STATE of Louisiana v. Curtis B. GONSOULIN.
No. 2003 KA 2473.
Court of Appeal of Louisiana, First Circuit.
June 25, 2004.
886 So.2d 499 (2004)
Walter P. Reed, Covington, Dorothy Pendergast, Metairie, for Plaintiff-Appellee, State of Louisiana.
Before: CARTER, C.J., FOIL, WHIPPLE, PARRO, FITZSIMMONS, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, and McCLENDON, JJ.
CARTER, C.J.
We consider this matter en banc to resolve a conflict within this circuit as to the timeliness of the advice of rights at a habitual offender hearing.
BACKGROUND
The defendant, Curtis B. Gonsoulin, was charged by bill of information with one count of aggravated incest, a violation of
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, the defendant contends that the trial court erred in failing to properly inform him of his right to remain silent and of the allegations contained in the multiple offender bill of information. The defendant argues that his stipulation to being a habitual offender was invalid, as he was not advised of his right to remain silent prior to entering the stipulation. The defendant acknowledges that he was advised of his rights at his arraignment on the habitual offender bill of information; however, he contends that this was not sufficient to meet the requirements that he be advised of his right to remain silent prior to entering the stipulation.
D. (1)(a) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state or adjudicated a delinquent under Title VIII of the Louisiana Children‘s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of Subsection A
of this Section, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction or adjudication of delinquency. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b). The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies, or adjudicated a delinquent for an offense or offenses specified above as set forth in the information. * * *
(3) When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling. (Emphasis added.)
A trial court‘s failure to properly advise a defendant of his rights under the Habitual Offender Law requires that the habitual offender adjudication and sentence be vacated. See State v. Fox, 98-1547 (La.App. 1 Cir. 6/25/99), 740 So.2d 758, 760-61; State v. Griffin, 525 So.2d 705, 707 (La.App. 1 Cir.1988). Prior to accepting a defendant‘s acknowledgement, confession, or admission to the allegations of the habitual offender bill, the trial court must advise the defendant of the 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. Brown, 95-0755 (La.App. 1 Cir. 6/28/96), 677 So.2d 1057, 1069-70. Furthermore, the language of the Habitual Offender Law must be strictly construed. State v. Jones, 504 So.2d 920, 922 (La.App. 1 Cir.1987). In this regard, an implicit and integral aspect of the requirements of
In State v. Harris, 95-0900 (La.5/19/95), 654 So.2d 680 (per curiam), the Louisiana Supreme Court stated:
Admissions of identity at a multiple offender hearing implicate the defendant‘s Fifth Amendment privilege against self-incrimination. Nevertheless, multiple offender proceedings “simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence.” This Court has therefore declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty. In the absence of any allegation or showing that the admission was involuntary,... the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law. (Citations omitted.)
Based on Harris, it is clear that a full-fledged colloquy is not required. Nonetheless, the record does show that at the July 10, 2002 arraignment, the defendant was fully advised of his rights at the arraignment on the habitual offender bill. At that hearing, defense counsel waived the reading of the bill and the defendant stood silent at the time he was asked to enter his plea. Thus, it appears that at the arraignment hearing the defendant understood his right to remain silent as he chose to invoke that right by remaining silent when asked by the court for his plea. At the subsequent hearing, on August 14, 2002, the defendant was not readvised of his rights at the time his attorney stipulated to the allegations set forth in the habitual offender bill.
We find that the defendant was sufficiently advised of his rights at his arraignment and that advice of rights was sufficient to comply with the requirements of
We agree with the dissenting opinion in State v. Tyrone, 00-0927 (La.App. 1 Cir. 2/16/01), 808 So.2d 445, 449. To the extent that this court‘s decision is inconsistent or in conflict with that opinion, State v. Tyrone is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, the defendant contends that the trial court erred in failing to vacate his original sentence before imposing the sentence as to
We agree with the defendant‘s contention that the court failed to vacate the original sentence before sentencing the defendant as a habitual offender. Although it is apparent from the trial court‘s actions that it intended to vacate the original sentence, out of an abundance of caution, we vacate the defendant‘s original sentence. See State v. Jackson, 00-0717 (La.App. 1 Cir. 2/16/01), 814 So.2d 6, 11 (en banc), writ denied, 01-0673 (La.3/15/02), 811 So.2d 895. We hereby remand the case for the trial court to amend the minute entry and commitment to reflect that the original sentence has been vacated.
ASSIGNMENT OF ERROR NUMBER THREE
In his third assignment of error, the defendant contends that the trial court erred in failing to advise him of the delays for applying for post-conviction relief at his sentencing as a habitual offender. The defendant acknowledges that the trial court informed him of the post-conviction delays at the time of his original sentencing; however, he asserts that the trial court failed to advise him of the delays at the time he was sentenced as a habitual offender. The defendant requests this court to direct the trial court to provide him with written notice of the correct prescriptive period for applying for post-conviction relief.
CONCLUSION
For the above reasons, the defendant‘s conviction, habitual offender adjudication and enhanced sentence are affirmed. The defendant‘s original sentence is vacated and this matter is remanded with instructions to the trial court to amend the minute entry and commitment to reflect that the original sentence has been vacated. The trial court is further ordered to record the defendant‘s receipt of written notice of the prescriptive period for applying for post-conviction relief, which notice is to be given within ten days of the rendition of this opinion.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND ENHANCED SENTENCE AFFIRMED; ORIGINAL SENTENCE VACATED; REMANDED WITH ORDERS AND INSTRUCTIONS.
FITZSIMMONS, J., dissents and assigns reasons.
GAIDRY, GUIDRY and PETTIGREW, JJ., dissent for reasons assigned by FITZSIMMONS, J.
KUHN, J., concurs and assigns reasons.
I respectfully dissent. Before the defendant “acknowledges or confesses in open court,” the law, as written by the legislature, requires that he must be “duly cautioned as to his rights....”
KUHN, J., concurring.
I concur to state that the remand directed here is unnecessary. Correction of records below does not require a remand and may be accomplished by a simple order directed to the trial court. Judicial economy and efficiency would dictate this alternative course of action