State v. McMellon
| Decision Date | 06 April 1988 |
| Docket Number | No. CR,CR |
| Parties | STATE of Louisiana, Appellee, v. Loyd L. McMELLON, Appellant. 87-1055. 525 So.2d 1094 |
| Court | Court of Appeal of Louisiana — District of US |
Linda Veasey, Public Defender, Abbeville, for appellant.
J. Stansbury, L. Garrot, Dist. Atty.'s Office, Lafayette, for appellee.
Before FORET, LABORDE and Reggie *, JJ.
Appellant, Loyd McMellon, was charged by bill of information with driving while intoxicated, third offense, a violation of La.R.S. 14:98. He was found guilty as charged by a six-person jury and sentenced to five years at hard labor, with the first six months to be served without probation, parole, or suspension of sentence.
In the early morning hours of November 16, 1984, two Abbeville police officers observed a vehicle make an illegal turn across the right lane of traffic from the center lane on a four-lane highway. The officers turned on the flashing lights of the police unit in an effort to stop the vehicle, but the driver sought to elude them by speeding away, running through a stop sign and a flashing red light. Upon observing the vehicle speeding through the blinking light at a speed of over sixty miles per hour and pursued closely by the local police unit, a state police officer also engaged in the attempt to stop the vehicle. The vehicle was stopped a short time later and appellant was identified as the driver.
Upon exiting from his vehicle, appellant was swaying, had slurred speech, and a strong odor of alcohol on his breath. He was also hostile and combative. He was placed under arrest and transported to the local police station. Although appellant refused to submit to a breath test, he voluntarily answered police questions. He admitted to consuming "a bunch" of alcohol that night during visits to three separate lounges and acknowledged that he was intoxicated.
By this assignment of error, appellant contends that the evidence introduced to establish his second DWI conviction was legally defective. More particularly, appellant argues that his guilty plea in that case (2nd offense DWI) is invalid because the trial judge failed to inform him of the sentence which could be imposed on a third conviction. Appellant also asserts error in the trial judge's failure to inform him of the availability of appointed counsel to indigents on appeal.
At trial, the State introduced the testimony of the arresting officers to establish that appellant operated a vehicle while intoxicated. To prove the predicate driving while intoxicated conviction, the State introduced certified copies of the citation, bill of information and minutes of appellant's September 8, 1981 conviction in Ouachita Parish. In establishing the second predicate conviction, the State introduced certified copies of the citation, bill of information 1, minutes, plea of guilty form, and the transcript of the guilty plea of January 27, 1984 in Vermilion Parish.
Appellant argues that the conviction based on the guilty plea could not be used for enhancement purposes because he was inadequately advised of the possibility of an enhanced penalty on any subsequent conviction. Appellant likewise alleges the plea to be invalid because, although he was advised of his right to appeal a guilty verdict, he was not informed by the trial judge of the availability of an appointed counsel to indigents.
Appellant's expansive reading of the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), has been consistently rejected by Louisiana courts. Before a guilty plea can be used to enhance a penalty under La.R.S. 14:98, the record must affirmatively show an express and knowing waiver of: (1) the privilege against self-incrimination; (2) the right to confront accusers; and (3) the right to trial by jury, where applicable. State v. Jones, 404 So.2d 1192 (La.1981).
The scope of Boykin does not mandate that the trial judge advise the defendant that the guilty plea conviction may later serve as a basis for an enhanced penalty upon a subsequent conviction. State v. Nuccio, 454 So.2d 93 (La.1984); State v. Myers, 503 So.2d 1085 (La.App. 2 Cir.1987). Nor is the trial court required to inform the defendant of his right to appointed counsel on appeal before accepting a guilty plea. State v. Donahue, 408 So.2d 1262 (La.1982).
Appellant does not contend that he was inadequately advised of the three-right articulation mandated by Jones, supra. It should also be noted that the guilty plea form signed by appellant contained clauses advising of the availability of enhanced penalties upon subsequent convictions and the right to appointed counsel on appeal if indigent. Furthermore, during the colloquy, the trial judge advised appellant that the guilty plea waived the right to appeal and also informed him of the statutory penalties for subsequent driving while intoxicated convictions. Accordingly, we affirm the trial judge's decision to uphold the January 27, 1984 guilty plea and we find that the trial judge did not err in denying appellant's motions seeking to nullify the effect of the guilty plea.
By this assignment of error, appellant argues that the trial judge erred in failing to grant a mistrial on the grounds that the jury was allowed to witness appellant in shackles. Appellant also contends that the trial court erred in forbidding questioning of a juror as to whether she witnessed appellant in shackles after jury selection and prior to trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury...
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State v. Green, 98-1388.
...limited purpose of transporting an accused does not mandate a mistrial." State v. Wilkerson, 403 So.2d 652 (La.1981); State v. McMellon, 525 So.2d 1094 (La.App. 3 Cir.), writ denied, 532 So.2d 149 The record shows that after a recess taken during voir dire a Motion for Mistrial was requeste......
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State v. Otis
...break in the proceedings. Defendant argues he was prejudiced at that point and was unable to obtain a fair trial. In State v. McMellon, 525 So.2d 1094 (La.App. 3d Cir.1988), writ denied, 532 So.2d 149 (La.1988), the court found no reversible error where a defendant was transported into the ......
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State v. Guillory
...appellant made no particular motion on the record, he alleges the trial court erred by not ordering a mistrial. In State v. McMellon, 525 So.2d 1094 (La.App. 3 Cir.1988), writ denied, 532 So.2d 149 (La.1988), this court found no reversible error where a defendant was transported into the co......
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25,628 La.App. 2 Cir. 1/19/94, State v. Cleveland
...the judicial proceeding. State v. Calhoun, 554 So.2d 127 (La.App. 2d Cir.1989), writ denied 558 So.2d 601 (La.1990); State v. McMellon, 525 So.2d 1094 (La.App. 3rd Cir.1988), writ denied 532 So.2d 149 (La.1988). An accused may insist that he be brought to court with the appearance, dignity ......