State v. Gardette

760 So. 2d 1262, 0 La.App. 5 Cir. 38, 2000 La. App. LEXIS 1229, 2000 WL 635415
CourtLouisiana Court of Appeal
DecidedMay 17, 2000
DocketNo. 00-KA-38
StatusPublished
Cited by3 cases

This text of 760 So. 2d 1262 (State v. Gardette) 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. Gardette, 760 So. 2d 1262, 0 La.App. 5 Cir. 38, 2000 La. App. LEXIS 1229, 2000 WL 635415 (La. Ct. App. 2000).

Opinion

19C HE HARDY, Judge.

The State appeals the district court’s ruling which granted the defendant’s motion to quash the bill of information in this prosecution for driving while intoxicated, third offense. We reverse and remand.

On October 1, 1998, the Jefferson Parish District Attorney’s Office filed a bill of information charging that defendant, David W. Gardette, violated La. R.S. 14:98(D) (third-offense DWI) on September 4, 1998 “in that he, having been twice convicted ... in violation of R.S. 14:98, [did] wilfully and unlawfully drive a motor vehicle while intoxicated.” On October 15, 1998, defendant was arraigned and entered a plea of not guilty.

Defendant filed various pretrial discovery motions, including a motion to quash the bill of information. The motion to quash was based on defendant’s contention that the two prior DWI convictions used in this prosecution as predicates for the charge of third-offense DWI were obtained in violation of La.C.Cr.P. art. 556.1-specifi-cally, that the judge accepting defendant’s guilty pleas in the prior convictions not only failed to properly advise defendant of the minimum and maximum possible penalties he faced, but also failed to advise defendant of the enhanced penalties for subsequent offenses.

IsThe trial court granted the motion to quash on December 10, 1998 after a hearing. The judge gave the following oral reasons for the ruling:

It is clear to this Court that nowhere in the colloquy or the Boykin form is the defendant advised of the penalties for the subsequent offense, which in this case is the third offense.
Both the case law and Code of Criminal Procedure Article 556.1 are quite [1264]*1264clear, and particularly 556.1, Section E, says, “In any case where a subsequent offense carries an enhanced penalty, the Court shall inform the defendant of the penalties for the subsequent offense.” That was not done in this case.

The motion to quash is granted.

Immediately after the trial court’s ruling, the State orally moved to appeal. The oral motion was later documented by written supplement.

The current charge against defendant arises from a September 4, 1998 DWI arrest. The bill of information alleges that defendant was previously convicted of driving while intoxicated on November 20, 1997, under docket number F-1106339 in the First Parish Court of Jefferson, and on November 20, 1997, under docket number F-1116127 in the First Parish Court of Jefferson.

The State’s only assignment of error is that the trial judge erred in granting the motion to quash.

The State contends quashal was improper because the defendant failed to meet his burden to show a constitutional deficiency in his prior guilty pleas. The State concedes that the trial court in the prior proceeding did not fully comply with the statutory requirements of La.C.Cr.P. art. 556.1, but argues that any error was harmless. First, the State asserts, the record in the predicate proceedings shows that defendant was properly informed of the core Boykin1 requirements, of the precise sentences he would receive for his guilty pleas, and of the possibility of enhancement in the event of future DWI |4convictions. Further, the State contends, defendant neither alleges he suffered any prejudice as a result of the errors, nor argues he would have proceeded to trial and foregone the benefits of his guilty pleas had the trial judge complied strictly with the statute.

In response, the defendant asserts the trial court correctly granted the motion to quash because the trial court for the first two counts of DWI erred by failing to inform defendant of the correct minimum, maximum, and any subsequent penalties to be imposed. He states he “could not possible [sic] have known that a subsequent conviction would be sought by the state under a third offense. [He] was simply aware that the two convictions were treated as one single conviction and any future conviction would be treated as a second offense DWI.”

In Boykin v. Alabama, supra, the United States Supreme Court emphasized three federal constitutional rights which are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront one’s accusers. State v. Barrio, 608 So.2d 641, 642 (La.App. 5 Cir.1992). 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. Id. 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).

In order for a misdemeanor guilty plea 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 his privilege against compulsory self-inerimi-nation, his right to trial and jury trial where it is applicable, and his right to confront his accusers. State v. Jones, 404 So.2d 1192, 1196 (La.1981). The trial judge must also ascertain that the accused understands what the plea connotes and its consequences. Id.

‘While it is preferable for the trial judge to conduct a colloquy with the defen[1265]*1265dant 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.” State v. Halsell, 403 So.2d 688, 690 (La.1981).

La. R.S. 14:98(D)(1) describes third-offense DWI as follows:

On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and shall be fined two thousand dollars.

Our supreme court has held that this language evidences the Legislature’s “clear intent” that all prior DWI convictions should be considered when determining the applicable penalty. State v. Woods, 402 So.2d 680, 683 (La.1981). In addition, the statutory language “shows an intent to distinguish these enhancement proceedings from other multiple offender prosecutions.” Id. Thus, “it is the number of prior convictions, not their sequence, which determines the appropriate designation of a subsequent offense. [Footnote omitted.]” Id.

A presumption of regularity attaches to prior convictions in multiple-offender DWI cases and the burden is on the defendant to show a constitutional deficiency in the prior guilty plea. State v. Pickett, 99-532 (La.App. 5 Cir. 10/26/99), 746 So.2d 185, 186, citing State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, 560 n. 5.

In Carlos, the Louisiana Supreme’ Court extended the burden-shifting principles of State v. Shelton, 621 So.2d 769 (La.1993), to the multiple offender portions' of the DWI statute, La. R.S. 14:98. Shelton shifted the burden of proof to the defendant in a collateral attack on a prior conviction in habitual offender proceedings under La. R.S. 15:529.1. In Carlos, the Louisiana Supreme Court summarized Shelton as follows:

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Bluebook (online)
760 So. 2d 1262, 0 La.App. 5 Cir. 38, 2000 La. App. LEXIS 1229, 2000 WL 635415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gardette-lactapp-2000.