State ex rel. LeBlanc v. Henderson

• Decision Date: 08 March 1972
• Docket Number: No. 51775,51775
• Citation: 259 So.2d 557,261 La. 315
• Parties: STATE of Louisiana ex rel. Donner J. LeBLANC v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
• Court: Louisiana Supreme Court

Page 557

259 So.2d 557

261 La. 315

STATE of Louisiana ex rel. Donner J. LeBLANC v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.

No. 51775.

Supreme Court of Louisiana.

March 8, 1972.

Dissenting Opinion March 24, 1972.

Rehearing Denied April 6, 1972.

Chauppette, Genin & Mendoza, Al Jules Mendoza, for petitioner.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Frank H. Langridge, Dist. Atty., John M. Mamoulides, Asst. Dist. Atty., for respondent.

SANDERS, Justice.

In this post-conviction proceeding, Donner J. LeBlanc attacked the validity of his guilty plea, under which he is now serving a six-year sentence for armed robbery in the Louisiana State Penitentiary. After an evidentiary hearing, the trial judge upheld the plea under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We affirm.

On December 28, 1969, a man armed with a shotgun, assisted by several accomplices, robbed the Bonanza Steak House in Jefferson Parish. Responding to a robbery-call, officers from the Jefferson Parish Sheriff's Department arrived soom after the felons had fled. A short time later, the officers arrested Donner J. LeBlanc, the present petitioner, for the crime. After completing the investigation, the State jointly charged LeBlanc and three other persons with armed robbery.

Represented by appointed counsel, LeBlanc was arraigned on February 12, 1970. He entered a plea of not guilty, and the court fixed his trial for April 20, 1970. The court granted defense counsel fifteen days within which to file preliminary motions. The case was later reassigned for June 10, 1970.

On June 10, LeBlanc and his counsel arrived at the Jefferson Parish Courthouse prepared to go to trial along with his codefendants, Charles Henry Landry, Sandra Ann Brown, and Maria Rosa Holland. A jury panel had been summoned. The impending trial risked a statutory sentence of not less than 5 years and not more than 99 years, without benefit of parole, probation, or suspension of sentence. ¹

When the case was called, LeBlanc and Charles Henry Landry pleaded guilty, waived the delay for sentence, and the trial judge sentenced each of them to a term of six years in the Louisiana State Penitentiary. The State dismissed the charge against the two women defendants.

As to the plea of LeBlanc, the court minutes entered at the time recite:

'The accused LeBlanc appeared before the bar of the Court this day and this day and through attorney H. Lee withdrew his former plea of not guilty and entered a plea of guilty as charged, which plea was ordered to be recorded. Delays waived. It is ordered by the Court that the accused for his offense suffer imprisonment in the Louisiana State Penitentiary for a period of Six (6) years at hard labor. Defendant gave his age as 24 years old born November 21, 1945. Bond cancelled if any. John M. Mamoulides, Asst. Dist. Atty. Representing the State.'

It is stipulated that the court reporter 'did not take down any testimony or does not have a transcript of what transpired before (the) court on the day of sentence.'

In this habeas corpus proceeding, filed in the trial court a year later, LeBlanc attacks his plea on the following grounds:

(1) The record made at the time of the plea does not affirmatively show that the trial judge ascertained that the defendant entered his plea intelligently and voluntarily with a full knowledge of its consequences, especially ineligibility for parole, as required by Boykin v. Alabama;

(2) Alternatively, if the court can consider the evidence taken at the post-conviction hearing, the record fails to reflect that defendant was in fact advised by the trial judge of his ineligibility for parole under the armed robbery sentence. ²

The threshold question is whether the court can consider the evidence taken in this post-conviction proceeding that reconstructs the events that took place on the day of the guilty plea. If the evidence cannot be considered, we must set aside the conviction without further inquiry. If it can be considered, additional legal issues must be resolved.

The petitioner earnestly contends that the absence of a contemporaneous verbatim record entitles him to have his conviction set aside. He asserts that evidence as to what occurred cannot substitute for the verbatim record entry. The State, on the other hand, contends that Boykin v. Alabama, supra, does not limit the plea record to the verbatim entry made at the time of the plea, but that the full record can be constructed in a later evidentiary hearing by showing what actually transpired at the time. This question was left open in our recent decision in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

Both the State and defense rely upon Boykin v. Alabama, supra. In that case, the state trial judge accepted a guilty plea with no on-the-record inquiry of the defendant to determine whether the plea was knowingly and voluntarily entered. On appeal, the Alabama Supreme Court affirmed the conviction. With no supporting record as to the voluntariness of the plea, the case then moved to the Supreme Court of the United States. That Court reversed the conviction, stating:

'It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary. That error, under Alabama procedure, was properly before the court below and considered explicitly by a majority of the justices and is properly before us on review.

'A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009. Admissibility of a confession must be based on a 'reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.' Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct. 1774, 1786, 12 L.Ed.2d 908. The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'"

'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.'

Based upon the foregoing pronouncements, several later state decisions hold that a simultaneous verbatim entry must be made of the colloquy of the trial judge, defendant, and his counsel when the guilty plea is entered. After the plea, the record is closed. In the absence of this verbatim entry, they hold that the conviction must fall. See, e.g., State v. Decker, N.D., 181 N.W.2d 746 (1970); Bishop v. Langlois, R.I., 256 A.2d 20 (1969). Under these decisions, the unfortunate lapse of a court reporter defeats the conviction, irrespective of how well the judge handles the guilty plea.

Other cases, however, hold that the affirmative showing that the plea was intelligent and voluntary may also be made by an evidentiary reconstruction of the plea proceedings when the plea is attacked. Such evidence is considered as an extension of the record. See Clark v. State, Fla., 256 So.2d 551 (1972); Bennett v. Commonwealth, Ky., 463 S.W.2d 331 (1971); Smith v. Director, Patuxent Institution, Md.App., 280 A.2d 910 (1971); Evans v. State, Ark., 471 S.W.2d 346 (1971); Grass v. State, Me., 263 A.2d 63 (1970); State v. Elledge, 81 N.M. 18, 462 P.2d 152 (1969); Hall v. State, 45 Ala.App. 252, 228 So.2d 863 (1969).

We find no theory in Boykin that criminal convictions are built upon a piece of paper that must be inked simultaneously with the plea. The significant language in Boykin on this point, we think, is that quoted from Carnley v. Cochran: 'The record must show, or there must be an allegation and evidence which show . . .' The thrust of the decision is toward an affirmative showing that the plea was voluntarily and understandingly made, not toward cutting off the record or barring truth from the courtroom. ³

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the United States Supreme Court stated:

'The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.' 90 S.Ct. at 1468, 25 L.Ed.2d at 756, n. 4.

The Brady decision did not define 'record.' However, the later case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) made clear that the record may include testimony taken in a post-conviction proceeding. There, in testing a 1963 plea, the Court said:

'At the state court hearing on post-conviction relief, the Testimony confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this case affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived...