This criminal appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Robert Dillard Whittington, III, was initially charged with communication of false information of planned arson (a violation of La. R.S. 14:54.1) and terrorizing (a violation of La. R.S. 14:40.1). Whittington pled guilty to terrorizing with an agreed five-year sentence cap; in exchange, the prosecutor dismissed the arson charge as well as charges raised in a separate bill not included in the record. Whittington was sentenced to serve five years at hard labor. He now appeals. For the following reasons, we affirm Whittington's conviction and sentence.
Because Whittington pled guilty, the record reveals little evidence of the offenses that led to his conviction. According to the factual basis for the plea recited by the district attorney, sometime between August 8, 2008, and October 29, 2009, Whittington posted a letter at a deer camp that led the camp's owner to believe that a crime of violence was imminent or in progress or that circumstances dangerous to human life existed or were about to exist. Subsequently, Whittington sent a letter to the camp owner's home that likewise met the criminal conduct element of the terrorizing statute; it said, in part: "We comin [sic] after yo ass during deer season—when we can drop you like a deer! Right out of your stand....! We know now where you sit!" The letters were admitted into evidence. Although Whittington claims to be a resident of Texas, the letter was undoubtedly mailed to a residence in Haughton, Louisiana, which is in Bossier Parish, and the bill of information specified that the hunting camp was in Bossier Parish.
Charges were filed against Whittington in March 2010, and he retained an attorney. The trial court appointed a sanity commission to examine Whittington. Based upon the commission's report, on June 15, 2010, the trial court found Whittington competent to stand trial and to assist in his defense. After another hearing on November 15, 2010, the trial court allowed Whittington to represent himself, but appointed the public defender's office as standby counsel. Whittington filed a pleading complaining that venue was improper in Bossier Parish.
On January 3, 2011, the matter was called for trial. The record reflects that the trial court ensured that an attorney from the public defender's office was seated behind Whittington in the event he needed to consult with an attorney during the trial. The trial court addressed Whittington's motion challenging venue and denied the motion, along with his earlier motion to quash, on the grounds that the victim(s) of these offenses were in Bossier Parish when the threats were made. Whittington said that he wanted to appeal the trial court's ruling, and the trial court informed him that he could appeal the ruling along with his conviction if he were convicted.
After the trial judge explained trial procedure to Whittington in some detail, Whittington decided to enter into a plea agreement. The district attorney recited that, under the agreement, Whittington would plead guilty to terrorizing in exchange for a five-year cap on his sentence and the dismissal of the other pending charges. Whittington agreed that he understood the agreement. The trial court conducted a thorough Boykin examination of Whittington, and Whittington agreed that he understood and waived his right to a jury trial, his right to confront the witnesses against him, and his right not to
The matter came for sentencing on March 9, 2011. The trial court reviewed Whittington's presentence investigation and several letters sent to the court on the record. The trial court noted that Whittington was 70 years old, had retired from the United States Army as a lieutenant colonel and had a long-term third marriage. However, also noted was that Whittington and the recipient(s) of his communications had previously had run-ins that led to misdemeanor convictions for Whittington, and that during the investigation into the instant crimes, Whittington had made threats to "open fire on" sheriff's deputies. Accordingly, Whittington was sentenced to serve five years' imprisonment at hard labor, the maximum under the cap to which Whittington agreed. After imposing the sentence, the trial court informed Whittington, that he had "thirty days to appeal this sentence...."
Whittington filed a timely motion for appeal which the trial court granted. He also filed a "motion for post-conviction hearing" seeking a "reduction of cruel and unusual punishment," which the trial court denied. Whittington now appeals.
Whittington's pro se brief on appeal, per his instructions to this Court, consists of a filing initially lodged in this appeal as a criminal writ application in July 2011. In it, he argues the merits of various pretrial filings and further argues that the evidence is insufficient to support his conviction. Specifically, Whittington raises three assignments of error on appeal, submitting whether: (1) the evidence as relied upon is sufficient to support the finding of guilt; (2) venue was proper; and (3) the search and seizure of his home and seizure of items from it was valid with respect to the charge of terrorizing.
Notably, Whittington did not reserve his right to appeal any pretrial rulings when he unconditionally pled guilty to terrorizing. A criminal defendant may, with the consent of the prosecutor, enter into a plea agreement that includes the defendant's right to seek review of specific pre-plea rulings. State v. Crosby, 338 So.2d 584 (La.1976). In the absence of such an agreement, a defendant waives his right to appellate review of non-jurisdictional issues—including the sufficiency of the evidence—by entering an unconditional plea of guilty. State v. Mack, 45,552 (La.App.2d Cir.08/11/10), 46 So.3d 801.
In the instant case, the state recited a significant factual basis for the offense. The record contains evidence of actual guilt as to the offense charged, thereby providing a means by which the trial court could test whether or not Whittington's plea was intelligently entered.
Moreover, because the prosecution of a defendant who is incompetent to stand trial will lead to a reversal of his conviction and sentence, issues concerning the competence of a defendant to stand trial are jurisdictional errors that may be reviewed on appeal notwithstanding a defendant's guilty plea or his failure to specifically allege the issue as an assignment of error at the time he enters a Crosby plea. State v. Nomey, 613 So.2d 157 (La.1993). In the instant case, the trial court made a specific finding that Whittington was competent to stand trial prior to accepting the plea, so there is no jurisdictional error apparent from the record as to the issue of Whittington's competency.
As to Whittington's assignment of error regarding improper venue, although venue in a criminal case can present a jurisdictional defect under some circumstances, the law continues to require that a defendant properly preserve the issue for review. La.C.Cr.P. art. 615; State v. Burnett, 33,739 (La.App.2d Cir.10/04/00), 768 So.2d 783, writ denied, 2000-3079 (La.11/02/01), 800 So.2d 864. Assuming here that Whittington did preserve this issue for review on appeal (by challenging venue prior to pleading guilty and because of the trial court's assurance that he could appeal the venue determination), we find no error in the trial court's determination that venue was proper in Bossier Parish.
Whittington argues that he could not be prosecuted in Louisiana for these offenses; instead, he argues that venue was only proper in his home state of Texas.
The locus delicti of a crime "must be determined from the nature of the crime alleged and the location of the act or acts constituting it." State v. Hayes, 2001-3193 (La.01/28/03), 837 So.2d 1195, citing U.S. v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998); see also State v. Joshlin, 1999-1004 (La.01/19/00), 752 So.2d 834.
Louisiana R.S. 14:40.1 provides, in part:
According to the factual basis presented in conjunction with the guilty plea, one of the threats by Whittington was posted at a deer camp, the location of which was specified as Bossier Parish in the bill of information. That act was performed in Bossier Parish, thus unquestionably making venue proper there. Second, the letter containing the other threat was mailed to Bossier Parish. The act of communication traditionally involves the sending of information by one party and the receiving of information by a different party. If Whittington mailed his communication from Texas, his intended (and actual) recipients were residents of Bossier Parish. The act of communication was completed, in this case, by the receipt by the addressee of the letter in Bossier Parish. Further, even if Whittington was in Texas when he formed the intent to cause fear, that intent was directed toward causing fear to residents of Bossier Parish, and the nature of the crime of terrorizing is causing others to fear harm. So considering, we conclude that venue was proper in Bossier Parish, and this assignment of error has no merit.
For the foregoing reasons, the conviction and sentence of Robert Dillard Whittington, III are affirmed.