State v. WalterState v. Walter
The defendant, Jerome Dean Walter, was charged by indictment with manslaughter, in violation of
1. The trial court erred in failing to require the State to answer the defendant‘s motion for a bill of particulars.
2. The State failed to properly and timely institute prosecution.
3. The trial court erred in failing to consider the defendant‘s motion to quash.
4. The trial court erred in failing to consider the defendant‘s motion to suppress.
5. The trial court erred in failing to consider the defendant‘s motion for a speedy trial.
6. The trial court erred in failing to determine whether or not the defendant‘s guilty plea was entered voluntarily.
7. The trial court erred in failing to establish a factual basis for the offense before accepting the defendant‘s guilty plea.
8. The trial court erred in failing to consider the presentence investigation report in connection with the plea bargain agreement.
9. The trial court erred in sentencing the defendant on the basis that he had committed two prior felonies.
10. During the first sentencing hearing, the trial court erred in failing to considеr the guidelines in
11. During the second sentencing hearing, the trial court erred in failing to consider the guidelines in
12. “The sentencing judge erred when he failed to recognize the apparent conflict between counsel and defendant, nor did he take into consideration any of the issues raised by the defendant in his own behalf.”
Because the defendant entered a guilty plea, the facts surrounding the instant offense were not fully developed. During the Boykin colloquy, the trial court asked the defendant if he was pleading guilty to manslaughter because he had unlawfully killed the victim, Wilma H. McKelphin. The defendant replied in the affirmative. The trial court then noted that the defendant had been indicted by a grand jury and referred to the affidavit of probable cause. The affidavit of probable cause indicates that witnesses observed the victim, who was screaming for help, being chased from her apartment by the defendant. The victim died as a result of being stabbed in the chest with a butcher knife. The affidavit of probable cause also notes that the defendant had made an inculpatory statement to the police.
ASSIGNMENTS OF ERROR NUMBERS ONE, FOUR, AND FIVE:
In these assignments of error, the defendant contends that the trial court erred in failing to consider several pretrial motions which he filed in proper person. Although represented by counsel, the defendant filed thе following motions: a motion for a bill of particulars (assignment of error number one); a motion to suppress (assignment of error number four); and a motion for speedy trial (assignment of error number five). Initially, we note that the court minutes for September 15, 1986, indicate that the motion for speedy trial was withdrawn by defense counsel. Therefore, it is obvious that the trial court was not required to rule on this motion. Furthermore, we note that, because the defendant was represented by counsel, the trial court was not required to consider any of the motions filed by the defendant in proper person.1 The defendant has no right to be both represented and represеntative. See State v. McCabe, 420 So.2d 955 (La. 1982); State v. Booker, 444 So.2d 238 (La. App. 1st Cir.1983), writ denied, 446 So.2d 1227 (La.1984). Moreover, by pleading guilty, the defendant waived his right to appellate review of such pre-plea non-jurisdictional matters. State v. Crosby, 338 So.2d 584 (La.1976); State v. Thornton, 521 So.2d 598 (La.App. 1st Cir.), writ denied, 530 So.2d 85 (La.1988).
These assignments of error are meritless.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE:
In assignment of error number two, the defendant contends that the State failed to properly and timely institute prosecution. In assignment of error number three, the defendant contends that thе trial court erred in failing to consider his motion to quash. The defendant filed the motion to quash on the grounds that the time limitations for the institution of prosecution and the commencement of trial had expired. See
The defendant‘s argument that the time limitation on the commencement of trial had expired is also meritless. As noted above, defense counsel withdrew the defendant‘s pro se motion for speedy trial; and the trial court was not required to rule on the defendant‘s pro se motion to quash. Moreover, the defendant waived his right to appellate review of this issue by pleading guilty. State v. Crosby, supra; State v. Thornton, supra.
Finally, the defendant argued that the State did not “properly” institute prosecution. By this argument, the defendant contends that he was entitled to challenge the grand jury venire, the selectiоn of grand jurors, and the number of grand jurors concurring in the indictment. He also contends that he was entitled to a preliminary examination, a certificate of probable cause, and transcripts of “perpetuated testimony” of witnesses at the grand jury proceedings or at the preliminary examination. Again, we note that thе defendant waived the right to appellate review of such pre-plea non-jurisdictional matters by entering the instant guilty plea. State v. Crosby, supra; State v. Thornton, supra.
For the above reasons, these assignments of error are meritless.
ASSIGNMENT OF ERROR NUMBER SEVEN:
In this assignment of error, the defendant contends that the trial court erred in failing to establish a factual basis for the offense before accepting his guilty plea.
During the Boykin examination, the trial court asked the defendant if he was pleading guilty to manslaughter because he had unlawfully killed the victim. The defendant replied in the affirmative. The trial court also referred to the grand jury indictment and the facts contained in the affidavit of probable cause. Moreоver, it is well settled that a guilty plea by its nature admits factual guilt and relieves the State of the necessity to prove it by a contested trial. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Fabre, 525 So.2d 1222 (La.App. 1st Cir.), writ denied, 532 So.2d 148 (La.1988).
This assignment of error is meritless.
ASSIGNMENTS OF ERROR NUMBERS SIX AND TWELVE:
In assignment of error number six, the defendant contends that the trial court erred in failing to determine whether or not his guilty plea was entered voluntarily. In assignment of error number twelve, the defendant contends that “[t]he sentencing judge erred when he failed to recognize the apparent conflict between counsel and defendant, nor did he take into consideration any of the issues raised by the defendant in his own behalf.”
After the sentence was imposed, the defendant objected and stated that, although he understood the ten year ceiling on the sentence, defense counsel had informed him that the sentence actually imposed would be from zero to five years. Judge Pitcher concluded the sentencing hearing, but another sentencing hearing was held shortly thereafter. At the second sentencing hearing, Judge Pitcher reviewed the defendant‘s criminal record and stated the Article 894.1 guidelines which he had considered in imposing the instant sentence. Judge Pitcher also noted that he had given the defendant an opportunity to withdraw his guilty plea, but the defendant had refused. Then, Judge Pitcher gave the defendant an opportunity to explain his complaint about the sentenсe. The defendant repeated his claim that defense counsel had informed him that the actual sentence imposed would be from zero to five years. However, defense counsel denied this allegation and stated that she had informed the defendant that the maximum sentence would be ten years, as promised by Judge Downing and reflected in the record.
The defendant contends that the trial court failed to inquire about promises or inducements which motivated him to plead guilty. Although this argument is unclear, he is apparently referring to the plea bargain agreement as an inducement or promise which affected his voluntary decision to plead guilty. Yet, at the sentencing hearing, he admitted that he was aware of the plea bargain agreement, which included a maximum ten year sentence. The record of the Boykin examination also reflects that there was an explicit statement by Judge Downing about the maximum ten year sentence in exchange for the defendant‘s guilty plea. The defendant points to his claim that defense counsel had misled him about the length of the sentence and states that Judge Pitcher should have explored these conflicting statements by the defendant and defense counsel. However, the record clearly indicates that a ten year ceiling was placed оn the defendant‘s sentence. There is no mention of a five year maximum sentence anywhere in the record, other than the defendant‘s allegation about such a statement by defense counsel.
In his first brief to this Court, the defendant concludes that Judge Pitcher should have given him the opportunity to withdraw his guilty plea. However, the reсord clearly indicates that Judge Pitcher did so at the first sentencing hearing and repeated the offer at the second sentencing hearing; but the defendant refused. If the defendant seeks to prove his allegation (that his guilty plea was induced because he believed, based on statements from defense counsel, that he wоuld receive a sentence of zero to five years in exchange for the plea), his proper remedy is by post-conviction relief, wherein an evidentiary hearing could be conducted to explore all of the conversations and events surrounding the instant plea bargain which took place outside the rеcord. See
These assignments of error are meritless.
ASSIGNMENTS OF ERROR NUMBERS EIGHT, NINE, TEN, AND ELEVEN:
In assignment of error number eight, the defendant contends that the trial court erred in failing to consider the presentence investigation report in connection with the plea bargain agreement. In assignment of error number nine, the defendant contends that the trial court erred in sentencing him on the basis that he had committed two prior felonies. In assignments of error
The Code of Criminal Procedure sets forth items which must be considered by the trial court in imposing sentence.
Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762 (La. 1979). However, the trial court has wide discretion in the imposition of sentences; and a sentence within statutory limits will not be set aside in the absence of an abuse of discretion. State v. Johnson, 486 So.2d 853 (La.App. 1st Cir.1986).
At the second sentencing hearing, after the sentence had been imposed, the trial court stated that it had considered the guidelines enumerated in
The defendant argues that the trial сourt failed to consider the presentence investigation report. Normally, the ordering of a presentence investigation report lies within the discretion of the trial court.
The defendant also complains that the trial court failed to consider several mitigating factors enumerated in Article 894.1. The defendant contends that he was not the aggressor, that he had been provoked by the victim, that he acted in self-defense, and that he could not have previously contemplated that his conduct would cause serious harm. The defendant entered a plea of guilty to manslaughter, thereby waiving his right to maintain a claim of self-defense at a trial. The trial court was not required to assess the sufficiency of the evidence as a sentencing factor. See State v. Harris, 518 So.2d 590 (La.App. 1st Cir.1987), writ denied, 521 So.2d 1184 (La. 1988). Nor was the trial court required to accept the defendant‘s unsubstantiated claims in mitigation. Apart from the defendant‘s own statements, there is no factual basis upon which the trial court could have concluded that these mitigating factors would apply in the instant case. Therefore, in imposing sentence, the trial court did not err in omitting a consideration of these mitigating factors. We conclude that the trial court properly considered the relevant Article 894.1 factors in determining the sentence.
Although the defendant‘s briefs to this Court did not contain an explicit argument that the instant sentence was excessive, such an argument is implied in
For the above reasons, these assignments of error are meritless.
Considering the foregoing the conviction and sentence of defendant are affirmed.
CONVICTION AND SENTENCE AFFIRMED.