State v. Cadiere

• Decision Date: 18 February 2000
• Docket Number: No. 99 KA 0970.,99 KA 0970.
• Citation: 754 So.2d 294
• Parties: STATE of Louisiana v. Godfrey CADIERE, Jr.
• Court: Court of Appeal of Louisiana — District of US

754 So.2d 294

STATE of Louisiana v. Godfrey CADIERE, Jr.

No. 99 KA 0970.

Court of Appeal of Louisiana, First Circuit.

February 18, 2000.

COPYRIGHT MATERIAL OMITTED

Carlos Lazarus, Assistant District Attorney, Houma, for Appellee, State of Louisiana.

Joan Malbrough, Houma, for Defendant/Appellant, Godfrey Cadiere, Jr.

Before: CARTER, LeBLANC, and PETTIGREW, JJ.

CARTER, J.

The defendant, Godfrey J. Cadiere, Jr., was charged by grand jury indictment with one count of fourth offense driving while intoxicated (DWI), a violation of LSA-R.S. 14:98. This offense allegedly occurred on June 26, 1997. The predicate offenses alleged were a April 12, 1989 Houma City Court guilty plea to a March 19, 1989¹ DWI offense under docket number 29317 (predicate number 1), an October 14, 1992 Thirty-Second Judicial District Court guilty plea to a December 13, 1991 DWI offense under docket number 223,527 (predicate number 2), and a May 20, 1998 Thirty-Second Judicial District Court conviction for a May 4, 1997 DWI offense under docket number 293,375 (predicate number 3). The defendant moved to quash, attacking the sufficiency of predicates number 1 and number 2 to enhance the instant offense. Following a hearing, the trial court found both predicates sufficient for enhancement of the instant charge. The defendant objected and invoked the supervisory jurisdiction of this court to review the rulings. This court denied the defendant supervisory relief. State v. Cadiere, 98-2486 (La.App. 1st Cir.12/17/98). Thereafter, the defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On February 2, 1999, the defendant was sentenced to ten years at hard labor. He now appeals, designating two assignments of error.

FACTS

Due to the defendant's guilty plea, there was no trial testimony concerning the facts in this matter. However, at the defendant's Boykin hearing, the trial court advised the defendant of the State's fourth offense DWI charge against him and the predicates it was based upon and, in response to questioning, the defendant indicated that he understood the factual basis for the charge to which he was pleading guilty.

MOTION TO QUASH (PREDICATE NUMBER 1)

In assignment of error number one, the defendant contends the trial court erred in denying his motion to quash because the record does not affirmatively show that his plea in predicate number 1 was made knowingly and voluntarily and while he was represented by counsel. The defendant argues that the trial court failed to question him sufficiently to determine whether his plea and waiver of counsel were knowing, intelligent, and voluntary.

In order for a misdemeanor guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. It is the State's burden to show that the defendant knowingly and expressly waived his Boykin rights when entering this guilty plea. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, i.e., either the transcript of the plea or the minute entry. State v. Delanoix, 637 So.2d 515, 516 (La. App. 1st Cir.1993). Everything that appears in the entire record concerning the predicate, 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. See State v. Lodrigue, 97-1718, p. 7 (La.App. 1st Cir.5/15/98), 712 So.2d 671, 674. Boykin only requires that a defendant be informed of the three rights enumerated above. State v. Longo, 560 So.2d 530, 532 (La. App. 1st Cir.1990). The jurisprudence has been unwilling to extend the scope of Boykin to include advising the defendant of any other rights which he may have. See State v. Wright, 517 So.2d 458, 460 (La. App. 1st Cir.1987), writ denied, 522 So.2d 1093 (La.1988).

Additionally, an uncounseled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent waiver of counsel. When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial court should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The court should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. 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. Determining the defendant's understanding of the waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. Generally, the court is not required to advise a defendant who is pleading guilty to a misdemeanor of the dangers and disadvantages of self-representation. The critical issue on review of the waiver of the right to counsel is whether the accused understood the waiver. What the accused understood is determined in terms of the entire record and not just by certain magic words used by the judge. Whether an accused has knowingly and intelligently waived his right to counsel is a question which depends on the facts and circumstances of each case. Lodrigue, 712 So.2d at 673.

The defendant's signature on a printed waiver form advising him of his right to counsel and warning him of the dangers of self-representation, and the signature of the trial judge on the same form that he is satisfied the accused understood the nature of his plea and its consequences, do not discharge the duty of the trial judge to advise the defendant expressly of his right to counsel and to determine "on the record that the waiver is made knowingly and intelligently under the circumstances," taking into account such factors as the defendant's age, background, and education. Lodrigue, 712 So.2d at 673, citing, State v. Deroche, 96-1376, p. 1 (La.11/8/96), 682 So.2d 1251, 1252.

However, "while the use of a printed form alone is not sufficient to establish a knowing and intelligent waiver of the right to the assistance of counsel, the use of such a form in conjunction with other matters which appear in the record viewed as a whole may establish that the waiver was valid." Lodrigue, 712 So.2d at 673, quoting, State v. Snider, 30,568, p. 7 (La.App. 2nd Cir.10/21/97), 707 So.2d 1262, 1266, writ denied, 97-3025 (La.2/13/98), 709 So.2d 748.

In support of the use of predicate number 1 for enhancement of the instant charge, the State introduced a transcript of the Boykin hearing conducted for the predicate and a minute form of the arraignment conducted for the predicate.²

The transcript provided, in pertinent part, as follows:

THE COURT:

Mr. Cadiere, you are charged on March 19, 1989 with the offense of operating a vehicle while under the influence of alcoholic beverages.

(Discussion off the record)

THE COURT:

You need to pay attention. The law requires me to make an explanation.

First of all, each of you should understand if you have any questions concerning the charges against you, if you have a question so far as what your rights and responsibilities are, if you are not too sure as to whether or not you want to admit or deny or tener (sic) some other type of plea, then of course you should speak to an attorney. Generally, I explain to people if they have any questions concerning their appearance here, their (sic) charges against them and their options, their rights, their responsibilities, they should speak to an attorney.

You have the responsibility to hire an attorney of your choice if you are able. If you are indigent, that is poor, then an attorney would be appointed to represent you at no cost to you.

YOu (sic) have the right to plead not guilty, and if you did so, then the matter would be scheduled for a trial which would be held at a later date. All trials are public and would be held in this same courtroom. All trials are before a judge, and of course you must be present at your trial.

A trial is a hearing at which the prosecutor would produce whatever evidence and call whatever witnesses he or she has. It is the prosecutor's job to attempt to establish your guilt.

You have the right to examine any evidence that is in fact introduced against you. You have the right to examine any evidence that is in fact introduced against you. YOu (sic) have the right to hear the testimony of any witnesses who are called against you. After they have testified you have the right to ask those witnesses questions.

After the prosecutor has presented the State's case, then of course you have several alternatives. You have the right to present evidence on your behalf, you have the right to call witnesses to give testimony on your behalf, and to make sure that they do in fact appear, you have the right to subpoena them at no cost to you. You have the right to take the stand and to give testimony.

During these entire proceedings you also have the privilege against compulsory self-incrimination. That simply means that you have the right to remain silent. You cannot be forced or compelled to testify. You cannot be forced or compelled to present a defense. In fact, you cannot be forced or compelled to do anything, other than to appear.

[Advice of the penalties for DWI, first, second, third, fourth and subsequent offenses.]

THE COURT:

Mr. Cadiere, do you understand what your rights are?

MR. CADIERE:

Yes, sir.

THE COURT:

Do you...