State Of Louisiana VS Ricky W. Tisdale
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 KA 2159 STATE OF LOUISIANA VERSUS RICKY W TISDALE A Judgment Rendered June 8 2012 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 380891 The Honorable Allison H Penzato Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington Louisiana State of Louisiana By Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Kevin V Boshea Counsel for DefendantAppellant Ricky W Tisdale Metairie Louisiana BEFORE GAIDRY McDONALD AND HUGHES JJ 11 a 0 t4 X4t C GAIDRV J The defendant Ricky W Tisdale was charged by amended bill of information with three counts of distribution of MDMA and one count of possession with the intent to distribute MDMA violations of La R S 1 A 966 40 The defendant initially pled not guilty The defendant later changed his pleas to guilty as charged Thereafter the State filed a multiple offender bill of information alleging the defendant was a fourth felony habitual offender The defendant initially admitted to the allegations in the multiple offender bill At a subsequent hearing the trial court sentenced the defendant on each count to fifteen 15 years at hard labor without benefit The defendant then of parole with the sentences to run consecutively submitted a motion to withdraw the guilty plea on the multiple offender bill which the trial court granted Later the defendant submitted a motion to withdraw his motion to withdraw the guilty plea to the multiple offender bill At a hearing on the multiple offender bill the trial court found the defendant to be a fourth felony habitual offender under La R 15 S 529 1 court vacated the previously imposed sentences and The trial resentenced the defendant on each count to life imprisonment at hard labor without benefit of parole probation or suspension of sentence concurrently The sentences were to run The defendant made an oral motion to reconsider sentences and advised the trial court of his intent to appeal No written motion to reconsider the sentence was ever submitted The defendant ultimately filed a pro se motion for post conviction relief seeking an out appeal time of which was assignments granted of error The We defendant now affirm the appeals convictions designating three habitual offender adjudications and sentences The defendant was also charged with one count of possession of a firearm by a convicted felon but that charge is not part of this appeal wa FACTS Due to the defendant guilty pleas the facts underlying the instant s convictions were not fully developed However the State provided open file discovery and the State and the defendant agreed to stipulate that there were factual bases for the guilty pleas According to the St Tammany Parish Sheriffs Department Case Report which is included in the record the defendant was arrested after the St Tammany Parish Narcotics Task Force conducted an undercover investigation into illegal drug activity at the sresidence defendant On November 5 2003 the defendant sold twelve MDMA tablets to an undercover officer for 240 On November 12 2003 the defendant sold ten MDMA tablets to the undercover officer for 200 Again on January 2 2004 the defendant sold fifteen MDMA tablets to the undercover officer for 260 Surveillance of the defendant residence s during this time period revealed frequent traffic to and from the house The defendant was arrested and charged with one count of possession with intent to distribute MDMA on January 2 2004 and at that time had 3 in cash 878 in his pants pocket including the bills received from the sales to the undercover officer Around the same time as the defendant arrest s narcotics officers conducted a search of his residence and found items with drug residue numerous items of drug paraphernalia a gun and ammunition Officers arrested several people who were at or came to the residence at the time of the search some of whom stated that they had come to the residence to purchase MDMA marijuana or cocaine ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant contends that the trial court erred in finding him to be a fourth felony habitual offender In support of this assignment of error the defendant argues that his enrolled counsel 3 was not present when he admitted to the charges in the multiple offender bill that there was no waiver of such counsel that the counsel present with him apparently failed to review the multiple offender documents for legal sufficiency and failed to properly advise him and that the trial court did not sufficiently explain his privilege against selfincrimination at trial The defendant specifically recognizes that he is not raising an ineffective assistance of counsel argument and that issue is not properly before the court We find no support for the defendant sposition that the absence of his enrolled counsel created error At a proceeding on March 2 2009 the defendant pled guilty to counts 1 4 in the amended bill of information and admitted to the allegations in the multiple offender bill Throughout this proceeding the defendant was represented by Ms Rachael Yazbeck instead of the defendant scounsel of record Mr James A Williams The minutes and transcript of the March 2 2009 proceeding clearly show that Ms Yazbeck appeared on behalf of the defendant that the defendant was able to and did indeed consult with her during the proceeding and even that the defendant admitted satisfaction with his lawyer work At no time did the s defendant object to Ms Yazbeck representation request his enrolled s counsel or seek a continuance so that Mr Williams could be present Since the transcript plainly proves that Ms Yazbeck was representing the defendant and that this representation was acceptable to the defendant at that time the defendant has waived any objections to this issue Moreover the defendant cites no authority for his argument that he is entitled only to representation by his enrolled counsel Similarly we find no support for the defendant position that Ms s Yazbeck apparently failed to review the multiple offender documents for C legal sufficiency and failed to properly advise him This argument appears to be based upon mere speculation as nothing in the record supports the s defendant claims Furthermore the defendant has suffered no harm as a result of Ms Yazbeck srepresentation at the March 2 2009 proceeding On August 18 2009 while present in court with Mr Williams the defendant riled a motion to withdraw the guilty plea to the multiple offender bill which the trial court granted Then on October 27 2009 again while present in court with Mr Williams the defendant moved to withdraw his motion to withdraw the guilty plea on the multiple offender bill Thus the defendant ultimately admitted to the charges in the multiple offender bill with his enrolled counsel present In making the latter motion Mr Williams stated as cause for the motion that he has had the opportunity to review the transcripts of the defendant prior guilty pleas listed in the s multiple offender bill In the prior cases the defendant was properly advised of both his right to confront and cross exam sic witnesses against him thereby complying with the provisions of Louisiana Code of Criminal Procedure article 556 These actions all occurred prior to the defendant 1 s enhanced sentencing Thus the March 2 2009 admission as well as any apparent failures by Ms Yazbeck did not directly result in the defendant being adjudicated a multiple offender or receiving life sentences For the foregoing reasons we find that the defendant enrolled s counsel argument is without merit Defendant also argues in support of his contention that the trial court erred in adjudicating him a fourth felony offender that the trial court did not sufficiently explain his privilege against self at trial At the incrimination outset we note that the defendant apparently confuses his arguments as Assignment of Error No 1 concerns his adjudication as a multiple offender 5 but in support of this Assignment of Error the defendant argues that the trial court did not sufficiently instruct him regarding the waiver of privilege with respect to his guilty plea to the amended bill of information The defendant also complains that the trial court failed to adequately explain his rights to him though not his right against self incrimination before he admitted to the allegations in the multiple offender bill Regardless of what the defendant intended to assign as error we find that the trial court sufficiently explained the defendant srights to him in both instances First the defendant asserts that the advice he received regarding the privilege against self incrimination in connection with his guilty pleas to the instant convictions did not meet the standard of certain Louisiana Supreme Court cases because the trial court did not specify that the privilege applied at trial See State v Robicheaux 412 So 1313 1316 La 1982 and 2d State v Age 417 So 1183 1189 La 1981 In order for a guilty plea to 2d 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 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 State v Henry 2000 2250 La App 1 st Cir 1101 511 788 So 535 541 writ denied 2001 2299 La 6 818 2d 02 21 2d So 791 Boykin v Alabama 395 U 238 89 S 1709 23 L S Ct 2d Ed 274 1969 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 which he may have See Henry 788 So at 541 2d T The advice concerning the privilege against self incrimination given in this case is distinguishable from the cases cited by the defendant In Age by pleading guilty the defendant simply signed a form that stated that he waives right against self See Age 417 So at 1189 incrimination 2d In Robicheaux the trial court only told the defendant that by pleading guilty You also give up the right to remain silent because by pleading guilty re you not remaining silent and the record was devoid of evidence indicating that the defendant received advice concerning his privilege against self incrimination from any other source See Robicheaux 412 2d So at 1316 In the instant case the transcript of the proceeding indicates that at the time the defendant pled guilty to the charges in the amended bill of information the defendant was represented by counsel he was 30 years old he had obtained his GED he could read and write the English language and he was not under the influence of any drugs alcohol or other mind altering substance that could affect his judgment The trial court informed the defendant of the charges against him and the penalties for those offenses The trial court then advised the defendant of his constitutional rights as follows Court You have certain constitutional rights You have the right to hire a lawyer of your choice to represent you If you could not afford to hire one one will be appointed to represent you without charge You have the right to a trial in open court with or without a jury At that trial you have the right to confront the witnesses who accuse you of having committed the crime The State would be required to prove each and every element of the crime beyond a reasonable doubt You would have the right to subpoena witnesses to testify on your behalf and you would have the right to invoke the privilege against self incrimination and to remain silent If you were convicted at that trial you have the right to appeal to the First Circuit Court of Appeal the Louisiana 7 Supreme Court and from there to the United States Federal Court After explaining these rights to the defendant the trial court again asked if he understood the nature of the crimes that he was pleading guilty to the possible penalties he could receive and the constitutional rights discussed with him The defendant who was represented by counsel answered affirmatively and acknowledged again that he did wish to waive all of his constitutional rights The context in which the privilege of self incrimination is placed is significant See State v Foy 20002521 La App 1st Cir 6 808 01 22 So 2d 735 738 Consideration of everything that appears in the record here convinces us that the defendant knowingly and intelligently waived his rights in pleading guilty to the charges in the amended bill of information Unlike in Age or Robicheaux which the defendant relies upon the trial court in this case clearly placed the privilege against self incrimination within the context of at trial Immediately preceding and following the description of the privilege the court advised the defendant of his right to a trial with or without a jury his right to confront witnesses the State burden to prove s the crime beyond a reasonable doubt and the right to appeal if convicted at trial There was no logical interpretation of the use of the privilege against incrimination self other than at trial Thus the trial court sufficiently explained the waiver of the privilege against self incrimination to the defendant Finally the defendant alleges that before he pled to the multiple offender bill of information the trial court did not sufficiently explain his rights to him in particular what the State must prove at the multiple offender hearing Prior to accepting a defendant admission to the allegations of a s 8 habitual offender bill the trial court must inform the defendant of the allegation contained in the information and of his right to be tried as to the truth thereof according to law La R 15 1 D The trial court S 529 1 a must also advise the defendant ofthe right to remain silent and of the right to a formal hearing wherein the State would have to prove the allegations of the habitual offender bill See State v Gonsoulin 2003 2473 La App 1 st Cir 04 25 6 886 So 499 501 en banc writ denied 2004 1917 La 2d 04 10 12 888 So 835 A fullfledged colloquy is not required The law 2d requires that the record demonstrate that the proceedings as a whole were fundamentally fair and accorded the defendant due process of law Gonsoulin 886 So at 502 2d See A trial court failure to properly advise a s defendant of his rights under the Habitual Offender Law requires that the habitual offender adjudication and sentence be vacated State v Gonsoulin 886 2d So at 501 Compare State v Cook 2011 2223 La 3 82 12 23 3d So 1239 per curiam In the instant case at the arraignment on the multiple offender bill the trial court informed the defendant of the allegations in the bill by having the bill read aloud for the record Following the reading of the bill the trial court informed the defendant that he had the right to a hearing to be tried as to the truth of the allegations contained in the bill that the State must prove the allegations contained in the bill and that the defendant had the right to remain silent at that hearing After this recitation of rights the defendant who was represented by counsel admitted to the allegations It is clear that the trial court sufficiently advised the defendant of his rights in that situation complying with the requirements of La R 15 S 529 a D 1 and in light of our decision in Gonsoulin 9 We find the defendant sfirst assignment of error is without merit ASSIGNMENTS OF ERROR NOS 2 AND 3 In his second and third assignments of error the defendant contends that the sentences of life imprisonment are legally infirm and unconstitutional and that the trial court erred in denying the motion to reconsider sentences respectively At the outset we note that the defendant soral motion to reconsider sentence at the resentencing hearing did not include any grounds for the motion and that no written motion to reconsider sentences was ever filed Immediately before the trial court resentenced the defendant the defendant argued for leniency in sentencing pursuant to State v Dorthey 623 So 2d 1276 La 1993 Specifically the defendant objected to life sentences as out of proportion to the severity of the crimes that the defendant had pled guilty and that the predicate convictions listed in the multiple offender bill involved the sale of very small amounts of narcotics and were non violent crimes After hearing the defendant arguments the court proceeded s directly to sentencing on the multiple offender bill vacated the previous sentences and resentenced the defendant to life in prison on each count After detailing the factors that led to the decision to impose life sentences the trial court stated that a life sentence was not grossly out of proportion to the seriousness of the offense And therefore does not find a life sentence defendant constitutionally excessive as applied to this particular Any application for post conviction relief must be filed within two years of the date this sentence becomes final Anything further this point the defense counsel stated At this time I going to file an oral motion for the Court to m reconsider its sentence I supplement that in writing That ll 10 At motion needs to be filed so that I can reserve the right to appeal the Court sentence s And also Your Honor notice our intent to appeal the sentencing in this matter to the First Circuit Court of Appeal And likewise we will supplement that in writing The trial court said those matters were noted for the record and that it would wait for the written motions The record does not reflect that any such written motions were ever submitted Louisiana Code of Criminal Procedure art 881 in pertinent part 1 provides A 1 In felony cases within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence the state or the defendant may make or file a motion to reconsider sentence B The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based E Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based including a claim of excessiveness shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review The defendant failed to comply with Article 881 1 written motion to reconsider sentence He did not file a In addition the oral motion the defendant made did not set forth a specific ground for reconsideration and thus was not a properly made motion for reconsideration of sentence Accordingly in this case the defendant is procedurally barred from having his challenge to the sentences reviewed by this Court on appeal See State v Duncan 94 1563 La App lst Cir 12 667 So 1141 1143 en 95 15 2d Banc per curiam See State v Felder 2000 2887 La App 1st Cir 01 28 9 809 So 360 369 writ denied 2001 3027 La 10 827 2d 02 25 2d So 1173 Failure to urge a claim of excessiveness or any other specific ground for reconsideration of the sentence by oral or written motion at the trial court level precludes an appellate court review of a defendant s sclaim of sentence excessiveness State v Bickham 981839 La App 1 st Cir 99 25 6 739 So 887 891 2d Assignments of Error Nos 2 and 3 are without merit DECREE For the reasons set forth herein we affirm the s defendant convictions habitual offender adjudications and sentences CONVICTIONS HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES AFFIRMED 12
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