State v. Battle

552 So. 2d 503, 1989 WL 134301
Louisiana Court of Appeal·Decided November 1, 1989·No. 21094-KA, 21095-KA·Published·Cited by 10 cases

Opinion

552 So.2d 503 (1989)

STATE of Louisiana, Appellee,
v.
Joe BATTLE, Appellant.

No. 21094-KA, 21095-KA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1989.

*504 Indigent Defender Office by Kurt J. Goins, Richard E. Hiller, Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Rebecca J. Irwin, Tommy Johnson, Asst. Dist. Attys., Shreveport, for appellee.

Before HALL, FRED W. JONES, Jr., and HIGHTOWER, JJ.

HALL, Chief Judge.

The defendant, Joe Battle, was charged with simple burglary in violation of LSA-R.S. 14:62 and purse-snatching in violation of LSA-R.S. 14:65.1. Pursuant to a plea bargain agreement, the defendant pled guilty as charged to these two felonies, with the state agreeing to drop two additional felony charges and five misdemeanor charges pending against the defendant. After being sentenced to three years at hard labor for the simple burglary and five years at hard labor for the purse-snatching, the sentences to run consecutively, the defendant appealed asserting the sentences imposed are excessive.

On its own motion, upon noticing potential errors patent in the record, this court ordered counsel for the defendant and counsel for the State of Louisiana to brief the issues of adequacy of the record as related to the trial court's advisement and the defendant's waiver of his right to confrontation and trial by jury. We now conclude that the guilty plea was valid, and we affirm the defendant's conviction and sentences for the reasons stated below.

GUILTY PLEA

Before accepting the defendant's guilty plea, the trial court engaged in a colloquy with the defendant, the pertinent portions of which are quoted below:

THE COURT: Before accepting the plea of guilty, I need to talk to you to make sure you understand what you are pleading guilty to and to make sure you understand what constitutional rights you waive by pleading guilty. Mr. Battle, do you understand that when you come forward and plead guilty to the two charges in this case, purse snatching and simple burglary, that you are waiving your right to have a trial in these two matters?
THE DEFENDANT: Yes, sir.
THE COURT: Do you also understand that when you plead guilty you are waiving your right to have present testify against you on these charges the people that are accusing you of the charges? Do you understand that?
THE DEFENDANT: Yes, sir.

A guilty plea will not be considered valid unless the plea was a free and voluntary *505 choice on the part of the defendant. A guilty plea will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. There must also be an express and knowing waiver of those rights and the waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La. 1984).

Trial By Jury

Although the trial court advised the defendant during the Boykin colloquy of his right to a trial, it did not specifically advise the defendant of his right to a trial by jury. However, defendant was advised twice during the guilty plea proceedings that a jury was present and the state was ready to proceed to a jury trial if the defendant did not plead guilty. The trial court remarked at one point, "We are trying to keep the jury out to find out what the status is." The defendant was also told by the trial court, when the defendant questioned his sentence exposure, "If you are not ready to plead guilty, we have a jury ready."

Under the circumstances of this case, where the defendant pled guilty on the day he was scheduled to begin a jury trial, the defendant was advised of his right to a trial, and the trial court further advised the defendant that if he did not wish to plead guilty a jury was present for his trial, the defendant was made aware that if he pled guilty he was giving up a right to a jury trial. Thus, there is an affirmative record showing that this defendant knowingly and voluntarily waived his right to a trial by jury.

Confrontation

In advising the defendant of his constitutional rights, the trial court advised the defendant that if he pled guilty he would waive his right to "have present and testify against you on these charges the people that are accusing you of the charges?" In State v. Woods, 402 So.2d 680 (La.1981), the Louisiana Supreme Court addressed a similar issue, and held that the defendant was adequately advised of his rights to confrontation. The phrase used by the trial court in Woods, "the state must call its witnesses and prove guilt beyond a reasonable doubt." is similar to that used in the instant case. The court stated, "While it is true that defendant was not specifically advised that he had the right to `confront' the witnesses against him, it would be the height of technicality to require that the word `confront' be used rather than an explanation of the right as was used here."

In State v. Sapp, 520 So.2d 991 (La. App.3d Cir.1987), that court upheld a guilty plea with a similar discussion of the right to confrontation. There the trial court said in advising the defendant of his right to confrontation: "Do you understand that by entering a plea of guilty you waive the following constitutional rights: The right to be tried before a jury and the right to have all the witnesses to any facts constituting this crime to be sworn and testify before this Court and you." The appellate court stated: "The full transcript of the colloquy evidences that every effort was made to explain the defendant's rights and to ensure that his guilty plea was made knowingly and voluntarily."

In the case at bar, the trial court did not advise the defendant that he was giving up the right to "confront" the witnesses in that language; he did, however, advise the defendant that he would be waiving the "right to have present and testify against you on these charges the people that are accusing you of the charges?". This language is similar to that used by the trial court in Sapp, and like the Third Circuit, we find this language sufficient, although barely so, under the standard of State v. Woods, supra.

While finding the advisement of the right to confrontation minimally adequate in this case, we note our concern over the language used and that the court's explanation of this right should inform the defendant of the component right to cross-examine the witnesses against him.

*506 We find the defendants guilty plea was entered knowingly and voluntarily, and uphold his conviction.

SENTENCE

The defendant asserts that the sentences imposed of three and five years at hard labor, respectively, are excessive, considering these convictions are the defendant's first felony convictions. The defendant also asserts that the trial court erred in giving undue consideration to the defendant's prior criminal history.

The offenses to which the defendant pled guilty were committed at separate times. The simple burglary offense occurred on October 23, 1987, when the defendant and two companions broke into Bob's T.V. and VCR business. The defendant participated as the look-out while the other two removed merchandise.

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State v. Battle, 552 So. 2d 503, 1989 WL 134301 (La. Ct. App. 1989).

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