State v. HayesState v. Hayes
Defendant, Joseph Hayes, Jr., was charged in separate bills of information with possession of heroin,
ASSIGNMENT OF ERROR NUMBER ONE
Defendant alleges the trial courts in Orleans Parish failed to comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) in accepting his 1961 plea of guilty to theft and his 1964 plea of guilty to armed robbery. Thus, it is argued that those pleas were not proven to have been knowing and voluntary.
State v. Bolton, 379 So.2d 722 (La.1979) stated that counseled pleas before the decision in Boykin v. Alabama, supra, are presumed valid without the express waiver of
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant contends that the 1972 aggravated battery conviction is invalid because he was not adequately informed of his right against self-incrimination.
The transcript of the 1972 proceeding in which Hayes entered a plea of guilty to aggravated battery shows that the trial judge referred to defendant‘s right against self-incrimination in the following terms:
“Q. You have the right to remain silent, if you choose; do you understand that right?”
Immediately preceding this question, defendant had been informed of his right to a jury trial and his right to confront the witnesses against him. The bill had been amended from first degree murder to aggravated battery. Accompanied by counsel, defendant pleaded guilty to the latter, apparently as a result of a plea bargain. There was meager but adequate compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
There is no merit to this assignment.
ASSIGNMENT OF ERROR NUMBER THREE
Defendant pleads double jeopardy due to the prosecution‘s use of his 1972 aggravated battery conviction as both an element of his felon-firearm conviction and as a predicate for his multiple offender adjudication.
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth, provides that no person shall “be subject for the same offenses to be twice put in jeopardy of life or limb.”
Designed to embody the protection afforded by the common-law,4 the double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free to define crimes and fix punishments. Once the legislature has acted, a court may not impose more than one punishment for the same offense and the prosecution ordinarily may not attempt to secure that punishment in more than one trial. Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 193-194. State v. Doughty, 379 So.2d 1088, 1090 (La., 1980).
Under these precepts, defendant has not been twice put in jeopardy of life or limb for the same offense. He has been punished once for aggravated battery, once as a felon with a firearm, and once for heroin possession. The habitual offender statute does not create new or separate
This assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER FOUR
Defendant contends the trial judge erred in adjudicating him as a fourth felony offender without a hearing or guilty plea. A defendant is entitled to a hearing in a multiple offender proceeding.
This assignment lacks merit.
DECREE
For the foregoing reasons, the conviction and sentence of defendant, Joseph Hayes, Jr., are affirmed.
AFFIRMED.
KLIEBERT, J. ad hoc, concurs in the result.
CALOGERO, J., dissents and assigns reasons.
DENNIS, J., dissents with reasons.
DENNIS, Justice, dissenting.
I respectfully dissent.
I agree that the effort to comply with Boykin v. Alabama was meager. It was, in fact, deficient.
In State v. Martin, 382 So.2d 933 (La. 1980), this court held that a plea based on a colloquy similar to that in question was not shown to have been intelligent and voluntary and could not be used as a predicate for a subsequent charge. The information conveyed by such a presentation of an accused‘s right against self-incrimination is insufficient because it fails to inform the defendant of his right to stand trial without being forced to testify against himself; because the choice to stand trial is the crux of the decision to plead guilty; because an accused cannot make this choice intelligently if he is unaware of the rights he may exercise at trial; and because the record does not show in any way that defendant intends to waive his right not to testify against himself at trial. Id. 936. The cases of State v. Bowick, 403 So.2d 673, (La.1981); State v. Cusher, 400 So.2d 601 (La.1981), and State v. Warren, 402 So.2d 662 (La. 1981) are all distinguishable from the present case for similar reasons.
Unlike the present case, the record of the predicate pleas in those cases was not completely silent as to the defendant‘s knowledge and voluntary waiver of his right to stand trial without being forced to testify against himself and his right to confront the witnesses against him. In those cases there was a written waiver form, previous court appearances, and attorneys’ written certification of advisement of rights, and other matters of record from which a majority of this court could reasonably infer that the accused had made a knowing and intelligent waiver of his constitutional
CALOGERO, Justice, dissenting.
I dissent from the majority opinion being of the view that this case is indistinguishable from State v. Martin, 382 So.2d 933 (La.1980) in which this Court held that a guilty plea based on a colloquy similar to the one in this case was not shown to have been intelligently and voluntarily entered.
Therefore, for this reason, as well as the reasons assigned in dissent by Justice Dennis, I dissent from the majority opinion.
Notes
The four predicate felonies charged by the state are:
(1) June 12, 1961, guilty plea to theft in violation of
(2) January 14, 1964, guilty plea to armed robbery in violation of
(3) September 21, 1972, guilty plea to aggravated battery in violation of
(4) May 7, 1980, guilty plea to possession of heroin in violation of