STATE OF LOUISIANA NO. 20-KA-170
VERSUS FIFTH CIRCUIT
ROBERT CELESTINE, JR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-2962, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
November 04, 2020
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED; REMANDED WITH INSTRUCTIONS JJM FHW RAC COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Matthew R. Clauss
COUNSEL FOR DEFENDANT/APPELLANT, ROBERT CELESTINE, JR. Bertha M. Hillman MOLAISON, J.
Defendant, Robert Celestine, Jr., appeals the validity of his guilty pleas on
the basis that the pleas were not knowing and voluntary. As we find that the
defendant entered into his pleas as a knowing, intelligent, free, and voluntary act to
take advantage of a plea bargain, we affirm the convictions and sentences.
PROCEDURAL HISTORY
On June 4, 2018, the Jefferson Parish District Attorney filed a bill of
information charging the defendant, Robert Celestine Jr., with possession of
firearms by a convicted felon in violation of La. R.S. 14:95.1 (count one);
obstruction of justice in violation of La. R.S. 14:130.1 (count two); aggravated
flight from an officer in violation of La. R.S. 14:108.1(C) (count three); and
possession with intent to distribute cocaine, less than 28 grams, in violation of La.
R.S. 40:967(A) (count four). Defendant pled not guilty to all counts at his
arraignment held on the same date.
Defendant filed a motion to appoint a sanity commission to determine his
competency to stand trial on June 6, 2018. At a competency hearing on July 11,
2018, the defendant and the State tendered a stipulation that if Dr. Rafael F.
Salcedo and Dr. Richard Richoux were called, both doctors would be qualified as
experts in the fields of forensic psychology and psychiatry, respectively; both
doctors would testify to the facts and opinions that appear in their reports; and both
doctors would recommend that the trial court find defendant competent to proceed
to trial. The trial court accepted the stipulation and found the defendant competent
to proceed.
20-KA-170 1 On January 14, 2019, the defendant withdrew his pleas of not guilty and pled
guilty as charged to all counts. The trial court advised the defendant of his Boykin1
rights, and the defendant signed an Acknowledgment and Waiver of Constitutional
Rights – Guilty Plea form. After advising the defendant of his Boykin rights, the
trial court accepted his guilty pleas.2 The defendant waived delays, and the trial
court sentenced the defendant in conformity with the plea agreement. As to count
one and count two, the trial court sentenced the defendant to imprisonment at hard
labor for a term of five years for each count. The sentence as to count one was to
be served without the benefit of parole, probation, or suspension of sentence. As to
count three and count four, the trial court sentenced the defendant to imprisonment
at hard labor for a term of two years for each count. All counts were to run
concurrently with each other. The trial court advised the defendant that he had 30
days to appeal his sentence and two years after the judgment of conviction and
sentence become final to file an application for post-conviction relief.
Immediately thereafter, the State filed a multiple offender bill of information
against the defendant as to count two, alleging he was a second felony offender
under La. R.S. 15:529.1.3 The defendant stipulated to being a second felony
offender. Before accepting the defendant’s stipulation, the trial court reviewed the
defendant’s rights, which included the right to have a hearing on the multiple
offender bill of information and the right to remain silent throughout such a
hearing. Defendant indicated that he understood he was giving up these rights; he
1 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969). 2 Defendant also pled guilty to misdemeanor possession of drug paraphernalia, in violation of La. R.S. 40:1023, in 24th Judicial District Court docket number 18-3333. The misdemeanor case is not part of the instant appeal. 3 Originally the plea bargain presented by the State included a multiple offender bill on Count 1, but when defense counsel discovered that they would be required to run the sentence without the possibility of probation, parole, or suspension of sentence, the State offered to multiple bill on Count 2 in order to allow defendant to have the benefit of parole. 20-KA-170 2 completed and signed a Waiver of Rights – Plea of Guilty Multiple Offender form.
The trial court accepted the defendant’s stipulation to the multiple bill and vacated
the sentence on count two. The trial court resentenced the defendant on count two
to a term of 15 years without the benefit of probation or suspension of sentence.
On January 17, 2019, the defendant filed a motion by letter requesting to
withdraw his guilty plea, asserting his attorney threatened, coerced, and wrongfully
advised him that he “would get a life sentence” and abandoned “any of a defensive
representative strategy for [his] defense.” The trial court denied the defendant’s
request on February 14, 2019. Defendant filed a pro se application for post-
conviction relief (APCR) on June 25, 2019, alleging the evidence presented was
insufficient to support a conviction for obstruction of justice. On June 28, 2019,
the trial court dismissed without prejudice the application for post-conviction relief
as premature since the defendant had not exhausted his appellate rights, noting that
“[t]he proper procedure for obtaining an out-of-time appeal is to file an application
for post-conviction relief, specially requesting an out-of-time appeal, which the
court would review.”
Defendant subsequently filed a pro se request for an out-of-time appeal on
August 30, 2019.4 The trial court construed the defendant’s motion to be an
application for post-conviction relief and ordered the State to file any procedural
objections or an answer on the merits.5 On January 13, 2020, the State filed a
4 In his request for an out-of-time appeal, defendant argued that his failure to appeal was attributable to an error by his lawyer. He suggested that his guilty pleas to counts two and four were not voluntary due to ineffective assistance of counsel. These claims are not raised in this appeal. The record does not contain sufficient evidence for this Court to consider a claim of ineffective assistance of counsel. Furthermore, the Louisiana Supreme Court has held that a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an evidentiary hearing before the trial court and create an adequate record for review. State v. Truitt, 500 So.2d 355 (La. 1987); State v. Hart, 96-0697 (La. 3/7/97), 691 So.2d 651. 5 On October 1, 2019, defendant filed a Notice of Objections in which he asserted the trial court lacked jurisdiction to hear and decide the merits of the appellate claims set forth in his post-conviction matter. The trial court denied the motion on January 15, 2020. 20-KA-170 3 response setting forth no opposition to the defendant’s request for an out-of-time
appeal.6 The trial court granted the defendant’s request for an out-of-time appeal,
appointing the Louisiana Appellate Project to represent the defendant, and
dismissing the defendant’s APCR without prejudice on January 30, 2020. This
appeal followed, in which the defendant challenges the validity of his guilty pleas
on the basis that the pleas were not knowing and voluntary.
FACTS
As the defendant pled guilty, the facts were not fully developed at trial.
Nonetheless, the bill of information as to count one alleges that on or about April
3, 2018, the defendant violated La. R.S. 14:95.1 by having in his possession a
Glock 9 mm handgun, serial number BDL410; a Smith & Wesson M&P semi-
automatic rifle, serial number SY96562; and a Bersa .380 caliber handgun, serial
number 760427, having been previously convicted of illegal use of weapons or
dangerous instrumentalities in violation of La. R.S. 14:94.7 The bill of information
also alleges that the defendant violated La. R.S. 14:130.1 in that he obstructed
justice by tampering with evidence relevant to a criminal proceeding in which a
sentence with or without hard labor may be imposed (count two). As to count
three, the bill of information alleges that the defendant violated La. R.S.
14:108.1(C) by intentionally refusing to bring a vehicle to a stop, under
circumstances where human life was endangered, knowing he had been given a
visual and audible signal to stop by Deputy R. Lyons of the Jefferson Parish
6 On September 9, 2019, the trial court ordered the State to respond within thirty days. On December 17, 2019, the State filed a motion for extension of time to respond to defendant’s request for an out-of-time appeal. By letter filed on December 27, 2019, defendant objected to the State’s motion, and on December 30, 2019, he requested a rule to show cause why the State should not be held in contempt of court for non-compliance with the trial court’s order. The trial court denied defendant’s motion on January 15, 2020. 7 The bill of information alleges the previous conviction occurred under case number 10-5271 on December 14, 2010, in the 24th Judicial District Court. 20-KA-170 4 Sheriff’s Office when the officer had reasonable grounds to believe the defendant
had committed an offense. Finally, count four of the bill of information alleges
that defendant violated La. R.S. 40:967(A) by knowingly or intentionally
possessing with intent to distribute a controlled dangerous substance, to wit:
cocaine, weighing less than twenty-eight grams.
During the colloquy, the State provided the factual basis for the defendant’s
charges and, in doing so, recited the allegations outlined in the bill of information.
The State also provided the factual basis for the defendant’s multiple bill by setting
forth that it would have proven that the defendant pled guilty to illegal possession
of a firearm in violation of La. R.S. 14:69.1 on December 14, 2010, and was
sentenced on that same date to two years in the Department of Corrections. The
State set forth that it would have proven, through a certified conviction, that
defendant was properly advised of his rights. The State also set forth that it would
have proven that less than ten years elapsed from the completion of the defendant’s
sentence to the date of the offense in the instant case.
DISCUSSION
In his sole assignment of error, the defendant asserts that his guilty pleas
were not knowing and voluntary. Defendant contends that he was “induced” to
plead guilty to these charges to avoid a mandatory life sentence. He claims that he
was informed by the State, the court, and his attorney that he would be exposed to
a life sentence as a fourth felony habitual offender, but there is no evidence in the
record of any prior convictions that could be used to enhance his current charges.
Under La. C.Cr.P. art. 559(A), the trial court has the discretion to permit a
defendant to withdraw his guilty plea at any time before sentencing. Once a
defendant has been sentenced, only those guilty pleas that are constitutionally
20-KA-170 5 infirm may be withdrawn and only by appeal or post-conviction relief. State v.
McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A plea is
constitutionally infirm when it is not entered freely and voluntarily, if the Boykin
colloquy was inadequate, or when a defendant is induced to enter the plea by a plea
bargain that is not kept. Id. A mere change of heart or mind by the defendant as to
whether he made a good bargain will not ordinarily support allowing the
withdrawal of a bargained guilty plea. State v. Green, 03-410 (La. App. 5 Cir.
10/28/03), 860 So.2d 237, 242, writ denied 03-3228 (La. 3/26/04), 871 So.2d 346
(citing State v. Cook, 32,110 (La. App. 2 Cir. 6/16/99), 742 So.2d 912, 919-20).
Without fraud, intimidation, or incompetence of counsel, a guilty plea is not made
less voluntary or informed by the considered advice of counsel. Id.
A review of the record shows that the trial court advised the defendant that
he faced a maximum sentence of life on each of the four charged counts if he went
to trial and the State multiple billed him as a fourth felony offender. The trial court
also advised the defendant that the State agreed to accept a plea to a “double bill”
with a sentence of 15 years in the Department of Corrections for count one, five
years in the Department of Corrections for count two, two years in the Department
of Corrections for count three, and two years in the Department of Corrections for
count four. The trial court advised the defendant it would run the sentences
concurrently.
During the Boykin colloquy, the trial court advised the defendant that he was
pleading guilty to the following crimes: possession of a firearm by a convicted
felon in violation of La. R.S. 14:95.1; obstruction of justice in violation of La. R.S.
14:130.1; aggravated flight in violation of La. R.S. 14:108.1; and possession with
intent to distribute a controlled dangerous substance, specifically less than 28
20-KA-170 6 grams of cocaine, in violation of La. R.S. 40:967(A). The defendant indicated that
he understood he was pleading guilty to these crimes. During the colloquy, the
defendant was advised of his right to a jury trial, his right to be presumed innocent
until the District Attorney proved his guilt beyond a reasonable doubt, his right to
confrontation, his privilege against self-incrimination, his right to appellate review
of an adverse verdict at trial, and his right to the assistance of a lawyer. The
defendant indicated that he understood that he was waiving and giving up these
rights. The defendant was also advised of these rights on a waiver of rights form
that the defendant initialed and signed.
During the colloquy, the defendant also indicated that he was satisfied with
the way his attorney handled his case; confirmed that he understood the possible
legal consequences of pleading guilty; and confirmed that the act of pleading guilty
was knowing, intelligent, free, and voluntary on his part and that no promises or
threats had been made to encourage him to enter guilty pleas. The trial court
informed the defendant that his guilty pleas could be used to enhance a penalty for
any future conviction. The trial court advised the defendant of the maximum
sentences that may be imposed for each of the four counts. The trial court also
advised defendant he would be sentenced as follows: as to count one, a sentence of
five years in the Department of Corrections without the benefit of probation,
parole, or suspension of sentence; as to count two, a sentence of five years in the
Department of Corrections; as to count three, a sentence of two years in the
Department of Corrections; and as to count four, a sentence of two years in the
Department of Corrections. The trial court advised the defendant that all sentences
would be concurrent. Defendant again indicated that he understood his rights and
had no further questions. After his colloquy with the defendant, the trial judge
20-KA-170 7 accepted the defendant’s guilty pleas as knowingly, intelligently, freely, and
voluntarily made. After a waiver of delays, the trial court sentenced the defendant
following the plea agreement.
After a review of the record, we find that defendant understood the guilty
plea proceedings. It is clear that the trial judge carefully advised the defendant of
the sentencing ranges for each count, as well as the sentencing ranges for each
count as a fourth felony offender. The trial court explained the plea offer presented
by the State. Defendant indicated that he understood the potential sentences and
plea offer. When he initially indicated that he was unsure about going forward
with a trial on his not-guilty plea, the court allowed him to consider the potential
sentences and plea offer and to have a discussion with his attorney before
withdrawing his not-guilty pleas. After the defendant expressed his intention to
withdraw his not-guilty pleas, the trial court reviewed the defendant’s Boykin
rights during the colloquy and the defendant stated he understood his rights.
Further, the defendant executed a waiver of rights form, and he indicated to the
trial court that he had no difficulty reading and understanding the waiver of rights
form. At no time during the colloquy did the defendant indicate that he had been
induced to enter guilty pleas in any way; rather, he confirmed that the guilty pleas
were knowing, intelligent, free, and voluntary on his part and that no promises or
threats had been made to encourage him to enter into the guilty pleas.
We find no merit to the defendant’s assertion that he was “induced” to plead
guilty by the trial court or his attorney by the threat of being billed as a fourth
felony offender and to avoid a life sentence. This Court has previously discussed
the voluntariness of a guilty plea entered to limit the possible maximum penalty in
State v. Kron, 07-1024 (La. App. 5 Cir. 3/25/08), 983 So.2d 117, writ denied, 08-
20-KA-170 8 0813 (La. 10/24/08), 992 So.2d 1039. In Kron, the defendant argued that he felt
pressured to plead guilty by the threat of a “quad bill” if he proceeded to trial, and
therefore, his plea was not knowing and voluntary. Id. at 119. In exchange for the
guilty plea, the State agreed to bill the defendant as a third felony offender with an
eight-year sentence, rather than as a fourth felony offender which would expose
him to life imprisonment. Id. at 122. As to the defendant’s suggestion that he felt
pressured to plead guilty, the Court stated:
The reality of defendant's potential life sentence understandably provoked fear in defendant. However, as the Louisiana Supreme Court has stated, there is no inherent coerciveness when a trial judge explains the possible penalties a defendant faces if he went to trial and was convicted by a jury. State v. Bouie, supra. Defendant's guilty plea is not rendered involuntary simply because he entered the plea to limit his possible maximum penalty to less than that authorized by law for the crime charged.
Id. at 123, citing State v. Bouie, 00-2934 (La. 5/14/02), 817 So.2d 48, 53. The
advice of possible penalties is information that an accused should possess to enter a
knowing and intelligent guilty plea. Bouie, 817 So.2d at 55. After reviewing the
Boykin colloquy and waiver of rights form, this Court found the Kron defendant’s
guilty plea was knowing and voluntary. 983 So.2d at 120-21.
Likewise, this Court finds no inherent coerciveness by the trial judge
explaining the sentencing range faced by a defendant under a multiple bill if he
goes to trial and is convicted by a jury. It is not “intimidation” for an attorney to
advise his client of the risk of a multiple offender bill. State v. Youngblood, 32,003
(La. App. 2 Cir. 5/5/99), 740 So.2d 687, 691. Nor has the defendant established
that his decision to plead guilty was coerced by any misrepresentation or
misstatement by counsel that he could be charged as a fourth felony offender.
The defendant contends the record contains no evidence to establish that he
is a fourth felony offender; contains no evidence that if there are prior convictions, 20-KA-170 9 those convictions are not subject to a cleansing period; contains no evidence that
the defendant is the same Mr. Celestine who acquired the previous convictions,
and contains no evidence that the trial court could have imposed a life sentence.
Although the defendant contends the record contains no evidence to establish that
he is a fourth felony offender, the defendant was informed of the prior convictions
of which the State was aware and could use to prove his fourth felony offender
status. The State announced that the defendant was a quadruple felony offender
and provided the trial court with a recitation of the defendant’s prior convictions:
(1) a 2012 conviction for possession of a Schedule II controlled dangerous
substance; (2) a 2012 conviction for possession with intent to distribute a Schedule
II controlled dangerous substance; (3) a 2010 conviction for illegal use of a firearm
in violation of La. R.S. 14:94; and (4) a 2010 conviction for violation of La. R.S.
14:69.1 (illegal possession of stolen firearms).
If the defendant desired to force the State to produce evidence of all of his
prior convictions, he could have contested his prior convictions at a multiple bill
hearing. La. R.S. 15:529.1(D)(1)(a) allows a prosecutor to file a multiple offender
bill of information accusing a person convicted of a felony of a previous conviction
of a felony at any time after conviction or sentence. The trial court shall inform the
offender of the allegations and his right to be tried as to the truth, and if the
offender denies the allegations, he is given fifteen days to file particular objections
to the information. La. R.S. 529.1(D)(1)(b). If the person claims that any
conviction alleged is invalid, he shall file a written response to the information, and
any challenge to a previous conviction which is not made before the sentence is
imposed may not thereafter be raised to attack the sentence. Id.
20-KA-170 10 To prove that a defendant is a habitual offender, the State must establish by
competent evidence the defendant's prior felony convictions and that defendant is
the same person who was convicted of the prior felonies. State v. Chaney, 423
So.2d 1092 (La. 1982); State v. Jones, 08-466 (La. App. 5 Cir. 10/28/08), 998
So.2d 178, 182-83.8 The State is not required to use a specific type of evidence to
carry its burden of proof according to the Habitual Offender Law, La. R.S.
15:529.1. State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339, 344 n. 3, cert.
denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001); Jones, 998 So.2d
at 183. Any competent evidence may be used to prove a defendant's prior
convictions, including the testimony of witnesses to prior crimes, expert testimony
matching fingerprints of the defendant with those in the record of prior
convictions, or photographs contained in a duly authenticated record. State v.
Mays, 05-2555 (La. 5/26/06), 929 So.2d 1231, 1232; Jones, 998 So.2d at 183.
Instead of electing to challenge the validity of the four prior felony
convictions listed by the State, the defendant chose to accept the offer made by the
State waiving his right to a multiple offender hearing in exchange for the State
proceeding only on a second felony offender bill and ensuring a maximum
sentence of fifteen years. As the sentencing transcript reflects, the prosecutor
advised the court of the plea agreement to bill the defendant only as a second
felony offender, rather than a fourth felony offender.
While the defendant claims that his decision to plead guilty was induced by
the State’s threat to bill him on charges that would require a mandatory life
sentence if he did not accept the offer, this conflicts with his plea waiver form that
8 When a defendant's habitual offender status is based on guilty pleas in the predicate convictions, the State also has the burden of proving the defendant was represented by counsel when the guilty pleas were taken. State v. Shelton, 621 So.2d 769, 779 (La. 1993); Jones, 998 So.2d at 183. 20-KA-170 11 bears his initials next to the admonishment: “I have not in any way been forced,
coerced, or threatened to enter this plea of guilty.” The fact that the State informed
him that the multiple offender law can be used to seek a more severe enhanced
sentence does not constitute a threat or coercion that would render his plea
involuntary. The Louisiana Supreme Court, in discussing this situation, has stated
that “it is in the very nature of plea bargains that the prospects under differing
circumstances will be discussed freely.” State ex rel. James Henry Jackson v.
Henderson, 283 So.2d 210, 211 (La. 1973). Defendant’s argument runs counter to
well-established case law recognizing that it is constitutionally permissible to use
the threat of more severe punishment to encourage a guilty plea. See Frank v.
Blackburn, 646 F.2d at 883 (5th Cir. 1980) (noting that the Supreme Court's plea
bargaining decisions make it clear that a state is free to encourage guilty pleas by
offering substantial benefits to a defendant, or by threatening an accused with more
severe punishment should a negotiated plea be refused) (citing Corbitt v. New
Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978); Bordenkircher v.
Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)).
In the instant case, the State could have charged the defendant as a fourth
felony offender under Louisiana law. Given that scenario, the defendant would
have faced the likelihood of a significantly more severe sentence, one that included
the possibility of life imprisonment. The State's assertion that it could file a habitual
offender bill charging the defendant as a fourth felony offender was part of
permissible plea bargain negotiations, and did not render his acceptance of the
State's plea offer involuntary.
Concerning the voluntariness of the defendant’s plea at the multiple offender
proceeding, the validity of his plea to the second felony offender multiple bill is
20-KA-170 12 not invalidated by lack of evidence presented as to prior felony convictions.
Defendant waived his right to a hearing and any possible non-jurisdictional defects
by stipulating to being a second felony offender as alleged in the multiple bill. By
stipulating to the multiple bill, the defendant is barred from asserting on appeal that
the State failed to produce sufficient proof at the multiple bill hearing. State v.
Allen, 19-388 (La. App. 5 Cir. 4/30/20), 296 So.3d 1084, 1090. In a similar case,
where a defendant argued that the trial judge erred in not making the State prove
that the out-of-state convictions were felonies in Louisiana or show that the
cleansing period had not lapsed, this Court found an unconditional plea, willingly
and knowingly made, waives all non-jurisdictional defects and bars a defendant
from later asserting on appeal that the state failed to produce sufficient proof at the
multiple offender hearing. State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97),
704 So.2d 300, 304. See also, State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15),
178 So.3d 219, 230, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165
(defendant waived non-jurisdictional defects in the habitual offender bill by
stipulating to it and entering into an unqualified guilty plea) and State v. Dickerson,
11-236 (La. App. 5 Cir. 11/15/11), 80 So.3d 510, 520.
A review of the multiple offender proceeding reveals that the defendant was
advised that he was being charged as a second felony offender and that he had
received and reviewed a copy of the multiple offender bill of information. The
defendant was advised that by stipulating to the multiple bill, he was giving up the
right to “plead not guilty to this charge” and the right to have a hearing and force
the District Attorney to prove: (1) that he was one and the same individual who had
a prior felony record, (2) that not more than ten years had elapsed since the
expiration of the maximum sentence or sentences of the previous conviction or
20-KA-170 13 convictions, and (3) that he was properly advised of his Boykin rights if any prior
conviction was the result of a guilty plea. The defendant indicated that he
understood he was giving up these rights.
The defendant voluntarily stipulated to the habitual offender bill and entered
into an unqualified guilty plea. During the multiple bill colloquy, the trial court
informed the defendant that he would receive a sentence of 15 years without the
benefit of probation or suspension of sentence on count two, and the defendant
indicated that he understood the sentence. The waiver of rights form signed and
initialed by the defendant also indicates that he would receive a sentence of 15
years without the benefit of probation or suspension of sentence. Defendant
indicated that he was satisfied with how his attorney handled the case, that he
understood the legal consequences of the stipulation, and that he wished to
stipulate to the multiple bill. We find that defendant was not induced to stipulate
to the multiple bill and that defendant entered the stipulation knowingly, freely,
and voluntarily.
Therefore, we find that defendant’s guilty pleas to be constitutionally valid.
The record shows he was adequately advised of his Boykin rights and his pleas
were knowing and voluntary. He was not improperly induced to enter the pleas by
the Court or his attorney in explaining the possible penalties. By entering into a
plea bargain with the State, the defendant waived his right to have the State
produce evidence of his prior felony convictions.
Errors Patent
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975). A review of the transcript shows the
20-KA-170 14 trial court did not state at the multiple offender sentencing that the 15-year
sentence on count two would run concurrently with the other sentences. During
plea negotiations, the State indicated that the State and the court agreed to all
sentences running concurrently rather than consecutively in exchange for the
defendant’s plea of guilty to all charges. When the trial court reviewed the terms
of the plea offer with the defendant before the Boykin colloquy, the trial court said
that it would run the sentences concurrently, stating, “[t]he Court would run them
and it would be altogether [sic]. So 15 years along with those other years that
we’ve indicated, would run concurrent.” The Nunc Pro Tunc minute entry dated
February 27, 2020, does state that “sentences on all counts, including the sentence
on the Multiple Offender bill, are to run concurrently with each other.” 9
Furthermore, La. C.Cr.P. art. 883 provides:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
In this case, all of the charged offenses were part of the same act or transaction.
Although the trial court was silent as to whether the defendant’s enhanced
sentence was to run concurrently with any other sentences during the multiple bill
hearing, the record shows that the court intended the sentences to run concurrently
and that defendant was informed of this before entering his guilty plea. The record
is sufficient to show the trial court’s intention to have the defendant’s habitual
9 The Nunc Pro Tunc minute entry dated February 27, 2020, corrects the minute entries dated January 14, 2019 and January 16, 2019.
20-KA-170 15 offender sentence run concurrently with the other sentences. See State v. Thomas,
10-221 (La. App. 5 Cir. 11/9/10), 54 So.3d 668, 692. The Uniform Commitment
Order (UCO) also fails to specify that the sentences shall be concurrent. The record
contains two UCOs dated February 27, 2020, one on the defendant’s sentence
according to the guilty pleas and one on the defendant’s sentence on the multiple
bill. Neither UCO indicates that the defendant’s sentences are to run concurrently
with each other, but both UCOs show the sentences are to run concurrently with
24th Judicial District Court case number 18-3333. Therefore, we remand for
correction of the UCO to reflect the concurrent nature of the sentences. See State
v. Melgar, 19-540 (La. App. 5 Cir. 4/30/20), 2020 WL 2079031, at *11.
Furthermore, we direct the 24th Judicial District Court Clerk of Court to transmit
the corrected UCOs to the appropriate authorities following La. C.Cr.P. art.
892(B)(2) and the Department of Corrections’ legal department.
Additionally, there is an error within the sentencing minute entry. The Nunc
Pro Tunc minute entry dated February 27, 2020, contains a discrepancy as to the
sentences imposed for count three and count four. The minute entry states both that
defendant was sentenced to two years at hard labor on count three and count four
and that defendant was sentenced to five years at hard labor on count three and
count four. According to the sentencing transcript, the defendant was sentenced to
two years at hard labor on count three and two years at hard labor on count four.
Consistent with the transcript, the UCO dated February 27, 2020, reflects a
sentence of two years at hard labor on count three and count four. Generally, when
there is a discrepancy between the minutes and the transcript, the transcript
prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Therefore, we remand the
20-KA-170 16 case for correction of the minute entry to ensure the accuracy of the record. See
State v. Belvin, 14-626 (La. App. 5 Cir. 12/16/14), 170 So.3d 987.
CONCLUSION
For the above reasons, we find that defendant was not induced to plead
guilty or stipulate to the multiple offender bill of information, but freely,
knowingly, and voluntarily pled, based on a favorable plea agreement. Therefore,
we find no merit in the assignment of error. We affirm the convictions and
sentences, and remand to the trial court for correction of the minute entry and
Uniform Commitment Order following the directions of this Court.
AFFIRMED; REMANDED WITH INSTRUCTIONS
20-KA-170 17 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 4, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-170 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE) MATTHEW R. CLAUSS (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)
MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053