State v. Queen

• Decision Date: 04 January 2018
• Docket Number: 17–599
• Citation: 237 So.3d 547
• Parties: STATE of Louisiana v. Timothy H. QUEEN -aka- Timothy Hugh Queen
• Court: Court of Appeal of Louisiana — District of US

237 So.3d 547

STATE of Louisiana

v.Timothy H. QUEEN -aka- Timothy Hugh Queen

17–599

Court of Appeal of Louisiana, Third Circuit.

January 4, 2018

John F. DeRosier, 14th Judicial District Court, District Attorney, Carla S. Sigler, Elizabeth B. Hollins, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437–3400, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Peggy J. Sullivan, Louisiana Appellate Project, P. O. Box 2806, Monroe, LA 71207–2806, (318) 855–6038, COUNSEL FOR DEFENDANT/APPELLANT: Timothy H. Queen

Timothy Hugh Queen, Louisiana State Penitentiary, Main Prison, Angola, LA 70712, PRO SE

Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.

SAUNDERS, Judge.

On January 15, 2009, Defendant, Timothy H. Queen (hereinafter, "Defendant") was charged by grand jury indictment with one count of armed robbery, a violation of La.R.S. 14:64, one count of armed robbery with a firearm, a violation of La.R.S. 14:64.3, one count of possession of a weapon by a convicted felon, a violation of La.R.S. 14:95.1, and one count of possession of a firearm in a firearm free zone, a violation of La.R.S. 14:95.2. On January 16, 2009, Defendant pled not guilty to the charges. On August 20, 2009, Defendant filed several motions, including a Motion to Substitute Counsel. According to the minutes, the trial court granted Defendant's request to represent himself, in part, and appointed co-counsel. On September 22, 2009, the State severed the charges of possession of a weapon by a convicted felon and possession of a firearm in a firearm-free zone.

At the September 22, 2009 hearing, Defendant withdrew his plea of not guilty and tendered a plea of not guilty and not guilty by reason of insanity. On November 4, 2009, the trial court appointed a sanity commission to determine Defendant's competency to proceed and stayed all proceedings. On April 14, 2010, the trial court found Defendant competent to proceed and relieved the Public Defender's Office from being co-counsel.

On May 21, 2010, upon the State's motion, the trial court amended the indictment to include the names of the victims to counts one and two, to add predicate convictions on count three, and to correct a spelling error in count four. Defendant tendered a plea of not guilty and not guilty by reason of insanity to the amended bill.

On October 17, 2016, the day before trial, the trial court heard a motion in which Defendant requested that he be represented by counsel in entirety. The trial court granted the motion after Defendant stated under oath that he wanted counsel to represent him. On October 18, 2016, the State reiterated its decision to sever certain charges from the bill and proceed to trial on armed robbery and armed robbery with a firearm. Upon the State's motion, the trial court ordered counts one and two of the bill amended as to the names of the victims. Defendant was re-arraigned on the amended bill and maintained his previous plea of not guilty and not guilty by reason of insanity.

After a trial held October 18, 2016, and October 19, 2016, a unanimous jury found Defendant guilty as charged of armed robbery and armed robbery with a firearm. Subsequently, on December 14, 2016, the trial court denied Defendant's motion for new trial. After Defendant waived the twenty-four hour delay for sentencing, the trial court sentenced Defendant on the armed robbery conviction to seventy-five years in the Department of Corrections to be served without benefit of probation, parole, or suspension of sentence and on the armed robbery with a firearm conviction to five years to be served without benefit of probation, parole, or suspension of sentence. The trial court ordered the armed robbery with a firearm sentence to run consecutively to the sentence imposed for armed robbery. The State also gave notice of its intent to file a habitual offender bill.

On January 3, 2017, Defendant filed a Motion and Order for Appeal, which was granted that same date. Defendant's is now before this court, in brief alleging three assignments of error.

FACTS:

On November 19, 2008, Defendant went into Thrifty Way Pharmacy in Lake Charles, Louisiana, armed with a firearm, and demanded the pharmacist give him certain pills. Defendant was apprehended shortly after the robbery and identified by the victims.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there is one potential error patent regarding Defendant's waiver of his right to counsel and an error patent regarding the advisement of the time period for filing post-conviction relief.

The one possible error patent concerns Defendant's waiver of his right to counsel. The record contains multiple minute entries and hearings regarding Defendant's request to represent himself. At most proceedings, Defendant was assisted by co-counsel. Ultimately, Defendant was represented by counsel in full at trial and at sentencing. Because several hearings occurred with Defendant either representing himself or having the assistance of co-counsel, we will address Defendant's waiver of right to counsel.

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), 2011 WL 1266588 (unpublished opinion), writ denied , 11-1742 (La. 5/4/12), 88 So.3d 449, cert denied , ––– U.S. ––––, 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. SeeState 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. SeeUnited 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

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