State v. Hardan, 86-KA-498

• Court: Court of Appeal of Louisiana (US)
• Citation: 501 So.2d 848
• Docket Number: No. 86-KA-498,86-KA-498
• Parties: STATE of Louisiana v. Kevin HARDAN.
• Decision Date: 12 January 1987

Page 848

501 So.2d 848 STATE of Louisiana
v.
Kevin HARDAN. No. 86-KA-498. Court of Appeal of Louisiana,
Fifth Circuit. Jan. 12, 1987.

Page 849

Dorothy A. Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna, for appellee.

John H. Craft, Indigent Defender Bd., Gretna, for appellant.

Before KLIEBERT, GAUDIN and WICKER, JJ.

WICKER, Judge.

This appeal arises from defendant's Kevin Hardan's sentencing following his plea of guilty to L.S.A.-R.S. 14:62.2, simple burglary of an inhabited dwelling. The trial court sentenced him to imprisonment at hard labor for twelve (12) years, the statutory maximum. L.S.A.-R.S. 14:62.2. Defendant contends that the sentence is excessive and also assigns as error any and all errors patent. The State contends that the sentence is unlawfully lenient since it does not specify that one year is to be served without benefit of parole, probation, or suspension of sentence as mandated by L.S.A.-R.S. 14:62.2. It seeks to have this court remand the case to the trial court for resentencing. We vacate the sentence and remand for resentencing.

The pre-sentence investigative report ordered by the trial judge set out the following: At approximately 7:30 a.m. on November 11, 1985, the victim, Carl Vickers (Vickers) who resides in Metairie, heard someone knocking on the side door of his residence. When he went downstairs, he observed two black males (Hardan and a co-defendant) looking through the door. At that time, Vickers went back upstairs to retrieve his gun since the two males looked suspicious. Upon returning downstairs Vickers noticed that the two men had entered his residence and were ascending the stairs. He then approached the two men and ordered them downstairs, placing them in a prone position. He held them at gunpoint while he notified the police.

Upon the officers' arrival, they retrieved some tools from the pockets of the two men. Although the victim stated that an ice pick was found in Hardan's pocket, Hardan denied the allegation. Hardan was arrested and charged with the crime of aggravated burglary. Pursuant to a plea agreement, the defendant, Hardan, entered a plea of guilty to simple burglary of an inhabited dwelling.

PATENT ERROR:

Hardan assigns as error any and all errors patent on the face of the record.

La.C.Cr.P. art. 920 provides "the following matters and no others shall be considered on appeal: (1) An error designated in the assignments of error; and (2) an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence."

For the purpose of an error patent review the "record" in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict and the judgment or sentence. State v. Henney, 479 So.2d 15 (La.App. 5th Cir.1985).

Where the conviction has been obtained by a plea of guilty, the issue of whether the accused was properly "Boykinized" constitutes a proper inquiry in an error patent review. State v. Godejohn, 425 So.2d 750 (La.1983); State v. Martinez, 472 So.2d 123 (La.App. 5th Cir.1985).

Page 850

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights which are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront one's accusers. The Court then announced its unwillingness to presume waiver of these rights from a silent record. Boykin was adopted by the Louisiana Supreme Court and was held to apply to all pleas of guilty subsequent to December 8, 1971. State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State ex rel LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

A review of the colloquy of the defendant's guilty plea in this case shows that the defendant was advised of the maximum sentence. He was also informed that the statute mandated that at least one year of the sentence would be without benefit of probation, parole and suspension of sentence. Furthermore, he was advised of his right to a trial by jury, his right against self-incrimination, and his right to confront his accusers. In addition, the record contains a waiver of rights form signed by the defendant and his counsel.

A review of the record also indicates that the Bill of Information was never amended to reflect the crime of simple burglary of an inhabited dwelling to which Hardan pled guilty. Instead the Bill states that he is charged with aggravated burglary. A guilty plea to a charge which does not conform to the Bill of Information is error patent on the face of the record under certain circumstances. State v. Cook, 372 So.2d 1202 (La.1979). For the reasons stated below we find that the failure to amend does not constitute error in this case.

La.C.Cr.P. art. 558 provides that the defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment. In general, the lesser included offense must be of the same generic class and must not require proof of an element which is not found in the major crime charged. Under this article the defendant can plead guilty to a lesser offense although it is not a responsive verdict under La.C.Cr.P. art. 814.

Specifically regarding amendments of defective indictments, La.C.Cr.P. art. 487(B) reads as follows:

[n]othing contained herein shall be construed to prohibit the...