State of Louisiana v. Curtis K. Jones

• Court: Louisiana Court of Appeal
• Decided: October 6, 2010
• Docket: KA-0010-0169
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-169

STATE OF LOUISIANA

VERSUS

CURTIS K. JONES

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2008-TR-122026 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and James T. Genovese, Judges.

CONVICTION AFFIRMED; CASE REMANDED FOR RESENTENCING.

Alfred F. Boustany, II Attorney At Law P. O. Box 4626 Lafayette, LA 70502 (337) 261-0225 Counsel for Defendant/Appellant: Curtis K. Jones

Keith A. Stutes Assistant District Attorney P.O. Box 3306 Lafayette, LA 70502 (337) 232-5170 Counsel for Appellee: State of Louisiana DECUIR, Judge.

Defendant, Curtis K. Jones, was charged by bill of information with operating

a vehicle while intoxicated (OWI), third offense, in violation of La.R.S. 14:98, and

improper lane usage, in violation of La.R.S. 32:79. Defendant entered a guilty plea

pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to OWI, third offense, and

reserved his right to appeal the trial court’s denial of his motion to quash. The traffic

violation charge was apparently dismissed. Defendant was sentenced to five years

at hard labor plus payment of a fine and court costs; thirty days of the sentence was

imposed without benefit of probation, parole, or suspension of sentence. The

remainder of the sentence was suspended, and Defendant was placed on supervised

probation for a period of five years.

Defendant appealed and is now before this court asserting two assignments of

error. He contends the trial court erred in denying his motion to quash the Iberia

Parish OWI, first offense, conviction and the Lafayette Parish OWI, second offense,

conviction.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant contends the transcript of the Iberia

Parish conviction shows he was not represented by counsel, and the trial court did not

make him aware of the dangers and disadvantages of self-representation.

Defendant sought to quash the bill of information because the predicate

offenses alleged therein could not be used to enhance the charged offense. Defendant

asserted that the trial court did not explain the dangers and disadvantages of self-

representation and failed to explain the elements of the offense, to advise him of the

maximum possible penalty, and to require the State to offer a factual basis for the

guilty plea. He points out to this court in brief that the Iberia Parish judge merely

asked each defendant the same questions: name, address, date of birth, social security number, education, and type of employment, then explained to the group the

constitutional rights waived by pleading guilty. The trial court denied the motion to

quash, finding that Defendant voluntarily waived his right to counsel, that he was

advised of his right to counsel, and that he signed a guilty plea form indicating “his

knowledge of that.”

Louisiana Code of Criminal Procedure Article 556(B) establishes the trial

court’s duty when accepting a guilty plea to a misdemeanor charge which can be used

for enhancement purposes for a subsequent offense. Essentially, the court shall not

accept such a plea without first determining that the defendant knows and

understands his constitutional rights. Generally, the trial court is not required to

advise a defendant who is pleading guilty to a misdemeanor of the dangers and

disadvantages of self-representation. See State v. Rivers, 614 So.2d 254 (La.App. 3

Cir.), writ denied, 623 So.2d 1330 (La.1993). The Louisiana Supreme Court, in State

v. Deville, 04-1401 (La. 7/2/04), 879 So.2d 689, explained that the defendant in a

subsequent proceeding bears the burden of proving that he did not knowingly and

intelligently waive his right to trial and his right to counsel at the time of a prior

guilty plea.

The transcript and record before us show that the State met its initial burden

of proof when it submitted the transcript of the prior plea and the “Plea of Guilty to

Misdemeanor Rights Form” executed by Defendant, wherein he waived the right to

counsel and declared that he understood that right. Therefore, the burden then shifted

to Defendant to prove there was an infringement of his rights or a procedural

irregularity in the taking of his prior plea. His bare allegation that the trial court

never explained the dangers and disadvantages of self-representation, or determined

if he understood them, does not constitute evidence of a significant procedural

irregularity in the Iberia Parish guilty plea. This assignment of error is without merit.

2 ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, Defendant contends the State failed to carry

its burden of proving that he knowingly and intelligently waived his rights at the time

he pled guilty to OWI, second offense, in Lafayette Parish. He argues in this appeal

that the transcript shows no verbal response by him to any questions about whether

he understood and waived his constitutional rights.

In his motion to quash, Defendant raised other grounds urging the invalidity

of the guilty plea, but his motion was denied. The question of whether he verbally

replied to the trial court’s inquiries during the plea colloquy was never presented to

the trial court in the instant case. Therefore, this assignment of error is not properly

before this court for review, as the issue was not raised in the trial court. Uniform

Rules—Courts of Appeal, Rule 1-3. Accordingly, this assignment of error will not

be considered.

PATENT ERROR:

In reviewing this case for errors patent on the face of the record, we noticed a

deficiency in the sentence which must be corrected by the trial court. In addition to

the term of imprisonment, Defendant was assessed a fine and court costs to be paid

pursuant to a payment plan devised by the probation office. This court has held that

such a payment plan is subject to approval by the trial court, and the trial court must

so state in the sentencing pronouncement. State v. Stevens, 06-818 (La.App. 3 Cir.

1/31/07), 949 So.2d 597. Therefore, we must remand to the trial court for

resentencing, whereby the court may devise its own payment plan or order the

probation office to devise a plan subject to court approval.

3 DECREE

For the foregoing reasons, Defendant’s conviction is hereby affirmed. The case

is remanded for resentencing.

CONVICTION AFFIRMED; CASE REMANDED FOR

RESENTENCING.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.