AMY, Judge.
The defendant pled guilty to two counts of aggravated second degree battery and was sentenced to serve fifteen years imprisonment at hard labor with five years of that sentence suspended on each count. The trial court ordered the sentences to be served concurrently. The defendant appeals, questioning the trial court's appointment of his step-son and the victim's son as his translator. The defendant also asserts deficiencies in the bill of information and in his guilty plea. The defendant also challenges his sentences as excessive. For the following reasons, we affirm the defendant's convictions, vacate his sentences, and remand the matter to the trial court for resentencing.
The defendant, Hung Nguyen, was charged on April 10, 2007, by bill of information with attempted second degree murder and second degree kidnapping arising out of an altercation with his wife on February 13, 2007. On November 8, 2007, the defendant was also charged with attempted second degree murder arising out of an altercation with his wife on September 16, 2007.
The defendant and the State agreed to enter into a plea agreement, wherein the defendant would plead guilty and the State would amend the previous April and November bills of information and charge the defendant with two counts of aggravated second degree battery, violations of La. R.S. 14:34.7.
The defendant subsequently pled guilty on September 1, 2009, to two counts of aggravated second degree battery. On October 29, 2009, the trial court sentenced the defendant to serve fifteen years imprisonment at hard labor for each count, with five years of each penalty suspended and subject to supervised probation. The trial court ordered the sentences to be served concurrently. The defendant filed a motion to reconsider sentence, which was subsequently denied.
The defendant appeals, asserting the following errors:
As the pleas and sentencing under each lower court docket number were conducted jointly at the trial court and were part of the same plea agreement, the two appeals lodged with this court were consolidated.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the fact of the record. After review, we find one error patent in addition to finding the court minutes are in need of correction.
The sentencing transcript indicates that the trial court, when imposing sentence, stated in pertinent part, "And he is going to pay any outstanding restitution, out of pocket expenses that this victim has." However, the trial court did not specify the amount of restitution owed, resulting in an indeterminate, illegal sentence. See State v. Joseph, 05-186 (La. App. 3 Cir. 11/2/05), 916 So.2d 378. Accordingly, the defendant's sentences are vacated, and the matter is remanded to the trial court for resentencing.
After review, we also find that the court minutes are in need of correction. The amended bills of information and the plea hearing transcript indicate that the defendant was charged with, and pled guilty to, aggravated second degree battery. However, the September 1, 2009 minute entry of the defendant's guilty plea reflects that the defendant pled guilty to "Aggravated Battery." Consequently, we order the trial court to amend the minute entry to accurately reflect the transcript. See State v. Blue, 09-1111 (La.App. 3 Cir. 4/7/10), 34 So.3d 447.
The defendant asserts that "[t]he district judge erred when she appointed the victim's son as the appellant's interpreter because he had an interest in the case that may have conflicted with the appellant's best interests, also acted as the victim's interpreter, and testified as a witness at the appellant's sentencing hearing."
On September 1, 2009, a guilty plea hearing was held. The record reveals that the defendant spoke Vietnamese as a first language. The transcript reveals that, at that hearing, the trial court asked the defendant whether he understood English. The defendant responded: "A little bit[,] not too much." The trial court then asked the defendant whether he had understood the proceedings thus far, to which the defendant responded, "Yes." The trial court asked Thanh Le, the defendant's step-son and the victim's biological son,
The record reveals that the defendant made no objection at either his guilty plea or sentencing hearing regarding Mr. Le's qualification as an interpreter or possible bias. In fact, the transcript reveals that at the sentencing hearing, counsel for the defendant asked Mr. Le if he would assist in translating, stating:
Under the contemporaneous objection rule, "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence." La. Code Crim.P. art. 841. Accordingly, the defendant waived any objections as to these alleged errors by failing to timely object.
Further, although arguing generally as to Mr. Le's potential bias, the defendant does not assert any specific prejudice arising out of Mr. Le's translation. In fact, the record indicates that while Mr. Le testified at the defendant's sentencing hearing, he did so on behalf of the defendant, asking the trial court to release the defendant on probation.
For these reasons, these assignments of error are without merit.
The defendant contends that the trial court erred in not requiring the interpreter to translate in the defendant's native language of Vietnamese.
The transcript indicates that, twice, the trial court noted for the record that Mr. Le was translating into English. However, similarly to the above, the defendant did not object, thus waiving these alleged errors. See La.Code Crim.P. art. 841.
For this reason, this assignment of error is without merit.
In his fourth assignment of error, the defendant contends that he did "not knowingly and intelligently waive his Federal and State Constitutional right to confront his accuser because the district judge did not explain to the appellant during his Boykin colloquy that he had a Constitutional right under the Federal and State Constitutions to confront his accuser."
In order for a guilty plea to be valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against self-incrimination. State v. Williams, 02-0707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. In addition, under La. Code Crim.P. art. 556.1,
The transcript of the guilty plea, in pertinent part, reads as follows:
The defendant, citing Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), asserts that the right to confront witnesses includes two types of protections: the right to physically face persons who testify against him, and the right to conduct cross-examination. The defendant argues, in brief, that "[m]erely explaining to a defendant that his attorney has a right to question witnesses does not adequately explain the defendant's Constitutional confrontation rights."
In State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560, our supreme court reversed the lower court's determination that the defendant's guilty plea should be vacated for the trial court's failure to adequately advise the defendant of his right to confront his accusers. In reversing, it stated:
Id. at 560 (citations omitted).
Here, we find that the trial court adequately advised the defendant of his right to confront the witnesses. The colloquy between the defendant and the trial court reveals that the trial court explained, twice, that at a trial, he would have been entitled to have his attorney ask questions of all the witnesses. Further, the trial court explained to the defendant that if he pled guilty, he would not be entitled to a trial and that he would not be entitled to have his attorney ask those questions. In each instance, the trial court asked the defendant whether he understood his rights to which the defendant responded in the affirmative each time. While the trial court did not expressly use the term "confront his accusers," the language suggests that the defendant would be able to physically face and question the testifying witnesses, and thus, we find the trial court's advisement of the defendant's right to confrontation adequate. See, e.g., State v. Keener, 41,246 (La.App. 2 Cir. 8/23/06), 939 So.2d 510; State v. Ford, 02-1394, 02-1642 (La.App. 4 Cir. 4/16/03), 846 So.2d 98, writ denied, 03-1401 (La.11/26/03), 860 So.2d 1132.
For these reasons, this assignment of error is without merit.
In his fifth assignment of error, the defendant asserts that this court "should reverse the appellant's conviction because the bill of information failed to list the name of the victim as required by C.Cr.P. Article 473.
A criminal defendant has a constitutional right to be advised of the nature and cause of the accusations against him. La.Const.1974, art. I, § 13. Louisiana Code of Criminal Procedure Article 464 provides: "The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."
Insofar as the defendant is asserting that his bill of information was "defective and failed to sufficiently advise him of
As such, the defendant's remaining claim is that his convictions should be overturned because, at his guilty plea hearing, the definition of a dangerous weapon, an element of aggravated second degree battery, was not explained to him. A dangerous weapon, defined at La.R.S. 14:2(A)(3), includes "any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm."
At the hearing, the trial court stated the following when informing the defendant of the nature of the charges against him in compliance with La.Code Crim.P. art. 556.1:
Further, the following exchange took place when the State provided a factual basis for the guilty plea on the February 2002 count:
The State similarly provided a factual basis for the second count, and the defendant again admitted it was true.
"The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature
For these reasons, these assignments are without merit.
In his last assignment of error, the defendant argues that his sentences are excessive. However, this assignment is moot in light of our decision to vacate the sentences due to an error patent.
The defendant's convictions are affirmed. For the foregoing reasons, the defendant's sentences are vacated, and the matter is remanded to the trial court for resentencing. Also, the trial court is instructed to amend the September 1, 2009 minute entry to accurately reflect that the defendant entered guilty pleas to aggravated second degree battery rather than aggravated battery.
