State v. GoodwinState v. Goodwin
- Reporters:
- , ,
- Before:
- Sol Gothard, Thomas F. Daley, Marion F. Edwards
The defendant has appealed the sentence imposed as a result of his conviction of distribution of cocaine and guilty plea to being a second felony offender. For the following reasons, we conditionally affirm the defendant‘s conviction and sentence and remand this matter for an evidentiary hearing as to the defendant‘s waiver of his right to jury trial.
FACTS:
Agent Veronica Gordon testified that she was working undercover for the Jefferson Parish Sheriff‘s Office on April 28, 2003 when she proceeded to the Wilson Motel on Jefferson Hwy. in an undercover vehicle equipped with audio surveillance equipment. She met a white male, later identified as defendant, in the parking lot and discussed the purchase of “one-fourth” or $200.00 worth of crack cocaine. Agent Gordon explained that defendant motioned for her to come to his room where they further discussed the purchase. She testified that defendant left the room to call his
At trial, defendant testified that he bought the cocaine for his personal use. He stated Agent Gordon was accompanied by a male with whom he had done cocaine with in the past. Defendant testified that he believed Agent Gordon wanted the cocaine so they could all party and do the cocaine together. Defendant denied having any intention of distributing or selling the cocaine he had purchased from his supplier.
At the conclusion of trial, the trial judge found defendant guilty of distribution of cocaine. Defendant then pled guilty to being a second felony offender and was sentenced to fifteen years imprisonment.
LAW AND DISCUSSION:
In his sole explicit Assignment of Error, defendant argues his enhanced 15-year sentence as a second felony offender is excessive. He contends the trial court failed to articulate reasons for his original sentence and his enhanced sentence as required by
Any issue defendant has in regards to his original sentence is moot since his original sentence was vacated when he was resentenced as a multiple offender. Compliance with
The record indicates that defendant stipulated to his status as a multiple offender after being advised he would be sentenced to 15 years if the trial court accepted his plea. Under
The record reflects that defendant agreed to stipulate to his status as a second felony offender in exchange for the 15-year sentence he received. The Waiver of Rights form executed by defendant indicates that he was advised and understood
ERROR PATENT DISCUSSION:
The record was reviewed for errors patent in accordance with
The record in this case does not reflect that defendant was properly advised of his right to a jury trial in accordance with
Defendant was convicted of distribution of cocaine, which at the time of the offense was punishable by two to thirty years at hard labor.
Where no valid jury waiver is found in the record, Louisiana courts have traditionally set aside the defendant‘s conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Lokey, supra. However, in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, the Louisiana Supreme Court set out a procedure by which the case is initially remanded to the trial court for an evidentiary hearing on the question of whether the defendant validly waived the right to a jury trial. If the evidence shows that the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. The Supreme Court reserved the defendant‘s right to appeal any adverse ruling of the waiver issue. This Court has followed the procedure set forth in Nanlal. See State v. Lokey, supra; State v. Herrera, 98-677 (La.App. 5 Cir. 2/10/99), 729 So.2d 75, 80.
Thus, this matter is remanded to the trial court for an evidentiary hearing to determine if defendant validly waived his right to a jury trial. If the trial court determines that there was not a valid waiver of jury trial, the trial judge must set aside the conviction and sentence. If the trial judge determines there was a valid waiver of jury trial, then the trial judge must so rule and defendant‘s right to appeal the adverse ruling is reserved.
This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. See, State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975. Accordingly, on remand, if the trial court determines there was a valid waiver of the jury trial, the trial court is ordered to clarify the time from which the prescriptive period runs for seeking post-conviction relief.
We also note an error in the minute entry in that the minute entry for the trial, the original commitment, and the multiple bill commitment indicate defendant was convicted of count three, “40:967A F II SCHEDULE II DIST/WITD OF A CDS—COCAINE.” The record is clear that count three charged distribution of cocaine, not intent to distribute cocaine. Additionally, the transcript is clear that the trial judge found defendant guilty of distribution of cocaine, not intent to distribute cocaine. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). On remand, the trial court is ordered to correct the minute entry and the commitments to accurately reflect the transcript.
CONCLUSION:
For the foregoing reasons, the defendant‘s conviction and sentence is conditionally affirmed. This matter is remanded for an evidentiary hearing to determine whether defendant validly waived his right to jury trial and for further proceedings consistent with this opinion.
CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; CASE REMANDED FOR EVIDENTIARY HEARING.