Opinion
No. 88-KA-1536.
May 9, 1989.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE FRANK SHEA, J.
Harry F. Connick, Dist. Atty., Janet Ahern, Asst. Dist. Atty., New Orleans, for plaintiff.
Dwight Doskey, New Orleans, for defendant.
Before BARRY, BYRNES and PLOTKIN, JJ.
The defendant was charged with possession with intent to distribute cocaine, La.R.S. 40:967, and a jury found him guilty as charged. He was sentenced as a second offender to ten (10) years at hard labor pursuant to La.R.S. 15:529.1 with credit for time served.
FACTS
Officers Eddie Selby, John Ronquillo and Kirk Noya received a call at about 11:40 p.m. on April 26, 1986 and proceeded to the 2400 block of Pauger St. where they saw the defendant. The defendant fit the description of the person for whom they were looking pursuant to the call. The three officers set up a surveillance and Selby observed with binoculars.
A red van stopped at the corner and the defendant approached. The van's passenger handed the defendant money and the defendant gave the passenger a small object which he had removed from his pocket.
Believing that a narcotics transaction had taken place, the officers prepared to stop the defendant. They drove around the block and observed another man approach the defendant and hand something to him. When the men saw the officers they began walking in the opposite direction. Selby pursued the defendant. Ronquillo and Noya went after the other man who was observed putting something in his mouth.
The defendant quickened his pace and Ronquillo assisted Selby. Selby and Ronquillo observed the defendant reach into his pocket and discard a small matchbox. Selby recovered the matchbox which contained several packets of what appeared to be cocaine. A search of the defendant produced $45.
The defendant denied possessing the matchbox. He testified that he was standing on the corner when the officers went after him and another man. He said the officers found nothing on him, then they picked up a matchbox in the street and claimed it belonged to the defendant. He suggested the matchbox had come from one of the people "across the street." He said others in the area were dealing drugs but he did not.
ASSIGNMENTS # 1 and # 2
Both of the defendant's assignments of error concern his adjudication as a second offender. The first assignment contends the State failed to show that the five year cleansing period had not run between his discharge from probation and the commission of the present crime. The second assignment contends the State failed to prove he was advised of his right to a jury trial before he pled guilty to the predicate offense.
In the absence of an objection, the defendant has not preserved his right to appeal his second offender adjudication. State v. Whittaker, 496 So.2d 1103 (La.App. 4th Cir. 1986); State v. Talbert, 416 So.2d 68 (La. 1982). The defendant failed to object and is thus relegated to post-conviction relief.
We note State v. Pegg, 513 So.2d 393 (La.App. 4th Cir. 1987) and State v. Nicholas, 491 So.2d 711 (La.App. 4th Cir. 1986) both of which reach, on appeal, the merits of attacks on predicate offenses despite the failure to object. In both cases this court explained that the merits would be considered in the interest of judicial economy. In both cases the record contained a sufficient basis to determine that the defendants' contentions would have no merit in an application for post-conviction relief.
In this case we have the transcript of the hearing which adjudicated the defendant as a second offender. However, the record is insufficient to determine the merits of each claim.
The conviction and sentence are affirmed.
AFFIRMED.
PLOTKIN, J., dissents.
Contrary to the majority's finding, I believe the record before this court does contain sufficient documentation to address the appellant's claim with respect to his second assignment of error: the State presented no evidence to show that he had been advised of his right to jury trial prior to pleading guilty to the predicate offense. Because the record before this court contains the minute entry of the guilty plea to the predicate offense and its plea of guilty waiver of rights form, as well as the transcript of the multiple bill hearing, this claim should be addressed.
In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights which were waived by a guilty plea: the privilege against self-incrimination, the right to trial by jury, and the right to confront one's accusers. Because the purpose of advising a defendant of these three rights was to ensure that the defendant had adequate information to plead guilty intelligently and voluntarily, the Court announced its unwillingness to presume a waiver of these important right from a silent record. Boykin was adopted in Louisiana in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), and held to apply to all pleas of guilty taken subsequent to December 8, 1971.
In State v. Age, 417 So.2d 1183 (La. 1982), on rehearing, the Court held the defendant was not adequately advised of his right to trial by jury where the minute entry of the guilty plea merely stated that the court interrogated the defendant as to whether he understood his constitutional rights and the waiver of rights form did not affirmatively show he was advised of his right to trial by jury. Similarly, in State v. Smith, 477 So.2d 875 (La.App. 4th Cir. 1985), this Court found the minute entry deficient where it failed to advise the defendant of his right to a jury trial, although it did state he had a right to trial. (Compare State v. Britton, 450 So.2d 702 (La.App. 4th Cir. 1984), where the waiver of rights form did not advise the defendant of his right to trial by jury, but the colloquy indicated the trial court advised the defendant of his right to appeal if a jury found him guilty.)
Here, the guilty plea waiver of rights form of the predicate offense (taken October 31, 1979) did not advise the appellant of his right to trial by jury, but merely advised him: "I understand that by entering this plea of guilty I am waiving my right to trial, and my right to appeal if I were found guilty by trial." The right to a jury trial was not mentioned elsewhere on the form. The minute entry of this guilty plea (his codefendant also pled guilty at that time) noted:
The Court advised both defendants that by entering pleas of Guilty they, the defendants, were waiving certain of their constitutional rights, which the Court explained to the defendants in detail. The defendants executed written waivers of these rights acknowledging that they had been fully advised of their rights and, after being so advised, maintained their pleas of Guilty.
The minute entry also did not mention a right to jury trial.
There is no indication in the transcript of the multiple bill hearing that the colloquy of the predicate guilty plea was introduced at that hearing. Therefore, from the evidence adduced at that hearing, the State failed to prove the appellant was advised of his right to jury trial prior to pleading guilty to the predicate offense. Thus, his adjudication and sentence as a multiple offender should be vacated and the case remanded for resentencing.