95-0860 La.App. 4 Cir. 9/18/96, State v. Gonzales

• Decision Date: 18 September 1996
• Parties: 95-0860 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1253

680 So.2d 1253

95-0860 La.App. 4 Cir. 9/18/96

STATE of Louisiana v. Jauvanda GONZALES.

No. 95-KA-0860.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 18, 1996.

Harry F. Connick, District Attorney, Giustina L. Persich, Joseph E. Lucore, Assistant District Attorneys, New Orleans, for Appellee.

Sherry Watters, Orleans Indigent Defender Program, New Orleans, for Appellant.

Before BYRNES, CIACCIO and LOBRANO, JJ.

[95-0860 La.App. 4 Cir. 1] BYRNES, Judge.

On December 2, 1982, the appellant was charged with possession with the intent to distribute pentazocine. At her arraignment on December 13th she pled not guilty. There is some indication that trial was begun on March 24, 1983 and continued to the next day, but apparently a mistrial was granted at that trial because there is no docket master entry for March 25th. On June 16, 1983, at the end of a two-day trial, she was convicted of simple possession of pentazocine. Her motion for post verdict judgment of acquittal was denied on July 6th, and she was sentenced on August 2, 1983 to serve five years at hard labor. On August 5th, the trial court granted her appeal and set an appeal bond. The State filed a multiple bill against her on August 8th, to which she later pled not guilty.

On September 19, 1983, the court found her to be a second offender, vacated her original sentence, sentenced her to serve ten years at hard labor, and remanded. But the appellant escaped from custody the next day and remained at large until September, 1991, when the State learned that the appellant was on probation in [95-0860 La.App. 4 Cir. 2] Georgia. In October, 1993 she was transferred to the Orleans Parish Prison. On December 1, 1993, the appellant filed a motion for the lodging of her appeal record, and on December 21st she filed a motion to amend sentence. On January 1, 1994, her motion to reduce bond was denied. On February 8th, she withdrew her motion to amend sentence and instead orally moved for a new trial based upon newly-discovered evidence of her innocence. The court denied the motion to amend the sentence and gave the defense time in which to file a formal motion for new trial. The matter was continued numerous times, and there is no indication that the trial court ever ruled on the motion.

On February 2, 1995, a court reporter for Section "A" submitted a certification that the "necessary transcripts", which included the trial transcript, were unavailable because the notes and tapes had been lost. The record was lodged in this court on April 18, 1995. On December 14, 1995, February 12, 1996, and March 11, 1996, this court received supplemental transcripts and a certification in this case. An additional certification concerning the unavailability of transcripts was filed on April 17th.

Because the trial transcript is unavailable the facts of this case are unknown.

Errors Patent

A review of the record for errors patent reveals that the minute entries for trial are missing, both from the appeal record and from the district court record. The docket master contains two entries for the dates of trial, but it is unclear from those entries how many jurors were present at trial. As noted above, because this conviction is so old, the notes of trial have been lost. Thus, it is impossible to determine from the record if the proper number of jurors were present and whether the requisite number of jurors concurred in the verdict. However, there is no [95-0860 La.App. 4 Cir. 3] indication in the docket master entries for trial that the appellant objected to the number of jurors chosen for trial or to the composition of the jury's verdict. In light of the failure of the appellant to object it is reasonable to assume that the requisite number of jurors was present and voted in favor of the conviction. We find no cases to the contrary. Moreover, in view of the failure of the defendant to object this Court would view the existence of any such possible error (and we stress the word "possible") as harmless. As noted by the Court in State v. Charles, 450 So.2d 1287, 1291 (La.1984): "Not all errors discoverable on the face of pleadings are reversible errors."

There were no other errors patent or "possible" errors patent.

The First Assignment of Error Pro Se and Counsel's Fourth

By her first pro se assignment of error and by counsel's fourth assignment, the defendant contends that her constitutional right to appeal has been denied because the trial transcript is unavailable. This Court finds no merit in these assignments of error.

Between the time defendant was granted an appeal after her original sentencing in 1983 and after being adjudicated and sentenced as a multiple offender, she escaped and was absent from Louisiana until 1993, when she was returned from Georgia. In the interim, the notes for her trial as well as those for her original sentencing and the multiple bill hearing and sentencing were lost. Defendant argues that the fact that she escaped years ago should not have stopped her appeal from proceeding after it was granted in 1982. She contends that her ten-year absence from Louisiana following her escape should not be blamed for the loss of the notes of trial.

La. Const. art. I, § 19 provides:

[95-0860 La.App. 4 Cir. 4] No person shall be subjected to imprisonment or forfeiture of rights or property without the right of review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.

In State v. Ford, 338 So.2d 107 (La.1976), portions of the trial transcript were missing from the appeal record because the court reporter for some unknown reason did not record those portions. Appellate counsel had not represented the defendant at trial. The Court reversed the defendant's conviction and sentence, quoting from United States v. Atilus, 425 F.2d 816 (5th Cir.1970):

"[t]hrough no fault of the defendant a transcript of the trial proceedings is no longer available. Under these circumstances this court has no choice but to reverse the conviction. The Supreme Court has made it clear beyond question that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where, as here, counsel on appeal was not counsel at the trial. Hardy v. United States, 1964, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331."

State v. Ford, 338 So.2d at 109.

Likewise, in State v. Jones, 351 So.2d 1194 (La.1977), and State v. Bizette, 334 So.2d 392 (La.1976), the Court reversed the defendants' convictions where portions of the defendants' trials were not recorded due to malfunctions of the recording system. In each instance, the Court noted that the unavailability of the transcripts could not be attributed to the defendant.

However, courts have affirmed defendants' convictions where the trial transcripts are unavailable due to the long passage of time between the convictions and the defendants' active assertion of his right to appeal and said long passage of time was attributable to the defendant. In State v. Bernard, 583 So.2d 111 (La.App. 5th Cir.1991), writ den. 586 So.2d 540 (La.1991), the defendant waited seven years to move for an appeal of his conviction, and by that time the trial [95-0860 La.App. 4 Cir. 5] transcript was unavailable. The Fifth Circuit rejected the defendant's claim that his right to a meaningful appeal had been denied, noting:

We do not believe appellant should benefit from his inaction from 1983 to 1990, particularly in the absence of any statutory violation regarding the keeping of records and in the total absence of any showing (or even suggestion) of bad faith by either court reporter or the prosecution. We are unaware of any state or federal statute or jurisprudence from Louisiana or elsewhere indicating that records should be preserved for six years or longer.

When Bernard's request for an out-of-time appeal was granted, it was no doubt assumed that a trial transcript could somehow, [sic] belatedly be prepared. This assumption was inadvertent and certainly regrettable. Justice is far better served, considering all facts and circumstances of this case, by the denial of Bernard's dilatory and lethargic attempt at judicial review than by the voiding of these serious convictions.

State v. Bernard, 583 So.2d at 112. Likewise, in State v. Clark, 93-0321 (La.App. 4th Cir. 10/27/94), 644 So.2d 1130, writ den. 94-2884 (La.3/24/95), 651 So.2d 287, the defendant withdrew his motion for appeal filed soon after his conviction, noting he might appeal in the future. Nine years later, after successive writ applications on various issues, his out-of-time appeal was granted. By that time the trial transcript was unavailable. This court refused to reverse his conviction, noting the defendant's dismissal of his original appeal and that fact that the minute entry of trial did not indicate that any objections were lodged during trial, and thus possibly no errors were preserved for appellate review.

In State v. Ford, 92-2029 (La.App. 4th Cir. 1/31/95), 650 So.2d 808, the defendant was convicted and granted an appeal in 1980; however, the appeal record was never lodged in the Supreme Court, a fact of which he was informed in 1984. In 1991 he filed an application seeking his appeal. The trial court "reinstated" the appeal, and by that time the trial transcript was unavailable. This Court rejected the [95-0860 La.App. 4 Cir. 6] defendant's claim that his right to a meaningful appeal was violated, noting that the defendant did not complain about the lack of appeal until eleven years after his appeal was granted and seven years after he was informed his appeal had not been filed. This Court also pointed to the lack of objections noted in the minute entries of trial, surmising that it was unlikely that any issues were preserved for appeal.

Defendant makes much of the fact that in Ford the defendant's inaction...