State v. Whittington

80 So. 3d 723, 2011 La. App. LEXIS 1558, 2011 WL 6183601
CourtLouisiana Court of Appeal
DecidedDecember 14, 2011
DocketNo. 46,795-KA
StatusPublished
Cited by1 cases

This text of 80 So. 3d 723 (State v. Whittington) 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. Whittington, 80 So. 3d 723, 2011 La. App. LEXIS 1558, 2011 WL 6183601 (La. Ct. App. 2011).

Opinion

LOLLEY, J.

hThis criminal appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Robert Dillard Whittington, III, was initially charged with communication of false information of planned arson (a violation of La. R.S. 14:54.1) and terrorizing (a violation of La. R.S. 14:40.1). Whittington pled guilty to terrorizing with an agreed five-year sentence cap; in exchange, the prosecutor dismissed the arson charge as well as charges raised in a separate bill not included in the record. Whit-tington was sentenced to serve five years at hard labor. He now appeals. For the following reasons, we affirm Whittington’s conviction and sentence.

Facts

Because Whittington pled guilty, the record reveals little evidence of the offenses that led to his conviction. According to the factual basis for the plea recited by the district attorney, sometime between August 8, 2008, and October 29, 2009, Whittington posted a letter at a deer camp that led the camp’s owner to believe that a crime of violence was imminent or in progress or that circumstances dangerous to human life existed or were about to exist. Subsequently, Whittington sent a letter to the camp owner’s home that likewise met the criminal conduct element of the terrorizing statute; it said, in part: “We comin [sic] after yo ass during deer season— when we can drop you like a deer! Right out of your stand....! We know now where you sit!” The letters were admitted into evidence. Although Whittington claims to be a resident of Texas, the letter was undoubtedly mailed to a residence in Haughton, Louisiana, which is in | ^Bossier Parish, and the bill of information specified that the hunting camp was in Bossier Parish.

Charges were filed against Whittington in March 2010, and he retained an attorney. The trial court appointed a sanity commission to examine Whittington. Based upon the commission’s report, on June 15, 2010, the trial court found Whit-tington competent to stand trial and to assist in his defense. After another hearing on November 15, 2010, the trial court allowed Whittington to represent himself, but appointed the public defender’s office as standby counsel. Whittington filed a pleading complaining that venue was improper in Bossier Parish.

On January 3, 2011, the matter was called for trial. The record reflects that the trial court ensured that an attorney from the public defender’s office was seated behind Whittington in the event he needed to consult with an attorney during the trial. The trial court addressed Wfiiit-tingtoris motion challenging venue and denied the motion, along with his earlier motion to quash, on the grounds that the victim(s) of these offenses were in Bossier Parish when the threats were made. Whittington said that he wanted to appeal the trial court’s ruling, and the trial court informed him that he could appeal the ruling along with his conviction if he were convicted.

After the trial judge explained trial procedure to Whittington in some detail, Whittington decided to enter into a plea agreement. The district attorney recited that, under the agreement, Whittington would plead guilty to terrorizing in exchange for a five-year cap on his sentence and the |adismissal of the other pending charges. Whittington agreed that he understood the agreement. The trial court conducted a thorough Boykin examination of Whittington, and Whittington agreed that he understood and waived his right to a jury trial, his right to confront the witnesses against him, and his right not to [725]*725incriminate himself. In addition, the trial court told Whittington that if he were convicted after a trial, he would have the right to an appeal. After the district attorney read into the record a factual basis for the plea, the defendant agreed that the recitation was correct. The terms of the plea agreement did not include any reference to an appeal by Whittington of any element, nor did the trial court note or imply that Whittington would have the right to appeal his conviction or sentence. Finally, Whit-tington himself did not attempt to condition his plea on the right to appeal any pretrial rulings.

The matter came for sentencing on March 9, 2011. The trial court reviewed Whittington’s presentence investigation and several letters sent to the court on the record. The trial court noted that Whit-tington was 70 years old, had retired from the United States Army as a lieutenant colonel and had a long-term third marriage. However, also noted was that Whit-tington and the recipient(s) of his communications had previously had run-ins that led to misdemeanor convictions for Whit-tington, and that during the investigation into the instant crimes, Whittington had made threats to “open fire on” sheriffs deputies. Accordingly, Whittington was sentenced to serve five years’ imprisonment at hard labor, the maximum under the cap to which RWhittington agreed. After imposing the sentence, the trial court informed Whittington, that he had “thirty days to appeal this sentence.... ”

Whittington filed a timely motion for appeal which the trial court granted. He also filed a “motion for post-conviction hearing” seeking a “reduction of cruel and unusual punishment,” which the trial court denied. Whittington now appeals.1

Discussion

Whittington’s pro se brief on appeal, per his instructions to this Court, consists of a filing initially lodged in this appeal as a criminal writ application in July 2011. In it, he argues the merits of various pretrial filings and further argues that the evidence is insufficient to support his conviction. Specifically, Whittington raises three assignments of error on appeal, submitting whether: (1) the evidence as relied upon is sufficient to support the finding of guilt; (2) venue was proper; and (8) the search and seizure of his home and seizure of items from it was valid with respect to the charge of terrorizing.

Notably, Whittington did not reserve his right to appeal any pretrial rulings when he unconditionally pled guilty to terrorizing. A criminal defendant may, with the consent of the prosecutor, enter into a plea agreement that includes the defendant’s right to seek review of specific pre-plea rulings. State v. Crosby, 338 So.2d 584 (La.1976). In the absence of such an agreement, a defendant waives his right to appellate review of fynon-jurisdic-tional issues — including the sufficiency of the evidence — by entering an unconditional plea of guilty. State v. Mack, 45,552 (La.App.2d Cir.08/11/10), 46 So.3d 801.

In the instant case, the state recited a significant factual basis for the offense. The record contains evidence of actual guilt as to the offense charged, thereby providing a means by which the trial court could test whether or not Whit-tington’s plea was intelligently entered. [726]*726Furthermore, we have considered Whit-tington’s guilty plea in light of the fact that he was appearing pro se during proceedings; however, at some point during his prosecution, he had been represented by counsel and he was adamant that he wished to represent himself. According to Whittington’s own repeated assertions in the record, it appears that he certainly had the means to afford defense counsel and chose not to be represented. An attorney from the public defender’s office was available to Whittington in the event he needed assistance during the proceedings. So considering, the record evinces that Whit-tington’s guilty plea was validly entered.

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Related

State v. Willis
253 So. 3d 915 (Louisiana Court of Appeal, 2018)
State of Louisiana v. Rudolph Hamilton
Louisiana Court of Appeal, 2012

Cite This Page — Counsel Stack

Bluebook (online)
80 So. 3d 723, 2011 La. App. LEXIS 1558, 2011 WL 6183601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whittington-lactapp-2011.