State v. Echols

774 So. 2d 993, 2000 WL 1584600
CourtLouisiana Court of Appeal
DecidedOctober 4, 2000
Docket99-KA-2226
StatusPublished
Cited by4 cases

This text of 774 So. 2d 993 (State v. Echols) 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. Echols, 774 So. 2d 993, 2000 WL 1584600 (La. Ct. App. 2000).

Opinion

774 So.2d 993 (2000)

STATE of Louisiana
v.
Michael ECHOLS.

No. 99-KA-2226.

Court of Appeal of Louisiana, Fourth Circuit.

October 4, 2000.

*994 Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appellee.

Martin E. Regan, Jr., Regan & Associates, P.L.C., New Orleans, Counsel for Defendant/Appellant.

(Court composed of Chief Judge ROBERT J. KLEES, Judge DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY).

KIRBY, J.

The defendant, Michael Echols, was charged by bill of information on January 12, 1998 with possession of cocaine, a violation of La. R.S. 40:967. The defendant was arraigned on January 23, 1998 and pled not guilty. At the arraignment, the trial court ordered the defendant to take a drug test. On February 2, 1998, the defendant was again ordered to take a drug test, and was remanded to the custody of *995 the criminal sheriff, "due to positive drug testing."

On February 17, 1998, the defendant withdrew his not guilty plea and entered a plea of guilty as charged under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970.) The trial court advised defendant of his Boykin rights and asked if defendant was pleading guilty because he was guilty. The defendant indicated that he was not pleading guilty because he was guilty. However, he admitted that he was pleading guilty because it was in his best interest to do so, and he believed that if he proceeded to trial there was a likelihood that he would be found guilty of the charge. The court found a basis for accepting the guilty plea, found the defendant had knowingly, intelligently, freely, and voluntarily waived his constitutional rights, and accepted the guilty plea. The court sentenced the defendant to serve five years at hard labor, with credit for time served.

The State filed a multiple bill charging the defendant with being a third felony offender. The defendant admitted to having a felony conviction for possession of stolen property in June of 1988 and a conviction for crime against nature in 1989. The court found the defendant to be a third felony offender, vacated the original sentence and sentenced the defendant to serve five years at hard labor pursuant to La. R.S. 15:529.1.

The defendant subsequently filed a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana complaining of ineffective assistance of counsel. The defendant averred that when he pled guilty to possession of cocaine, he "asked the judge for rehabilitation while in the custody of D.O.C." The defendant further alleged that the judge denied him the right to placement in a community rehabilitation program, and his attorney failed to argue the issue of his heavy drug use. The disposition of the federal court action is unknown. However, the defendant subsequently filed a motion for an out of time appeal, which was granted on December 2, 1998.

STATEMENT OF FACTS

As a factual basis for the defendant's guilty plea, the State represented that police officers came upon the defendant in the Vieux Carre smoking a glass crack pipe. The officers retrieved the pipe, which later tested positive for cocaine.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the trial court erred in not advising him that the offense to which he pled could be used to enhance the penalty for any subsequent drug offense he might commit. In this assignment of error the defendant argues that the court failed to follow the mandate of La.C.Cr. P. art. 556.1 which provides in pertinent part:

Art. 556.1. Plea of guilty or nolo contendere in a criminal case; duty of court
* * * * * *
E. In any case where a subsequent offense carries an enhanced penalty, the court shall inform the defendant of the penalties for subsequent offenses.

Notwithstanding the fact that the defendant was convicted of possession of cocaine, the trial court failed to inform the defendant that La. R.S. 40:982, an enhancement statute, would apply if the defendant were convicted of another drug offense.

In the recent case of State v. Guzman, 99-1753, 99-1528, p. 4 (La.5/16/00), 769 So.2d 1158, our Supreme Court rejected a defendant's argument that a trial court's failure to comply with La.C.Cr.P. art. 556.1(E) prior to accepting a guilty plea is reversible error for the following reasons:

First, unlike requirements (1)-(4) contained in La.C.Cr.P. art. 556.1(A) which the judge is directed to give prior to *996 accepting a guilty plea, section (E) simply states that "[i]n any case where a subsequent offense carries an enhanced penalty, the court shall inform the defendant of the penalties for subsequent offenses." Therefore, advice regarding the penalties for subsequent offenses is not even required to be given before the plea is taken. Thus, in addition to the reasons stated below, under the plain language of La.C.Cr.P. art. 556.1, clearly the failure of a trial judge to advise the defendant of the penalties for subsequent offenses under La.C.Cr .P. art. 556.1(E) is not reversible error.
Second, Louisiana's Code of Criminal Procedure contains its own harmless error provision. Article 921 provides that "[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused." La.C.Cr.P. art. 921. "This article sets forth the basic concept of appellate review and is the primary legislative mandate governing appeals." La.C.Cr.P. art. 921, Official Revision Comment (a). The Comments also provide that courts have complied with the spirit and intent of the law in applying La.C.Cr.P. art. 921 and its source provision, former La. R.S. 15:557, in that "[w]hen the trial irregularity obviously had no significant bearing upon the outcome, the supreme court has refused to reverse on a technicality." La. C.Cr.P. art. 921, Official Revision Comment(c). (Footnote omitted.)

Under Guzman, the trial court's failure to advise the defendant in this case that the offense to which he pled guilty could be used to enhance the penalty for any subsequent drug offense he might commit is not reversible error. As to whether this omission was harmless, we find that the defendant can show no prejudice. If he commits another possession of cocaine offense, he will be subject to a multiple bill as a fourth felony offender. If convicted, he could receive a sentence in the range of twenty years to life. For this reason, La. R.S. 40:982 will probably not be applied to a subsequent conviction, because its sentencing provisions are less severe than those for a fourth felony offender. Accordingly, any error that arises from the failure to inform the defendant of the provisions of La. R.S. 40:982 is harmless.

ASSIGNMENT OF ERROR NUMBER 2

In the second assignment of error, the defendant argues that the trial court erred in not determining what considerations were discussed in reaching the plea agreement.

He implies that a primary inducement for pleading guilty was a belief that he would receive drug treatment to help with his drug habit.

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Cite This Page — Counsel Stack

Bluebook (online)
774 So. 2d 993, 2000 WL 1584600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-echols-lactapp-2000.