State Of Louisiana VS Thomas Stewart
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0642 STATE OF LOUISIANA VERSUS THOMAS STEWART Judgment rendered October 29 2010 Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne Louisiana Trial Court No 532 773 Honorable Randall Bethancourt Judge HON JOSEPH WAITZ ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA LAWRENCE WARD ELLEN DAIGLE DOSKEY ASSISTANT DISTRICT ATTORNEYS HOUMA LA BERTHA M HILLMAN LA THIBODAUX ATTORNEY FOR DEFENDANT APPELLANT THOMAS STEWART BEFORE KUHN PETTIGREW JJ and KLINE J pro tempore Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW J The defendant Thomas Stewart was charged by bill of information with driving while intoxicated third offense a violation of La R 14 The defendant pled not S 98 guilty The defendant filed a motion to quash challenging two predicate DWI offenses wherein according to the bill of information the defendant entered guilty pleas A hearing was held and the motion to quash was denied The defendant was rearraigned at a Boykin hearing and entered a plea of guilty under State v Crosby 338 So 584 La 1976 to preserve his right to appeal the court denial of the 2d s motion to quash The court sentenced the defendant to one year imprisonment at hard labor and imposed a 2 fine 00 000 The defendant now appeals designating one assignment of error We affirm the conviction and sentence FACTS Because the defendant pled guilty the facts were not developed At the Boykin hearing on October 5 2009 the defendant pled guilty to driving while intoxicated third offense committed on January 24 2009 ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues the court erred in denying his motion to quash Specifically the defendant contends the State in failing to introduce any evidence into the record at the hearing on the motion to quash did not establish the existence of his two prior guilty pleas The defendant also contends that at the hearing on the motion to quash the court established he did not have an attorney present for his March 22 2005 guilty plea Z The two predicate offenses listed in the motion to quash are Docket Number 332 32nd JDC 008 Terrebonne Parish and Docket Number 411 17th JDC Lafourche Parish At the motion to quash 722 hearing Docket Number 411 was the only predicate offense attacked by the defendant However in 722 this appeal the defendant attacks both predicate offenses 3 At the hearing on the motion to quash the defendant challenged the March 22 2005 predicate offense Docket Number 411 Both the court and defense counsel referenced the transcript of that Boykin 722 colloquy However neither of the two Boykin colloquy transcripts was introduced into evidence Moreover no documentary evidence was introduced by either party at the hearing on the motion to quash By order of this court the appellate record in this matter was supplemented with the exhibits considered by the court at the hearing on the motion to quash 2 The predicate offenses at issue are a November 8 1999 guilty plea for driving while intoxicated second offense committed on July 22 1999 Docket Number 008 332 32nd JDC Terrebonne Parish and a March 22 2005 guilty plea for driving while intoxicated second offense committed on November 5 2004 Docket Number 722 411 17th JDC Lafourche Parish In order for a guilty plea to be used as a basis for actual 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 his privilege against compulsory selfincrimination 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 the burden to 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 either e the transcript of the plea or the minute entry State v Henry 20002250 p 8 La App 1 Cir 5 788 So 535 541 writ denied 2001 2299 La 6 818 So 01 11 2d 02 21 2d 791 See State v Carlos 98 1366 pp 6 7 La 7 738 So 556 559 While a 99 2d colloquy between the judge and defendant is the preferred method of proof of a free and voluntary waiver the colloquy is not indispensable when the record contains some other affirmative showing of proper waiver State v Carson 527 So 1018 1020 La App 2d 1 Cir 1988 Everything that appears in the entire record concerning the predicate as well as the trial judge opportunity to observe the defendant appearance demeanor s s and responses in court should be considered in determining whether or not a knowing and intelligent waiver of rights occurred Boykin only requires that a defendant be informed of the three rights enumerated above The jurisprudence has been unwilling to 3 extend the scope of Boykin to include advising the defendant of any other rights which he may have Henry 20002250 at 8 9 788 So at 541 See Boykin v Alabama 2d 395 U 238 89 S 1709 23 L 274 1969 S Ct 2d Ed Additionally an uncounseled DWI conviction may not be used to enhance punishment of a subsequent offense absent a knowing and intelligent waiver of counsel When an accused waives his right to counsel in pleading guilty to a misdemeanor the trial court should expressly advise him of his right to counsel and to appointed counsel if he is indigent The court should further determine on the record that the waiver is made knowingly and intelligently under the circumstances Factors bearing on the validity of this determination include the age education experience background competency and conduct of the accused as well as the nature complexity and seriousness of the charge Determining the defendant understanding of the waiver of counsel in a guilty plea to an s uncomplicated misdemeanor requires less judicial inquiry than understanding of his waiver of counsel for a felony trial determining his Generally the court is not required to advise a defendant who is pleading guilty to a misdemeanor of the dangers and disadvantages of self representation The critical issue on review of the waiver of the right to counsel is whether the accused understood the waiver What the accused understood is determined in terms of the entire record and not just by certain magic words used by the judge Whether an accused has knowingly and intelligently waived his right to counsel is a question that depends on the facts and circumstances of each case State v Cadiere 990970 pp 34 La App 1 Cir 2 754 So 294 297 writ 00 18 2d denied 20000815 La 11 774 So 971 00 13 2d The transcript of the November 8 1999 Boykin hearing for the July 22 1999 offense indicates the court informed the defendant of his constitutional rights and that he would be waiving those rights by pleading guilty The court also discussed with the defendant the danger in representing himself The court advised the defendant that an attorney because of special training and education would be in a better position to raise technical defenses to the pending charges However it was still the defendant decision s to represent himself Further a wellexecuted waiver of rights form including the waiver 4 of the right to counsel was signed by the court and the defendant on the same day as the November 8 1999 Boykin hearing Thus there was a knowing and intelligent waiver of counsel by the defendant See State v Deville 2004 1401 pp 45 La 7 879 04 2 2d So 689 691 692 per curiam Similarly the transcript of the March 22 2005 Boykin hearing for the November 5 2004 offense indicates the court informed the defendant of his constitutional rights and that he would be waiving those rights by pleading guilty The court also discussed with the defendant his right to speak with an attorney The defendant informed the court that he was comfortable with pleading guilty without the presence of an attorney Further a wellexecuted waiver of rights form including the waiver of the right to counsel was signed by the court and the defendant on the same day as the March 22 2005 Boykin hearing Thus there was a knowing and intelligent waiver of counsel by the defendant See State v Deville 20041401 at 45 879 So at 691 692 2d Based on the supplemented record we find that the State met its initial burden of proof at the hearing on the motion to quash by proving that valid guilty pleas and valid waivers of counsel occurred at the defendant November 8 1999 and March 22 2005 s guilty plea hearings The burden then shifted to the defendant who failed to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas Accordingly the court did not abuse its discretion in denying the motion to quash The assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 5
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