State v. JosephState v. Joseph
- Reporters:
- ,
- Before:
- Thomas F. Daley, Marion F. Edwards, Susan M. Chehardy
Defendant, Andrew Joseph, Jr., appeals his conviction for possession with the intent to distribute cocaine. For the following reasons, we affirm.
On February 13, 2001, defendant, Andrew Joseph, Jr., was charged by bill of information with possession with the intent to distribute cocaine in violation of
On March 26, 2002, Joseph advised the court that he desired to withdraw his prior plea of not guilty and enter a stipulated plea of guilty as charged, “pursuant to the provisions of State v. Crosby.”1 Joseph then executed a Waiver of Constitutional Rights form that specified he would receive 15 years of imprisonment at hard labor as a second felony offender under the Multiple Offender Statute
Following the sentencing in this case, the State filed a multiple bill wherein it alleged that the defendant was a second felony offender under the Multiple Offender Statute.3 Joseph advised the court of his desire to admit to the allegations of the multiple bill.
On the same day, the trial judge vacated Joseph‘s original sentence and sentenced him as a second felony offender to the agreed upon 15 years of imprisonment at hard labor. The sentence was ordered to run concurrent with any other sentence imposed.
Joseph orally moved for a Crosby appeal, which was granted by the trial judge. On the same day, a written appeal motion was filed.
On appeal, Joseph asserts that the evidence should have been suppressed and that the defense continuance to obtain an expert should have been granted, or alternatively, the defense motion in limine to preclude the state from using its expert should have been granted.
The State initially argues that Joseph failed to specify which ruling he wished to reserve under Crosby, thus waiving the right to appeal the rulings on the motion to suppress and the motion for continuance,
Joseph replies that the issues were preserved for review on appeal because he lodged objections to the preliminary rulings and informed the trial court judge of his desire to file a Crosby appeal.
We first consider the issue of whether Joseph preserved the issues raised in this appeal for appellate review.
A guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the entry of the guilty plea, and precludes review of such defect either by appeal or post-conviction relief.4 In State v. Crosby, supra, the Louisiana Supreme Court decided for the first time that a defendant could enter a guilty plea and reserve his right for appellate review of non-jurisdictional defects. The Court discussed, in pertinent part, the principles applicable to appellate review of assignments of error reserved at the time of a guilty plea:
5. If the prejudicial error is not patent on the face of the record, a defendant who pleads guilty waives his right to obtain appellate review of contended-error if he does not object to it at the time it occurs or perfect an assignment of error or take other procedural steps required to preserve it for consideration by this court upon appeal.
6. Analogously, a defendant will also waive his right to review of a non-jurisdictional pre-plea trial ruling unless, at the time of his plea, he expressly stipulates that he does not waive his right to review of it, the normal consequence of a guilty plea. (In the light of this reservation, of course, the trial court may or may not exercise its discretion to accept the plea.) As in other jurisdictions which permit the practice, where the issue is presented, the prosecutor may validly require the waiver of appellate review of non-jurisdictional pre-plea rulings or conduct as a condition of a plea bargain.5
This Court has previously declined to consider rulings on alleged non-jurisdictional defects when the defendant failed to reserve the right to appeal the rulings under Crosby,6 In the present case, Joseph signed a Waiver of Constitutional Rights that stated that he was pleading guilty to possession with the intent to distribute cocaine under State v. Crosby. At the hearing on the guilty plea, Joseph advised the trial court judge that he wanted to “tender a plea pursuant to the provisions of State v. Crosby” and plead guilty to possession with the intent to distribute cocaine. During the colloquy, the trial judge advised Joseph that he was pleading guilty to the crime of one count of possession with the intent to distribute cocaine on January 29, 2001 “pursuant to a Crosby plea.” The court then accepted Joseph‘s guilty pleas as free and voluntary and noted that the plea in this case “was tendered under State v. Crosby.” Following the sentencing, Joseph orally moved for appeal and notified the court that he would file a written motion for appeal. Joseph then filed a written “Motion for Crosby Appeal.”
In State v. Gaspard, supra, we considered a similar issue and held:
It is noted that, although the trial court allowed defendant to enter her guilty plea under the provisions of Crosby, she did not challenge any specific adverse ruling by the court. Thus, she did not preserve her right to appeal this issue under Crosby.7
Similarly, in this case, after a review of the record, we find that Joseph has not preserved these issues for review on appeal, and we decline to consider them.
The record was reviewed for errors patent, according to
In imposing the original sentence in this case, the trial judge failed to specify the original sentence was to be served without benefits of parole, probation or suspension of sentence for the first five years, pursuant to the dictates of
Accordingly, based on the foregoing, the defendant‘s conviction is affirmed.
AFFIRMED.