State of Louisiana Versus Robert Celestine, Jr.

STATE OF LOUISIANA NO. 20-KA-170

VERSUS FIFTH CIRCUIT

ROBERT CELESTINE, JR. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-2962, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

November 04, 2020

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and John J. Molaison, Jr.

AFFIRMED; REMANDED WITH INSTRUCTIONS
JJM
FHW
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Matthew R. Clauss

COUNSEL FOR DEFENDANT/APPELLANT,
ROBERT CELESTINE, JR.
Bertha M. Hillman

MOLAISON, J.

Defendant, Robert Celestine, Jr., appeals the validity of his guilty pleas on

the basis that the pleas were not knowing and voluntary. As we find that the

defendant entered into his pleas as a knowing, intelligent, free, and voluntary act to

take advantage of a plea bargain, we affirm the convictions and sentences.

PROCEDURAL HISTORY

On June 4, 2018, the Jefferson Parish District Attorney filed a bill of

information charging the defendant, Robert Celestine Jr., with possession of

firearms by a convicted felon in violation of La. R.S. 14:95.1 (count one);

obstruction of justice in violation of La. R.S. 14:130.1 (count two); aggravated

flight from an officer in violation of La. R.S. 14:108.1(C) (count three); and

possession with intent to distribute cocaine, less than 28 grams, in violation of La.

R.S. 40:967(A) (count four). Defendant pled not guilty to all counts at his

arraignment held on the same date.

Defendant filed a motion to appoint a sanity commission to determine his

competency to stand trial on June 6, 2018. At a competency hearing on July 11,

2018, the defendant and the State tendered a stipulation that if Dr. Rafael F.

Salcedo and Dr. Richard Richoux were called, both doctors would be qualified as

experts in the fields of forensic psychology and psychiatry, respectively; both

doctors would testify to the facts and opinions that appear in their reports; and both

doctors would recommend that the trial court find defendant competent to proceed

to trial. The trial court accepted the stipulation and found the defendant competent

to proceed.

20-KA-170 1

On January 14, 2019, the defendant withdrew his pleas of not guilty and pled

guilty as charged to all counts. The trial court advised the defendant of his Boykin1

rights, and the defendant signed an Acknowledgment and Waiver of Constitutional

Rights – Guilty Plea form. After advising the defendant of his Boykin rights, the

trial court accepted his guilty pleas.2 The defendant waived delays, and the trial

court sentenced the defendant in conformity with the plea agreement. As to count

one and count two, the trial court sentenced the defendant to imprisonment at hard

labor for a term of five years for each count. The sentence as to count one was to

be served without the benefit of parole, probation, or suspension of sentence. As to

count three and count four, the trial court sentenced the defendant to imprisonment

at hard labor for a term of two years for each count. All counts were to run

concurrently with each other. The trial court advised the defendant that he had 30

days to appeal his sentence and two years after the judgment of conviction and

sentence become final to file an application for post-conviction relief.

Immediately thereafter, the State filed a multiple offender bill of information

against the defendant as to count two, alleging he was a second felony offender

under La. R.S. 15:529.1.3 The defendant stipulated to being a second felony

offender. Before accepting the defendant’s stipulation, the trial court reviewed the

defendant’s rights, which included the right to have a hearing on the multiple

offender bill of information and the right to remain silent throughout such a

hearing. Defendant indicated that he understood he was giving up these rights; he

1
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969).
2
Defendant also pled guilty to misdemeanor possession of drug paraphernalia, in violation of La. R.S.
40:1023, in 24th Judicial District Court docket number 18-3333. The misdemeanor case is not part of the
instant appeal.
3
Originally the plea bargain presented by the State included a multiple offender bill on Count 1, but when
defense counsel discovered that they would be required to run the sentence without the possibility of
probation, parole, or suspension of sentence, the State offered to multiple bill on Count 2 in order to allow
defendant to have the benefit of parole.
20-KA-170 2

completed and signed a Waiver of Rights – Plea of Guilty Multiple Offender form.

The trial court accepted the defendant’s stipulation to the multiple bill and vacated

the sentence on count two. The trial court resentenced the defendant on count two

to a term of 15 years without the benefit of probation or suspension of sentence.

On January 17, 2019, the defendant filed a motion by letter requesting to

withdraw his guilty plea, asserting his attorney threatened, coerced, and wrongfully

advised him that he “would get a life sentence” and abandoned “any of a defensive

representative strategy for [his] defense.” The trial court denied the defendant’s

request on February 14, 2019. Defendant filed a pro se application for post-

conviction relief (APCR) on June 25, 2019, alleging the evidence presented was

insufficient to support a conviction for obstruction of justice. On June 28, 2019,

the trial court dismissed without prejudice the application for post-conviction relief

as premature since the defendant had not exhausted his appellate rights, noting that

“[t]he proper procedure for obtaining an out-of-time appeal is to file an application

for post-conviction relief, specially requesting an out-of-time appeal, which the

court would review.”

Defendant subsequently filed a pro se request for an out-of-time appeal on

August 30, 2019.4 The trial court construed the defendant’s motion to be an

application for post-conviction relief and ordered the State to file any procedural

objections or an answer on the merits.5 On January 13, 2020, the State filed a

4
In his request for an out-of-time appeal, defendant argued that his failure to appeal was attributable to an
error by his lawyer. He suggested that his guilty pleas to counts two and four were not voluntary due to
ineffective assistance of counsel. These claims are not raised in this appeal. The record does not contain
sufficient evidence for this Court to consider a claim of ineffective assistance of counsel. Furthermore,
the Louisiana Supreme Court has held that a claim of ineffective assistance of counsel is most
appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to
afford the parties an evidentiary hearing before the trial court and create an adequate record for review.
State v. Truitt, 500 So.2d 355 (La. 1987); State v. Hart, 96-0697 (La. 3/7/97), 691 So.2d 651.
5
On October 1, 2019, defendant filed a Notice of Objections in which he asserted the trial court lacked
jurisdiction to hear and decide the merits of the appellate claims set forth in his post-conviction matter.
The trial court denied the motion on January 15, 2020.
20-KA-170 3

response setting forth no opposition to the defendant’s request for an out-of-time

appeal.6 The trial court granted the defendant’s request for an out-of-time appeal,

appointing the Louisiana Appellate Project to represent the defendant, and

dismissing the defendant’s APCR without prejudice on January 30, 2020. This

appeal followed, in which the defendant challenges the validity of his guilty pleas

on the basis that the pleas were not knowing and voluntary.

FACTS

As the defendant pled guilty, the facts were not fully developed at trial.

Nonetheless, the bill of information as to count one alleges that on or about April

3, 2018, the defendant violated La. R.S. 14:95.1 by having in his possession a

Glock 9 mm handgun, serial number BDL410; a Smith & Wesson M&P semi-

automatic rifle, serial number SY96562; and a Bersa .380 caliber handgun, serial

number 760427, having been previously convicted of illegal use of weapons or

dangerous instrumentalities in violation of La. R.S. 14:94.7 The bill of information

also alleges that the defendant violated La. R.S. 14:130.1 in that he obstructed

justice by tampering with evidence relevant to a criminal proceeding in which a

sentence with or without hard labor may be imposed (count two). As to count

three, the bill of information alleges that the defendant violated La. R.S.

14:108.1(C) by intentionally refusing to bring a vehicle to a stop, under

circumstances where human life was endangered, knowing he had been given a

visual and audible signal to stop by Deputy R. Lyons of the Jefferson Parish

6
On September 9, 2019, the trial court ordered the State to respond within thirty days. On December 17,
2019, the State filed a motion for extension of time to respond to defendant’s request for an out-of-time
appeal. By letter filed on December 27, 2019, defendant objected to the State’s motion, and on December
30, 2019, he requested a rule to show cause why the State should not be held in contempt of court for
non-compliance with the trial court’s order. The trial court denied defendant’s motion on January 15,
2020.
7
The bill of information alleges the previous conviction occurred under case number 10-5271 on
December 14, 2010, in the 24th Judicial District Court.
20-KA-170 4

Sheriff’s Office when the officer had reasonable grounds to believe the defendant

had committed an offense. Finally, count four of the bill of information alleges

that defendant violated La. R.S. 40:967(A) by knowingly or intentionally

possessing with intent to distribute a controlled dangerous substance, to wit:

cocaine, weighing less than twenty-eight grams.

During the colloquy, the State provided the factual basis for the defendant’s

charges and, in doing so, recited the allegations outlined in the bill of information.

The State also provided the factual basis for the defendant’s multiple bill by setting

forth that it would have proven that the defendant pled guilty to illegal possession

of a firearm in violation of La. R.S. 14:69.1 on December 14, 2010, and was

sentenced on that same date to two years in the Department of Corrections. The

State set forth that it would have proven, through a certified conviction, that

defendant was properly advised of his rights. The State also set forth that it would

have proven that less than ten years elapsed from the completion of the defendant’s

sentence to the date of the offense in the instant case.

DISCUSSION

In his sole assignment of error, the defendant asserts that his guilty pleas

were not knowing and voluntary. Defendant contends that he was “induced” to

plead guilty to these charges to avoid a mandatory life sentence. He claims that he

was informed by the State, the court, and his attorney that he would be exposed to

a life sentence as a fourth felony habitual offender, but there is no evidence in the

record of any prior convictions that could be used to enhance his current charges.

Under La. C.Cr.P. art. 559(A), the trial court has the discretion to permit a

defendant to withdraw his guilty plea at any time before sentencing. Once a

defendant has been sentenced, only those guilty pleas that are constitutionally

20-KA-170 5

infirm may be withdrawn and only by appeal or post-conviction relief. State v.

McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A plea is

constitutionally infirm when it is not entered freely and voluntarily, if the Boykin

colloquy was inadequate, or when a defendant is induced to enter the plea by a plea

bargain that is not kept. Id. A mere change of heart or mind by the defendant as to

whether he made a good bargain will not ordinarily support allowing the

withdrawal of a bargained guilty plea. State v. Green, 03-410 (La. App. 5 Cir.

10/28/03), 860 So.2d 237, 242, writ denied 03-3228 (La. 3/26/04), 871 So.2d 346

(citing State v. Cook, 32,110 (La. App. 2 Cir. 6/16/99), 742 So.2d 912, 919-20).

Without fraud, intimidation, or incompetence of counsel, a guilty plea is not made

less voluntary or informed by the considered advice of counsel. Id.

A review of the record shows that the trial court advised the defendant that

he faced a maximum sentence of life on each of the four charged counts if he went

to trial and the State multiple billed him as a fourth felony offender. The trial court

also advised the defendant that the State agreed to accept a plea to a “double bill”

with a sentence of 15 years in the Department of Corrections for count one, five

years in the Department of Corrections for count two, two years in the Department

of Corrections for count three, and two years in the Department of Corrections for

count four. The trial court advised the defendant it would run the sentences

concurrently.

During the Boykin colloquy, the trial court advised the defendant that he was

pleading guilty to the following crimes: possession of a firearm by a convicted

felon in violation of La. R.S. 14:95.1; obstruction of justice in violation of La. R.S.

14:130.1; aggravated flight in violation of La. R.S. 14:108.1; and possession with

intent to distribute a controlled dangerous substance, specifically less than 28

20-KA-170 6

grams of cocaine, in violation of La. R.S. 40:967(A). The defendant indicated that

he understood he was pleading guilty to these crimes. During the colloquy, the

defendant was advised of his right to a jury trial, his right to be presumed innocent

until the District Attorney proved his guilt beyond a reasonable doubt, his right to

confrontation, his privilege against self-incrimination, his right to appellate review

of an adverse verdict at trial, and his right to the assistance of a lawyer. The

defendant indicated that he understood that he was waiving and giving up these

rights. The defendant was also advised of these rights on a waiver of rights form

that the defendant initialed and signed.

During the colloquy, the defendant also indicated that he was satisfied with

the way his attorney handled his case; confirmed that he understood the possible

legal consequences of pleading guilty; and confirmed that the act of pleading guilty

was knowing, intelligent, free, and voluntary on his part and that no promises or

threats had been made to encourage him to enter guilty pleas. The trial court

informed the defendant that his guilty pleas could be used to enhance a penalty for

any future conviction. The trial court advised the defendant of the maximum

sentences that may be imposed for each of the four counts. The trial court also

advised defendant he would be sentenced as follows: as to count one, a sentence of

five years in the Department of Corrections without the benefit of probation,

parole, or suspension of sentence; as to count two, a sentence of five years in the

Department of Corrections; as to count three, a sentence of two years in the

Department of Corrections; and as to count four, a sentence of two years in the

Department of Corrections. The trial court advised the defendant that all sentences

would be concurrent. Defendant again indicated that he understood his rights and

had no further questions. After his colloquy with the defendant, the trial judge

20-KA-170 7

accepted the defendant’s guilty pleas as knowingly, intelligently, freely, and

voluntarily made. After a waiver of delays, the trial court sentenced the defendant

following the plea agreement.

After a review of the record, we find that defendant understood the guilty

plea proceedings. It is clear that the trial judge carefully advised the defendant of

the sentencing ranges for each count, as well as the sentencing ranges for each

count as a fourth felony offender. The trial court explained the plea offer presented

by the State. Defendant indicated that he understood the potential sentences and

plea offer. When he initially indicated that he was unsure about going forward

with a trial on his not-guilty plea, the court allowed him to consider the potential

sentences and plea offer and to have a discussion with his attorney before

withdrawing his not-guilty pleas. After the defendant expressed his intention to

withdraw his not-guilty pleas, the trial court reviewed the defendant’s Boykin

rights during the colloquy and the defendant stated he understood his rights.

Further, the defendant executed a waiver of rights form, and he indicated to the

trial court that he had no difficulty reading and understanding the waiver of rights

form. At no time during the colloquy did the defendant indicate that he had been

induced to enter guilty pleas in any way; rather, he confirmed that the guilty pleas

were knowing, intelligent, free, and voluntary on his part and that no promises or

threats had been made to encourage him to enter into the guilty pleas.

We find no merit to the defendant’s assertion that he was “induced” to plead

guilty by the trial court or his attorney by the threat of being billed as a fourth

felony offender and to avoid a life sentence. This Court has previously discussed

the voluntariness of a guilty plea entered to limit the possible maximum penalty in

State v. Kron, 07-1024 (La. App. 5 Cir. 3/25/08), 983 So.2d 117, writ denied, 08-

20-KA-170 8

0813 (La. 10/24/08), 992 So.2d 1039. In Kron, the defendant argued that he felt

pressured to plead guilty by the threat of a “quad bill” if he proceeded to trial, and

therefore, his plea was not knowing and voluntary. Id. at 119. In exchange for the

guilty plea, the State agreed to bill the defendant as a third felony offender with an

eight-year sentence, rather than as a fourth felony offender which would expose

him to life imprisonment. Id. at 122. As to the defendant’s suggestion that he felt

pressured to plead guilty, the Court stated:

The reality of defendant's potential life sentence understandably
provoked fear in defendant. However, as the Louisiana Supreme
Court has stated, there is no inherent coerciveness when a trial judge
explains the possible penalties a defendant faces if he went to trial and
was convicted by a jury. State v. Bouie, supra. Defendant's guilty plea
is not rendered involuntary simply because he entered the plea to limit
his possible maximum penalty to less than that authorized by law for
the crime charged.

Id. at 123, citing State v. Bouie, 00-2934 (La. 5/14/02), 817 So.2d 48, 53. The

advice of possible penalties is information that an accused should possess to enter a

knowing and intelligent guilty plea. Bouie, 817 So.2d at 55. After reviewing the

Boykin colloquy and waiver of rights form, this Court found the Kron defendant’s

guilty plea was knowing and voluntary. 983 So.2d at 120-21.

Likewise, this Court finds no inherent coerciveness by the trial judge

explaining the sentencing range faced by a defendant under a multiple bill if he

goes to trial and is convicted by a jury. It is not “intimidation” for an attorney to

advise his client of the risk of a multiple offender bill. State v. Youngblood, 32,003

(La. App. 2 Cir. 5/5/99), 740 So.2d 687, 691. Nor has the defendant established

that his decision to plead guilty was coerced by any misrepresentation or

misstatement by counsel that he could be charged as a fourth felony offender.

The defendant contends the record contains no evidence to establish that he

is a fourth felony offender; contains no evidence that if there are prior convictions,
20-KA-170 9

those convictions are not subject to a cleansing period; contains no evidence that

the defendant is the same Mr. Celestine who acquired the previous convictions,

and contains no evidence that the trial court could have imposed a life sentence.

Although the defendant contends the record contains no evidence to establish that

he is a fourth felony offender, the defendant was informed of the prior convictions

of which the State was aware and could use to prove his fourth felony offender

status. The State announced that the defendant was a quadruple felony offender

and provided the trial court with a recitation of the defendant’s prior convictions:

(1) a 2012 conviction for possession of a Schedule II controlled dangerous

substance; (2) a 2012 conviction for possession with intent to distribute a Schedule

II controlled dangerous substance; (3) a 2010 conviction for illegal use of a firearm

in violation of La. R.S. 14:94; and (4) a 2010 conviction for violation of La. R.S.

14:69.1 (illegal possession of stolen firearms).

If the defendant desired to force the State to produce evidence of all of his

prior convictions, he could have contested his prior convictions at a multiple bill

hearing. La. R.S. 15:529.1(D)(1)(a) allows a prosecutor to file a multiple offender

bill of information accusing a person convicted of a felony of a previous conviction

of a felony at any time after conviction or sentence. The trial court shall inform the

offender of the allegations and his right to be tried as to the truth, and if the

offender denies the allegations, he is given fifteen days to file particular objections

to the information. La. R.S. 529.1(D)(1)(b). If the person claims that any

conviction alleged is invalid, he shall file a written response to the information, and

any challenge to a previous conviction which is not made before the sentence is

imposed may not thereafter be raised to attack the sentence. Id.

20-KA-170 10

To prove that a defendant is a habitual offender, the State must establish by

competent evidence the defendant's prior felony convictions and that defendant is

the same person who was convicted of the prior felonies. State v. Chaney, 423

So.2d 1092 (La. 1982); State v. Jones, 08-466 (La. App. 5 Cir. 10/28/08), 998

So.2d 178, 182-83.8 The State is not required to use a specific type of evidence to

carry its burden of proof according to the Habitual Offender Law, La. R.S.

15:529.1. State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339, 344 n. 3, cert.

denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001); Jones, 998 So.2d

at 183. Any competent evidence may be used to prove a defendant's prior

convictions, including the testimony of witnesses to prior crimes, expert testimony

matching fingerprints of the defendant with those in the record of prior

convictions, or photographs contained in a duly authenticated record. State v.

Mays, 05-2555 (La. 5/26/06), 929 So.2d 1231, 1232; Jones, 998 So.2d at 183.

Instead of electing to challenge the validity of the four prior felony

convictions listed by the State, the defendant chose to accept the offer made by the

State waiving his right to a multiple offender hearing in exchange for the State

proceeding only on a second felony offender bill and ensuring a maximum

sentence of fifteen years. As the sentencing transcript reflects, the prosecutor

advised the court of the plea agreement to bill the defendant only as a second

felony offender, rather than a fourth felony offender.

While the defendant claims that his decision to plead guilty was induced by

the State’s threat to bill him on charges that would require a mandatory life

sentence if he did not accept the offer, this conflicts with his plea waiver form that

8
When a defendant's habitual offender status is based on guilty pleas in the predicate convictions, the
State also has the burden of proving the defendant was represented by counsel when the guilty pleas were
taken. State v. Shelton, 621 So.2d 769, 779 (La. 1993); Jones, 998 So.2d at 183.
20-KA-170 11

bears his initials next to the admonishment: “I have not in any way been forced,

coerced, or threatened to enter this plea of guilty.” The fact that the State informed

him that the multiple offender law can be used to seek a more severe enhanced

sentence does not constitute a threat or coercion that would render his plea

involuntary. The Louisiana Supreme Court, in discussing this situation, has stated

that “it is in the very nature of plea bargains that the prospects under differing

circumstances will be discussed freely.” State ex rel. James Henry Jackson v.

Henderson, 283 So.2d 210, 211 (La. 1973). Defendant’s argument runs counter to

well-established case law recognizing that it is constitutionally permissible to use

the threat of more severe punishment to encourage a guilty plea. See Frank v.

Blackburn, 646 F.2d at 883 (5th Cir. 1980) (noting that the Supreme Court's plea

bargaining decisions make it clear that a state is free to encourage guilty pleas by

offering substantial benefits to a defendant, or by threatening an accused with more

severe punishment should a negotiated plea be refused) (citing Corbitt v. New

Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978); Bordenkircher v.

Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)).

In the instant case, the State could have charged the defendant as a fourth

felony offender under Louisiana law. Given that scenario, the defendant would

have faced the likelihood of a significantly more severe sentence, one that included

the possibility of life imprisonment. The State's assertion that it could file a habitual

offender bill charging the defendant as a fourth felony offender was part of

permissible plea bargain negotiations, and did not render his acceptance of the

State's plea offer involuntary.

Concerning the voluntariness of the defendant’s plea at the multiple offender

proceeding, the validity of his plea to the second felony offender multiple bill is

20-KA-170 12

not invalidated by lack of evidence presented as to prior felony convictions.

Defendant waived his right to a hearing and any possible non-jurisdictional defects

by stipulating to being a second felony offender as alleged in the multiple bill. By

stipulating to the multiple bill, the defendant is barred from asserting on appeal that

the State failed to produce sufficient proof at the multiple bill hearing. State v.

Allen, 19-388 (La. App. 5 Cir. 4/30/20), 296 So.3d 1084, 1090. In a similar case,

where a defendant argued that the trial judge erred in not making the State prove

that the out-of-state convictions were felonies in Louisiana or show that the

cleansing period had not lapsed, this Court found an unconditional plea, willingly

and knowingly made, waives all non-jurisdictional defects and bars a defendant

from later asserting on appeal that the state failed to produce sufficient proof at the

multiple offender hearing. State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97),

704 So.2d 300, 304. See also, State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15),

178 So.3d 219, 230, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165

(defendant waived non-jurisdictional defects in the habitual offender bill by

stipulating to it and entering into an unqualified guilty plea) and State v. Dickerson,

11-236 (La. App. 5 Cir. 11/15/11), 80 So.3d 510, 520.

A review of the multiple offender proceeding reveals that the defendant was

advised that he was being charged as a second felony offender and that he had

received and reviewed a copy of the multiple offender bill of information. The

defendant was advised that by stipulating to the multiple bill, he was giving up the

right to “plead not guilty to this charge” and the right to have a hearing and force

the District Attorney to prove: (1) that he was one and the same individual who had

a prior felony record, (2) that not more than ten years had elapsed since the

expiration of the maximum sentence or sentences of the previous conviction or

20-KA-170 13

convictions, and (3) that he was properly advised of his Boykin rights if any prior

conviction was the result of a guilty plea. The defendant indicated that he

understood he was giving up these rights.

The defendant voluntarily stipulated to the habitual offender bill and entered

into an unqualified guilty plea. During the multiple bill colloquy, the trial court

informed the defendant that he would receive a sentence of 15 years without the

benefit of probation or suspension of sentence on count two, and the defendant

indicated that he understood the sentence. The waiver of rights form signed and

initialed by the defendant also indicates that he would receive a sentence of 15

years without the benefit of probation or suspension of sentence. Defendant

indicated that he was satisfied with how his attorney handled the case, that he

understood the legal consequences of the stipulation, and that he wished to

stipulate to the multiple bill. We find that defendant was not induced to stipulate

to the multiple bill and that defendant entered the stipulation knowingly, freely,

and voluntarily.

Therefore, we find that defendant’s guilty pleas to be constitutionally valid.

The record shows he was adequately advised of his Boykin rights and his pleas

were knowing and voluntary. He was not improperly induced to enter the pleas by

the Court or his attorney in explaining the possible penalties. By entering into a

plea bargain with the State, the defendant waived his right to have the State

produce evidence of his prior felony convictions.

Errors Patent

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975). A review of the transcript shows the

20-KA-170 14

trial court did not state at the multiple offender sentencing that the 15-year

sentence on count two would run concurrently with the other sentences. During

plea negotiations, the State indicated that the State and the court agreed to all

sentences running concurrently rather than consecutively in exchange for the

defendant’s plea of guilty to all charges. When the trial court reviewed the terms

of the plea offer with the defendant before the Boykin colloquy, the trial court said

that it would run the sentences concurrently, stating, “[t]he Court would run them

and it would be altogether [sic]. So 15 years along with those other years that

we’ve indicated, would run concurrent.” The Nunc Pro Tunc minute entry dated

February 27, 2020, does state that “sentences on all counts, including the sentence

on the Multiple Offender bill, are to run concurrently with each other.” 9

Furthermore, La. C.Cr.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

In this case, all of the charged offenses were part of the same act or transaction.

Although the trial court was silent as to whether the defendant’s enhanced

sentence was to run concurrently with any other sentences during the multiple bill

hearing, the record shows that the court intended the sentences to run concurrently

and that defendant was informed of this before entering his guilty plea. The record

is sufficient to show the trial court’s intention to have the defendant’s habitual

9
The Nunc Pro Tunc minute entry dated February 27, 2020, corrects the minute entries dated January 14,
2019 and January 16, 2019.

20-KA-170 15

offender sentence run concurrently with the other sentences. See State v. Thomas,

10-221 (La. App. 5 Cir. 11/9/10), 54 So.3d 668, 692. The Uniform Commitment

Order (UCO) also fails to specify that the sentences shall be concurrent. The record

contains two UCOs dated February 27, 2020, one on the defendant’s sentence

according to the guilty pleas and one on the defendant’s sentence on the multiple

bill. Neither UCO indicates that the defendant’s sentences are to run concurrently

with each other, but both UCOs show the sentences are to run concurrently with

24th Judicial District Court case number 18-3333. Therefore, we remand for

correction of the UCO to reflect the concurrent nature of the sentences. See State

v. Melgar, 19-540 (La. App. 5 Cir. 4/30/20), 2020 WL 2079031, at *11.

Furthermore, we direct the 24th Judicial District Court Clerk of Court to transmit

the corrected UCOs to the appropriate authorities following La. C.Cr.P. art.

892(B)(2) and the Department of Corrections’ legal department.

Additionally, there is an error within the sentencing minute entry. The Nunc

Pro Tunc minute entry dated February 27, 2020, contains a discrepancy as to the

sentences imposed for count three and count four. The minute entry states both that

defendant was sentenced to two years at hard labor on count three and count four

and that defendant was sentenced to five years at hard labor on count three and

count four. According to the sentencing transcript, the defendant was sentenced to

two years at hard labor on count three and two years at hard labor on count four.

Consistent with the transcript, the UCO dated February 27, 2020, reflects a

sentence of two years at hard labor on count three and count four. Generally, when

there is a discrepancy between the minutes and the transcript, the transcript

prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Therefore, we remand the

20-KA-170 16

case for correction of the minute entry to ensure the accuracy of the record. See

State v. Belvin, 14-626 (La. App. 5 Cir. 12/16/14), 170 So.3d 987.

CONCLUSION

For the above reasons, we find that defendant was not induced to plead

guilty or stipulate to the multiple offender bill of information, but freely,

knowingly, and voluntarily pled, based on a favorable plea agreement. Therefore,

we find no merit in the assignment of error. We affirm the convictions and

sentences, and remand to the trial court for correction of the minute entry and

Uniform Commitment Order following the directions of this Court.

AFFIRMED; REMANDED WITH INSTRUCTIONS

20-KA-170 17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 4, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-170
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
MATTHEW R. CLAUSS (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053