The principal issue in this appeal relates to defendant's sentence as a multiple offender.
Defendant was surprised by New Orleans police in the act of burglary of a business place. The police apprehended defendant as he attempted to escape in his vehicle. Cash and other items stolen in the burglary were found in his automobile. Arresting officers found scotch tape on defendant's fingers (presumably to prevent leaving fingerprints at the scene of the crime).
At defendant's trial for simple burglary, defense counsel endeavored to raise an inference that defendant was "framed" by the police. A six-member jury rejected defendant's theory and found him guilty as charged. The district attorney filed a multiple offender bill, charging that defendant had previously been convicted of manslaughter. He was subsequently sentenced as a second offender to 15 years imprisonment at hard labor.
Defendant challenges the sentence based on two contentions, both of which are raised for the first time on appeal. He first contends that the trial court erred in permitting him at the sentencing hearing on the multiple offender bill to confess in open court that he was the same individual who had previously been convicted and sentenced for manslaughter without first duly cautioning him as to his rights.
La.R.S. 15:529.1 provides that the court may sentence a defendant as an habitual offender "[i]f the judge finds that [defendant] has been convicted of a prior felony ..., or if [defendant] acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted ...."
Defendant contends, however, that due process requires the judge additionally to inform the defendant of the consequences of his admission in terms of a more severe penalty exposure.
Defendant, represented by counsel, voluntarily acknowledged in open court that he was the same person who had been previously convicted. There is no reason to believe (and defendant does not suggest) that the admission was either unreliable or involuntary. Moreover, neither the defendant nor his attorney objected to or questioned the propriety of the judge's immediate pronouncement of an enhanced sentence.
Neither the pertinent statute nor any constitutional principle requires that the trial court discuss the consequences on the record before accepting the defendant's voluntary, counseled admission of identity.
Defendant also contends that the multiple offender sentence in this case must be set aside because the minute entry of the guilty plea to manslaughter in the certified copy of the predicate felony conviction fails to reflect that defendant was represented by counsel.
When the state offered the record of the prior conviction during the multiple offender proceedings in the trial court, defense counsel did not object to the record on any basis. (Nor does defendant allege in this appeal that the manslaughter conviction was obtained by a guilty plea in absence of counsel.
There is no doubt that a guilty plea obtained in violation of defendant's right to counsel cannot be used to enhance a sentence. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). See also United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). As stated in Burgett, an uncounseled plea would cause defendant to "suffer anew" from the earlier violation of his Sixth Amendment rights. Therefore, a defendant who has been sentenced as a multiple offender on the basis of a prior uncounseled plea in the underlying conviction can have the multiple offender sentence set aside in a postconviction proceeding. See La.C.Cr.P. Art. 930.3. However, the question in this case is whether defendant can raise on appeal, rather than by postconviction application, the question of whether he was represented by counsel at the earlier plea when defendant did not object in the trial court to the evidence of the prior conviction.
The proper approach, when there is no objection at the multiple offender hearing to the certified copy of the prior conviction based on the absence of a minute entry reference to counsel's presence, is to relegate the defendant to an application for postconviction relief. No useful purpose would be served to address the issue raised for the first time on appeal and to set aside a multiple offender sentence (which was based on an apparently valid prior conviction obtained by a voluntary guilty plea), if counsel was in fact present at the earlier plea and the minute entry in the present record simply failed to reflect the presence. A defendant, who failed to object to that possible deficiency at a time when the problem could have been easily resolved, has an adequate remedy by postconviction application to show any possible violation of his Sixth Amendment rights.
In State v. Holden, 375 So.2d 1372 (La.1979), this court held that a defendant could not complain for the first time on appeal that the record did not reflect compliance with the "three-right articulation rule" at the guilty plea on the prior felony. By way of dicta, the author of the Holden opinion stated that, in the absence of an objection, the state could establish a voluntary guilty plea by proving only "that the prior conviction resulted from defendant's guilty plea at which he was represented by counsel." 375 So.2d at 1376. The opinion did not state that the existence of a minute entry reference to counsel's presence in the certified copy of the prior conviction was an essential element of the state's proof in a multiple offender hearing. However, if the opinion may be so interpreted, we hereby clarify the holding of Holden to require a defendant to object at the multiple offender
Defendant's conviction and sentence are affirmed.
CALOGERO, J., dissents and assigns reasons.
CALOGERO, Justice, dissenting.
I dissent from the majority's opinion. It attemptsto overrule several years of jurisprudence without acknowledging that it is doing so by holding that, in multiple offender proceedings, it is not the state's burden to show that the defendant either was represented by counsel or that he waived that right, before using a prior guilty plea conviction in the multiple offender proceedings to enhance the defendant's punishment. Furthermore, I object to the majority's manner of attempting to justify such a holding by the utilization of evidence which is not in the record before us.
In City of Monroe v. Coleman, 304 So.2d 332 (La.1974) this Court was confronted with the identical question, as is presented here, the effect on a multiple offender prosecution where the evidence of the prior conviction does not show whether the defendant waived his right to counsel. The Court therein found fatal to the state's multiple offender proceedings the absence of an "affirmative showing in the record that the accused was informed of his right to counsel or that he waived that right at the time of his conviction."
That holding was again reaffirmed in State v. Hoffman, 345 So.2d 1 (La.1977). In Hoffman, subsequent to defendant's conviction for attempted aggravated rape, he was adjudicated a habitual offender based on "prior felony convictions [which were] silent as to whether defendant was represented by an attorney at the time of the sentence." The state argued that the burden was on defendant to show that the prior pleas of guilty were not entered with the assistance of counsel. In rejecting that argument, this Court held:
This holding has been, to an extent, codified in La.C.Cr.P. art. 514 which requires that a minute entry show either that the defendant was present with counsel or that he waived his right to counsel. La.C.Cr.P. art. 514 provides:
In State v. Vezina, 391 So.2d 450 (La. 1980) and State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980) this Court, relying on the above provision, disallowed the use of prior convictions in the multiple offender proceedings where the minute entry evidencing the prior conviction was not in conformity with La.C.Cr.P. art. 514.
In the present case, like those referred to above, the state only introduced the minute entry of defendant's prior conviction and nothing else. That minute entry was not in conformity with La.C.Cr.P. art. 514 in that it showed neither that the defendant was represented by counsel nor that he was informed of his right to court appointed counsel and waived it. Accordingly, under the prior jurisprudence, defendant's adjudication as a multiple offender should be set aside.
Furthermore, I find the reasoning in the prior cases more persuasive than that in the instant case. An accused is required, by the Constitution, to be afforded a right to counsel. That right must be scrupulously honored and any conviction obtained in violation of it is void for all purposes. Loper v. Beto, 404 U.S. 821, 92 S.Ct. 151, 30 L.Ed.2d 49 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Thus it has been held to be the state's burden to show that defendant's right to counsel was honored.
The majority seeks to place this burden on the defendant by analogizing the defendant's right to counsel to the three-right articulation rule in guilty plea proceedings premised on Boykin. The obvious difference is that one's right to counsel is a constitutionally protected right whereas the three-right articulation rule is a jurisprudentially created prophylactic rule.
The majority attempts to justify its holding in this case by reference to evidence that was not introduced into the record of this case. I am in full agreement with the majority that had the evidence been introduced, the multiple offender adjudication would be valid. However, I am equally of the view that absent that evidence being filed in the record of the case, the multiple offender adjudication is invalid. This Court is not authorized to consider new evidence, filed for the first time in this Court. To the contrary, we are bound by the record as compiled in the lower court. While it seems justifiable in this case to affirm the multiple offender adjudication, because we are told (by the evidence not properly in the record) that the defendant did have counsel present when he pled guilty, the effect of the majority opinion is to affirm in all cases such an adjudication even where we do not know for certain that the defendant was represented by counsel. I feel the case should be remanded to the district court for resentencing where the state can at that time introduce the appropriate evidence, assuming that it does in fact have it.
Since I am of the view that the case should be remanded to the district court for further proceedings, including the resentencing of the defendant, I find the majority's treatment of what "duly cautioned as to his rights" means under La.R.S. 15:529.1, to be unnecessary.
For the foregoing reasons, I dissent from the majority opinion.