STATE OF LOUISIANA NO. 23-K-275 VERSUS FIFTH CIRCUIT RICKY JOSEPH, JR. COURT OF APPEAL STATE OF LOUISIANA

July 10, 2023 Linda Wiseman First Deputy Clerk

IN RE RICKY JOSEPH, JR. APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE KATHERINE TESS STROMBERG, DIVISION "C", NUMBER 19,1225 & 19,8208

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

WRIT GRANTED IN PART; DENIED IN PART Relator, Ricky Joseph, Jr., seeks review of the trial court’s denial of his motion to quash his three predicate driving while intoxicated (DWI) convictions.

For the following reasons, we grant the writ in part and find that the trial court erred in denying relator’s motion to quash as to his first predicate conviction. As to the second and third predicate convictions, we find the trial court did not abuse its discretion in denying the motion to quash and we deny the writ in part as to those predicate convictions.

On May 22, 2019, the District Attorney for St. James Parish filed a bill of information charging relator with driving while intoxicated, fourth offense, in violation of “La. R.S. 14:98(98.4).” On March 24, 2023, relator filed a “Motion to Quash Predicate Offenses,” seeking to quash the three predicate convictions relied upon in the bill of information—(1) an April 8, 2010 DWI conviction in violation of La. R.S. 14:98; (2) a December 28, 2010 DWI conviction in violation of La. R.S. 14:98; and (3) a March 21, 2011 DWI conviction in violation of La. R.S.

14:98. Following a March 27, 2023 hearing, the trial judge denied relator’s motion to quash the three predicate convictions. This writ application followed.

A ruling on a defendant’s motion to quash the bill of information is a discretionary ruling and should not be disturbed absent an abuse of discretion.

State v. Boudreaux, 13-394 (La. App. 5 Cir. 12/12/13), 131 So.3d 342, writ denied, 14-115 (La. 6/20/14), 141 So.3d 807. This Court, in State v. Dillon, stated: A presumption of regularity attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show 23-K-275 the prior guilty plea is constitutionally deficient. State v. Collins, 04- (La. App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04- 2798 (La. 3/11/05), 896 So.2d 62. When a defendant challenges the constitutionality of a predicate guilty plea involving the recidivist portion of the DWI statute, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when the plea was taken. If the State meets this initial burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes the required showing, then the burden shifts back to the State to prove the constitutionality of the plea. State v. Carlos, 98-1366 (La. 7/7/99), 738 So.2d 556, 559.

State v. Dillon, 12-67 (La. App. 5 Cir. 9/11/12), 101 So.3d 970, 974.

If the record reflects that the predicate plea was uncounseled, the State has the burden of proving a valid waiver of counsel. State v. Domino, 10-661 (La. App. Cir. 1/25/11), 60 So.3d 659, 664-65. The right to counsel is a fundamental right guaranteed by the federal and state constitutions. U.S. Const. amend. VI; La. Const. of 1974, art. 1, § 13. An uncounseled misdemeanor conviction, absent a valid waiver of counsel, may not serve as a predicate for enhancement of a subsequent DWI offense. State v. Dillon, 12-67 (La. App. 5 Cir. 9/11/12), 101 So.3d at 975. The State bears the burden of proving that an unrepresented defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI offense. Id. Before accepting a misdemeanor guilty plea, the trial judge should expressly advise the defendant of his right to counsel and to appointed counsel if he is indigent. State v. Nabak, 03-919 (La. App. 5 Cir. 12/30/03), 864 So.2d 758, 762; State v. Rodrigue, 01-377 (La. App. 5 Cir. 8/28/01), 795 So.2d 488, 493, citing State v. Garrity, 97-958 (La. App. 5 Cir. 1/27/98), 708 So.2d 1096, 1098. The trial judge should determine if the waiver is knowing and intelligent under the circumstances. Id. In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question which depends upon the facts and circumstances of each case. Id., citing State v. Strain, 585 So.2d at 542 (La. 1991). Evidence of waiver alone, without evidence to support a determination that such waiver was knowing and intelligent, is insufficient to meet the State’s burden to prove that a defendant waived his right to counsel. State v. Nabak, supra. Upon review of the writ application and the attachments thereto, we find that the trial court erred in denying relator’s motion to quash as to the April 8, 2010 or first predicate conviction. The evidence introduced in connection with the hearing on relator’s motion to quash reflects that relator’s April 8, 2010 predicate conviction is the result of a guilty plea during which relator was unrepresented by counsel. The April 8, 2010 Waiver of Rights Form and minute entry introduced into evidence do not reflect that relator was represented by counsel at the time of the guilty plea. Further, although the minute entry states that relator was informed of and waived his Boykin rights, the Waiver of Rights form introduced into evidence is incomplete—with many provisions left blank and not initialed by relator, including the provision stating, “I desire to represent mysef knowing that I could have an attorney if I desired one. I believe this plea is in my best interest and I recognize the dangers of representing myself.” At the motion to quash hearing, the State failed to introduce the guilty plea transcript reflecting a colloquy during which relator knowingly and intelligently waived his right to counsel. Based upon the evidence presented at the hearing, we find the State failed to meet its burden to prove that relator knowingly and intelligently waived his right to counsel and, thus, the predicate conviction may not be used to enhance the current DWI charge. State v. Dillon, supra; State v. Nabak, supra. Concerning the December 28, 2010 and the March 21, 2011 predicate convictions, relator acknowledges that the Boyin forms are completed and that relator was represented by counsel at the time he entered into both guilty pleas. He acknowledges that neither plea is constitutionally infirm. However, relator asserts that the Waiver of Rights forms, which reference the habitual offender law and not specifically the enhanced penalties for a third or subsequent DWI offense, are not sufficient to notify him of the potential enhancements in the context of DWI law.

Louisiana law has never extended the core Boykin constitutional requirements to include advice with respect to sentencing. State v. Nuccio, 454 So.2d 93, 104 (La. 1984). The Louisiana Supreme Court has instructed that such advice is not part of the core Boykin constitutional requirements. State v. Guzman, 99-1528 (La. 5/16/00), 769 So.2d 1158, 1164, citing State v. Anderson, 98-2977 (La. 3/19/99), 732 So.2d 517. Moreover, there is no requirement that the trial judge advise a defendant of subsequent enhanced penalties before accepting a guilty plea.

See La. C.Cr.P. arts. 556 and 556.1; State v. Guzman, supra; State v. Douglas, 39,036 (La. App. 2 Cir. 10/29/04), 888 So.2d 982, writ denied, 04-3146 (La. 4/1/05), 897 So.2d 601. Nonetheless, the record in this case reflects that the Waiver of Rights forms, which are completed and demonstrate that relator was counseled at the time of both the December 28, 2010 and March 21, 2011 guilty pleas, contain the following advisal or statement: I understand that this plea can be used to multiple-bill me as a second, third or greater offender and if this happens this plea would seriously affect me under the Habitual Offender Law and to enhance any future sentence that I may receive.

I understand that in order to be multiple billed under the Habitual Offender Law, it does not matter whether one offense occurred before or after any other offense. I also understand that the District Attorney’s Office can go back 10 years in order to use prior offenses for multiple- billing purposes. I also understand that if I’m multiple-billed and convicted in the future as a second or greater offender of D.W.I., the Court must order the interlock system to be installed on my vehicle during the length of any probation in order that I may drive.

Upon review of relator’s writ application and the attachments thereto, we find that the trial judge did not abuse her discretion in finding that the State met its burden to prove that relator knowingly and voluntarily waived his Boykin rights when he entered into his December 28, 2010 and March 21, 2011 counseled guilty pleas. We therefore find that the trial judge did not abuse her discretion in the denial of relator’s motion to quash the second and third predicate convictions.

Accordingly, this writ is granted in part and we reverse the trial court’s judgment as to relator’s April 8, 2010 predicate conviction and find that the April 8, 2010 predicate conviction may not be used to enhance the current DWI charge.

In all other respects, this writ is denied.

Gretna, Louisiana, this 10th day of July, 2023.

FHW JGG RAC

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 07/10/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-K-275 E-NOTIFIED 23rd Judicial District Court (Clerk) Hon. Katherine Tess Stromberg (DISTRICT JUDGE) Gordon D. Bush (Relator) MAILED Honorable Ricky L. Babin (Respondent) District Attorney 23rd Judicial District Court Post Office Box 1899 Gonzales, LA 70707 -. ~.,. ' . ~· , SENDER: COMPLFTL THIS SECTION COMP/ I· f f THIS ';ECTION ON Df-l IVU1Y • Complete Items 1, 2, Md 3. • Print your name and address on the reverse CJ Agent so that we can return the card to you. a Addressee • Attach this card to the back o1 the mailpleoe, B. T&~ Name) IC. Date of Dellvery or on the front if space permits.

1. Article Addressed to: D. Is dellveiy address dllfenlnt from item 1? 0 Yes If YES, enter deliv«y address below: 0 No Honorable Ricky L. Babin District Attorney 23rd Judicial District Court Post Office Box 1899 Gonzales, LA 70707 23-K-275 07- 10-23 3. Seivtce Type o P11o11ty Mall~ II lllllll llll lllllllIIII Illll Ill IIIIllIll II Ill CJ Slgn8lul9 0 Reglltared Miii"' $lgll&tln~DeMy ~Mall~ Cerlllllld Mall9 9590 9402 2434 6249 3635 29 0 Celtlfted Mall R9etltet8CI DllYery Return Racllpt b ------------------10 2. Article Number (rransfer from servietl ~ o Collect on Oellvely Collect on Dellvely Rea1rtc;l8d Dellvery D Merd*1dlse Slgnalln Con1kmatlon"' - . .. . • 0 Signature Conllrmalion 7D1b 2010 aaoa a9S4 7 7 4 5 • Reslrtcted Oellvery Rellrlcted OeUvwy

. - PS Fonn 3811, July 2015 PSN 7530-02--000-9053 Domestic Return Receipt I