State v. PaoliState v. Paoli
We consider this matter en banc to resolve a conflict within this circuit about the proper treatment of patent sentencing errors. First, we will address the assignments of error urged by the defendant. Thereafter, we will address the patent sentencing errors.
The defendant, Alfredo Paoli, was charged by bill of information with driving while intoxicated (DWI), fourth offense, a violatiоn of
FACTS
At the Boykin hearing, the defense cоunsel stipulated to the factual basis for the plea. According to the bill of information, on September 3, 2000, in St. Tammany Parish, the defendant operated a motor vehicle while under the influence of alcoholic beverages. The defendant had three prior DWI convictions (# 302895, June 29, 2000; # 320374, May 30, 2000; # 315193, May 30, 2000).
MOTION TO QUASH
(Assignment of error number one)
The defendant contends the trial court erred in denying his motion to quash. He argues that on May 30, 2000, he pled guilty to first and second offense DWI; the bill of information for the second offense DWI was not numbered; and it inaccurately rеflected that he previously pled guilty to first offense DWI. He contends that the Boykin examination was defective because he was given a single Boykinization for charges on two separate bills of information, but he entered only one plea of guilty. The defendant does not contest the third offense conviction of June 29, 2000.
If a defendant denies a predicate DWI allegation contained in a bill of information, the state must prove the existence of the prior guilty plea and that defendant was represented by counsel at the time or waived counsel. If the state meets this initiаl burden, the defendant must then produce affirmative evidence showing an infringement of his rights or a procedural irregularity in taking the plea. If the defendant is able to do this, the burden of proving the plea‘s validity shifts back to the state. See State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. To meet this requirement, the statе may rely on a contemporaneous record of the guilty plea proceeding; i.e., the transcript, the minute entry, or both. Everything in the record concerning the predicate and the trial judge‘s opportunity to observe the defendant‘s apрearance, demeanor and responses in court, should be considered in determining whether a knowing and intelligent waiver of rights occurred. State v. Foy, 2000-2521 (La.App. 1 Cir. 6/22/01), 808 So.2d 735, 737; State v. Cadiere, 99-0970, p. 3 (La.App. 1 Cir. 2/18/00), 754 So.2d 294, 297, writ denied, XXXX-XXXX (La.11/13/00), 774 So.2d 971.
For a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial or jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea means and its consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
The transcript of the May 30, 2000 hearing shows the defendant was represented by counsel at the time he entered his pleas. Thus, under Carlos, the burden shifted to the defеndant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in taking the pleas. The defendant claims the bill of information of DWI, second offense, inaccurately reflected that he previously pled guilty to first offense DWI. He contends he did not previously plead guilty because both pleas were taken on the same day. He further asserts he was
At the beginning of the May 30, 2000 Boykin hearing, the court granted a motion to quash regarding certain predicate offenses and stated that the defendant was going to enter a plea of guilty to first offense DWI in number 315193. The court further indicated that there was a subsequent charge of a second offense DWI. Defense counsel indicated that the court was correct. The court subsequently inquired about the defendant‘s age, address, educational background, ability to read and write, and whether he was under the influence of drugs or alcohоl. The court then informed the defendant of the nature of the crimes with which he was charged and the possible range of sentences for each level of DWI offense. The court specifically asked the defendant if he understood the definition of thе crime, the range of sentences, and that the sentences were significantly enhanced as “you move up the line.” The defendant responded in the affirmative. The court then informed the defendant that if he were to be arrested again that the instant сonvictions could be used against him. The defendant indicated that he understood. The court then adequately Boykinized the defendant and the defendant clearly indicated that he understood the proceedings and the rights he was relinquishing. The court accepted the guilty pleas and then separately sentenced the defendant on DWI first offense and DWI second offense. The facts of the instant crimes were not set forth at the hearing because the defense counsel stipulated to the facts of the crimеs.
The defendant was properly advised of his Boykin rights and waived them before pleading guilty. At the beginning of the hearing, the court informed the defendant that he also was being charged with DWI, second offense, and during the hearing, the court set forth the definition for both DWI first offense and second offense. Furthermore, the сourt informed the defendant of his separate sentence on each crime prior to his entering his plea. The court indicated that the defendant was being charged under two separate bills. The defendant did not specifically say the magic wоrds “I plead guilty” to either charge, but when asked by the court if he wished to “waive all [his] constitutional rights and enter a guilty plea at this time,” the defendant responded, “Yes, sir.” According to the transcript, the defendant, who was represented by counsel, was fully informed thаt he was pleading guilty to two separate charges. The defendant‘s pleas were not invalid for use as predicate convictions simply because the court did not give him a separate Boykin hearing on each charge when they were entered on the same day. There was no contemporaneous objection to the method of proceeding with the charges.
The defendant finally asserts that the DWI first offense could not be used as a predicate offense fоr the DWI second offense because both guilty pleas were entered on the same day.
This assignment of error is without merit.
ADVICE OF RIGHT TO POST CONVICTION RELIEF
(Assignment of error number two)
The defendant contends the trial court failed to properly advise him of the delays
According to the sentencing transcript, the trial court informed the defendant that he had “two years from this date to file any post-conviction relief request under 930.8.” Thus, the trial court failed to properly advise the defendant thаt the prescriptive period would not commence until his conviction and sentence became final.
This assignment of error has merit.
However, because of patent sentencing error, the defendant‘s sentence is being vacated and remanded for re-sentencing. Upon re-sentencing, the trial court is directed to give the defendant notice of the proper prescriptive period for applying for post-conviction relief.
PATENT ERROR
As mandated by
The defendant was convictеd of driving while intoxicated (DWI), fourth offense, a violation of
In State v. Williams, 99-1840 (La.App. 1 Cir. 5/12/00) (unpublished), this court found patent sentencing errors that were not covered by
It is readily apparent that a significant distinction may be drawn between vindictiveness which, after appeal, increases a defendant‘s sentencing exposure or increases a legal sentence, and the pro forma correction of an illegal sentence. When an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant‘s constitutional rights. [Citations omitted.] Simply stated, when a court complies with a non-discretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists.
Thus, Williams represents a clear departure by the Louisiana Supreme Court from the prohibition against an appellate court taking steps to correct an illegally lenient sentence noted as patent sentencing error. See State v. Fraser, 484 So.2d 122 (La. 1986).
The sentencing errors in this case are not provided for in
DECREE
For the foregoing reasons, the conviction is affirmed; the sentence is vacated and this matter is remanded to the trial court for re-sentencing in accordance with the law and views expressеd herein.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART, WITH INSTRUCTIONS.
KUHN, J., concurs.
GUIDRY, J., dissents and assigns reasons.
PETTIGREW, J., dissents for constitutional reasons and for the reasons assigned by GUIDRY, J.
GUIDRY, J., dissenting.
Although State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, arguably casts some doubt upon the reasoning in State v. Fraser, 484 So.2d 122 (La.1986), it