State Of Louisiana VS Samson L. Montoya
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 0725 STATE OF LOUISIANA VERSUS SAMSON L MONTOYA Judgment rendered November 2 2007 Appealed from the 16th Judicial District Court in and for the Parish of St Mary Louisiana Trial Court No 170 140 Honorable Edward M HON J Leonard Judge ATIORNEYS FOR PHIL HANEY STATE OF LOUISIANA DISTRICT ATIORNEY WALTER J SENETIE JR ASSISTANT DISTRICT ATIORNEY FRANKLIN LA THOMAS L MAHFOUZ MORGAN CITY LA ATIORNEY FOR DEFENDANT APPELLANT SAMSON L MONTOYA BEfORE CARTER C l PETTIGREW AND WELCH ll PETTIGREW J The defendant Samson L while intoxicated occurred third offense April 7 2006 on Circuit Court vehicle OWl The under the influence of alcoholic predicate offenses alleged were influence of and one originally pled not s motion to defendant withdrew his former plea the trial October 9 1996 a under beverages operating motor a number a motor vehicle while under the predicate number guilty instant offense Thereafter quash plea and entered a Crosby 338 So 2d 584 La 1976 court sentenced him to suspended all but thirty days docket 14th May 18 1998 14th Circuit Court Randolph Following pursuant in the a After hearing the trial to a plea of guilty reserving his right to appeal the trial court s denial of the motion v an quash the bill of information attacking the sufficiency of predicates to enhance the denied the defendant alcoholic to the offense of The defendant moved to See State This offense 14 98 0 RS a beverages under docket number CR598415M The defendant each of the charged by bill of information with driving violation of La predicate number County Missouri guilty plea two was Randolph County Missouri guilty plea to the offense of operating while CR596512M Montoya to plea agreement the to OWl third offense quash the predicates 3 2 accepting the defendant s guilty imprisonment at hard labor for five years parish jail court The trial court The court placed the defendant on supervised probation for five years subject to various general and special conditions including requirements that the defendant undergo a court a substance abuse evaluation attend approved inpatient substance abuse treatment facility and undergo subsequent The trial court also ordered the defendant to pay home incarceration The defendant now appeals urging in a single assignment of error a 2000 00 fine that the trial court concerning the dates of the predicate offenses the the defendant s guilty proper dates were recited in court by the trial judge and the prosecutor in accepting and the defendant has not challenged this error Moreover it is undisputed that the dates of the plea Missouri predicate offenses to which the defendant pled guilty were October 9 1996 and May 18 1998 2 The defendant also pled guilty to DWl third offense in St Mary Parish docket number 06 170610 based See State v Montoya 2007 0734 La App 1 Cir 11 2 07 upon the two Missouri predicate convictions unpublished also decided this date 3 The trial court ordered that the thirty day sentence in this case be served consecutively to the thirty day 1 Although sentence there is imposed some discrepancy in the record in docket number 06 170610 2 erred in denying the motion to the conviction remand for However quash for Finding no forth reasons set merit in the assigned error we affirm below we vacate the sentence and was no trial testimony concerning the resentencing FACTS Because the defendant facts of the instant offense the pled guilty there The following factual basis was recited at by the prosecutor Boykin hearing In Docket Number 06 170140 April 7th of 06 that the State would intend to prove that s vehicle was observed by an agent Mr Montoya stopped on an eastbound shoulder of 90 The officer stopped to check to offer assistance and Mr Highway Montoya was found slumped over the steering wheel sleeping The officer suspecting that alcohol had been consumed prior to Mr Montoya driv i ng he asked him to submit to a field sobriety test which he did and perform ed poorly Thereafter the officer asked Mr Montoya to submit to The State would intend to prove a chemical intoxilyzer which was refused At that time he had the same two that he was driving while intoxicated prior convictions out of Randolph County Missouri which were previously in docket number 06 170610 mentioned thereby making him a third on with the Louisiana State Police and offender ASSIGNMENT OF ERROR In his sole assignment of denying his motion to quash the case He argues the evidence revealed that the Missouri the defendant contends the trial court erred in error two Missouri presented by judge failed guilty pleas alleged the State in to inform him as support of of the predicates in this these predicates potential for enhanced Specifically noting the absence of transcripts of penalties for subsequent DWI offenses the Missouri proceedings the defendant further argues the guilty pleas from the State of Missouri do not he asserts there In order spell out all of the rights that was no for a enhancement of actual required under Louisiana law are knowing and voluntary waiver of his rights in the Missouri guilty plea to imprisonment be or used as a conversion of a basis for actual Thus court imprisonment subsequent misdemeanor into felony the trial judge must inform the defendant that by pleading guilty he waives his privilege against compulsory self incrimination applicable and c his right to confront his accuser 3 b his See right to trial and Boykin v a a jury trial where Alabama 395 s U 238 243 89 S Ct 1709 1712 23 L Ed 2d 274 that the accused understands what the In State Carlos 98 1366 v Court eased the State s burden of for enhancement purposes of State v Shelton Under cases this constitutionality of has the initial burden of defendant was initial burden shifting principles La 1993 scheme this burden when being used to enhance or a burden is one entry submitted prejudiced present DWI offense the State a or a in the perfect transcript a that reflects in a taking of the plea an If the of the The State will guilty plea colloquy A voluntary informed and articulated waiver of the 1 Boykin 12 and 779 80 n If the State meets this 98 1366 at 6 7 738 SO 2d at 559 the privilege against self incrimination and 3 his right 621 SO 2d at 775 challenges the then the burden reverts to the State to prove the Carlos specific rights discussed minute defendant a produce affirmative evidence of procedural irregularity by producing perfect transcript DWI applicable to multiple offense are proving the existence of the prior guilty plea and that the constitutionality of the plea three predicate offense prior DWI guilty plea the burden shifts to the defendant to defendant carries meet this as a a represented by counsel at the time of the plea infringement of his rights Supreme the court held that the burden shifting conviction a 738 So 2d 556 the Louisiana 7 7 99 proving In Carlos burden judge must also ascertain plea connotes and its consequences La 621 SO 2d 769 The 1969 to trial right by jury 2 defendant s to confront his accusers Anything less than a Shelton perfect transcript such as a guilty plea form will require the trial judge to weigh the evidence by both sides and determine whether defendant s Boykin rights were Carlos 98 1366 at 7 738 So 2d at 559 In the instant case as proof of each of the Missouri guilty pleas alleged as a predicate the State introduced certified copies of the Uniform Complaint and Summons the Misdemeanor Information the Judge s Judgment Orders Minutes and Docket Sheet and the Circuit Court Criminal Docket Sheet This evidence reflects that the defendant was represented by counsel and entered a on each occasion guilty plea to DWL Thus initial burden contrary to the defendant s assertions in his brief the State satisfied its pursuant to Carlos The State was not required to prove the constitutionality of the pleas 4 at this when point only that they existed and that the defendant they burden or a were entered The documents submitted were The burden then shifted to the defendant to show procedural irregularity in the taking of the pleas represented by counsel was sufficient to meet this initial an infringement of his rights The defendant could have attempted to meet this burden by introducing testimony regarding the taking of the pleas or any other affirmative evidence The record before such us affirmative evidence hearing the motion on evidence Missouri Counsel is devoid of any as to showing a to either of the Missouri quash counsel a Because the defendant failed to felony pleas the burden not at the present any subsequent conviction of DWI would result in harsher infringement of his rights an produce any Instead predicates for the defendant did to only argued that the State failed to produce evidence that the judge explained that penalties for attempt by the defendant never produce affirmative evidence procedural irregularity in the taking of the or a shifted back to the State to prove the constitutionality of the prior guilty pleas Furthermore with the not advised of was potential for enhancement of subsequent offenses it is well settled that Boykin only requires that constitutional a defendant 1990 include The accuser informed of three See State v enumerated rights Thus the Missouri for enhancement of defendant s motion App 1 Cir 1987 judge was not required subsequent offenses to and his to right Longo 560 So 2d 530 531 532 La App 1 to extend the scope of advising the defendant of any other rights that he may have La namely right to trial by jury jurisprudence has been unwilling Wright 517 So 2d 458 460 1988 be privilege against self incrimination confrontation of his Cir regard to the defendant s argument that he writ denied to advise the defendant of the quash the predicate convictions 5 This err to See State 522 So 2d 1093 The trial court did not without merit Boykin in v La potential denying the assignment of error is REVIEW fOR ERROR In accordance with we specify the La 5 R imposed 14 98 D third offense DWI a error pursuant 1 s more placed in served 879 on home incarceration but it must In this case the trial court incarceration The probation The court did not record also reflects After specify the specify a imprisonment sentence of term Thus the imprisonment be See La Code Crim P art to home term for the home incarceration that the trial court erred in imposing the period of suspending all but thirty days of the five year sentence of imprisonment serve a Louisiana Revised Statutes 14 98 D the sentence is on period of time not less than six only noted that the defendant would be subject the trial court ordered that the defendant probation a portion of the suspended or a pertinent home incarceration program a than the remainder of the sentence of trial court may order all The home incarceration approved by the division of probation and parole for months and not sentence when it requires that any offender placed c shall be Code Crim P art 920 2 to La illegal indeterminate an for the defendant term sentencing provision probation for review for The trial court note as follows failed to our 1 period of five years a suspended the offender shall be placed Department of Public Safety and Corrections provides on division of that on i f any supervised portion of supervised probation with the probation and parole for a period of time equal to the remainder of the sentence of imprisonment Emphasis added Because thirty days of the sentence of imprisonment were not suspended the defendant s probation period should not have been the full five years Probation should have been limited to the four years and eleven months remainder of the sentence of case 4 for imprisonment resentencing Because the matter is the procedure set forth being driven at the time Accordingly we must vacate the sentence and remand the 4 being remanded for in La 5 R 14 98 D to follow resentencing we also note that the trial court failed 2 in regard to seizure impoundment and sale of the of the offense 6 vehicle For the foregoing reasons the defendant s conviction is affirmed is vacated and the matter remanded to the trial court for The sentence resentencing in accordance with the law CONVICTION AFFIRMED SENTENCE RESENTENCING 7 VACATED AND REMANDED FOR
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