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 0734 STATE OF LOUISIANA VERSUS SAMSON L MONTOYA Judgment rendered November 2 2007 Appealed from the 16th Judicial District Court t HON J in and for the Parish of St Mary Louisiana Trial Court No 170 610 Honorable Edward M Leonard PHIL HANEY DISTRICT ATTORNEY Judge ATTORNEYS FOR STATE OF LOUISIANA WALTER J SENETTE JR JEFFREY J TROSCLAIR ASSISTANT DISTRICT ATTORNEYS FRANKUN LA THOMAS L MAHFOUZ ATTORNEY FOR MORGAN CITY LA DEFENDANT APPELLANT SAMSON L MONTOYA BEFORE CARTER C J PETTIGREW AND WELCH JJ PETTIGREW J The defendant Samson L while intoxicated suspension third offense violation of La a OWl 5 R violation of La offenses Montoya 5 R 32 58 a 32 415 was charged by bill of information with driving violation of La and careless The offenses occurred alleged for the OWl charge were on R S operation of June 18 October 9 an plea and a each of the predicates denied the defendant motor vehicle while a predicate number predicates five years s 2 s quash the bill of information attacking the sufficiency of motion to See State quash Following Thereafter plea and entered a pursuant hearing the trial a to a plea of guilty v The court to After attend a supervised probation for five years subject 2000 00 fine The defendant now 3 The trial court to various a general and substance abuse The trial court also ordered the defendant to appeals urging in a single assignment of error charges The defendant also pled guilty to DWI third offense in St upon the two Missouri predicate convictions 11 2 07 unpublished also decided this date 3 accepting the The record does not reflect the final disposition of the driving under suspension and careless operation of a motor vehicle 2 quash approved inpatient substance abuse treatment facility and court undergo subsequent home incarceration a to 1 imprisonment at hard labor for special conditions including requirements that the defendant undergo 1 third offense to OWl suspended all but thirty days in the parish jail on court plea agreement the Crosby 338 SO 2d 584 La 1976 guilty plea the trial court sentenced him placed the defendant evaluation predicate The defendant two specifically reserved the right to appeal the trial court s denial of the motion defendant pay Circuit Court vehicle while under the influence of alcoholic to enhance the OWl offense defendant withdrew his former the 14th 1996 predicate guilty not The defendant moved to He a motor operating under docket number CR598415M originally pled The a May 18 1998 14th Circuit Court Randolph County Missouri guilty to the offense of beverages motor vehicle beverages under docket number CR596512M under the influence of alcoholic one a 2006 Randolph County Missouri guilty plea to the offense of operating number driving under 14 98 0 The trial court ordered that the sentence imposed thirty day Mary Parish docket number 06 170140 based v Montoya 2007 0725 La App 1 Or See State sentence in this in docket number 06 170140 2 case be served consecutively to the thirty day that the trial court erred in error we denying affirm the conviction sentence and remand for the motion to quash However for the Finding reasons set no merit in the forth below we assigned vacate the resentencing FACTS Because the defendant facts of the instant offense the pled guilty there The trial was no following factual basis testimony concerning the recited was by the prosecutor at Boykin hearing Your Honor in Docket Number 06 170610 the State would intend to prove at trial that on June 18th of 2006 officers with the Patterson Police Department in St Mary Parish Louisiana observed a vehicle in the ditch Highway 90 officers came to determine that Mr Montoya was the operator of that vehicle During the course of the stop or the course of their investigation to stop the vehicle they determined that Mr Montoya it was their belief that he was operating the vehicle while under the influence of alcoholic beverages They asked that he perform a field sobriety test which he submitted The results of the test lead sic the officers to believe that he was driving while impaired He was asked to submit to a chemical intoxilyzer to which he refused and was arrested for DWI at that time Mr Montoya had two prior convictions out of Randolph County Missouri the first conviction on May 18th of 98 under near Clark Street its near intersection with Docket Number CRS98415M The second October on 9th 1996 under CRS96512M ASSIGNMENT OF ERROR In his sole denying his case assignment of motion to error quash the He argues the evidence revealed that the Missouri the defendant contends the trial court erred in two Missouri guilty pleas alleged presented by the State judge failed penalties for subsequent DWI offenses to inform in as predicates in this support of these predicates him of the potential for enhanced Specifically noting the absence of transcripts of 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 felony the trial judge his are c his Thus knowing and voluntary waiver of his rights in the Missouri court guilty plea to be used imprisonment or as a conversion of must inform the defendant that right basis a his to confront his accuser See 3 for actual imprisonment subsequent misdemeanor into by pleading guilty he waives b privilege against compulsory self incrimination applicable and required under Louisiana law right to trial and Boykin v a a jury trial where Alabama 395 U S 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 Under cases this constitutionality of burden has the initial burden of defendant was initial burden this the court held that the burden shifting principles La applicable when a to enhance a being used procedural irregularity or a Carlos a transcript is that reflects a specific rights discussed in 98 1366 at 6 7 multiple offense DWI defendant present the challenges DWI offense the State If the State meets this produce affirmative evidence of in the taking of the plea an If the The State will 738 So 2d at 559 perfect transcript of the guilty plea colloquy A perfect voluntary informed and articulated waiver of the three 1 Boykin the against self incrimination and 3 his right 12 and 779 80 to then the burden reverts to the State to prove the burden by producing or a are scheme shifting meet this burden n 1993 proving the existence of the prior guilty plea and that the constitutionality of the plea one Supreme predicate offense prior DWI guilty plea a the burden shifts to the defendant to defendant carries must also ascertain 738 So 2d 556 the Louisiana represented by counsel at the time of the plea infringement of his rights at 775 judge as a proving In Carlos conviction a 7 7 99 La The connotes and its consequences plea Shelton 621 So 2d 769 v 1969 right a guilty plea form will require the trial judge s by jury 2 defendant s privilege to confront his accusers Anything less than sides and determine whether defendant to trial Shelton 621 So 2d perfect transcript such to as a minute entry weigh the evidence submitted by both Boykin rights were prejudiced 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 This evidence reflects that and the Circuit Court Criminal Docket Sheet the defendant was represented by counsel and entered a guilty plea on each occasion to DWI Thus contrary to the defendant s assertions in his brief the State satisfied its initial burden 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 entered The documents submitted were The burden then shifted to the defendant to show procedural irregularity in the taking of the pleas attempted or were to meet this burden represented by counsel was sufficient to meet this initial an infringement of his rights The defendant could have by introducing testimony regarding the taking of the pleas any other affirmative evidence The record before us such affirmative evidence hearing the on evidence Missouri showing an felony either of the Missouri quash to produce any Instead predicates for the defendant did not counsel that a at the present any subsequent conviction of DWI would result in harsher Because the defendant failed to infringement of his rights pleas the burden attempt by the defendant only argued that the State failed to produce evidence that the judge explained a as to motion to Counsel penalties for is devoid of any never produce affirmative evidence procedural irregularity or a shifted back to the State to prove the in the taking of the constitutionality of the prior guilty pleas Furthermore with the to the defendant argument that he s 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 judge App was not longo 560 So 2d 530 531 532 La App 1 1 Cir 1987 and by jury to extend the scope of writ denied to Boykin See State 522 So 2d 1093 v La required to advise the defendant of the potential subsequent offenses motion to his to to trial advising the defendant of any other rights that he may have La namely right right jurisprudence has been unwilling Wright 517 So 2d 458 460 1988 be privilege against self incrimination confrontation of his Cir regard The trial court did quash the predicate convictions without merit REVIEW FOR ERROR 5 This not err in denying the assignment of error is In accordance with we note follows as failed to 5 R La error imposed pursuant to La Code Crim P art 920 2 14 98 D third offense DWI 1 s home placed in approved by the division of probation and parole for months and not more 879 on home incarceration In this case the trial court After specify the specify a on sentence of Thus the imprisonment be See La Code Crim P term art to home term for the home incarceration in suspending all but thirty days of the five year serve Louisiana Revised Statutes 14 98 D the sentence is imprisonment only noted that the defendant would be subject the trial court ordered that the defendant probation pertinent period of time not less than six record also reflects that the trial court erred The probation but it must The court did not incarceration a portion of the suspended or a The home incarceration program a than the remainder of the sentence of trial court may order all served incarceration requires that any offender placed c shall be indeterminate sentence when it illegal an for the defendant term sentencing provision a review for The trial court specify the probation for our 1 a imposing sentence of period of five years a suspended the offender shall be placed proVides that on the period of imprisonment on i f any supervised portion of supervised probation with the Department of Public Safety and Corrections division of probation and parole for period of time equal Emphasis added to the Because remainder of the sentence of thirty days of the sentence of a imprisonment 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 for imprisonment Accordingly we must vacate the sentence and remand the 4 resentencing For the foregoing reasons the defendant s conviction is affirmed is vacated and the matter remanded to the trial court for resentencing The sentence in accordance with the law 4 Because the matter is the being procedure set forth in La being driven at the time of the remanded for 5 R 14 98 D resentencing we also note that the trial court failed to follow 2 in regard to seizure impoundment and sale of the vehicle offense 6 CONVICTION AffIRMED SENTENCE RESENTENCING 7 VACATED AND REMANDED fOR
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