Opinion
NO. 18-KP-669
11-21-2018
STATE OF LOUISIANA v. KADEEM WATKINS
Susan Buchholz First Deputy Clerk IN RE KADEEM WATKINS APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE EDWARD J. GAIDRY, PRO TEMPORE, DIVISION "B", NUMBER 62,764 Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
WRIT GRANTED; GUILTY PLEA AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS
This application is before us on supervisory review and request for expedited consideration of a sentence imposed upon relator on November 5, 2018, by the Fortieth Judicial District Court.
On September 29, 2018, relator was arrested and imprisoned for domestic abuse in violation of La. R.S. 14:37.7 with bail set at $6,500. On October 1, 2018, the duty judge made a preliminary determination of indigency and appointed a Public Defender. A bill of information was filed on October 30, 2018 charging relator with aggravated assault in violation of La. R.S. 14:37. Accordingly to a minute entry dated November 9, 2018, on November 5, 2018, relator pled guilty and was sentenced to imprisonment in the parish jail for "three months" and ordered to pay a fine and court costs totaling $369.50, with the caveat that "on payment of fine and cost [sic] the jail sentence is suspended."
Representation by a Public Defender is presumptive evidence of indigence. See State v. Morales, 17-131 (La. App. 3 Cir. 05/17/17), 221 So.3d 257, 258.
On November 9, 2018, relator filed a motion to reconsider sentence, which has been set for hearing on December 3, 2018, and a notice of intent to apply for writ of review of the November 5, 2018 decision of the trial court. Relator argued that the trial court erred by sentencing an indigent defendant to incarceration in lieu of payment of fine and court costs; in denying the request for stay of incarceration and request for release pending appellate review.
We note that counsel stated that the motion to reconsider was faxed on November 9, 2018, is signed by counsel for relator and the trial judge on November 9, 2018, but is stamped as received on November 8, 2018, and stamped as filed on November 13, 2018. --------
In this writ application, relator contends that the trial court erred by sentencing an indigent defendant to incarceration in lieu of payment of a fine and court costs; in denying the requested stay of incarceration and release pending appellate review. For the following reasons, we grant relator's writ application and vacate his guilty plea and sentence.
A guilty plea is constitutionally infirm if it is not entered into freely and voluntarily, or if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. For a guilty plea to be valid, there must be a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So. 2d 85 (1971).
Based upon the transcript of the November 5, 2018 guilty plea proceeding provided to this Court, the trial court did not conduct a Boykin colloquy with relator prior to accepting relator's guilty plea. Further, our examination of the transcript and minute entries reveal an ambiguity in the sentence imposed regarding the fine and costs as well as the apparent imposition of imprisonment based on relator's inability to pay fines and court costs. Thus, there are fatal defects in the acceptance of the guilty plea.
The trial court's failure to conduct a proper Boykin colloquy rendered relator's guilty plea unconstitutional. Therefore, relator's guilty plea and sentence are vacated. Relator is to remain held pursuant to the bail set by the trial court. The matter is remanded to the trial court for further proceedings, including arraignment to be held no later than Tuesday, November 27, 2018.
Gretna, Louisiana, this 21st day of November, 2018.
SJW
SMC
MEJ