State of Louisiana v. Edwin E. Myles

• Court: Louisiana Court of Appeal
• Decided: September 29, 2004
• Docket: KA-0004-0264
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-264

STATE OF LOUISIANA

VERSUS

EDWIN E. MYLES

********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 00-976 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, C.J., Billie Colombaro Woodard, and Oswald A. Decuir, Judges.

CONVICTION AND SENTENCE AFFIRMED. CASE REMANDED FOR EVIDENTIARY HEARING ON MOTION AND ORDER TO REVOKE PROBATION.

M. Craig Colwart St. Mary Parish I.D. Board 124 West Washington Street - Suite C New Iberia, LA 70560 Telephone: (337) 365-4006 COUNSEL FOR: Defendant/Appellant - Edwin E. Myles

Honorable Phillip Haney District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 Telephone: (337) 369-4420 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana Walter James Senette Jr. Assistant District Attorney - 16th Judicial District Court P. O. Box 1008 Franklin, LA 70538 Telephone: (337) 828-4100, Ext. 550 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

Edwin E. Myles Phelps Correctional Center - H-2 P. O. Box 1056 DeQuincy, LA 70633 THIBODEAUX, Chief Judge.

The Defendant, Edwin E. Myles, pled guilty to possession with intent to

distribute marijuana, a violation of La.R.S. 40:966(A) and was sentenced on

December 7, 2000, to serve ten years at hard labor in accordance with a plea bargain

agreement. His sentence was suspended and the Defendant was placed on supervised

probation for five years. In February, 2003, the Division of Probation and Parole

filed a motion to revoke the Defendant’s probation. After the Defendant admitted to

probation violations, the trial court revoked his probation and ordered him to serve

his original sentence of ten years.

The trial court denied a pro se motion to reconsider the sentence. The

court subsequently granted the Defendant an out-of-time appeal pursuant to the

Defendant’s pro se notice of intent seeking a “writ and/or appeal” to this court. The

trial court stated it appeared the Defendant wished to appeal his sentence, although

it was unsure of the nature of his claim.

PROCEDURAL ISSUES

Defense counsel contends that a reading of the April 2003 and March

2004 motions indicate the Defendant wishes to appeal his probation revocation.

Defense counsel acknowledges that the proper mode of review for revocation

proceedings is an application for supervisory writs, not an appeal. However, in the

interest of judicial economy, defense counsel asks this court to consider the merits of

his claims regarding the revocation proceeding.

The Defendant filed two pro se briefs in this court. In both briefs, he

raises claims challenging his conviction and sentence. He also raises one claim

1 concerning his probation revocation, specifically, that his probation was revoked on

old charges for which he was not convicted.

This court has, in the interest of judicial economy, considered revocation

issues on appeal as if the issues were before the court on supervisory writs in a case

in which the defendant also challenged his conviction. See State v. Lavergne, 97-752

(La.App. 3 Cir. 6/3/98), 716 So.2d 92. This case differs somewhat in that it appears

the Defendant was not granted an appeal of his conviction; however, he challenges

his conviction and sentence on appeal. However, in the interest of judicial economy

and because the trial was uncertain as to the nature of the Defendant’s claim, we will

consider both the claims regarding the Defendant’s conviction and sentence as well

as the claims regarding the revocation.

The District Court Improperly Revoked the Defendant’s Probation Based Upon Nonpayment of Money Owed

Defense counsel claims the district court failed to make a determination

of whether the Defendant had the means to pay the money owed and whether he

willfully failed to make the payments.

In Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 2073

(1983), the supreme court set forth the factors to consider and procedures to be

employed when a defendant has not paid his fine or restitution:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in

2 punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

(Footnote omitted).

The trial judge asked the Defendant generally if he had an explanation

for his violations. During his explanation of his violations, the Defendant stated:

When I got pulled over - - you know, I know they want me to pay all I owe, all the fees and all the cost of court and everything I owe - - but I was, you know - - I had started on my own with the music company I was working with for awhile. You know, I was getting to where I was before, when I got pulled over.

In our view, the court’s inquiry was sufficient to meet the Bearden

requirement that the judge “inquire into the reasons for the failure to pay.”

As to whether the Defendant made sufficient bona fide efforts to acquire

the resources to pay, we note the probation officer stated that the Defendant’s

company was not willing to pay unless they could be assured he was not going to be

imprisoned. From this, we infer that the Defendant requested money from his

company and the company was willing to pay if the Defendant’s probation was not

going to be revoked. Although somewhat tenuous, the record is sufficient to find he

made “bona fide efforts legally to acquire the resources to pay.”

The State Presented Improper Evidence For The Court’s Consideration In Deciding Whether To Revoke The Defendant’s Probation

Counsel notes the court allowed the State to present reasons for

revocation not listed on the rule to revoke in that it allowed presentation of the

3 Defendant’s prior criminal record. Counsel contends the Defendant’s convictions

prior to being placed on probation were irrelevant to the revocation proceeding.

The Defendant is correct. The commission of the offenses was not listed

on the motion to revoke probation. At the hearing, the prosecutor asked the probation

officer if she had looked into the Defendant’s criminal background to determine his

criminal convictions. She confirmed that she did this and that she found he had a

conviction in federal court in the State of Florida for counterfeiting. He was indicted

on this charge on August 8, 1995, and had successfully completed his probationary

term of three years. Next, she testified that he had a March 24, 1983 conviction for

grand larceny in New York. As for the remaining offenses, Ms. Santiny testified,

“marijuana - - five. I am not really sure what that means. Fifth offense - - in the

Bronx, sentencing for five days. That as [sic] April 9th of ‘85, disorderly conduct.”

These offenses were irrelevant to the revocation proceeding in that they occurred

prior to the Defendant being placed on probation. Although the judge did not

specifically state that she considered the prior convictions in revoking probation,

since this information was part of the State’s testimony seeking revocation and the

judge did not comment that the information was irrelevant, we assume she considered

the information. This was improper.

The District Court Improperly Denied Defendant Counsel At His Revocation Proceeding

Counsel contends the district court made no effort to determine whether

counsel should have been appointed due to the complexity of the issues presented.

He points out that the issues were primitively presented to the court in the post-

revocation motions.

4 At the revocation proceeding held March 18, 2003, the Defendant was

not represented by counsel. At the hearing, the Defendant’s probation officer, Angela

Santiny, testified that the Defendant had not reported to his probation officer since

March 12, 2001. From December of 2000 to August of 2001, the Defendant’s

probation officer was Ann Denson. According to Ms. Santiny, Ms. Denson requested

a warrant for the Defendant’s arrest in August of 2001 when she could not locate him.

Ms. Santiny testified the Defendant had left the state and was found in October; he

told her he was living in Mississippi. Additionally, Ms. Santiny testified the

Defendant was behind in his supervision fees in the amount of $720.00, had not had

a substance abuse evaluation and had not paid his fine or court costs. Ms. Santiny

was asked by the prosecutor if she had looked into the Defendant’s criminal

background to determine his criminal convictions. She testified that he had a

conviction in Florida federal court as well as convictions in New York, all of which

occurred before his conviction in the present case.

After the probation officer testified, the Defendant was called to testify

by the court. He was questioned about and admitted to his noncompliance with all

of the conditions with the exception of leaving the state. When asked for an

explanation for the violations, he testified that he was being randomly drug tested in

his job offshore and that his first probation officer told him he did not have to do the

drug testing. As for the failure to report, he explained that his mother and uncle

passed away and he was seeking counseling to deal with their deaths. Finally, the

probation officer explained that the company the Defendant was working for was not

willing to pay the costs and fines until they could be assured that he was not going to

be revoked. The judge, in revoking probation, stated she felt the biggest problem was

the failure to cooperate with the probation officer.

5 There is no general right to counsel at probation revocation proceedings.

The supreme court, in Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1764

(1973), stated:

It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

In Baggert v. State, 350 So.2d 652 (La.1977), the defendant was advised

that he could have an attorney present at his parole hearing at his expense. At the

proceeding, the defendant denied the charge of criminal conduct brought against him.

The supreme court stated, “fundamental fairness requires that counsel be provided for

the indigent parolee in cases where he might be expected to encounter difficulty in

presenting his version of a disputed set of facts.”1 Id. at 655. Employing the

1 The court in Baggert noted the Court in Gagnon v. Scarpelli perceived no difference between the guarantee of due process in probation revocation proceedings and parole revocation proceedings.

6 guidelines set forth in Gagnon v. Scarpelli, the supreme court found that relator, who

denied the charged criminal conduct, had a right to appointed counsel upon request.

Citing Gagnon v. Scarpelli, the second circuit in State v. Edwards, 440

So.2d 845 (La.App. 2 Cir. 1983), set forth the factors it considers in this situation:

The defendant in a probation revocation proceeding is not always entitled to counsel. His right to counsel exists only when due process requires that he be represented. Due process requires he be represented when the complexities of the issues involved in the revocation proceeding mandate assistance of counsel to assure fundamental fairness at the revocation hearing. When due process requires counsel the defendant must be advised of his right to counsel, and in the event he then requests an attorney, one must be appointed to represent him at the revocation hearing.

Id. at 847.

Gagnon seems to require that a defendant be informed he has a right to

request counsel. However, in determining that a defendant has a right to have

counsel appointed, the aforementioned cases seem to mandate a showing that

fundamental fairness will not be assured if counsel is not appointed. The cases seem

to imply that fundamental fairness will not be afforded the defendant if he does not

have appointed counsel and he either denies the probation violations, or the reasons

for his violation are too complex for him to present by himself.

In State v. Lavergne, 97-752 (La.App. 3 Cir. 6/3/98), 716 So.2d 92, this

court stated that whether counsel should be present at a revocation hearing is a case-

by-case determination depending on if “there will be complex or disputed facts at

issue that would be difficult for an untrained layman to develop or present.” Id. at 95-

96.

In this case, it is possible that if counsel had represented the Defendant

at the hearing, he or she would have objected to the admission of the irrelevant

7 criminal history presented by the State and perhaps called the original probation

officer as a witness to testify whether she told the Defendant he did not have to

submit to drug testing because he was doing so in conjunction with his employment.

Had these issues been more fully explored, the court may have considered a less

onerous sanction. Thus, we choose to remand this case for another revocation

hearing at which the Defendant would be given the opportunity to be represented by

counsel.

The District Court Did Not Adequately Consider Alternative Sanctions Prior To Revoking The Defendant’s Probation

Essentially, the uncontested violations admitted by the Defendant were

the failure to report for approximately two years, not permitting the officer to visit the

Defendant’s home and not remaining within the jurisdiction of the court.2 Although

we have previously found that the trial court adequately inquired into the reasons for

the failure to pay and the Defendant did make sufficient bona fide efforts to acquire

the resources to pay, this violation may also be considered in assessing whether

revocation was proper.

In State v. Sussmann, 374 So.2d 1256, 1259 (La.1979), the supreme

court stated:

Furthermore, not every probation violation is serious enough to warrant the drastic sanction of revocation. C.Cr.P. 900 vests the trial judge with wide discretion when a condition of probation is violated, because the legislature recognized the necessity of judicial discretion in dealing with probation violations, which can be either minor or serious. With C.Cr.P. 900 the legislature intended the punishment for probation violations to be tailored to the facts of the case, the seriousness of the misdeed, and the

2 These violations were listed in the motion to revoke. At the hearing, the prosecutor did not question the probation officer separately as to each one. The probation officer testified the defendant had not reported since March 12, 2001 and that his first probation officer had a warrant issued because she could not find him in August of 2001. Additionally, the probation officer testified the defendant had “absconded . . . left the state.”

8 needs of the probationer. State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976).

In State v. Rexford, 95-152, p. 2 (La.App. 5 Cir. 6/28/95), 658 So.2d 27,

29, the court stated:

The trial court has wide discretion in revoking defendant’s probation and we will not reverse the trial court’s decision absent an abuse of that discretion. See La.C.Cr.P. art. 900; State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976); State v. Clark, 600 So.2d 785 (La.App. 5 Cir.1992).

These omissions alone may be insufficient to warrant revocation.

However, we remand this case for further proceedings where Defendant will be given

the opportunity to be represented by counsel at these proceedings. The trial court will

then have the opportunity to consider more fully and with all the guarantees of due

process the entirety of the allegations against the Defendant.

PRO SE CLAIMS

The Defendant contends his right against self-incrimination was violated

by arresting officers and that his Fourth Amendment rights were violated by the

seizure of his possessions in the absence of a search warrant. He additionally

contends he received ineffective assistance of counsel, that his guilty plea was the

product of threats, that there was insufficient evidence to convict him and that he was

illegally detained for fifteen hours while officers secured a warrant. Furthermore, the

Defendant claims he was not asked if he needed counsel for the revocation hearing

and that his probation should not have been revoked on the basis of old misdemeanor

convictions. Finally, the Defendant complains that the trial court failed to articulate

a factual basis for his sentence, that his sentence is excessive and that appellate

counsel has not filed a brief on his behalf.

9 The Defendant further claims that he did not intend to possess or sell

marijuana and he was not the person who sold the officers the drugs. He claims that

he was not advised for the reason for his arrest or detention, his right to remain silent

or his right to counsel. Additionally, he contends his counsel was ineffective because

his legal knowledge and preparation were minimal, he failed to appear at the hearings

held prior to sentencing and that he did not contact witnesses or attempt to challenge

the State’s case. According to the Defendant, if counsel had asked for discovery he

would have found the State made “some serious mistakes” regarding his arrest,

detention and seizure of his property. He contends counsel compelled him into

accepting probation.

Next, the Defendant claims the State’s evidence was nonexistent, and

thus insufficient to convict him beyond a reasonable doubt. He also contends that

his probation was revoked on old charges for which he was not convicted. Moreover,

the Defendant claims the judge failed to state a factual basis for his sentence and that

the sentence imposed is excessive.

Finally, the Defendant contends there was no probable cause to search

his apartment without a search warrant, that he was not arraigned in a timely manner

and that his statement was the product of an unlawful interview.

The Defendant’s claims that his probation should not have been revoked

on the basis of old misdemeanor convictions and that the assistance of counsel should

have been offered to him were both addressed above. The Defendant’s allegation

regarding his appellate counsel’s failure to file a brief is factually incorrect. This

court received a brief from appellate counsel after the Defendant’s pro se brief raising

this claim was filed. To address the Defendant’s claim that his guilty plea was the

product of threats, we have reviewed the guilty plea transcript. At the guilty plea

10 proceeding, the Defendant indicated he was entering the plea agreement willingly and

voluntarily and that no threats or promises other than the plea agreement had been

made to him. This claim has no merit. Additionally, the Defendant cannot seek

review of his sentence as it was imposed in conformity with his plea agreement set

forth in the record at the time of the plea. See La.Code Crim.P. art. 881.2(A)(2).

Finally, the alleged errors occurring prior to entry of the guilty plea, including

sufficiency of the evidence and ineffective assistance of counsel, were non-

jurisdictional defects waived by the entry of the plea. See State v. Holder, 99-1747

(La.App. 3 Cir. 10/11/00), 771 So.2d 780 and State v. Myers, 99-677 (La.App. 3 Cir.

12/8/99), 753 So.2d 898, writ denied, 00-053 (La. 6/23/00), 765 So.2d 1036.

Accordingly, the Defendant’s pro se claims lack merit.

CONCLUSION

For the foregoing reasons, the Defendant’s conviction and sentence are

affirmed. We remand this case for an evidentiary hearing on the Motion and Order

for Hearing to Revoke Probation. Defendant shall be given an opportunity to be

represented by counsel at this hearing.

CONVICTION AND SENTENCE AFFIRMED. CASE

REMANDED FOR EVIDENTIARY HEARING ON MOTION AND ORDER

TO REVOKE PROBATION.