Opinion
NUMBER 2017 KA 1498
04-06-2018
STATE OF LOUISIANA v. PETER CHRISTIAN PETERSEN
Warren L. Montgomery, D.A. Mary Watson Smith, A.D.A. Covington, LA Attorneys for Appellee State of Louisiana Cameron M. Mary M. Randall Brown Mandeville, LA Attorneys for Appellant Defendant - Peter Christian Petersen
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 585834 Honorable Martin E. Coady, Judge Warren L. Montgomery, D.A.
Mary Watson Smith, A.D.A.
Covington, LA Attorneys for Appellee
State of Louisiana Cameron M. Mary
M. Randall Brown
Mandeville, LA Attorneys for Appellant
Defendant - Peter Christian Petersen BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
The defendant, Peter Christian Petersen, was charged by bill of information with operating a vehicle while intoxicated, third offense, a violation of La. R.S. 14:98 and La. R.S. 14:98.3, and he initially pled not guilty. Subsequently, the trial court denied the defendant's motion to quash the bill of information. The defendant withdrew his original plea and pled guilty as charged, reserving the right to appeal the trial court's ruling on the motion to quash pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). The trial court sentenced the defendant to five years imprisonment at hard labor, but suspended said sentence. The defendant was placed on supervised probation for a term of five years subject to the following conditions: payment of a fine of two-thousand dollars, completion of the sobriety court program, installment of an interlock device, performance of community service, refrain from criminal conduct, attend a MADD session, home incarceration for up to three years, payment of a monthly supervision fee, and participation in a driver improvement program. The defendant now appeals the denial of his motion to quash. For the following reasons, we affirm the conviction and sentence.
The record shows that the defendant's prior offenses consist of convictions for operating a vehicle while intoxicated on March 17, 2016, in Jefferson Parish and on April 14, 2010, in Travis County, Texas. --------
STATEMENT OF FACTS
As indicated, the defendant pled guilty to the instant offense, thus there was no trial to develop the facts. In accordance with the bill of information and affidavit of probable cause, the following occurred. On November 18, 2016, at approximately 9:52 p.m., while conducting a DWI checkpoint, Deputy Jordan Smith observed a white 2015 Volkswagen Jetta travelling north on Louisiana Highway 59 in St. Tammany Parish. The vehicle swerved from left to right as it approached the checkpoint near Hurricane Alley. Deputy Smith further observed as the driver activated the right turn signal followed by the left turn signal before entering the checkpoint. After stopping the vehicle and making contact with the driver, the defendant, Deputy Smith detected a moderate odor of an alcoholic beverage. The officer further noticed that the defendant's eyes were watery and bloodshot, his speech was slurred and slow, and he was unable to maintain steady balance. Upon inquiry, the defendant informed the officer that he had consumed "a little" alcohol, but he refused to submit to field sobriety testing. Prior to placing the defendant under arrest for the instant offense, Deputy Smith performed a criminal history check, which indicated that the defendant had two previous arrests. After being escorted to the St. Tammany Parish Sheriff's Office Command Center positioned at the checkpoint, the defendant refused to submit to chemical testing. He was subsequently transported to the parish jail.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the trial court erred in denying his motion to quash. The defendant specifically argues that the State failed to meet the burden of proving a knowing and intelligent waiver as to the alleged predicate Texas offense. Citing State v. Jones, 404 So.2d 1192 (La. 1981) (per curiam), the defendant notes that when a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Citing State v. Wiggins, 399 So.2d 206 (La. 1981), he contends that where the defendant is not represented by counsel there must be evidence of an intelligent and understandable waiver of counsel. Further, the defendant cites State v. LaFleur, 391 So.2d 445 (La. 1980), in contending that the Louisiana Supreme Court extended the burden to require an indication that the trial judge tried to assess the defendant's literacy, competency, and understanding of the violation before he accepted the plea. The defendant contends that the documents offered by the State as proof of the Travis County, Texas predicate bear no indication that the Texas trial court informed the defendant of the fundamental aspect of the plea or that the trial court determined that he understood the ramifications of his act. The defendant contends that the State is not entitled to a presumption that the plea was knowingly and intelligently made. The defendant argues that central to this inquiry is that the plea can be used as a basis for a subsequent enhanced prosecution. The defendant claims that in this case there is no indication that the Travis County Court judge informed him of the prospect of enhancement, and argues that the plea was thus rendered constitutionally infirm for use as a predicate offense.
A guilty plea is a conviction and, therefore, should be afforded a great measure of finality. State v. Thornton, 521 So.2d 598, 600 (La. App. 1st Cir.), writ denied, 530 So.2d 85 (La. 1988). A presumption of regularity attaches to prior convictions in multiple offender DWI cases, and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 2004-255 (La. App. 5th Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 2004-2798 (La. 3/11/05), 896 So.2d 62. A motion to quash is the proper vehicle to attack the constitutionality of prior convictions used to enhance a DWI charge. State v. Moten, 99-552 (La. App. 5th Cir. 11/30/99), 748 So.2d 1210, 1212. When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, (La. 7/6/00), 766 So.2d 501, 504.
In order for a misdemeanor guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must ascertain that the accused understands what the plea connotes and its consequences. Jones, 404 So.2d at 1196; State v. Verdin, 2002-2671 (La. App. 1st Cir. 2/3/03), 845 So.2d 372, 375 (per curiam). See also Boykin v. Alabama, 395 U.S. at 242-43, 89 S.Ct. at 1712. In State v. Carlos, 98-1366 (La. 7/7/99), 738 So.2d 556, the Louisiana Supreme Court held that the burden-shifting principles of State v. Shelton, 621 So.2d 769 (La. 1993), are applicable to multiple-offense DWI cases. Carlos, 738 So.2d at 558-59. Additionally, an uncounseled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent waiver of counsel. See State v. Cadiere, 99-0970 (La. App. 1st Cir. 2/18/00), 754 So.2d 294, 296-97, writ denied, 2000-0815 (La. 11/13/00), 774 So.2d 971.
Under the Shelton burden-shifting scheme, if the defendant denies the allegations of a bill of information, the State has the initial burden to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a "perfect" transcript of the taking of the guilty plea, one that reflects a colloquy between the judge and the defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a "perfect" transcript, for example, a guilty plea form, a minute entry, an "imperfect" transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant's prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. See Shelton, 621 So.2d at 779-80.
The purpose of the Shelton rule is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea, in which the appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction used in a subsequent recidivist proceeding, as to which a presumption of regularity attaches to promote the interests of finality. See State v. Deville, 2004-1401 (La. 7/2/04), 879 So.2d 689, 691 (per curiam). Boykin, furthermore, only requires that a defendant be informed of the three rights enumerated above. See State v. Nuccio, 454 So.2d 93, 104 (La. 1984). The jurisprudence has been unwilling to extend the scope of Boykin to include advising the defendant of any other rights which he may have. Cadiere, 754 So.2d at 296-97. Although advice with respect to a defendant's sentencing exposure and the possibility of enhancement may facilitate the taking of a voluntary guilty plea, such advice has never formed part of the Supreme Court's core Boykin requirements for the entry of a presumptively valid guilty plea. See State v. Guzman, 99-1528 (La. 5/16/00), 769 So.2d 1158, 1164; State v. Anderson, 98-2977 (La. 3/19/99), 732 So.2d 517 (per curiam); State v. Wright, 517 So.2d 458, 460 (La. App. 1st Cir. 1987), writ denied, 522 So.2d 1093 (La. 1988). Thus, while the trial judge is compelled to explain to the defendant, as part of the core Boykin requirements, his rights and the effect of waiving those rights, he was under no obligation to inform the defendant about penalty provisions or the possibility of enhancement. State v. Simmons, 2012-1963 (La. App. 1st Cir. 11/4/13), 2013 WL 5924974 (unpublished); see also Verdin, 845 So.2d at 376.
In State v. Balsano, 2009-0735 (La. 6/19/09), 11 So.3d 475, 476-84 (per curiam), the defendant challenged the validity of an out-of-state guilty plea used to enhance his DWI conviction. Specifically, he contended that the transcript of the guilty plea colloquy conducted by the trial judge revealed that the court failed to advise him of his privilege against compulsory self-incrimination. The Louisiana Supreme Court tracked the extensive history following Boykin and ultimately concluded that for guilty pleas entered in Louisiana before December 8, 1971, and for all non-Louisiana guilty pleas, a defendant on collateral attack must show more than a mere violation of the three-right rule adopted in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); he must show that his guilty plea was not voluntary as a constitutional matter, i.e., that it did not represent a knowing and voluntary choice among available alternatives. Balsano, 11 So.3d at 482. The Supreme Court ruled in Balsano that "the extensive colloquy conducted by the Tennessee judge ... fully discharged the [S]tate's ultimate burden in the present case despite the court's failure to advise defendant specifically that he was waiving his privilege against compulsory self-incrimination at trial." Balsano, 11 So.3d at 483.
In this case, the trial court cited Guzman, Anderson, and Verdin in denying the defendant's motion to quash. In finding that the State showed that the predicate plea from Texas was knowingly and voluntarily made, the trial court in part noted that the State produced the guilty plea form with its waiver of rights stipulation signed by the defendant. The documentation shows that in Case No. C-1-CR-08-205912 in Travis County, Texas, the defendant appeared with his attorney, the parties entered into a plea agreement, and the defendant pled nolo contendere to a Class B misdemeanor offense of driving while intoxicated. The documentation includes the written plea agreement signed by the defendant and his attorney and the judgment and sentence form. Thus, the State met its initial burden of proving the fact of the defendant's prior conviction and that he was represented by counsel when the plea was taken. Therefore, the burden shifted to the defendant to show that his guilty plea was not voluntary. The documentation further reflects that the defendant was advised of and waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. The defendant's guilty plea waiver and stipulation form further indicates that he was advised of and understood the nature of the charge, and the consequences of the plea, including the minimum and maximum punishment provided by law.
As indicated above, advice about the penalty and the possibility of enhancement is not part of the core Boykin requirements. The defendant has failed to cite any authority to the contrary. As set forth above, Jones, cited in the defendant's brief, is fully consistent with the law as applied in this case. Other cases cited by the defendant, specifically Wiggins and LaFleur, involved waiver of counsel and are not inconsistent with the law set forth above. As noted, herein the defendant was represented by counsel at the time of the predicate at issue. The State not only met its initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when the plea was taken, it also produced a contemporaneous record of the guilty plea proceedings indicating the defendant knowingly and intelligently waived his Boykin rights. The defendant failed to produce any affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea in question. Considering the foregoing conclusions, the trial court did not err in finding that the evidence presented by the State was sufficient to show that the predicate at issue was voluntary and knowingly and intelligently entered. Thus, there was no abuse of discretion or error in the denial of the motion to quash. The sole assignment of error lacks merit.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.