State v. McKethanState v. McKethan
Defendant was arrested on two charges of distribution of marijuana,
Defendant has appealed and brings two assignments of error. In the first, he contends the sentencing judge erroneously based his sentence in part on a twenty year old burglary conviction. In the second, he claims the sentencing judge erroneously denied his motion to suppress the prior burglary conviction because it resulted from a guilty plea made without representation of
ASSIGNMENT OF ERROR NO. 1
Defendant‘s contention is that the sentencing judge should not have considered the 1964 burglary сonviction because of its age. According to defendant, but for this burglary conviction he would have received a suspended or probated sentence under
The fatal flaw with this argument is that defendant has misinterpreted the meaning of article 893. This led him to misconstrue the sentencing intent of the judge. Article 893 says, in pertinent part:
When it appears that the best interest of the public and of the defendant will bе served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law....
Defendant assumes that this article mandates a suspended оr probated sentence for any first felony offender. This is not correct. The purpose of article 893 is to divest the sentencing judge of discretion to suspend a sentence if a defendant has a previous felony conviction. See State v. Wimberly, 414 So.2d 666 (La.1982). On the first conviction, the judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. Article 893 does not guarantee defendant suspension of sentence or probation on a first offense.
Defendant has asked this court to analogize article 893 to the Habitual Offender Statute,
We think the proper analogy is to
We therefore find it was proper for the judge to consider the prior burglary conviction as evidence of defendant‘s past criminal history. In his oral reasons he adequately justified bоth the sentence imposed and the denial of probation. The factors he mentioned apply equally to determination of the public‘s and the defendant‘s best interest, under article 893, as they do tо the appropriateness of the sentence, under article 894.1. Furthermore,
The judge nоted that defendant‘s present criminal acts were neither provoked nor justified and that defendant was apparently engaged in drug sales as a wilful commercial enterprise. He had been arrested on two counts. At the age of forty-seven, he is old enough to grasp the seriousness of his offense and to understand the dangers spawned by drug trafficking. Defendant had a “significant” history of misdemeanor offenses2 and the judge considered him likely to return to criminal ways without correctional treatment. Finally, there was the burglary conviction, which was many years ago.
The judge also noted a number of mitigating factors. Dеfendant had pled guilty, thereby showing some penitence for his conduct, and he had been regular in his child support payments for some time. While out on bail, he was seriously injured in an automobile accident which left him permanently disabled and would make it very difficult for him to serve time at hard labor. All these factors encouraged the sentencing judge to place defendant‘s sentence in the lower end of the scale of his potential exposure.
We reiterate that
ASSIGNMENT OF ERROR NO. 2
In this assignment, defendant claims the trial judge erred by failing to suppress the burglary conviction on grounds that it was constitutionally infirm. His theory is that a conviction based on an invalid guilty plea should not count аs a conviction and should not, consequently, deprive him of possible probation or suspension under
Defendant has mentioned, without elaboration, the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and its progeny. Johnson holds that a conviction against a defendant who did not effectively waive his constitutional right to assistance of counsel is null and void. Defendant‘s argument is that his earlier conviction should have been suppressed by the sentencing judge for the same reasons that led the U.S. Supreme Court to declare the conviction null in Johnson. Defendant has also mentioned some degree of coercion in his 1964 guilty plea.
Recent jurisprudence, however, imposes on the defendant the burden of proving that his earliеr guilty plea is invalid when, as here, he attacks the plea collaterally, the plea was entered before December 8, 1971, and the transcript of the arraignment is regular on its face. See State v. Holden, 375 So.2d 1372 (La.1979) and State v. Roland, 379 So.2d 721 (La.1979). Thus it wаs defendant‘s burden to prove that his 1964 guilty plea was either involuntary or unknowing. State v. McGinnis, 413 So.2d 1307 (La.1981). Defendant did not meet this burden; he merely alleged that he was unrepresented at the time, while the colloquy at arraignment clearly shows that the judge informed him three times of his entitlement to appointed counsel and that defendant expressly waived that right. Furthermore, defendant has admitted not only that he was guilty of the
Even had it been error not to suppress the burglary conviction, we find the sentencing judge placed very little emphasis on it, thus bringing the failure to suppress into the purview of the harmless error rule.
Additionally, we would note that the defendant is not eligible for a suspended sentence, by virtue of the fact that the burglаry conviction about which the Court just discussed and ruled, makes him ineligible for a suspended sentence. Even if he was, we are not satisfied that he could respond affirmatively to probationary treatment, because of his past history. R.p. 55
[Emphasis added.]
Thus, the judge admitted the burglary conviction and considered it in imposing sentence, but the amount of weight he placed on it was so small that his result would not have been different otherwise. Whether or not his refusal to suрpress the conviction was erroneous, defendant‘s substantive rights were not affected and there is no grounds for reversal.
Furthermore, for reasons expressed in our discussion of the first assignment of error, thе trial judge had the discretion to impose a sentence of imprisonment for even a first offense. Suppression of the burglary conviction would not have guaranteed defendant a suspension of sеntence or probation. State v. Wimberly, supra. Nor would suppression of the burglary conviction have resulted in a different sentence in the instant case. Defendant‘s second assignment of error is without merit.
Accordingly, defеndant‘s conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.