

Rule

La.C.Cr.P. art. 873 requires an *express* waiver of the statutory sentencing delay, and implicit waiver by merely participating in a sentencing hearing is insufficient. Furthermore, the State must prove beyond a reasonable doubt that the 10-year cleansing period under La.R.S. 15:529.1(C) has not elapsed for a habitual offender adjudication, and the absence of such proof is an error patent on appeal.

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Case brief last reviewed 2026-01-07. Prepared by CaseReader from the published opinion.