State v. GodejohnState v. Godejohn
Defendant, Cecil Godеjohn, pleaded guilty to simple burglary,
In his brief in this court, defendant calls our attention to the trial court‘s failure to perform his duty to determine that defendant expressly and knowingly waived his constitutional rights in entering his guilty plea. Article 920(2) of the Code of Criminal Procedure permits consideration on appeal of “[a]n error that is discoverable by a mere inspection of the pleadings and proceedings and without inspeсtion of the evidence.” This article is an embodiment of the rule to be found in State v. Stanford, 248 La. 630, 181 So.2d 50 (1965) where this court said:
The record in a criminal case for the purpose of considering whether there is error patent on the face of the record * * includes the caption in the case, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea of the accused, the mention of the impanelling of the jury, verdict, and judgment of the court. (Emphasis Added.)
The court went on to say, “testimony not attached to or made a pаrt of a bill of exception cannot be considered by this court even though the testimony is included in the transcript.” State v. Palmer, 251 La. 759, 206 So.2d 485 (1968).
The colloquy which occurs when the court canvasses the matter with the accused to make sure he has a full understanding of what the plea connоtes and of its consequences is a part of the plea of the accused. It is in the nature of a pleading or procеeding, rather than testimony or evidence. Therefore, a review of it for error on appeal constitutes a mere inspеction of the pleadings and proceedings without inspection of the evidence.
At the plea proceeding, the trial court questioned the defendant on the following topics: whether he understood that restitution would be a condition if probation were granted; whether there were any other agreements, conditions or promises attached to his plea; whether anyone had forced him to plead; whether he understood the nature of the offense and the maximum allowable sentence; and whether hе was satisfied with the work and advice of his attorney.
The trial court did not advise the defendant of his right to a jury trial, his right to confront his accusеrs, and of his privilege against self-incrimination or make any inquiry as to his understanding of these rights and that by pleading guilty he was waiving them.* The plea оf the defendant and the proceedings, therefore, do not disclose that the defendant waived these constitutional rights. Accоrdingly, the due process requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) require that the guilty plea be vacated, the conviction and sentence reversed, and that the defendant be permitted to plead anew. State v. Williams, 384 So.2d 779 (La.1980). See also, State ex rel. Jackson v. Kenderson, 260 La. 90, 255 So.2d 85 (1971).
REVERSED AND REMANDED FOR DEFENDANT TO ENTER A NEW PLEA.
BLANCHE, LEMMON and MARCUS, JJ., dissent and assign reasons.
BLANCHE, Justice (dissenting).
I must respectfully dissent. Failure of the trial judge to Boykinize a defendant is not a patent error. In my opinion, defendant‘s only remedy is to seek post-conviction relief.
LEMMON, Justice, dissenting.
The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), only prohibited the presuming of a voluntary and knowledgeable plеa from a silent record. That decision did not establish a per se rule that the plea is invalid unless the trial judge specifically articulаtes the three rights mentioned in the opinion.
The record in the present case is not silent on the nature of the plea. Rather, the record establishes that defendant entered his guilty plea voluntarily and knowingly, despite the trial court‘s failure to parrot the three rights noted in State ex rel. Jackson v. Henderson, 260 La. 90, 260 So.2d 90 (1971).1
MARCUS, Justice (dissenting).
Defendant pled guilty to simple burglary and was sentenced to serve three years at hard labor. On appeal, he reliеs on two assignments of error for reversal of his sentence, that is, that the trial judge erred in failing to comply with the sentencing guidelines and in imposing an exсessive sentence. In brief to this court, defendant raises for the first time that he was not properly Boykinized at the time he entered his pleа of guilty in the trial court.
The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mеre inspection of the pleadings and proceedings and without inspection of the evidence.
Defendant did not designate the error (failure of proper Boykinization) in his assignment of errors as required by
In the instant case, while the transcript of the guilty plea proceedings does not rеflect that defendant waived his Boykin rights, the minutes of court do reflect that he was properly Boykinized.1 Had defendant designated the lack of Boykinization as an assigned error, the trial judge would
Not having initially designated the error (lack of Boykinization) as an assigned еrror did not and does not leave defendant without a remedy. First, he could have amended his assignment of errors prior to hearing befоre this court rather than merely submitting a new argument in his brief. Since defendant raises a due process issue, his remedy now is by application for post-conviction relief (
While procedural rules are technical, they usually have a valid purpose. The assignment of errors procedure is designed to insure that issues will be raised for review in an orderly manner. I do not consider that the proper procedure was followed here. Accordingly, I respectfully dissent.