State v. Howard
State v. Howard
Opinion of the Court
I,STATEMENT OF CASE
On April 26, 2004, in case # 447-131 the State charged Harry Howard with two counts of possession of a dangerous weapon while in possession of a controlled dangerous substance, a violation of La. R.S. 14:95(E). Later, on May 3, 2004, the State filed a new bill of information in the instant case (# 447-947) charging the defendant in two separate counts
Following a series of continuances requested by both the State and the defendant, the matter was set for trial on March 15, 2005. On that date, the defendant filed a Motion to Quash Bill of Information claiming that the State could not use a prior guilty plea
The trial judge granted the motion on March 15, 2005, and quashed the bill of information. The State appeals that adverse ruling.
DISCUSSION
La. R.S. 14:95(E) provides “If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distri
In his Motion to Quash, the defendant relies upon La.C.Cr.P. art. 556.1(E), which sets forth the duty of the court to provide a defendant with certain information, including sentence enhancement provisions, during the taking of a guilty plea. The defendant does not argue that the prior plea is invalid, only that the State cannot use his plea as a predicate to enhance his sentences for the present offenses.
l3For the following reasons, we find that the trial judge erred in granting the Motion to Quash and so reverse the judgment appealed from and remand the case for further proceedings.
There is no dispute that the defendant’s plea colloquy makes no reference to possible use of that conviction for enhancement purposes as to future criminal convictions. However, the scope of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)
In State v. Echols, 99-2226 (La.App. 4 Cir. 10/4/00), 774 So.2d 993 this Court, citing State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158, noted:
|4... unlike the requirements (l)-(4) contained in La.C.Cr.P. art. 556.1(A), section (E) simply states that ‘[i]n any case where a subsequent offense carries an enhanced penalty, the court shall inform the defendant of the penalties for subsequent offenses’. Therefore advice regarding the penalties for subsequent offenses is not even required to be given before the plea is taken.
Echols, 774 So.2d at 996.
In this case, the defendant does not argue that his guilty plea is invalid because
The plea colloquy in this case verifies that the defendant was represented by counsel and that the court informed him of his Boykin rights — the constitutional right against self-incrimination, his right to a judge or jury trial, his right to an appeal if he were convicted, his right to cross-examination of witnesses and compulsory process of witnesses. The court further advised the defendant of his right to competent counsel at trial and on appeal, and informed him that counsel would have been appointed for him if he were unable to afford an attorney. The judge asked the defendant whether the guilty plea was the result of force, threat, or intimidation, or whether he was entering the plea of his own free will, and whether he was entering the plea because he was, in fact, guilty of the crime(s) charged. The judge questioned the defendant concerning his satisfaction with his ^representation by his court-appointed attorney and his satisfaction with the way the court handled the matter.
Even if La.C.Cr.P. art. 556.1 were deemed applicable to the plea in this case, a finding of invalidity would not be automatic. Violations of La.C.Cr.P. art. 556.1, which do not rise to the level of a Boykin violation, are subject to harmless error review. Guzman, 769 So.2d at 1164-66.
Without the presentation of evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, the trial court’s failure to advise the defendant in this case as to sentence enhancement provisions for subsequent drug offenses does not render the defendant’s plea invalid for use as a sentence-enhancing predicate.
CONCLUSION
Therefore, for the above reasons we reverse the judgment of the Court below quashing the bill of information and remand for further proceedings consistent herewith.
REVERSED AND REMANDED.
. Count one of the bill of information alleges that on April 18, 2003, Howard “possessed a dangerous weapon, to wit: a 9mm handgun, while in possession of a controlled dangerous substance, to wit: marijuana and crack cocaine, having previously been convicted of possessing a firearm while in possession of a controlled dangerous substance in case number 386-855 'L' of the Criminal District Court, Orleans Parish.” Count two alleges that on March 8, 2004, Howard, "possessed a dangerous weapon, to wit: an AK 47 assault rifle and a .45 caliber pistol, while in possession of a controlled dangerous substance, to wit: marijuana having previously been convicted of possessing a firearm while in possession of a controlled and dangerous substance in case number 386-855 'V of the Criminal District Court, Orleans Parish.”
. On February 6, 1997, Harry Howard pled guilty in two felony cases. In case # 387-336, he pled guilty to possession of heroin and was sentenced to five years, without benefit of probation, parole or suspension of sentence, with credit for time served. In case # 386-855 “L”, the defendant pled guilty to first offense violation of La. R.S. 14:95(E) and was sentenced to five years, without benefit of probation, parole, or suspension of sentence, with credit for time served. The sentences in both cases were ordered to be served concurrently, as well as to run concurrently with any sentence to be served on another case for which the defendant was on probation at the time of the guilty pleas.
. In Boykin, 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. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. Id. Louisiana has never extended the Boykin requirements to include advice with respect to sentencing. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158.
. Paragraph E was amended in 2001 to provide a harmless error provision. Paragraph E now reads:
Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.
Reference
- Full Case Name
- STATE of Louisiana v. Harry HOWARD
- Cited By
- 1 case
- Status
- Published