State v. Domino

60 So. 3d 659, 10 La.App. 5 Cir. 661, 2011 La. App. LEXIS 88, 2011 WL 227928
CourtLouisiana Court of Appeal
DecidedJanuary 25, 2011
DocketNo. 10-KA-661
StatusPublished
Cited by8 cases

This text of 60 So. 3d 659 (State v. Domino) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Domino, 60 So. 3d 659, 10 La.App. 5 Cir. 661, 2011 La. App. LEXIS 88, 2011 WL 227928 (La. Ct. App. 2011).

Opinion

CLARENCE E. McMANUS, Judge.

|2The State of Louisiana appeals from the trial court’s judgment granting defendant’s motion to quash. We reverse the decision of the trial court and remand this case for further proceedings.

On March 31, 2008, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Andre Arlan Domino, Jr., with driving while intoxicated (DWI), third offense, in violation of LSA-R.S. 14:98(A)(D). The bill of information alleged that defendant had two prior convictions for DWI in violation of LSA-R.S. 14:98; the first on March 15, 2000, in case number S729608 in Second Parish Court, Division “B”; and, the second on February 18, 2004, in case number S892941 in Second Parish Court, Division “A.” Both prior convictions were obtained by guilty pleas.

The defendant filed a motion to quash the bill of information, alleging that the judge and the attorney failed to sign the waiver of rights form in his first predicate offense. Defendant then filed a supplemental motion in which he argued |3that a review of the transcript demonstrated his plea was not voluntarily or knowingly entered.

After a hearing was held, the trial court granted defendant’s motion to quash the first DWI predicate, finding that the State did not prove a valid waiver of Boykin rights. The State now appeals from the trial court’s ruling granting the motion to quash1.

A presumption of regularity attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 04-255, p. 5 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. Procedurally, in an alternative argument, the State contends that defendant is barred from a collateral attack on his prior plea, and that his predicate conviction is now final2.

In State v. Balsano, 09-0735, p. 8 (La.6/19/09), 11 So.3d 475, 479 (per cu-riam), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under LSA-R.S. 15:529.1, State v. Shelton, 621 So.2d 769 (La.1993) or in habitual offender D.W.I. prosecutions, State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. This line of jurisprudence appears to set forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the ’ recidivist habitual offender and driving while intoxicated statutes. Furthermore, this Court 1¿recognizes a motion [663]*663to quash is the proper vehicle to challenge the constitutional validity of a prior DWI guilty plea. See State v. Lowry, 00-107 (La.App. 5 Cir. 6/27/00), 762 So.2d 1275, 1277.

The Louisiana Supreme Court’s decision in Carlos established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. Balsano, supra. Adopting the Court’s prior opinion in Shelton, and acknowledging the presumption of regularity that attaches to prior final convictions, Carlos placed on the State the initial burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. Balsano, supra (citing Carlos, 98-1366 at 6, 738 So.2d at 559). If the State meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Balsano, supra (quoting Carlos, 98-1366 at 6-7, 738 So.2d at 559). If the defendant makes the required showing, the burden reverts to the State to produce a “perfect” Boykin transcript, i.e., one “which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin.” Id. (quoting Carlos, 98-1366 at 7, 738 So.2d at 559 n. 4 and Shelton, 621 So.2d at 775 n. 12). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Balsano, supra (quoting Carlos, 98-1366 at 7, 738 So.2d at 559).

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 642, unit denied, 03-3401 (La.4/2/04), 869 So.2d 5874. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Under Boykin v. Alabama, the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his privilege against self-incrimination, and his rights to a trial by jury and confrontation. State v. Payton, 04-1024, p. 4 (La.App. 5 Cir. 1/11/05), 894 So.2d 362, 365. The record must also show the defendant freely and voluntarily waived those rights. Id.

The Balsano court explained that Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemeanor offenses as to which the defendant does not have the right to a jury trial, shrinking the three-right rule to two rights. Balsano, 09-0735 at 9,11 So.3d at 479-80.

Whenever a misdemeanor guilty plea is ,to be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives these enumerated constitutional rights. State v. Vu, 02-1243 (La.App. 5 Cir. 4/8/03), 846 So.2d 67, 71. The trial judge must also ascertain that the accused understands what the plea connotes and its [664]*664consequences. “While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” Id.

In this case, at the hearing on the motion to quash, defendant challenged the first DWI predicate and argued that he was not represented by counsel at the time IfiOf the plea. He also argued that the plea was a “group plea” with four individuals pleading at one time. He contended that there was no articulated waiver of rights in the transcript. Defendant testified at the hearing that he had an 11th grade education and no GED or high school diploma. Defendant recalled being in Second Parish Court in March of 2000. He testified that the district attorney told him to sign the document and things could be resolved without him having to go to jail.

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Cite This Page — Counsel Stack

Bluebook (online)
60 So. 3d 659, 10 La.App. 5 Cir. 661, 2011 La. App. LEXIS 88, 2011 WL 227928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-domino-lactapp-2011.