State v. Davis
| Decision Date | 11 September 2019 |
| Docket Number | NO. 2019-KA-0151,2019-KA-0151 |
| Citation | 280 So.3d 255 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STATE of Louisiana v. Nelson DAVIS |
Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
Defendant, Nelson G. Davis, appeals his August 26, 2014 resentencing by the district court, pursuant to an order granting defendant's motion to correct an illegal sentence originally imposed in 1979, for his conviction on one count of second degree murder. In his pro se appellate brief, defendant argues that the district court erred in resentencing him in the absence of counsel and without determining whether defendant knowingly and intelligently waived right to counsel. Our review of the record confirms defendant's argument. Thus, since the district court resentenced defendant without counsel present and without an express waiver of counsel, we find the sentence imposed invalid. Accordingly, we vacate defendant's sentence and remand to the district court for resentencing, in compliance with constitutional mandates of the right to counsel.
In 1979, defendant was convicted of one count of second degree murder, a violation of La. R.S. 14:30.1, and sentenced to life imprisonment without parole, probation, or suspension of sentence. On appeal, the Louisiana Supreme Court affirmed defendant's conviction and sentence. State v. Davis , 385 So.2d 193 (La. 1980).2
In 2013, defendant filed a pro se motion to correct illegal sentence, arguing that at the time of the offense, on July 20, 1976, the sentence to be imposed under the applicable statute, La. R.S. 14:30.1, was life imprisonment without eligibility for parole, probation, or suspension of sentence for a period of forty years. See La. R.S. 14:30.1 (1976)(amended 1979, in pertinent part, to mandate a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence). Thus, defendant argued that the sentencing court imposed an illegal sentence that did not allow for the possibility of parole, probation, or suspension after a period of forty years.
On July 1, 2014, the district court granted defendant's motion and, on August 26, 2014, the district court resentenced defendant in accordance with the statute in effect at the time the offense was committed. Defendant timely filed a motion for reconsideration of sentence, a motion for appeal, and a motion for appointment of counsel. Subsequently, the district court denied defendant's motion for reconsideration of sentence, granted his notice of appeal, and appointed Louisiana Appellate Project to represent defendant on appeal of his resentencing.3 This appeal followed.
On appeal, defendant's appointed appellate counsel filed a brief requesting a review of the record for errors patent, and defendant filed a supplemental brief raising one assignment of error.
Defendant's counseled brief avers that, at resentencing, the district court imposed the only sentence authorized under the law in effect at the time of the offense and that there are no nonfrivolous issues to be raised in the appeal. Therefore, appellate counsel requests a review of the record for errors patent and permission to withdraw as counsel, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, and State v. Benjamin , 573 So.2d 528 (La. App. 4th Cir. 1990).
In accordance with the applicable jurisprudence, appointed counsel's motion "will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf." Benjamin , 573 So.2d at 531. In this appeal, defendant availed himself of the opportunity to file a supplemental brief on his own behalf. Thus, before acting on appellate counsel's motion, we turn to discuss our review of the record and defendant's pro se assignment of error.
Pro se Assignment of Error
In his pro se supplemental brief, defendant argues that the district court committed patent error when it vacated his prior sentence via teleconference and resentenced him without first appointing an attorney or determining waiver of counsel. From our review of the record, in light of the applicable law and jurisprudence, we agree.
Louisiana Constitution Art. 1, § 13 guarantees to every person accused of a criminal offense the right to the assistance of counsel at every stage of the proceedings, including sentencing. State v. Morgan , 17-0588, p. 2 (La. App. 4 Cir. 5/16/18), 244 So.3d 568, 571-72, writ denied , 18-0987 (La. 12/17/18), 258 So.3d 603. Likewise, the Sixth Amendment of the United States Constitution mandates the right, unless expressly waived, to the assistance of counsel at every critical stage of the proceedings against a defendant. McConnell v. Rhay , 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Any defendant who relinquishes the right to counsel in favor of self-representation must be made aware of the dangers and disadvantages of self-representation, and the district court must make a determination that a defendant's waiver of counsel is intelligently and voluntarily made. State v. Carpenter , 390 So.2d 1296, 1298 (La. 1980) ; see Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be set aside." State v. Hall , 99-2887, p. 16 (La. App. 4 Cir. 10/4/00), 775 So.2d 52, 62 (citing State v. Williams , 374 So.2d 1215, 1217 (La. 1979) ).
Regarding the determination of a defendant's waiver of counsel, in Carpenter , 390 So.2d at 1298, the Louisiana Supreme Court stated as follows:
The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Johnson v. Zerbst , 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ; State v. Harper , 381 So.2d 468 (La. 1980). The record must establish that the accused knew what he was doing and that his choice was made with "eyes wide open." Faretta , supra ; Adams v. United States ex rel. McCann , 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Thus, before a trial judge can allow a defendant to represent himself, he must determine whether defendant's waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood , 345 So.2d 1179 (La. 1977).
See also State v. Carter , 10-0614, p. 25 (La. 1/24/12), 84 So.3d 499, 520, cert. denied , 568 U.S. 823, 133 S.Ct. 209, 184 L.Ed.2d 40 (2012).
In this case, the record reveals no determination by the district court of defendant's waiver of his right to counsel before the district court proceeded with resentencing. As reflected by the transcript of the August 26, 2014 proceedings, the district court conducted a hearing via teleconference with the incarcerated defendant. At the start of the proceeding, the State acknowledged that defendant's original sentence of life without the possibility of parole, probation, or suspension of sentence was improper and that defendant should be resentenced according to the statute in effect at the time of the offense in 1976. The district court then proceeded as follows:
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