State v. GuilbeauState v. Guilbeau
- Reporters:
- ,
- Before:
- Clarence E. McManus, Edward A. Dufresne Jr., Walter J. Rothschild
STATEMENT OF THE CASE
On March 2, 2000, the Jeffеrson Parish District Attorney filed a bill of information charging defendant, Allen Guilbeau, with possession with intent to distribute Diazepam, a violation of
On September 5, 2000, the state amended the bill of information to add Count 2, possession of Alprazolam, a violation of
On January 29, 2001, defendant withdrew his pleas of not guilty and pled guilty аs charged to both counts. In accordance with the plea agreement, the trial court sentenced defendant to five years on each count and ordered that the sentences run concurrently with eaсh other.
The state filed a multiple offender bill of information alleging defendant to be a third felony offender. The state specified that it sought enhancement of defendant‘s sentence on Count 1, possession with intent to distribute Diazepam. Defendant was apprised of the allegations in the multiple offender bill and entered an admission. The court accepted defendant‘s admission and found him to be a third felony offender. Pursuant to the
On January 6, 2003, defendant filed an application for post-conviction relief in the district court. He argued that his admission to the habitual offender bill of information was infirm, as the 1991 predicate conviction for possession of LSD was the result of a guilty plea under the former
On March 17, 2003, the trial court issued an Order denying defendant relief as to both claims. The court indicated that defendant‘s claim regarding the use of the 1991 conviction as a predicate in the habitual offender bill was a sentencing matter not properly raised in an application for post-conviction relief. The court further found that defendant had failed to meet his burden of proof with regard to the ineffective assistance claim.
Defendant applied to this Court for supervisory writs from the trial court‘s denial of his post-conviction relief application. On June 3, 2003, this Court granted writs for the limited purpose of allowing defendant the opportunity to seek reinstatement of his appeal rights since defendant hаd not timely filed a motion for appeal following his guilty plea and sentencing. This Court did not, in its writ denial, reach the merits of defendant‘s post-conviction claims.
Defendant filed a motion for an out-of-time appeal in thе district court on June 17, 2003. The trial court granted the motion on July 7, 2003.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant complains that his admission to the allegations in the habitual offender bill of information was invalid because one of the two predicate conviсtions alleged by the state could not legally be used for enhancement purposes. Defendant states that he pled guilty in 1992 to possession of lysergic acid diethylamide (“LSD“) under the provisions of
A. Whenever any person who has not previously been convicted of any offense under this Part pleads guilty to or is convicted of having violated R.S. 40:966(C), R.S. 40:967(C), R.S. 40:968(C), R.S. 40:969(C), 40:970(C) of this Part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonаble terms and conditions as may be required. Among such conditions the court shall order that the defendant perform not less than one hundred hours of court-approved community service that may include manual labor.
B. Upon the defendant‘s violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.
C. Upon fulfillment of the terms and conditions of probation imposed in accordance with this Section, the court shall discharge such person and dismiss the proceedings against him.
D. Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982. E. Discharge and dismissal under this Section may occur only once with respect to any person.
The Louisiana Supreme Court has held that a dismissal of prosecution pursuant to
The state concedes that defendant pled guilty under
ASSIGNMENT OF ERROR NUMBER THREE1
Defendant complains that his trial counsel was ineffective in failing to recognize that the state was barred from using the 1992 LSD conviction as a predicate offense in the habitual offender bill of information.
A criminal defendant is guaranteed the effective assistance of counsel by thе
The Sixth Amendment does not guarantee “errorless” сounsel, or counsel judged ineffective by hindsight. Rather, a defendant is guaranteed an attorney who is reasonably likely to render effective assistance. State v. LaCaze, 99-0584, p. 20 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). Judicial scrutiny must be highly deferential, and claims of ineffective assistаnce are to be assessed on the facts of the particular case as seen from counsel‘s perspective at the time. The courts, therefore, must indulge a strong presumption that counsel‘s conduct fаlls within the range of reasonable professional assistance. Id.
Generally, an ineffective assistance of counsel issue is a matter more properly addressed in an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted. State v. Truitt, 500 So.2d 355, 359 (La. 1987). It is well settled, however, that
ASSIGNMENT OF ERROR NUMBER TWO
Defendant argues that the trial court erred in denying his motion to rеconsider sentence. There is no evidence in the record that defendant preserved his right to appeal either of his sentences by way of an oral or written motion to reconsider sentence, as required by
ERROR PATENT DISCUSSION
The record was reviewed for errors patent.
First, there is no evidence in the record that defendant was arraigned after the bill of information was amended to add Count 2. Defendant did not object to the court‘s failure to arraign him on the amended charge, nor does he complain of the error on appeal. He has, therefore, waived the issue and no corrective action is required. State v. Smith, 02-1018, p. 10 (La.App. 5 Cir. 3/11/03), 844 So.2d 119, 126.
Second, Defendant failed to make a timely motion for appеal. When this Court remanded the matter for the limited purpose of allowing defendant the opportunity to seek reinstatement of his appeal rights, defendant should have done so by way of an application for post-conviction relief in the district court.
Finally,
In accordance with the above, we vacate the defendant‘s third felony offender finding and enhanced sentence and remand this matter for resentencing on Count 1 of the original bill of information. We further affirm defendant‘s conviction on Count 1 and conviction and sentence on Count 2.
REVERSED AND REMANDED.