State v. Manuel, KA 17–1145
| Decision Date | 02 May 2018 |
| Docket Number | KA 17–1145 |
| Parties | STATE of Louisiana v. John Colby MANUEL |
| Court | Court of Appeal of Louisiana — District of US |
247 So.3d 766
STATE of Louisiana
v.
John Colby MANUEL
KA 17–1145
Court of Appeal of Louisiana, Third Circuit.
May 2, 2018
Herbert Todd Nesom, District Attorney, Joe Green, Assistant District Attorney, Thirty–Third Judicial District Court, P. O. Box 839, Oberlin, LA 70655, (337) 639–2641, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
Chad M. Ikerd, Louisiana Appellate Project, P.O.Box 2125, Lafayette, LA 70502, (225) 806–2930, COUNSEL FOR DEFENDANT/APPELLANT: John Colby Manuel
John Colby Manuel, Pro–Se Defendant, Avoyelles Parish Jail, 675 Government Street, Marksville, LA 71351
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.
EZELL, Judge.
On April 23, 2015, the State filed a bill of information charging Defendant, John Colby Manuel, with two counts of possession of a firearm by a convicted felon, violations of La.R.S. 14:95.1 ; two counts of possession of controlled dangerous substances, violations of La.R.S. 40:966 and La.R.S. 40:967 ; and first-offense possession of drug paraphernalia, a violation of La.R.S. 40:1023 and La.R.S. 40:1025. On February 15, 2017, a jury heard evidence and convicted Defendant of the two charges for possession of a firearm. The jury acquitted him of the third charge, which related to methamphetamine. The other two counts were misdemeanors; they were not tried with the three felony charges.
On May 23, 2017, the district court denied Defendant's motion for new trial, then sentenced him to ten years at hard labor for each conviction for possession of a firearm; said sentences to run concurrently.
Counsel has filed a brief seeking to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel alleges there are no non-frivolous issues to raise on appeal. Our analysis indicates the motion to withdraw should be granted.
FACTS
On February 22, 2015, Sergeant Steven Clement of the Oberlin Police Department responded to 911 calls regarding shots fired in a residential area. In the course of his investigation, Sergeant Clement spoke to Defendant, who was an area resident. Defendant denied shooting a gun recently but admitted to firing one earlier in the day. He revealed that he was wearing a holstered pistol and that he had another weapon in his truck. Upon Sergeant Clement's instruction, Defendant put both pistols in the officer's possession. Sergeant Clement wrote him a citation for discharging a weapon within the city limits and returned the weapons.
Subsequently, Sergeant Clement determined that Defendant was a convicted felon, prepared a search warrant, and executed it. The search, conducted on February 26, led to the seizure of two firearms: one was in the house and the other was seized from Defendant's girlfriend who pulled up
while the search was taking place; the pistol was in her purse.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent and one possible error patent which will be discussed first.
First, there is a possible error patent concerning Defendant's waiver of his right to counsel. Recently, in State v. Queen , 17–599, pp. 3–6 (La.App. 3 Cir. 1/ 4/18), 237 So.3d 547, 551 (alterations in original), this court addressed this issue on error patent review:
In conducting an error patent review of the waiver of the right to counsel, this court has examined the adequacy of the waiver. State v. Montgomery , 10-1151 (La.App. 3 Cir. 4/6/11) (unpublished opinion), writ denied , 11-1742 (La. 5/4/12), 88 So.3d 449, cert denied , 571 U.S. 842, 134 S.Ct. 95, 187 L.Ed.2d 71 (2013). Thus, we will look beyond the court minutes to determine whether a waiver was required and, if necessary, whether the waiver was valid.
In State v. Dupre , 500 So.2d 873, 876–78 (La.App. 1 Cir. 1986), writ denied , 505 So.2d 55 (La.1987) (footnote omitted), the first circuit discussed a waiver of right to counsel when standby counsel was also appointed:
The Sixth and Fourteenth Amendments of the United States Constitution guarantee that a person brought to trial must be afforded the right to assistance of counsel before he can be validly convicted and punished by imprisonment. The Sixth Amendment further grants to an accused the right of self-representation. State v. Carpenter , 390 So.2d 1296 (La.1980). In Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court raised to constitutional level the right of a state criminal defendant to represent himself. Because an accused managing his own defense "relinquishes ... many of the traditional benefits associated with the right to counsel", he "must ‘knowingly and intelligently’ forego those relinquished benefits" in order to represent himself. Faretta , 95 S.Ct. at 2541.
Although a defendant does not have a constitutional right to be both represented and representative, the district court has the discretion to appoint an attorney to assist a pro se defendant. See State v. Bodley , 394 So.2d 584 (La.1981) ; State v. Boettcher , 338 So.2d 1356 (La.1976). When the trial court allows this kind of arrangement the defendant acts as his only legal representative. The legal counsel that is appointed does not represent the defendant; he only advises him. Because the court appointed attorney is only acting as an advisor, the accused is abandoning his right to be represented by counsel. At the same time he is exercising his right to self-representation. Therefore, when an attorney is appointed as an advisor the accused must knowingly abandon his right to be represented by counsel.
In this case, although co-counsel was appointed as an advisor to Dupre, counsel spent a significant portion of the trial representing Dupre. Taylor argued motions, made objections, examined witnesses and assisted in closing arguments. The fact that Taylor partially represented Dupre at trial raises the initial issue of whether Dupre was thereby afforded all the benefits of legal representation and whether this representation abrogated
the need for an adequate waiver of counsel.
We hold that it did not. Even though he has an attorney partially representing him, when the accused assumes functions that are at the core of the lawyer's traditional role, as Dupre did, he will often undermine his own defense. Because he has a constitutional right to have his lawyer perform core functions, he must knowingly and intelligently waive that right. See United States v. Kimmel , 672 F.2d 720 (9th Cir.1982) ; Maynard v. Meachum , 545 F.2d 273 (1st Cir.1976) ; State v. Bell , 381 So.2d 393 (La.1980). This reasoning is "a logical extension of the well-established rule that a waiver is required despite the presence of a court-appointed advisor." Kimmel , 672 F.2d 720, 721, [citing United States v. Dujanovic , 486 F.2d 182 (9th Cir.1973) ].
....
In general, if a defendant desires to represent himself, he should be required to waive counsel and proceed on his own. If the trial court wishes to appoint an advisor, a waiver of counsel is still required and problems will be avoided if the advisor is restricted to advising and not allowed to partially conduct the defense.
In State v. Poche , 05-1042, pp. 8-9 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, 1231–32, this court explained, in pertinent part:
In State v. Hayes , 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685–86, this court stated:
Before being allowed to represent himself, a criminal defendant must knowingly and intelligently waive his constitutional right to counsel. State v. Mitchell , 580 So.2d 1006 (La.App. 3 Cir.1991), writ denied , 613 So.2d 969 (La.1993).
A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const. amend. VI ; La. Const. art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith , 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin , 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the 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). 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. State v. Harper , 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter , 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made "with eyes open." Id. at 1298, citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial
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