State v. LawsonState v. Lawson
Warren Lawson was charged by bill of information with the December 19, 1978 simple burglary of an inhabited dwelling in violation of
The state filed a multiple offender charge against defendant pursuant to
Assignment of Error No. 1
Defendant contends the trial court failed to advise him of the privilеge against self-incrimination prior to accepting his guilty plea. He argues, therefore, that he did not knowingly and intelligently waive his privilege against self-incrimination.
Neither the colloquy between defendant and the trial court, nor the printed “Plea of Guilty” form signed by defendant made reference to the privilege against self-incrimination. The state admits in brief that defendant was not informed of the privilegе against self-incrimination, but asserts that defendant was obviously aware of it because he had pleaded guilty on three former oсcasions.
There is no merit in the state‘s argument. Nothing in the record indicates defendant understood the connotations and consеquences of his guilty plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Williams, 384 So.2d 779 (La.1980). We have no evidence to assure us that defendant was properly Boykinized before entering his prior guilty pleas. Two of the three prior guilty pleas were entered before 1969, and thus before Boykinization was required.
This court has looked beyond a сolloquy to an expanded record to determine whether a voluntary waiver occurred. See State v. Dunn, 390 So.2d 525 (La.1980) and State v. Cusher, 400 So.2d 601 (La.1981). In Dunn, this court relied on a printed waiver form signed by defendant to conclude that he had knowledge of the privilege against self-incrimination, and the effects of its wаiver. In Cusher, the entire record was used to prove the voluntariness of defendant‘s waiver of the right to confront his accuser. Cusher had been present at numerous pretrial proceedings, where he could not avoid knowledge of the nature of his right of confrontation.
The exceptions contained in Dunn and Cusher are not applicable to this case. The record does not indicate defendant was ever informed of the privilege аgainst self-incrimination. Neither the colloquy nor the waiver form advised defendant of the privilege. Lawson‘s case did not involve extensive pretrial proceedings as in Cusher, or any other proceedings that informed him of the privilege against self-incrimination.
Assignments of Error Nos. 2 and 3
Defendant asserts that the mandatory sentence, imposed by the trial judge under
There is no merit to Assignments 2 and 3.
Because of the failure to comply with the requirements of Boykin v. Alabama, supra, the plea of guilty and conviction are set aside and the sentence is vacated. The case is remanded to the district cоurt for further proceedings.
Notes
The trial judge believed a twenty year sеntence to be excessive in light of all facts and circumstances surrounding defendant‘s case. He stated that twelve years was an appropriate sentence, but he was bound by
Defendant‘s fourth offense occurred in 1978, and sentence was imposed in 1979. At that time, the Code of Criminal Procedure provided for suspension of the execution or imposition of the sentence of a multiplе offender who joined a drug rehabilitation program authorized by the Federal Narcotics Rehabilitation Act.
“The court under the sаme conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the prоgram authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs, howevеr, if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence be executed. Rejection by said program shall be a violatiоn of the defendant‘s suspended sentence.”
The trial judge should consider this alternative if defendant is resentenced.
Testimony at defendant‘s sentencing hearing indicated he is a prime candidate for a drug rehabilitation program. Defendant has been a drug addict fоr most of his adult life, and has been in and out of jail for various burglaries in order to support his heroin habit. However, he has never been thrоugh any sort of drug rehabilitation program; imprisonment alone does not bring about rehabilitation. The director of Odyssey House in New Orleаns testified that Lawson was accepted into their program, which is a good indication of their belief in his chances for success. The chaplain for Orleans Parish jail also testified that Lawson showed good prospect for rehabilitation, if ever given such аn opportunity.