State v. Lamison

694 So. 2d 984, 96 La.App. 4 Cir. 2180, 1997 La. App. LEXIS 94, 1997 WL 35628
CourtLouisiana Court of Appeal
DecidedJanuary 29, 1997
DocketNo. 96-K-2180
StatusPublished

This text of 694 So. 2d 984 (State v. Lamison) 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. Lamison, 694 So. 2d 984, 96 La.App. 4 Cir. 2180, 1997 La. App. LEXIS 94, 1997 WL 35628 (La. Ct. App. 1997).

Opinion

hWALTZER, Judge.

Relator seeks review of a ruling of the trial court denying post conviction relief. The trial court found no merit in the Relator’s allegations that a) his sentence should be corrected because of its illegality; b) that the trial court instructed the jury ex parte; and c) that appellate counsel was ineffective on appeal.

PROCEDURAL BACKGROUND

After trial by jury, Relator was found guilty of simple burglary on 21 October 1993. On 15 March 1994, he was sentenced to life imprisonment at hard labor as a fourth felony offender pursuant to La.R.S. 15:529.1. On appeal, the conviction and sentence were affirmed. State v. Lamison, 94-1639 (La. App. 4 Cir. 11/17/94), 646 So.2d 1262. Appellate counsel for Relator asserted in the only assignment of error, that Lamison’s sentence was excessive. The appeal brief filed by his counsel was not an errors patent brief as defined in Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990). Specifically, counsel complained about the imposition of the life sentence, in view of the fact that La.R.S. 15:529.1 A(3)(a) would have permitted a sentence for a fourth felony offender to be “a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years.”

Relator thereafter sought copies of his trial transcript and transcripts of all other proceedings in writ 95-K-1974. The writ was denied pursuant to State ex rel. Bernard v. Criminal Dist. Court Section J, 94-2247 (La.4/28/95), 653 So.2d 1174.

In writ 96-K-0422, Relator asserted that the documents presented by the State at the [986]*986multiple offender hearing failed to establish that his pleas in eases No. 271-860 “C” and No. 269-659 “F” were constitutionally valid. Specifically, he alleged that he was not informed of his right to a jury trial and his right to remain silent. This application was denied pursuant to State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

In the current application, Relator raises three claims: 1) his conviction as a multiple offender is unconstitutional; 2) his right to a fair trial was violated when the trial court engaged in an ex parte communication with the jury during deliberations; and 3) his right to effective assistance of counsel on appeal was denied because counsel failed to raise claims (1) and (2).

EX PARTE COMMUNICATIONS WITH THE JURY

We address Relator’s claim that he was denied a right to a fair trial in summary fashion. The gist of his claim is that the jury foreperson inquired of the bailiff about being deadlocked. Relator represents that the trial judge instructed the bailiff to inform the jurors that it was his desire/request that they continue deliberating until they could reach a verdict. Relator contends that this was error because neither he nor his attorney were present. Further, Relator asserts that appellate counsel was ineffective because this error was not assigned on appeal.

The transcript of the 9 February 1994 hearing in the district court reveals that the trial court denied Relator’s claim, noting specifically that the configuration of the court room was such that it was impossible for Relator to have seen or heard what he alleges. The trial court informed Relator that he hwould reopen the motion if Relator could find other witnesses. No other witnesses were presented. As in the court below, Relator fails to provide any evidence in this court to substantiate his allegations of ex parte communications with the jury. Accordingly, this claim has no merit and the claim that counsel was ineffective for having failed to raise this alleged error on appeal has no merit.

THE VALIDITY OF THE MULTIPLE OFFENDER ADJUDICATION AND APPELLATE COUNSEL’S INEFFECTIVENESS ON APPEAL

This claim is similar to that raised in writ 96-K-0422; however, Relator now also contends that counsel was ineffective for failing to raise the invalidity of the multiple offender adjudication as error on appeal. Relator has now provided this court with the transcripts of the guilty plea colloquy to the predicate convictions in eases No. 269-659, 271-860 and 285-339. A careful review of these transcripts shows that Relator’s claim has merit; he was not informed of his Boykin rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Appellate counsel’s performance on appeal was ineffective because on appeal the excessiveness of Relator’s sentence was the sole error assigned. In this context, it was imperative that counsel inspect the multiple offender adjudication and the transcript of that hearing. Had counsel inspected these transcripts prior to the appeal and attached them to the record on appeal, this Court would have had a complete record on which Relator would likely have prevailed insofar as the multiple offender adjudication would have been vacated. Clearly, counsel would have noticed on reviewing the multiple offender hearing transcript that during that hearing trial counsel vigorously objected to the introduction of the requisite guilty pleas as predicate convictions for the resultant life sentence. Having noticed trial counsel’s | objections, counsel should have insisted that transcripts of the guilty plea colloquies of the predicate offenses be made part of the appellate record. Significantly, the assignment of error relating to the excessiveness of the sentence would have been decided in a different manner. The infirmities of the guilty plea colloquies are blatant and Relator was given a life sentence as a multiple offender. Relator, without any fault of his own, was severely prejudiced through counsel’s omission; he is serving a life sentence. This assignment of error has merit.

DISCUSSION AND ANALYSIS

The transcript of the multiple offender hearing on 9 February 1994 shows that trial [987]*987counsel for the defense objected to the introduction of the state’s evidence on cases No. 271-860 “C” and 269-659 “F”, alleging that the evidence failed to establish that Relator was advised of his right to trial by jury and right to remain silent. Trial counsel also cited State v. Shelton, 621 So.2d 769 (La. 1998) in support of his objection.

The exhibits offered by the State in both eases fail to show that Relator was specifically advised of his right to trial by jury as required by Boykin. Relator was informed of his right against self-incrimination. Although properly objected to at the multiple offender hearing, trial counsel did not then seek a continuance to obtain the Boykin transcripts; however, Relator testified at the hearing that he was not informed of his rights. In light of the failure of the guilty plea waiver forms submitted by the State to reflect that Relator knew he was waiving his right to trial by jury, and Relator’s testimony at the hearing, |sthe trial court was on notice and should have required the State to submit perfect transcripts of the plea colloquies.1

Considering the Boykin transcripts together with the exhibits offered by the State, the transcript in case No. 269-659 “F”, fails to show that Relator was informed of his right to trial by jury. The guilty plea waiver form fails to show that Relator was informed of his right to trial by jury.

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Related

Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
State Ex Rel. Martin v. State
462 So. 2d 637 (Supreme Court of Louisiana, 1985)
State Ex Rel. Bernard v. CRIM. DIST. COURT SECTION" J"
653 So. 2d 1174 (Supreme Court of Louisiana, 1995)
State v. Shelton
621 So. 2d 769 (Supreme Court of Louisiana, 1993)
State Ex Rel. Melinie v. State
665 So. 2d 1172 (Supreme Court of Louisiana, 1996)

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Bluebook (online)
694 So. 2d 984, 96 La.App. 4 Cir. 2180, 1997 La. App. LEXIS 94, 1997 WL 35628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lamison-lactapp-1997.