Opinion
NO. 2013 KW 0921
2013-09-20
STATE OF LOUISIANA v. JAMAAL A. REINE
In Re: Jamaal A. Reine, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 511014-1.
BEFORE: WHIPPLE, C.J., WELCH AND CRAIN, JJ.
WRIT GRANTED IN PART AND DENIED IN PART. The sentencing transcript reflects that, through no fault of relator, relator's retained attorney was not present at the sentencing hearing. The record does not reflect that relator requested or expressly consented to a change in counsel. Nevertheless, the trial court appointed an attorney to represent relator at his sentencing. We find that these circumstances constitute an erroneous deprivation of relator's right to counsel of choice. This is a structural error, not subject to a harmless error analysis. See United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2257, 165 L.Ed.2d 409 (2006). Accordingly, the trial court's ruling denying relator's application for postconviction relief is reversed, relator's sentences are vacated, and this matter is remanded to the trial court for resentencing with relator's retained counsel or chosen counsel. Insofar as relator requests that his guilty pleas be vacated, the writ application is denied.
Because relator challenges his fifteen-year sentences on other grounds, and we are remanding for resentencing, we address those arguments in the interest of judicial economy. Relator contends that because the trial court alluded to La. R.S. 14:64.3 to explain the fifteen-year sentences, he erroneously pled guilty and was sentenced under that statute. That argument is without merit. After being properly Boykinized, relator pled guilty as charged to two counts of armed robbery, violations of La. R.S. 14:64. He did not plead guilty under La. R.S. 14:64.3. Relator's fifteen-year sentences were within the statutory range of ten to ninety-nine years under La. R.S. 14:64, and were well below the Supreme Court approved range of thirty-five to fifty years for a first offender who commits armed robbery. See State v. Thomas, 98-1144 (La. 10/9/98), 719 So. 2d 49. However, fifteen years was not the legal minimum for the statutorily charged offense of armed robbery, even though the factual charge alleged the use of a gun in the commission of the crime.
NO. 2013 KW 0921
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To enhance a sentence under La. R.S. 14:64.3, the State must either charge a defendant in the bill of information with violating that statute or, at a minimum, the court must notify the defendant of the enhancement at the time of his plea. See State v. Willis, 45, 857 (La. App. 2d Cir. 12/15/10), 56 So.3d 362, writ denied, 11-0150 (La. 6/17/11), 63 So.3d 1034. See also State v. Johnson, 43, 192 (La. App. 2d Cir. 4/30/08), 981 So.2d 253. While relator's sentences do not reflect a five-year enhancement under La. R.S. 14:64.3, to be served consecutively with his sentences under La. R.S. 14:64, the trial court's explanation for the sentences alluded to such an enhancement and should be clarified in accordance with this order when relator is resentenced.
WJC
JEW
Whipple, C.J., concurs. The bill of information did not charge relator under La. R.S. 14:64.3, the State did not file a notice of intent to charge relator with La. R.S. 14:64.3, and the trial court did not inform relator during the Boykin proceedings that he was being charged under La. R.S. 14:64.3. COURT OF APPEAL, FIRST CIRCUIT ________________________
DEPUTY CLERK OF COURT
FOR THE COURT
Boykin v. Alabama, 395 U.S. 230, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).