CLARENCE E. McMANUS, Judge.
The State of Louisiana appeals from the trial court's judgment granting defendant's motion to quash. We reverse the decision of the trial court and remand this case for further proceedings.
On March 31, 2008, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Andre Arlan Domino, Jr., with driving while intoxicated (DWI), third offense, in violation of LSA-R.S. 14:98(A)(D). The bill of information alleged that defendant had two prior convictions for DWI in violation of LSA-R.S. 14:98; the first on March 15, 2000, in case number S729608 in Second Parish Court, Division "B"; and, the second on February 18, 2004, in case number S892941 in Second Parish Court, Division "A." Both prior convictions were obtained by guilty pleas.
The defendant filed a motion to quash the bill of information, alleging that the judge and the attorney failed to sign the waiver of rights form in his first predicate offense. Defendant then filed a supplemental motion in which he argued that a review of the transcript demonstrated his plea was not voluntarily or knowingly entered.
After a hearing was held, the trial court granted defendant's motion to quash the first DWI predicate, finding that the State did not prove a valid waiver of Boykin rights. The State now appeals from the trial court's ruling granting the motion to quash
A presumption of regularity attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 04-255, p. 5 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. Procedurally, in an alternative argument, the State contends that defendant is barred from a collateral attack on his prior plea, and that his predicate conviction is now final
In State v. Balsano, 09-0735, p. 8 (La.6/19/09), 11 So.3d 475, 479 (per curiam), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under LSA-R.S. 15:529.1, State v. Shelton, 621 So.2d 769 (La.1993) or in habitual offender D.W.I, prosecutions, State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. This line of jurisprudence appears to set forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the recidivist habitual offender and driving while intoxicated statutes. Furthermore, this Court recognizes a motion
The Louisiana Supreme Court's decision in Carlos established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. Balsano, supra. Adopting the Court's prior opinion in Shelton, and acknowledging the presumption of regularity that attaches to prior final convictions, Carlos placed on the State the initial burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. Balsano, supra (citing Carlos, 98-1366 at 6, 738 So.2d at 559). If the State meets this initial burden, "the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea." Balsano, supra (quoting Carlos, 98-1366 at 6-7, 738 So.2d at 559). If the defendant makes the required showing, the burden reverts to the State to produce a "perfect" Boykin transcript, i.e., one "which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin." Id. (quoting Carlos, 98-1366 at 7, 738 So.2d at 559 n. 4 and Shelton, 621 So.2d at 775 n. 12). Anything less than a perfect transcript, "such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant's Boykin rights were prejudiced." Balsano, supra (quoting Carlos, 98-1366 at 7, 738 So.2d at 559).
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 642, writ denied, 03-3401 (La.4/2/04), 869 So.2d 874. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Under Boykin v. Alabama, the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his privilege against self-incrimination, and his rights to a trial by jury and confrontation. State v. Payton, 04-1024, p. 4 (La. App. 5 Cir. 1/11/05), 894 So.2d 362, 365. The record must also show the defendant freely and voluntarily waived those rights. Id.
The Balsano court explained that Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemeanor offenses as to which the defendant does not have the right to a jury trial, shrinking the three-right rule to two rights. Balsano, 09-0735 at 9, 11 So.3d at 479-80.
Whenever a misdemeanor guilty plea is to be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives these enumerated constitutional rights. State v. Vu, 02-1243 (La.App. 5 Cir. 4/8/03), 846 So.2d 67, 71. The trial judge must also ascertain that the accused understands what the plea connotes and its
In this case, at the hearing on the motion to quash, defendant challenged the first DWI predicate and argued that he was not represented by counsel at the time of the plea. He also argued that the plea was a "group plea" with four individuals pleading at one time. He contended that there was no articulated waiver of rights in the transcript. Defendant testified at the hearing that he had an 11th grade education and no GED or high school diploma. Defendant recalled being in Second Parish Court in March of 2000. He testified that the district attorney told him to sign the document and things could be resolved without him having to go to jail. He testified that he had no legal training and that when he agreed to plead his main concern was to avoid going to jail. Defendant testified that he had no legal counsel present. He also testified that there were three or four other defendants present that day and so he was not sure who the judge was talking to. The trial court found that according to the transcript, defendant never affirmatively said he understood the rights being waived, stating that "[a]t no time did the defense, as I read the transcripts, affirmatively said (sic) that they understood the rights that they were waiving." As such, the court granted defendant's motion to quash.
Defendant challenged the constitutionality of his predicate DWI guilty plea. The State had the initial burden of showing the existence of the guilty plea and that defendant was represented by counsel when the plea was entered. We find that the State met the first prong of its initial burden by providing proof of the existence of the 2000 predicate guilty plea.
However, defendant was not represented by counsel at the time he pled guilty to this offense, as the March 15, 2000 transcript reflects that defendant was in proper person. Defendant had a right to counsel at the time of his predicate plea. Regardless of whether imprisonment is actually imposed, Article I, Section 13 of the Louisiana Constitution guarantees a defendant the right to counsel in any case punishable by a term of imprisonment. State v. Wise, 04-1445, p. 3 (La.App. 5 Cir. 5/31/05), 905 So.2d 387, 390. A defendant has the right to counsel under the Sixth Amendment of the United States Constitution only where a sentence of imprisonment is imposed. Id. A sentence of imprisonment includes a suspended sentence in which the defendant is placed on probation. Id. In this case, defendant received a sentence for his first predicate plea that included imprisonment for six months, all of which was suspended except for two days to be served in jail or on Home Incarceration, whichever defendant was qualified for. He received one-year of active probation. Thus, we find that defendant was entitled to counsel.
The right to counsel is a fundamental right guaranteed by the state and federal constitutions. State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 493. Once informed of the right to counsel, however, an accused may intentionally waive the right. Id. Because the predicate plea was uncounseled, the State had the burden of proving a valid waiver of counsel. An uncounseled misdemeanor conviction, absent a valid waiver of counsel, may not serve as a predicate for enhancement of a subsequent DWI offense. State v. Bush, 03-1438 (La.App. 5 Cir. 4/27/04), 873 So.2d 795, 798. The State bears the burden of proving that an unrepresented
Before accepting a misdemeanor guilty plea, the trial judge should expressly advise the defendant of his right to counsel and to appointed counsel if he is indigent. State v. Rodrigue, 01-377 (La. App. 5 Cir. 8/28/01), 795 So.2d 488, 493. The trial judge should determine if the waiver is knowing and intelligent under the circumstances. Id. In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. Id. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question which depends upon the facts and circumstances of each case. Id. (citing State v. Strain, 585 So.2d 540, 542 (La. 1991)). The critical issue on review of the waiver of rights is whether the defendant understood the waiver. State v. Nabak, 03-919 (La.App. 5 Cir. 12/30/03), 864 So.2d 758, 762.
In the present case, we find that the transcript of the March 15, 2000 predicate conviction reflects that defendant, who was unrepresented, knowingly and intelligently waived his right to counsel before pleading guilty to the predicate misdemeanor DWI that was used to enhance the subsequent DWI offense. According to the transcript, four defendants were present for the colloquy, with two of the defendants, including Domino, appearing in proper person. At the beginning of the proceeding, the trial judge confirmed defendant's date of birth as May 16, 1971, and also confirmed his social security number and driver's license number. The judge also confirmed that defendant had a twelfth grade education.
The judge then said the following:
The defendants, as a group, responded, "No, sir."
The trial judge then proceeded to explain to the group the maximum and minimum sentences that could be imposed for first offense DWIs. The judge specifically told Domino that he was the only defendant who qualified for the additional two days of parish prison or home incarceration due to his blood alcohol concentration. The judge then asked the following to the group in the colloquy:
Thereafter, the judge explained the maximum and minimum sentences that could be imposed for second and third offense DWIs. He also explained that a third offense DWI is no longer a misdemeanor, but would be considered a felony. The judge then asked if there were any questions. The transcript reflects that the defendants responded, as a group, "No, sir." The judge then explained the maximum and minimum sentences that could be imposed for fourth offense DWIs, which would also be considered felonies.
The judge then asked the following in the colloquy:
The transcript reflects that the defendants responded as a group, "Yes, sir." Thereafter, the transcript reflects the following:
The transcript shows that Domino was not specifically asked at this point if he had any questions. The transcript is unclear as to why the court responded "No" after the response of Forrest and before addressing Nichols.
After accepting the pleas, the trial judge sentenced each defendant individually.
We find that, according to the transcript, the trial judge did expressly advise defendant of his right to counsel and to appointed counsel if indigent. The judge explained that the right to counsel was being waived. Although the transcript does not reflect Domino declared that he understood this, the court asked if there were any questions and the defendants responded as a group that there were none. Further, at the beginning of the colloquy, the judge told the defendants to stop him at any time if they did not understand, stressing the importance of their need to understand. The transcript does not include any discussion regarding defendant's mental condition or specific inquiries about defendant's understanding of his waiver of counsel.
However, the determination of whether a defendant understood his waiver of counsel prior to pleading guilty to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. State v. Kerwin, 02-103 (La. App. 5 Cir. 5/15/02), 821 So.2d 28, 31. The Louisiana Supreme Court has recognized that crimes of driving while intoxicated are non-complex crimes, and are almost self-explanatory, thus requiring less judicial inquiry to determine if defendant understood his waiver of counsel in the case of a guilty plea. Nabak, 864 So.2d at 762 (citing Strain, 585 So.2d at 544). See also Theriot, supra at 1083-84, where this Court recognized that the judge did not make an inquiry into the defendant's background and competency. However, this Court determined that in light of the totality of the circumstances, there was a valid waiver of counsel.
The transcript also reflects that the trial judge informed defendant of the nature of the DWI charge and the penalty range for this charge, as well as the ranges for subsequent DWI offenses. Also, at the beginning of the colloquy, the judge confirmed defendant's birthdate and education.
In the appeal presently before us, the trial judge concluded that according to the transcript there was no affirmative statement made by defendant that he understood the rights being waived. In the trial court's ruling, however, no mention is made of the waiver of rights form that was executed in predicate guilty plea.
The waiver of rights form in case number S729608 (the predicate plea at issue) includes defendant's date of birth, his social security number, his driver's license number, and his education level. The waiver form reflects defendant was charged with an offense that occurred on September 18, 1999, in violation of LSA-R.S. 14:98(B), and that he was pleading guilty to the offense "under 894." The form reflects his intoxilyzer reading was.204. The form also reflects the definition of the crime as well as the rights defendant was giving up, including his right to a judge trial, his right to confrontation, and his right not to be compelled to incriminate himself. Also, the form reflects the following language regarding waiver of counsel:
Further, the waiver of rights form provides that by pleading guilty defendant is authorizing the court to impose up to the maximum sentence provided by law without a trial. The form reflects the penalty ranges for first offense DWI, as well as for subsequent DWI offenses. The form also sets forth the sentence that defendant would actually receive for the charged offense.
The form provides the following regarding the guilty plea:
Defendant then signed the form.
We find that there is sufficient evidence of a valid waiver of counsel when considering the colloquy and the waiver of rights form. Defendant was advised of his right to counsel at all stages of the proceedings and his right to appointed counsel if indigent. The judge confirmed information about defendant, including his birthdate and his level of education. The judge advised defendant of the nature of the offense and the penalty ranges he faced for the offense, as well as the penalty ranges for future DWI offenses. As recognized by the jurisprudence, defendant pled to an uncomplicated, misdemeanor offense. Defendant was given the opportunity to ask questions and was encouraged to do so. The record reflects he did not ask questions during the proceedings. See Theriot, 782 So.2d at 1085, where this Court, in determining the validity of a waiver of counsel, considered that the defendant signed a waiver of rights form acknowledging his right to ask questions and the transcript of the plea indicated that the defendant did not ask questions or hesitate in pleading guilty. Further, it appears that in the present case defendant received the benefit of pleading under LSA-C.Cr.P. art. 894, a factor considered relevant by this Court in Theriot, supra.
Defendant claimed that the first predicate plea was invalid because there was no trial judge signature on the waiver of rights form. Even though the trial judge did not sign the waiver of rights form in the predicate guilty plea, the record of that predicate offense sufficiently established that defendant had knowingly and voluntarily waived his constitutional rights. See State v. Perkins, 99-1084, pp. 4-5 (La.App. 5 Cir. 1/25/00), 751 So.2d 403, 407-08, writ denied, 00-0656 (La.12/15/00), 777 So.2d 476. See also State v. Jones, 537 So.2d 1244, 1250 (La.App. 4 Cir.1989).
Further, although the trial judge did not sign the waiver of rights form, (thereby acknowledging that he read and reviewed the contents of the waiver of rights form with defendant and gave him an opportunity to ask questions), the transcript presented regarding the predicate offense reflects a colloquy with the judge, who personally addressed the details set forth in the waiver of rights form, including the advisal of defendant's right to counsel and his Boykin rights. Although the transcript does not appear to reflect that defendant was personally asked if he had any questions, the group was advised of their opportunity to do so. Further, defendant acknowledged by means of his signature
Defendant also challenges the colloquy of the predicate offense because a group of defendants was involved. While a personal colloquy between the trial court and the defendant is preferred, group guilty pleas are not automatically invalid. See State v. Filer, 00-0073, p. 2 (La.6/30/00), 762 So.2d 1080, 1081 (per curiam); State v. Verdin, 02-2671, p. 6 (La. App. 1 Cir. 2/3/03), 845 So.2d 372, 376-77 (per curiam). The judge personally addressed each defendant individually at times, and then collectively as a group as well. The proceedings were adequate to establish that defendant knowingly and expressly waived his Boykin rights and his right to counsel.
We therefore find that defendant failed to meet this burden of making an affirmative showing of an infringement of his rights or a procedural irregularity in the taking of the predicate plea. As such, the burden would not have returned to the State. Nevertheless, we could find that the State did produce a "perfect Boykin transcript, which reflected a voluntary, informed, and articulated waiver of the Boykin rights. The colloquy reflects that defendant was advised by the judge of his Boykin rights and that he was waiving these rights by pleading guilty. Further, the group agreed that pleading guilty was a knowing, intelligent, free and voluntary act on their part and acknowledged that no promises or threats were made to encourage the guilty pleas.
The trial court stated that it determined that the transcript was insufficient because there was no affirmative statement made by defendant that he understood the rights being waived. However, there is no inflexible, magic word formula for establishing the voluntariness of the plea, and that the court should have considered the waiver of rights form in addition to the transcript if the judge believed the transcript to be "imperfect." He then should have weighed the evidence to determine whether the defendant's Boykin rights were prejudiced as explained in Balsano, supra.
We find that the first predicate conviction is not constitutionally infirm and may be used for enhancement purposes, and therefore the trial court erred in granting defendant's motion to quash.
For the above discussed reasons, the decision of the trial court granting the motion to quash is reversed and the matter is remanded for further proceedings.
