State Of Louisiana VS Marlin David Carpenter
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT 2012 KA 1977 STATE OF LOUISIANA VERSUS RL1N Mt DAVID CARPENTER DATE OFJUDGMENT JUN 0 7 2013 ON APP AL FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND NLJMBER 520 DIV D PARISH OF ST TAMMANY 162 STATE OF LOUISIANA HONORABLE PETER J GARCIA JUDGE Walter P Reed District Attorney Covington Louisiana Counsel for Plaintiff Appellee State of Louisiana Kathryn Landry Baton Rouge Louisiana I Gwendolyn K Brown Baton Rouge Louisiana Counsel for Appellant Defendant Marlin Da Carpenter id BEFORE KLk PETTIGREW AND McDONALD JJ Disposition AFFIMRED CONVICTION AFFIRMED SENTENCE AMENDED AND AS AMENDED IN J Ki J Defendant Marlin David Carpenter was charged by bill of information with offense third driving while intoxicated DWI a violation of La R S a 1 D 98 14 He pled not guilty and after a jury trial was found guilty as charged Defendant waived sentencing delays The trial court imposed the mandatory 2000 fine and sentenced him to serve a period of five years at hard 00 labor suspending four years of that sentence and ordering one year to be served without benefit ofparole probation or suspension of sentence The trial court also ordered defendant placed on five years probation with special conditions upon his release Defendant subsequently filed motions for new trial postverdict judgment of acquittal and reconsideration of sentence all of which were denied by the trial court He now appeals alleging one assignment of error We affirm defendant s conviction amend his sentence and affirm his sentence as amended FACTS On March 27 2012 Officer Justin Stokes of the Slidell Police Department stopped defendant on Front Street after having observed his vehicle swerve out of his lane oftravel both into the opposing lane of travel and onto the shoulder of the road Accarding to Officer Stokes defendant appeared to have dilated pupils and was breathing rapidly and sweating profusely Officer Stokes also noted that defendant was twitching and fidgeting with his body and limbs and he detected a faint odor of alcoholic beverages on defendant sbreath After he was read his Miranda rights defendant admitted to Officer Stokes that he had prescriptions for Subutex Ultram Neurontin Celexa and Soma all of which he had taken earlier The predicate convictions were alleged in the bill of information as follows 1 a conviction on September 9 2004 for operating a motor vehicle while under the influence of alcoholic beverages in the county court of Conroe Texas under docket number 04197600 and 2 a conviction on November 4 2011 for operating a motar vehicle while under the influence of alcoholic beverages in the 22nd Judicial District Court of St Tammany Parish under docket number 501879 Miranda u Arizona 384 U 436 86 S 1602 16 L694 1966 S Ct 2d Ed 2 that day However defendant was unable to say with certainty when he had taken any of those medications or in what dosages he had consumed them As Officer Stokes continued to question defendant he noticed what appeared to be track marks on defendant inner elbows Officer Stokes asked far s and s received defendant permission to search his vehicle Underneath the s driver seat cushion Officer Stokes found a plastic storage bag containing one used syringe an opened Kool package containing a blue powder Aid white and substance and a glass pipe or tube with a plastic rose inside of it Defendant was immediately placed under arrest for possession of suspected narcotics and drug paraphernalia He was transported to the Slidell Police Department At the police station defendant submitted to standard field sobriety testing on which he performed poarly After he had been informed of his rights related to chemical testing for intoxication defendant refused to submit to any further testing He was then arrested and charged with DWI ASSIGNMENT OF ERROR In his sole assignment of error defendant asserts that the evidence presented at trial was insufficient to support his conviction of third DWI offense Specifically he contends that the State presented inadequate evidence of his predicate convictions A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend S XIV La Const art I 2 In reviewing claims challenging the sufficiency of the evidence this court must consider whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt See Jackson v Virginia 443 U 307 319 99 S 2781 S Ct 2789 61 L 560 1979 See also La C art 821 State u Ordodi 2d Ed P Cr B 0207 2006 La ll 946 06 29 2d So 654 660 State x 2d Mussall 523 So 1305 09 1308 La 1988 The Jacksun standard of review incorporated in Article B 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La S 438 R 15 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence State v Patorno 2001 2585 La App lst Cir 6 822 So 141 144 02 21 2d To convict an accused of driving while intoxicated the State need only prove that the defendant was operating a vehicle and that he was under the influence of alcohol or drugs See La R 14 see also State u Parry S 98 A 1972 2007 La App lst Cir 3985 So 771 775 To convict an accused 08 26 2d of a offense third driving while intoxicated the State must also show that the defendant had two other valid convictions See La R 14 F Whether S 98 D an offender predicate convictions in a multiple offender DWI prosecution are s considered essential elements of the offense or essential averments of the bill of information the State bears the burden of establishing their constitutional validity ifthey came by way of guilty pleas and of proving the convictions at trial State v Mobley 592 So 1282 La 1992 per curiam 2d In the instant case defendant does not dispute on appeal that he was operating a vehicle ar that he was under the influence of alcohol or drugs at the time he was operating the vehicle Thus we are only concerned with whether the State proved that defendant had been validly convicted of the two predicate offenses used by the state to enhance the instant DWI to a third offense 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 self b his right to trial incrimination and jury trial where applicable and c his right to confront his accuser The judge 4 i also must ascertain that the accused understands what the plea connotes and its consequences See State v Cadiere 99 La App lst Cir 2 754 0970 00 18 2d So 294 296 writ denied 2000 La 11 774 So 971 If the 0815 00 13 2d 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 State u Picard 2003 La App lst Cir 9 2422 04 17 897 2d So 49 53 To meet this requirement the State may rely on a contemporaneous record of the guilty plea proceeding i either the transcript of e the plea ar the minute entry Everything that appears in the entire record concerning the predicate as well as the trial judge opportuniry to observe the s sappearance demeanor and responses in court should be considered in defendant determining whether 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 extend the scope of Boykin to include advising the defendant of any other rights that he may have State x Henry 2000 2250 La App lst Cir 5 788 So 535 541 writ denied 2001 La O1 ll 2d 2299 02 21 6 818 So 791 2d In the instant case the State and the defense entered into the foliowing stipulation immediately prior to the calling ofthe first witness State Judge the defense would offer a stipulation that the defendant Marlin David Catpenter is one and the same who was convicted in Conroe Texas 5eptember 9 2004 in docket number 04197600 for operating a motor vehicle while under the influence and he one and s the same who was convicted on November 4 2011 under docket Boykin u Alabama 395 U 238 89 S 1709 23 L 274 1969 S Ct 2d Ed 5 number 501879 in the Twenty Judicial District Court of St Second Tammany Parish and offer file and introduce into evidence both of those convictions to support those two priors Defense No objection Your Honor Court No objection and you agree to the stipulation Defense I agree to the stipulation In support of predicate number one 04197600 the State introduced the judgment from Montgomery County Texas in which defendant pled guilty to DWI The judgment reflected that defendant waived his right to trial by jury and that he was represented by counsel at the time his plea was accepted In support of predicate number two 501879 the State introduced a minute entry in which defendant pled guilty to first DWL The minute entry reflects that defendant was informed offense of his rights against self to a trial by a judge and to confront his incrimination accusers Further the minute entry shows that defendant was represented by counsel at the time his plea was accepted Upon reviewing the record in this case we find that by introducing the aforementioned sripulation and documents the State adequately satisfied its initial burden of proof The stipulation and documentation sufficiently showed that defendant had been charged with and pled guilty to the offenses and that he was represented by counsel when the guilty pleas were accepted The State did not at this juncture bear the burden of proving the constitutionality of the prior guilty pleas Once the State met its initial burden of proof it was then incumbent upon the defendant to produce some affirmative evidence of an infringement of his rights or a procedural inegularity in the taking of the predicate guilty pleas Defendant could have attempted to meet this burden by introducing a certified copy of the transcript from the prior pleas testimony about the taking of the pleas or any other affirmative evidence If defendant had met this burden the burden of 6 proof would have shifted back to the State to prove the constitutionality of the priar guilty pleas However the record is devoid of any evidence introduced by defendant even attempting to meet this burden on either predicate At trial defense s counsel strategy centered upon calling into doubt whether defendant was intoxicated on the night of the incident Moreover after his stipulation to s defendant identity as the person who committed the predicate offenses defense counsel never raised that particular issue again Consequently the burden of proving the constiturionality of the prior guilty pleas never shifted back to the State It is in this situation that the presumption of regularity attaching to a final judgment of conviction is intended to operate Picard 897 So at 54 2d As stated above defendant does not raise on appeal the issue of whether the evidence presented at trial was sufficient to show that he was intoxicated while operating a vehicle Viewing the evidence in the light most favorable to the prosecution we find that the evidence of defendant predicate convictions s presented through defendant stipulation and the State documentary evidence s s was sufficient to allow any rational trier of fact to conclude that defendant was guilty of third DWL In reviewing the evidence we cannot say that the offense s jury determination was irrational under the facts and circumstances presented to it See Ordodi 946 So at 662 2d This assignment of error is without merit REVIEW FOR ERROR Initially we point out that our review for error is pursuant to La C art P Cr 920 which provides that the only matters to be considered on appeal are errars designated in the assignments of error and enor that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence 4ofWe also notepredicate convictions file a motion to quash alleging the constitutional invalidity that defendant did not his alleged 7 We note an error in defendant sentence which may be corrected by this s court without need for remand to the trial court Por his conviction of third offense DW1 defendant was sentenced to five years imprisonment at hard labor with all but the first year suspended and with that first year to be served without benefit of parole probation or suspension of sentence The trial court also ordered that upon his release defendant would be placed on five years probation with special conditions However the sentencing provision for third DWI offense states that if any portion of a defendant sentence is suspended he shall be placed s on supervised probation for a period of time equal to the remainder of the sentence of imprisonment which probation shall commence on the day after the offender s release from custody See La R 14 Therefore the imposed five S 98 a 1 D year probation term afrer defendant srelease from custody is exceeds the statutory authority by one year An appellate court is authorized to correct an illegal sentence pursuant to La P Cr C art 882 when the sentence does not involve the exercise of sentencing A discretion by the trial court See State v Haynes 2004 La 12 889 1893 04 10 2d So 224 per curiam The correction of this error does not involve sentencing discretion as defendant sterm of probation is mandamry based upon the term of his suspended sentE Therefare we amend defendant sentence to reflect that nce s his term of probation is tour years with the same special conditions imposed by the trial court and we affirm this sentence as amended R DECREE For these reasons we affirm the conviction Because we noted an error in sentencing that this court is authorized to correct we amend the sentence to show a year four term of probation with the same special conditions imposed by the trial court and with this amendment the sentence is affirmed SENTENCE AMENDED CONVICTION AFFIRMED AMENDED AFFIM1tED 9 AND AS
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