State v. LadnerState v. Ladner
Pamela Hershey, Asst. Dist. Atty., Covington, for appellee.
Wendell E. Tanner, Slidell, for appellant.
Before LOTTINGER, C.J., and FOIL and FOGG, JJ.
LOTTINGER, Chief Judge.
Riсhard E. Ladner, Jr., was charged by bill of information with fourth offense driving while intoxicated (DWI).
1. The trial court erred in allowing two prior D.W.I. guilty pleas to be used as predicate convictions for enhancement of the instant offense.
2. The trial court erred in allowing the prosecutor to impeach the defendant with a prior D.W.I. conviction from Slidell City Court which was subsequently quashed due to an improper advice of Boykin rights.
3. The trial court erred in imposing an excessive sentence.
FACTS
At approximately 10:45 A.M. on July 20, 1991, the defendant, who was driving his mother‘s car, was involved in a minor traffic accident near the Northshore Mall in Slidell. While approaching an intersection, the defendant ran into the back of a vehicle driven by Darryl Guy. Although Mr. Guy observed the defendant‘s vehicle in his rearview mirror and accelerated in order to avoid the accident, hе was unable to prevent the collision. After the accident, Mr. Guy exited his vehicle and went to talk to the defendant. The defendant acted as if he were unaware of the accident and threatened to drive away. Mr. Guy reached inside thе defendant‘s vehicle, put it in park, and turned off the ignition. When the defendant exited his car, he stumbled. Mr. Guy noticed that the defendant smelled of alcohol.
The first police officer at the scene, Slidell Police Detective Tim Culotta, was forсed to physically restrain the defendant when he became combative, used racial slurs, and actually lunged toward Mr. Guy. When Slidell Police Officer William McInnis arrived at the accident scene, he immediately suspected the defendant of DWI because the defendant smelled of alcohol and was unable to pass a field sobriety test. He arrested the defendant and took him to the Slidell Police Department, where the defendant was videotaped failing another field sobriety test and refusing to take a breath test.
ASSIGNMENT OF ERROR NO. ONE
In this assignment of error, the defendant contends that the trial court erred in overruling his objection to the use of two predicate DWI convictions. Specifically, he argues that he was not informed of the right to court-appointed counsel and, therefore, these two predicate guilty pleas were improperly used to enhance the instant fourth offense DWI conviction.
La.Code Crim.P. art. 514 provides:The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant‘s right to counsel, inсluding the right to court-appointed counsel, and that he waived such right. (Emphasis added).
In order to use a prior DWI guilty plea to enhance the penalty of a subsequent DWI conviction, the State must affirmatively prove that, in entering the prior guilty plea, the defendant was either represented by counsel or knowingly and intelligently
In the instant case, the defendant admits that he was represented by counsel when he entered these two predicate guilty pleas.1 However, he raises the аpparently novel argument that every defendant who decides to enter a guilty plea must be informed of the right to counsel, including the right to court-appointed counsel for indigents, even if he already is represented by counsel. The defеndant specifically argues that he should have been informed of “the right to a court appointed [sic] attorney for purposes of appeal should appellant had [sic] elected to go to trial.” Yet, the defendant has nоt cited, nor have we discovered, any authority for such a proposition. Furthermore, in his collateral attack upon the validity of these two predicate guilty pleas, the defendant does not now allege that he actually was indigent when he entered these guilty pleas, that he might have been indigent at some point during or after trial (thus entitling him to court-appointed counsel on appeal), or that he might not have pleaded guilty to these predicate offenses if hе had been informed of the right to court-appointed counsel if he was indigent. Accordingly, noting that the defendant was represented by counsel when he entered these two prior guilty pleas, we find no merit to his argument that these predicatе convictions were rendered invalid for future enhancement purposes simply because the trial court did not inform him of the right to court-appointed counsel. Therefore, the trial court‘s ruling, which allowed these two prior guilty pleas tо be introduced into evidence as predicate convictions enhancing the grade of the instant offense, was correct.
This assignment of error is meritless.
ASSIGNMENT OF ERROR NO. TWO
In this assignment of error, the defendant contends that the trial court erred in overruling his objection to the prosecutor‘s use, for impeachment purposes, of a Slidell City Court DWI conviction. The defendant argues that a conviction based upon the violation of a municipal ordinance cannot be used for impeachment purposes. He also argues that, because this Slidell City Court DWI conviction had been quashed (allegedly due to an improper or defective waiver of Boykin rights) as a predicate DWI conviction in a previous, unrelated criminal proceeding, the prosecutor should not have been allowed by the trial court to impeach the defendant‘s credibility by questioning him about this particular conviction.
In a criminal case, every witness, by testifying, subjects himself to examination relative to his criminal conviсtions.
In argument between the prosecutor and defense counsel сoncerning the instant objection to the Slidell City Court DWI conviction, the prosecutor apparently conceded that the conviction had been quashed for use as a predicate conviction in a previous, unrelated criminаl proceeding. However, apart from this concession by the prosecutor and the defendant‘s subsequent testimonial admission of this conviction, no other evidence of this conviction was introduced at trial or proffered for review by this Court. Accordingly, we are unable to determine whether or not the Slidell City Court DWI conviction was based upon a violation of
Concerning the defendant‘s argument that this Slidell City Court DWI conviction was invalid for use as impeachment evidence because it previously had been quashed as a predicate conviction due tо an invalid Boykin waiver, we again note that the defendant waived any error by failing to either introduce at trial or proffer for appellate review sufficient documentary evidence to establish the alleged Boykin defect. There is no doubt that prior convictions in which a defendant was not afforded the right to counsel are invalid for impeachment purposes. State v. Bernard, 326 So.2d 332, 334 (La.1976). Arguably, an invalid Boykin waiver might render such a conviction invalid for subsequent impeachment purposes if the defendant established that thе conviction was so involuntary that its reliability was impaired. See State v. Roland, 379 So.2d 721 (La.1979). Nevertheless, the burden of proving such invalidity for impeachment purposes clearly rests with the defendant. State v. Roland.
The evidence of the defendant‘s guilt was substantial, if not overwhelming. Furthermore, the dеfendant‘s credibility already had been impeached by the three predicate DWI convictions which were properly introduced into evidence. Under these circumstances, even assuming, arguendo, that the trial court erred in overruling thе defendant‘s objection to the use of the Slidell City Court DWI conviction for impeachment purposes, we find that such error did not affect any substantial rights of the defendant and, therefore, was harmless beyond a reasonable doubt. See
For the abоve reasons, this assignment of error is meritless.
ASSIGNMENT OF ERROR NO. THREE
In this assignment of error, the defendant contends that the trial court erred in imposing an excessive sentence.
The Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence.
Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). However, the trial court has great discretion in imposing a sentence within the statutory limits; and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Latiolais, 563 So.2d 469, 473 (La.App. 1st Cir.1990).
Before imposing sentence, the trial court reviewed the presentence investigation reрort, which indicated that the defendant
For his conviction of fourth offense DWI, the defendant was exposed to a minimum sentence of ten years at hard labor аnd a maximum sentence of thirty years at hard labor. See
This assignment of error is meritless.
PATENT SENTENCING ERROR
We note the following patent sentencing error. Neither the minutes nor the sentencing transcript show that the trial court, in imposing this sentence, gave the defendant credit for time spent in actual custody prior to sentencing. Such an allowance of credit is mandatory.
CONVICTION AFFIRMED, SENTENCE AFFIRMED AS AMENDED, AND REMANDED WITH ORDER.