State v. Brooks

• Decision Date: 22 September 2004
• Docket Number: No. 38,963-KA.,38,963-KA.
• Citation: 882 So.2d 724
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana, Appellee v. Edgar C. BROOKS, Appellant.

882 So.2d 724

STATE of Louisiana, Appellee v. Edgar C. BROOKS, Appellant.

No. 38,963-KA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 2004.

Appeal from the 26th Judicial District Court, Parish of Webster, No. 68,575, Bruce Bolin, J Louisiana Appellate Project by Christopher A. Aberle, Paula Corley Marx, for Appellant.

J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorney, for Appellee.

Before STEWART, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

Defendant, Edgar C. Brooks, was originally charged with seven counts of possession of a firearm by a convicted felon and one count of illegal possession of stolen things (jewelry and firearms stolen from a house in Doyline). Defendant was later charged by an amended bill of information with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1; illegal possession of stolen things in violation of La. R.S. 14:69(B)(1); and illegal possession of stolen firearms in violation of La. R.S. 14:69.1. Defendant pled guilty to these charges and received the maximum sentence on each charge, a total of twenty-two and a half years. Defendant's guilty pleas are the subject of this appeal. For the reasons set forth herein, Defendant's convictions and sentences are affirmed.

FACTS

On September 8, 2003, Defendant was present in open court with his court-appointed defense counsel. The State noted the original charges against Defendant for the record and submitted that it was willing to allow him to plead guilty to count one, attempted possession of a firearm by a convicted felon, as well as illegal possession of a stolen firearm and illegal possession of stolen things. The State also requested that the sentences be served concurrently with one another.

In response, defense counsel stated that Defendant faced "zero to seven and a half" for possession of a firearm by a convicted felon¹, "zero to ten" for illegal possession of stolen things and "one to five" for illegal possession of stolen firearms. The trial judge repeated each charge and the accompanying sentence range as stated by defense counsel, who confirmed each was correct.

Defendant was sworn and the trial judge questioned him regarding his age, education, understanding of the English language and sobriety. Defendant indicated that he understood the nature of the proceedings and had discussed the matter with his attorney. The trial judge then asked Defendant if the summary of the agreement given in his presence was correct, to which he replied, "Yes, sir." The trial judge ascertained that Defendant understood that, by pleading guilty to these charges, each would be made a part of his record and could be used against him in the future to enhance or increase the charges or penalties for any subsequent charges. The trial judge also duly advised Defendant of his Boykin rights as they relate to each charge — the right to a trial by jury, right of confrontation and against self-incrimination — which Defendant indicated he understood and waived. The trial judge then addressed Defendant and recited each charge and accompanying sentence range. The trial judge asked Defendant if he understood the nature of the charges and the potential jail time which he could incur. Defendant responded that he understood after each charge. The trial judge then informed Defendant that, in accordance with the agreement, the three sentence terms would run concurrent with one another. Defendant again replied that he understood.

During the plea colloquy, the State gave a brief summary of the facts underlying the pleas, describing with particularity each individual charge, the date and parish of transgression (of the crime) and applicable statute governing each charge. Defendant agreed that the facts were substantially correct. Defense counsel also indicated that he believed Defendant understood his rights and desired to freely and voluntarily waive those rights for the purpose of entering the plea.

The trial judge then continued, "All right, Mr. Brooks, under docket number 68,575, illegal possession of a stolen firearm, how do you plead, guilty or not guilty?" Defendant responded, "Guilty." The trial court then stated, "Let a plea of guilty be accepted." No objections were made by the defense. The trial court then ordered Defendant into custody to await sentencing. The clerk stated, "Mr. District Attorney, on that illegal possession of stolen firearms, seven counts — ," to which the district attorney replied, "Yes, ma'am, we'll dismiss counts 2 through 7 or subcounts 2 through 7."

At sentencing, on January 26, 2004, the trial judge reviewed the minutes from the guilty plea proceeding and stated that Defendant pled guilty to an amended bill of information charging him with attempted possession of a firearm by a convicted felon, illegal possession of stolen things and illegal possession of a stolen firearm. The trial judge then sentenced Defendant to the maximum sentence for each charge and ordered that the sentences were to run concurrently.²

The State asked for clarification regarding concurrent sentences, and the trial judge stated that the sentences were to run concurrent with each other, as set out in the plea bargain agreement, but consecutive with any parole or probation violation Defendant may have to serve. A motion to reconsider sentence filed on behalf of Defendant was denied. Defendant now appeals.

DISCUSSION

Assignment of Error Number One: As Brooks never tendered a plea to counts one and two, the sentences on those counts must be vacated.

Defendant argues that he only actually pled guilty to count three, illegal possession of a stolen firearm. He contends that the term "illegal possession of a stolen firearm" was used throughout the plea hearing, which was a reference only to count three. He cites La. C. Cr. P. art. 554 and argues that he never affirmatively expressed his desire to plead guilty to counts one and two.

The State argues that Defendant cannot raise this alleged error for the first time on appeal because no contemporaneous objection was made, and it is not an error patent. It contends that Defendant's guilty plea waived all non-jurisdictional defects in the proceedings prior to entry of the guilty plea and that the plea was not constitutionally defective. We agree.

Initially, we note that La. C. Cr. P. art. 554, regarding effect of failure to plead, provides, in pertinent part, that:

A defendant shall plead when arraigned. If he stands mute, refuses to plead, or pleads evasively, a plea of not guilty shall be entered of record....

We find that La. C. Cr. P. art. 554 is inapplicable to the case sub judice. Defendant did not stand mute, refuse to plead or plead evasively.

Regarding guilty pleas generally, courts usually only review guilty pleas to ensure that they were both counseled and voluntary. State v. Gobert, 02-771 (La.App. 3d Cir.11/12/03), 865 So.2d 779. The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Garth, 622 So.2d 1189 (La.App. 2d Cir.1993). A valid guilty plea requires a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State v. Monroe, 25,825 (La.App.2d Cir.3/30/94), 635 So.2d 481.

What the accused understood is determined in terms of the entire record and not just certain "magic words" used by the trial judge. State v. Strain, 585 So.2d 540 (La.1991) (Emphasis added); State v. Munholland, 34,941 (La.App.2d Cir.10/12/01), 797 So.2d 778, writ denied, 01-3077 (La.9/13/02), 824 So.2d 1185. In Munholland, this court stated:

Everything that appears in the record concerning the predicate offense, as well as the trial judge's opportunity to observe the defendant's appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. [State v.] Cadiere, 99-0970 (La.App. 1st Cir.2/18/00), 754 So.2d 294; State v. Lodrigue, 97-1718 (La.App. 1st Cir.5/15/98), 712 So.2d 671. Factors bearing on the validity of this determination include the age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity and seriousness of the charge. Cadiere, supra. State v. Munholland, supra, 797 So.2d at 782-782.

The defendant in a factually similar case, State v. Paoli, 01-1733 (La.App. 1st Cir.4/11/02), 818 So.2d 795, writ denied, 02-2137 (La.2/21/03), 837 So.2d 628, complained that he was given a single Boykinization for two separate bills of information on predicate offenses and argued that only one guilty plea was entered and it was not addressed to a specific charge. Like the case sub judice, there was no contemporaneous objection made to the method of proceeding with the charges. In response to these arguments, the court in Paoli stated that "[t]he defendant's pleas were not invalid for use ... simply because the court did not give him a separate Boykin hearing on each charge when they were entered on the same day." Paoli, at 798.

A validly entered guilty plea, or plea of nolo contendere, waives any right a defendant might have had to question the merits of the state's case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Harden, 506 So.2d 1265 (La.App. 2d Cir.1987), writ denied, 512 So.2d 438 (La.1987).

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (...