State Of Louisiana VS Anthony Joseph Tabb
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 KA 0804 STATE OF LOUISIANA VERSUS ANTHONY J TABB p Judgment Rendered November 2 2007 Appealed from the Sixteenth Judicial District Court In and for the Parish of St Mary Louisiana Trial Court Number 05 168 754 Honorable Edward M Leonard Jr J Phil Jeffrey Haney District Attorney Judge Attorneys J Trosclair Asst District Attorney State for Appellee Franklin LA Robert M Louque Jr Attorney for Thibodaux LA Defendant Anthony BEFORE CARTER C J Appellant J Tabb PETTIGREW AND WELCH JJ WELCH J The defendant with one R S count 14 98 of He driving while of Abbeville Docket former on a 27 August to denied quash was plea and pled guilty reserving his right sentenced suspended quash to five years See State at and five years conditions of and his 1 court also designating three assignments of error imposed under 23 20004563 City Court predicate La thirty days subject a for use 2000 DWI seek review of the upon release probation August 338 So 2d 584 Crosby v the quash no 2 Thereafter he withdrew his hard labor with all but The probation to to violation of La a guilty plea Court of New Iberia Docket hearing the motion the motion to third offense 1997 DWI predicate bill of information charged by guilty and moved not CT 60834 plea under City Following was intoxicated DWI initially pled enhancement purposes of his contest Tabb Anthony Joseph to court 1976 He was of the sentence general 2 000 fme ruling s He and special appeals now We affirm the defendant s conviction and sentence ASSIGNMENTS OF ERROR The defendant urges three 1 The trial the transcript of the court erred in In the event it is determined that the trial court obtained because the transcript court erred in of the that the defendant made a as 1 denying the motion guilty plea does not to Deroche v The defendant requests a 96 1376 review for La errors a quash establish predicate knowing and intelligent waiver of his right required by State So 2d 1251 1252 per curiam 3 denying the motion to quash because guilty plea does not establish that the right to counsel waiver of counsel the trial counsel 1 predicate defendant waived his 2 assignments of error as follows 11 8 96 to 682 patent FACTS Due to the defendant s testimony concerning guilty plea there the facts of the offense 2 was no At the trial and thus no trial Boykin hearing however the State set forth that on October 30 2005 the defendant vehicle while under the influence of alcohol and MOTION TO assignment of error number of his right fonn the trial assignment to counsel of at failed court error 1 the predicate to obtain number 2 determines he waived his right 1 a 535 the 541 Henry v was knowing a guilty plea to and 1 In court the record intelligent App 1st eir 818 So 2d 791 predicate offense use a advised that this event counsel in connection with predicate to was verbal waiver of counsel from him writ denied 2001 2299 La 6 21 02 In order for accurate guilty plea and executed a waiver of rights 2000 2250 pp 8 9 La following requirements a QUASH the defendant argues in the to operating that date had twice been the defendant argues while he does not establish that the counsel waiver In State to The defendant indicated that the factual basis was convicted ofDWI In prior observed was 11 5 this 788 So 2d 01 court set forth for enhancement purposes be used as basis for actual a imprisonment enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony the trial judge must inform the defendant that by pleading guilty he waives a is privilege against compulsory self incrimination b his right to trial and jury trial where applicable and c his right to confront his accuser The judge must also ascertain that the accused understands what the plea connotes and its consequences If the defendant denies the allegations of the bill of information the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken If the State meets this burden the defendant has 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 To meet this requirement the State may rely on a contemporaneous record of the guilty plea proceeding i e either the transcript of the plea or the minute Everything that appears in the entire record concerning the entry predicate as well as the trial judge s opportunity to observe the the burden to defendant s waiver of rights appearance demeanor and responses in court should be considered in determining whether or not a knowing and intelligent occurred informed of the three been rights Boykin only requires enumerated above that The a defendant be jurisprudence has extend the scope of Boykin to include advising the defendant of any other rights which he may have Citations omitted unwilling Additionally to an uncounseled DWI conviction may 3 not be used to enhance of punishment counsel 297 State subsequent offense absent a Cadiere 99 0970 p 3 v writ denied waives his 2000 0815 right to counsel in pleading expressly advise him of his right to intelligently on as Determining the guilty plea to well defendant court is not required Inisdemeanor of the issue on s to Factors bearing nature complexity advise and not disadvantages court should the knowingly of this validity and and seriousness of the a right felony trial Generally pleading guilty to to a The critical counsel is whether the accused What the accused understood is determined in just by certain magic words used by the judge case to counsel is a terms of the Whether an question that Cadiere 99 0970 at pp 3 4 at 297 The defendant counsel and warning judge plea and the defendant on the s signature on a him of the same printed waiver knowingly as advising him of his right to form that he is satisfied the accused understood the expressly of his right such factors form dangers of self representation and the signature its consequences do not the waiver is made account on of self representation the facts and circumstances of each of his a defendant who is a depends the trial accused of the waiver of counsel in knowingly and intelligently waived his right 2d So an experience background competency accused has 754 When appointed counsel ifhe is indigent of his waiver of counsel for to dangers understood the waiver on 754 So 2d 294 misdemeanor the trial understanding review of the waiver of the entire record and a waiver of uncomplicated misdemeanor requires less judicial inquiry than an determining his understanding the the as 2 18 00 the record that the waiver is made under the circumstances conduct of the accused intelligent 774 So 2d 971 guilty to determination include the age education charge 00 counsel and The court should further determine and La App 1st eir 13 11 La and knowing a and to discharge the counsel and duty to determine 4 background nature of the trial judge to advise on the record that intelligently under the circumstances the defendant s age of and education taking into Cadiere 99 0970 at p 11 8 96 4 682 754 So 2d at 297 2d So 1251 However while the knowing such a and intelligent form in 1252 use citing State Deroche v 96 1376 1 p La per curiam of a printed waiver of the form alone is not sufficient to establish right to the assistance of counsel the use conjunction with other matters which appear in the record viewed a of as a whole may establish that the waiver was valid Id Prior trial the defendant to the instant offense the instant offense were the trial argued the minutes elapsed court that the Court in predicate constitutional rights There the defendant observed that understand the the Motion to by the State predicate 1997 1 He also 1 In denying nature of the was 1 more the motion to advised fully the The defendant indicated some proceedings discussion between the and for that reason I will deny Quash a minute entry transcript and guilty plea s an August 27 rights waiver form from the City Court of Abbeville The minute entry reflects appeared in court without counsel The represented by counsel of choice represented by state argued to from which the Court in observing the the defendant had sufficient knowledge to the State introduced that the defendant be enhance intelligent waiver To establish waiver of counsel in connection with the defendant in to prior guilty pleas failed rights since institution of prosecution that he understood those defendant of court from the of all of his constitutional defendant of all of his and upon noted I fmd Judge quash the information charging entered by the defendant alone and without apprised was than two years had quash to arguing that the guilty pleas relied of counsel He also reflect that he timely moved t court he Court seriousness of the explained his right if he could not afford counsel the or appointed counsel was court at no cost to him Thereafter convinced that the Defendant understood the charge as well as the consequences of right to to be the minutes nature and that the plea and The defendant limits his argument 011 appeal to whether the State established a knowing and intelligent waiver of counsel in connection with predicate 1 Accordingly we address only the waiver ofcounsel issue 5 Defendant The to waiver of said transcript right was made intelligently of the defendant advising the nine defendants in rights of s the court that guilty plea in predicate court including court because it that the defendants understood what the they would be asked to Thereafter the sign a rights was court 1 indicates that prior the instant defendant of their indicated that if any of the defendants did rights they should stop the sure s the was not understand the advice court going obligation s to be telling waiver form at the end of the to make them and proceeding court stated All of you have the right to be represented by an Attorney this is a very right If you can afford an Attorney you have the obligation of making the financial arrangements to employ an Attorney and pay his or her fee if however you are poor or what the law says is an indigent defendant then I have the obligation to appoint an Attorney for you and generally I appoint the Indigent Defender Organization we call that the IDO The IDO is an organization that has probably four 4 or five 5 Attorneys employed and paid by the State whose job is to represent people who are indigent You can waive that right that is to say you can give up the right you don t have to have an Attorney with you if you say well I don t want an Attorney and that is what you would really be saying if you say well I want to finish this today you would be giving up the right to have an Attorney but again it is such a sacred right that I am going to call each individual who is up here and ask if you understand that you have that right and whether you want an Attorney or if you waive it Now if you want an Attorney then we would not be able to finish this today because the law says the Attorney has to be with you at every stage of the prosecution which means even st today this is the arraignment day and that is the first 1 stage in the prosecution sacred Thereafter Colomb Jr give up that the court asked the first of the nine defendants you understand Mr Colomb you have right but I have to establish You understand that you have sir The defendant the defendant also was a right explained that there had to be a right today whether an Attorney the seventh defendant the Ok and is it Mr Tabb DWI defendant whether to a factual basis for Attorney you want that you right or replied a not Yes court asked Yes sir The court guilty plea and asked on can The addressed they had anything alcoholic to drink 6 an Mr Colomb answered court The defendant to Mr Alright the each day or the night they were In response to the court stopped s inquiry the defendant stated Yeah I had drank earlier The 1 in rights waiver form signed by the defendant in connection with predicate pertinent part provides DOB 1 9 572 PLEA OF Guilty I Anthonv Tabb on my plea of guilty to the charge of DWI having been informed and understand the charge to which I am pleading guilty as 1 well the counsel at no following rights to My right afford cannot as be one my cost to represented by counsel of my choice or if I right to be represented by court appointed me I realize that by pleading guilty I stand convicted of the crime charged and waive my priviledge sic against self incrimination my right to trial my right to confront and cross examine witnesses my right of compulsory process and my right to appeal I further state that my plea in this matter is free and voluntary and that it has been made without any threats or inducements whatsoever from anyone sic associated with the City of Abbeville or the state of Louisiana and that the only reason There record I am pleading guilty is that I am was no elTor in the denial of the motion concerning predicate 1 viewed knowingly and intelligently waived an uncomplicated misdemeanor number of prior The court meticulously opportunity right to to ask counsel questions or atTests including as counsel whole three 1 was years DWI alTests at the time of this right to counsel to express hesitation during the invoke his place the handwritten portions was v gave the defendant the opportunity right Deroche ofthe form in italics 7 a plea to counsel to invoke his did not ask Boykin hearing and subsequently signed The defendant s reliance upon State We The old and had prior rights waiver guilty plea form which also advised him of his right 2 1 fIrst offense DWI a forty and gave the defendant the The defendant failed quash predicate establishes that the defendant Predicate The defendant described the questions a to 95 0376 to a counsel La App 1st Cir 96 10 4 State v 674 So 2d 291 vacated in Nabak 2003 919 La App 5th Cir 12 30 03 The court in Deroche reversed that case however the defendant other than 0376 at p 296 297 8 the minutes did and those court entered into a understood his Nabak involved quash two reflecting the charges waived his court to counsel 01 acknowledging defendant did 7 8 4 5 00 782 his not a 2d So right ask single and disposition not assignments to a waiver of 10 21 97 see or such as State and the following the Nabak 2003 a waiver of v are 7 rights form in 8 judge The made v 864 So 2d at 762 63 Theriot signed transcript Barron without merit a a knowingly and intelligently hesitate in pleading also State of error 707 page waiver of rights form 2000 870 a of the 32 960 La The App rights waiver form plea guilty Nabak 758 So 2d 965 writ denied 2000 1224 La 2 2 01 These right to ascertain if indicate that the trial 2003 919 at p questions questions 864 So 2d at 763 informed of his at 709 So 2d 748 1078 wherein the defendant to ask 2d So Nabak 2003 919 at pp 3 4 864 So 2d at 760 cases 95 certified copy of the bill of information and Nabak specifically distinguished 7 674 App 2nd Cir the record that the defendant had on right 5th Cir 130 pp a in Nabak concluded that the record did determination at p third offense DWI to In Deroche the defendant 2 13 98 The State offered support of the second predicate court signature and the effect of La misplaced require anything of the uncounseled predicate DWI offenses support of the first predicate and minute entry La Crosby guilty plea a 919 at p 2 864 So 2d at 760 in rights Snider 30 568 pp 6 7 v was colloquy with So 2d 1262 1265 66 writ denied 97 3025 denial of a motion to not Further in Deroche 95 0376 intelligently See State rights waiver form did is for third offense DWI sentence show that the defendant not 682 So 2d 1251 and 864 So 2d 758 check several blocks and affix his 674 So 2d at 297 knowingly conviction and a printed rights to counselor if the trial he part 96 1376 La 11 8 96 La indicated the 2003 919 at App 2nd Cir 783 So 2d 381 REVIEW FOR ERROR Initially which we provides designated that note that the in the our only review for matters assignments of error error to and is pursuant to La be considered C Cr P appeal on that is discoverable error art 920 are by errors a mere inspection of the pleadings and proceedings and without inspection of the evidence La C Cr P art 920 2 Louisiana Revised Statutes 14 98 D 2 trial court to follow in regard to driven at the time of the offense case Although art 920 2 by the it is court s the failure to seizure court error to program at his expense failure to See La R S follow La R S 14 98 D 3b the State in either the trial As such participate we decline 2514 p 22 La App to 1 court or on The defendant is in a Cir 12 28 06 error not prejudiced in any reflect that the trial not court 14 98 D way Because the trial court b 3 we are court approved driver improvement and La R S 14 98 D 2 appeal under La C Cr P D2 remand for correction of the st for the failed to follow that procedure in this Additionally the sentencing transcript does required the defendant specific procedure follow La R S 14 98 D 2 is follow La R S 14 98 to a impoundment and sale of the vehicle being The trial certainly harmless failure provides not required to See State error 952 So 2d 112 was 124 125 en not raised by take any action v Price 2005 bane CONCLUSION For the foregoing reasons we affirm the defendant s CONVICTION AND SENTENCE AFFIRMED 9 s conviction and sentence
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