State of La. v. MONTGOMERY
| Decision Date | 06 April 2011 |
| Docket Number | 10-1151 |
| Parties | STATE OF LOUISIANA V. KENNETH WAYNE MONTGOMERY |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 18150-08
JOHN D. SAUNDERS
Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese, Judges.
AFFIRMED.
John Foster DeRosier, District Attorney
Carla Sue Sigler, Assistant District Attorney
Counsel for Appellee:
State of Louisiana
Kenneth Wayne Montgomery
On August 8, 2008, Defendant, Kenneth Wayne Montgomery, was charged by bill of information as follows: Count 1 - possession of a controlled dangerous substance, schedule II (cocaine), with intent to distribute, a violation of La.R.S. 40:967(A); Count 2 - illegal possession of a stolen firearm, a violation of La.R.S. 14:69.1; Count 3 - illegal discharge of a firearm, a violation of La.R.S. 14:94; Counts 5 and 6 - battery of a police officer, violations of La.R.S. 14:34.2.1
Defendant filed a pro se motion to suppress on November 20, 2008. Following a hearing on May 1, 2009, the motion was denied. On May 24, 2010, Defendant entered an Alford and Crosby plea of guilty to the amended charge of possession of cocaine in Count 1 and to two counts of battery of a police officer in Counts 5 and 6. He was sentenced that same day to two years in the parish jail for possession of cocaine and to six months in the parish jail for each count of battery on a police officer. The sentences were ordered to run concurrently with each other.
Defendant, pro se, is now before this court on appeal arguing that the trial court erred in denying his motion to suppress. We affirm.
FACTS:
On June 30, 2008, the State asserted that Defendant was found in possession of cocaine in Calcasieu Parish by officers of the Lake Charles Police Department. Further, the State asserted that Defendant, having been placed under arrest, committed battery upon two police officers with the Lake Charles Police Department.
ERRORS PATENT AND PROCEDURAL ISSUE:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there is an error patent, a procedural issue, and a potential error patent.
There was a misjoinder of offenses in the bill of information. Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances if the offenses joined are triable by the same mode of trial.
In the present case, counts one, two, and three are relative felonies and may or may not be punishable with or without hard labor and are triable by six person jury, all of whom must concur. La.Code Crim.P. art. 782. Counts five and six, which are misdemeanors, are triable by a judge only. La.Code Crim.P. art. 779. Therefore, pursuant to La.Code Crim.P. art. 493, counts one, two, and three were properly joined, but counts five and six, i.e. the misdemeanors, were improperly joined.
However, Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La.Code Crim.P. art. 495. Accordingly, review of this error is waived.
Next, there is a procedural issue. Because the misdemeanor charges are not triable by jury, the proper mode of appellate review for those offenses is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction from the defendant's appeal of two felony convictions. This court ordered the defendant to file a writ of review regarding the misdemeanor conviction in compliance with the rules of this court. This court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. Consequently, this court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of the misdemeanor conviction.
In this case, although Defendant does not expressly indicate the battery on an officer convictions are not encompassed by the motion to suppress, the facts reflect the batteries occurred after Defendant was arrested. Therefore, the suppression issue does not involve the battery charges. Additionally, Defendant does not raise any other assignment of error regarding these misdemeanor convictions. Accordingly, we follow the holding in Turner by severing the misdemeanor convictions from the appeal and order Defendant to file a writ of review regarding the misdemeanors convictions in compliance with the Uniform Rules, Courts of Appeal, if he so desires.
Finally, there is a potential error patent regarding waiver of the right to counsel. Louisiana Code of Criminal Procedure Article 514 provides that "[t]he minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant's right to counsel, including the right to court-appointed counsel, and that he waived such right."
In this case, the minute entry of March 11, 2009, indicates the trial court granted Defendant's request to represent himself pro se, with an attorney from the Public Defender's Office in an "advisory position."
The record indicates Defendant filed a motion seeking to dismiss the Public Defender's Office and appoint standby counsel to help him get legal materials. A hearing on the motion was held on March 11, 2009, and the following pertinent exchange occurred:
MR. WILLIAMS [appointed counsel]:
I have spoken to Mr. Montgomery with regards to his understanding of proceedings in proces [sic], and I can submit to this Court that Mr. Montgomery has the necessary educational level, understanding level, in order to proceed on his own. I will bring to the Court's attention that Mr. Montgomery has filed proces [sic] motions, including a motion at the time of filing I was not aware of and I have become aware of it, particularly a motion or an appeal setting [sic] which he filed to the Third Circuit. Mr. Montgomery, from what I see, has the wherewithal to argue his matters before the Court because the Third Circuit, in part, granted in part and made peremptory in part. Subsequent to that Mr. Montgomery has even filed other motions with this Court. I don't know if all have been served to Mr. Reggie or not, but I have seen them. Therefore, based on my conversations with Mr. Montgomery, I think he's competent enough to proceed on his own, as he has requested, thus I think the Court should allow Mr. Montgomery to proceed on his own as he and I have talked about this case extensively and I feel that he has the ability to represent himself. It is his request. He knows all implications therein and I think he has the ability to do it. In addition, we had a motion for bond reduction back in October, and facts alluded to - specific fact given by the district attorney's office that Mr. Montgomery has won a previous case, I believe before another state's appellate court or supreme court; therefore, I think he has the ability to represent himself and proceed. If, in fact, if my memory serves me correct, he took that case to that supreme court on his own, then Mr. Montgomery has accomplished a feat that some other attorneys have not accomplished, therefore I think that Mr. Montgomery has the ability to proceed on his own in his proces [sic] representation.
Yes, excuse me, Your Honor, listening to what the prosecutor's speaking of, I'm very well aware of the law. I mean, I might not be a lawyer, I might not have a certification that says I'm one, but I used to work for a lawyer in 1994, David A. Mundis in Denver, Colorado. I've won numerous cases on my own, and according to the case of Steiner versus Massachusetts, which the United States Supreme Court says a defendant has a right to assistance of counsel, no matter how professional he or she may be, an assistant is still an assistant. The defendant has the right to supersede the authority of that assistant and conduct the proceedings himself if need be. And you also must notice that the 6th Amendment right is a two-sided coin. While I have a right to assistance of counsel I also have a right to self-representation. Now, there's plenty of United States Supreme Court Federal cases and all that, that would substantiate what I'm saying.
I'm not disputing any of that, Mr. Montgomery. What I'm trying to give you is your right to represent yourself with the help of Mr. Williams, who can make sure that, for example, things you file go to the other side, get properly filed. Some of the leg work and paperwork, as you know, helps to have an office to back you up.
MR. MONTGOMERY:
Yes, sir, and -
Do you have a problem with that?
MR. MONTGOMERY:
I don't have a problem with it, but, once again, I have in my motion I've written a motion to dismiss, and in that motion I even asked for substitute counsel, someone to help me get legal material.
The trial court granted Defendant's request and appointed Mr. Williams from the Public Defender's Office to assist.
The minute entry of May 1, 2009, reflects Defendant proceeded pro se at the motion to suppress with an attorney acting as an advisor. The trial court denied the motion. A review of the transcript indicates Defendant cross-examined the police officer called by the State and made arguments in support of his motion. Mr. Williams then requested Defendant be allowed to make a closing argument which the trial court refused. The trial court denied the motion based upon the officer's testimony. Later that afternoon, the trial judge reopened the motion and allowed Defendant the opportunity to make closing...
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