State v. Smithey

441 So. 2d 837, 1983 La. App. LEXIS 9832
CourtLouisiana Court of Appeal
DecidedDecember 14, 1983
DocketNo. CR83-553
StatusPublished
Cited by4 cases

This text of 441 So. 2d 837 (State v. Smithey) 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. Smithey, 441 So. 2d 837, 1983 La. App. LEXIS 9832 (La. Ct. App. 1983).

Opinion

KNOLL, Judge.

The defendant, Joe E. Smithey, Jr., was charged with armed robbery in violation of LSA-R.S. 14:64. He entered a plea of guilty to the charge and was sentenced to serve ten years at hard labor in the custody of the Louisiana Department of Corrections without the benefit of parole, probation, or suspension of sentence. On appeal are four assignments of error: (1) in failing to inform the defendant of the elements of armed robbery during the Boykin Examination as required by the United States Supreme Court in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) and the United States Court of Appeal for the Fifth Circuit in Burden v. Alabama, 584 F.2d 100 (5 Cir.1978); (2) accepting a guilty plea to the charge of armed robbery from a seventeen year old youth based on an inadequate Boykin Examination; (3) failing to follow the sentencing guidelines provided in LSA-C.Cr.P. Art. 894.1; and (4) imposing an excessive, cruel and unusual sentence.

FACTS

In January of 1983, the defendant, his younger brother and the adopted son of the victim conspired to rob Walter White, a sickly 70 year old man, at his home in the community of Lacamp, Vernon Parish, Louisiana. Their plans went afoul.

Several days later shortly after noon, the defendant, acting alone, put mascara on his face to give the appearance that he had a moustache, beard and sideburns. He then slipped a stocking over his head and put on a black knit cap. He was dressed in blue jeans and a blue jean jacket. He was also wearing a pair of gloves and tennis shoes. He went to Mr. White’s home and was in the process of breaking in when Mr. White heard a noise and went to the front door.

The defendant claims that when Mr. White opened the door it scared him, so he ordered Mr. White to “get on the floor” and hit him twice with his (the defendant’s) pistol. Mr. White claims he was beaten with a stick and received approximately five gashes to his head. The trial court commented that Mr. White was beaten so severely that the “club” broke in the process. The defendant took Mr. White’s wallet which contained $50.00 and ran out the back door. While beating Mr. White, blood had splattered on the defendant’s tennis shoes and gloves. The defendant returned to his home, hid the pistol, and burned the tennis shoes, gloves, stocking and wallet. He then went to a friend’s house for the purpose of establishing an alibi.

Mr. White received severe head wounds from the beating. He was hospitalized for nine days and was near death for the first twenty-four hours.

ASSIGNMENTS OF ERROR ONE AND TWO

In these assignments the defendant claims the Boykin Examination was inadequate, therefore, the defendant’s plea of guilty should be set aside.

The defendant alleges that the Boykin Examination was inadequate primarily in that the trial court failed to inform the [839]*839defendant of the elements of the crime of armed robbery. He also complains that the defendant’s statement, which was introduced during the Boykin Examination, was not shown to be freely and voluntarily given.

The minimum requirement for a guilty plea is that it be a voluntary act of the defendant. By doing so, the defendant admits past criminal conduct, consents to a conviction and waives grave constitutional rights. The due process clause of the fourteenth amendment of the United States Constitution requires that a guilty plea must be given by the defendant voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A waiver of the defendant’s constitutional right from a silent record will not be presumed. The record must show that the defendant, when entering his guilty plea, voluntarily and intelligently waived his constitutional rights. State ex rel. Jackson v. Henderson, 255 So.2d 85 (La.1971).

Before the trial court accepted the defendant’s guilty plea the trial court conducted a thorough examination with the defendant. The colloquy reflects that the defendant had an eleventh grade education and earned a high school equivalence diploma by passing the Graduate Equivalency Diploma examination. The trial judge explained that: he was entitled to a trial by jury or judge; he was presumed innocent until proven guilty beyond a reasonable doubt; it was the State’s burden to prove his guilt beyond a reasonable doubt; upon entering a plea of guilty, he waives a trial; he could subpoena witnesses and he would have the right to cross-examine any witnesses testifying against him; he had the right to remain silent; and that he did not have to give evidence against himself (compulsory self-incrimination). The trial judge specifically asked him if he understood that upon entering his guilty plea he was waiving all of the mentioned constitutional rights, which the defendant stated he understood.

The trial court asked the defendant if he was offering the plea because he felt he was guilty. The defendant stated he felt he was guilty. The trial court then read the bill of information to him and asked the defendant to explain to the trial court what occurred. The defendant stated:

“Well, I went to this man’s house with the intent not any harm to be done, and well, it was just — I know it ain’t right either way, but I was — it wasn’t to be anybody hurt during this, but while I was trying to break into his house, he come to the door while I was there and scared me and I just — I had tht — unfortunately, a pistol in my hand. I thought — I knew he had a gun in his house, and I thought that he had heard me trying to break in and he might shoot me, you know. It just happened all so fast, I didn’t have much time to think of anything.”

The trial court then questioned the defendant as to his intent, motive and method, all of which encompass the elements of armed robbery, which the defendant acknowledged and understood. LSA-R.S. 14:64 defines armed robbery as follows:

“A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

In this issue the defendant relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and Burden v. State of Alabama, 584 F.2d 100 (5 Cir.1978), which are distinguishable to the case at bar.

In the Henderson case, supra, the accused was retarded, 19 years of age and originally indicted for first degree murder. He pleaded guilty to second degree murder which required intent. Upon accepting the accused’s guilty plea, the trial court did not discuss with the accused the requisite intent nor was there anything in the record that [840]

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Cite This Page — Counsel Stack

Bluebook (online)
441 So. 2d 837, 1983 La. App. LEXIS 9832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smithey-lactapp-1983.