State Of Louisiana v. Andrew David Wetzel

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 KA 1316

STATE OF LOUISIANA

VERSUS

12111 N MAN I

Judgment Rendered:
NOV 2 2 2M

22ND Judicial District Court

In and for the Parish of St. Tammany
State of Louisiana
Case No. 1077- F- 2021

The Honorable Franz L. Ziblich Ad Hoc Judge Presiding

Warren L. Montgomery Counsel for Plaintiff/Appellee

District Attorney State of Louisiana
J. Collin Sims

Assistant District Attorney
Covington, Louisiana

Bertha M. Hillman Counsel for Defendant/Appellant
Covington, Louisiana Andrew David Wetzel

BEFORE: McCLENDON, WELCH, AND LANIER, JJ.

LANIER, J.

The defendant, Andrew David Wetzel, was charged by bill of information

with simple burglary, a violation of La. R.S. 14: 62, and initially pled not guilty.

He later withdrew his not guilty plea, pled guilty as charged, and was sentenced to

six years imprisonment at hard labor. He subsequently stipulated to his status as a

second felony habitual offender.' The trial court vacated the original sentence and

imposed an enhanced sentence of twenty years imprisonment at hard labor, without

the benefit of probation or suspension of sentence. The defendant later filed pro se

motions, seeking in part to withdraw his guilty plea, which the trial court denied.

The defendant now appeals, assigning error in a counseled and pro se brief to pre -

plea rulings, his waiver of counsel, his guilty plea, and his stipulation to the

habitual offender bill of information. For the following reasons, we affirm the

conviction, habitual offender adjudication, and sentence.

As the defendant pled guilty, the facts of the offense were not developed.'

According to the bill of information, police reports, and pre -plea testimony in the

record, the offense occurred on or between December 14, 2020, and December 15,

2020, at Dabdoub Investments and Insurance (" Dabdoub"), located at 601 Asbury

Drive in Mandeville, Louisiana. Surveillance footage showed a vehicle parked on

Asbury Drive. A man exited the vehicle, walked toward Dabdoub, and

subsequently returned to his vehicle carrying objects. The defendant was

identified as the owner of the vehicle, and a search of his nearby office recovered

equipment stolen from Dabdoub.

The State filed a habitual offender bill of information alleging a prior conviction in 2008 of
issuing worthless checks. The defendant stipulated to the allegation of the habitual offender bill
of information.

2 At the guilty plea proceeding, the defendant agreed to the stipulation that all discovery
previously introduced by the State established a factual basis.

2

COUNSELED ASSIGNMENT OF ERROR NUMBER 1
PRO SE ASSIGNMENTS OF ERROR NUMBERS 6, 10, 12- 16

The defendant has one counseled and several pro se assignments of error

challenging his guilty plea. In counseled assignment of error number one and pro

se assignments of error numbers six and fifteen, he argues his plea was not free,

knowing, and voluntary. He argues he should be allowed to withdraw his guilty

plea and plead guilty under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,

27 L.Ed.2d 162 ( 1970), and State v. Crosby, 338 So. 2d 584 ( La. 1976). 3

Additionally, in related pro se assignments of error, he argues he is actually

innocent ( number ten), the State failed to provide a factual basis for the plea

numbers thirteen and fourteen), the plea agreement was breached when the State

failed to release his property ( number twelve), and he believed his guilty plea

included an agreement to a reduced sentence ( number sixteen).

A guilty plea is a conviction and, therefore, should be afforded a great

measure of finality. State v. Young, 2020-0049 ( La. App. 1st Cir. 11/ 6/ 20), 315

So. 3d 904, 910, writ denied, 2020- 01402 ( La. 2/ 9/ 21), 310 So. 3d 177. A plea of

guilty waives a criminal defendant' s fundamental right to a jury trial, right to

confront his accusers, and his privilege against self-incrimination. Thus, due

process requires, as a prerequisite to its validity, that the plea be a voluntary and

intelligent relinquishment of known rights. There must be an affirmative showing

in the record that the defendant was informed of the constitutional privilege against

self-incrimination, the right to trial by jury, and the right to confront his accusers

3 The " best interest" or Alford plea is one in which a defendant pleads guilty while maintaining
his innocence. State v. McCoil, 2005- 658 ( La. App. 5th Cir. 2/ 27/ 06), 924 So. 2d 1120, 1122.
Pleas coupled with claims of innocence should not be accepted " unless there is a factual basis for
the plea" and until the judge taking the plea has inquired into and sought to resolve the conflict
between the waiver of trial and the claim of innocence. Alford, 400 U.S. at 38, n. 10, 91 S. Ct. at
167, n. 10. Crosby allows a defendant to plead guilty while expressly reserving the right to seek
appellate review of an error the defendant believes " made useless any continued trial of their
defense." Crosby, 338 So. 2d at 586.

3

and that he knowingly and intelligently waived them. See Boykin v. Alabama,

395 U.S. 2385 243, 89 S. Ct. 1709, 1712, 23 L.Ed.2d 274 ( 1969); State v. Joseph,

2012- 0085 ( La. App. I st Cir. 2/ 15/ 13), 2013 WL 5961495 * 1 ( unpublished).

Upon motion of the defendant and after a contradictory hearing, the trial

court may permit a plea of guilty to be withdrawn at any time before sentence. La.

Code Crim. P. art 559( A). In State v. Lewis, 421 So.2d 224, 225- 26 ( La. 1982),

the Louisiana Supreme Court held that a trial court may permit the withdrawal of a

guilty plea after sentencing if the court finds that the guilty plea was not entered

freely and voluntarily, or there was an inadequate Boykin colloquy advising the

defendant of the rights he was waiving by pleading guilty, making the guilty plea

constitutionally infirm. A constitutionally infirm guilty plea may be set aside

either by means of an appeal or postconviction relief. Young, 315 So. 3d at 907.

There is no absolute right to withdraw a previously entered plea of guilty.

The withdrawal of a guilty plea is within the discretion of the trial court and is

subject to reversal only if that discretion is abused or arbitrarily exercised. State v.

Sheppard, 2018- 1412 ( La. App. 1st Cir. 6/ 27/ 19), 2019 VVT 2635678, * 1

unpublished). Generally, the denial of a motion to withdraw a guilty plea will not

be reversed on appeal if the record clearly shows the defendant was informed of

his rights and the consequences of his plea, and the plea was entered voluntarily.

State v. Cheatham, 2016- 1648 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d 757, 759.

A criminal plea agreement is analogous to a civil compromise. State v.

Rider, 2023- 0164 ( La. App. 1st Cir. 11/ 9/ 23), 379 So. 3d 49, 52, writ denied, 2023-

01711 ( La. 6/ 5/ 24), 385 So. 3d 1160; see La. Civ. Code art. 3071 et seq. In

determining the validity of plea bargain agreements, Louisiana courts generally

refer to rules of contract law, while recognizing at the same time that a criminal

defendant' s constitutional right to fairness may be broader than his or her rights

under contract law. State v. Porche, 2020- 0246 ( La. App. I st Cir. 12/ 30/ 20), 318

Gd

So. 3d 184, 187- 88; see also La. Civ. Code art. 1927. The four elements of a valid

contract are: 1) the parties' capacity to contract; 2) the parties' mutual consent that

is freely given; 3) the existence of a certain, lawful object for the contract; and 4)

the existence of a lawful purpose or cause of the contract. Rider, 379 So. 3d at 52;

see La. Civ. Code arts. 1918, 1927, 1966, & 1971.

Error, fraud, or duress may vitiate consent. La. Civ. Code art. 1948. If the

plea agreement calls for a legal sentence and the trial court agrees, the trial court is

bound by the terms of the agreement. Under substantive criminal law, there are

two alternative remedies for a breach of a plea bargain: ( 1) specific performance of

the agreement, or (2) nullification or withdrawal of the plea. Porche, 318 So. 3d at

188. The party demanding performance of a plea bargain agreement has the

burden of proving its existence and the terms thereof. State v. Cotton, 2015- 1623

La. App. 1st Cir. 4/ 15/ 16), 194 So. 3d 69, 79, writ denied, 2016- 0897 ( La.

4/ 24/ 17), 221 So. 3d 69.

Herein, on June 27, 2022, the Boykin proceeding for the instant case was

combined with a separate case in which the defendant, in accordance with

interrelated plea agreements, 4 pled guilty to simple arson, stipulated to his status as

a habitual offender, and was sentenced to an enhanced sentence of twenty years

imprisonment at hard labor, to be served concurrent to the twenty-year sentence

imposed in the instant case. Prior to each plea, the defendant was questioned and

informed of his rights in two successive colloquies, first as to the simple arson

case, and then as to his plea in the instant case.

Before the initial plea, the trial court questioned the defendant regarding his

date of birth and confirmed his ability to read and write. As to each plea, the trial

court informed the defendant of his Boykin rights ( right to trial by jury, right

4 The negotiations involving both pleas began on June 7, 2022, when the parties discussed
seventeen possible conditions, most of which are not at issue in this appeal. Thereafter, the State
delivered a letter to the defendant confirming the agreed upon conditions of the pending pleas.

5

against compulsory self-incrimination, and right of confrontation), his right to an

appeal, and that by pleading guilty, he would be waiving his rights. The defendant

indicated he understood those rights and understood he was waiving those rights

by pleading guilty.

The defendant agreed that he wished to plead guilty and denied being forced,

threatened, coerced, intimidated, or made any promises. The defendant signed a

waiver of rights form in this case and read and understood the rights stated therein.

The defendant agreed to a stipulation that the discovery within his possession

consisted of a factual basis for the offense. Prior to the stipulation, the trial court

asked the defendant if he knew what a simple burglary was and the defendant

responded, " Unauthorized entry to commit a theft or any felony therein." The trial

court further asked, " And did you in fact, do that?" The defendant replied, " Yes,

Your Honor." Additionally, in advising the defendant of his Boykin rights, the

trial court discussed the State' s burden of proof in a trial, and the defendant

confirmed he understood the State' s burden to prove each element of the offense.

The defendant further confirmed he understood he was relieving the State of this

duty by pleading guilty.

At the hearing on the defendant' s motion to withdraw his guilty plea on

August 3, 2022, and now on appeal, the defendant claims he believed there would

be a separate hearing on an Alford plea. The State pointed to the language in its

pre -Boykin letter, in which the State detailed the agreed upon conditions of the

pleas and expressly rejected a plea pursuant to Crosby or Alford. As asserted in

his pro se brief, at the hearing the defendant also raised the claim that his property,

a computer and a cell phone, had not been released. The State and the trial court

agreed that an order to release the property had been signed but put aside after the

defendant moved to withdraw his plea, as the property consisted of evidence in the

pending case. The trial court denied the motion to withdraw the defendant' s plea,

6

repeatedly noting that the conditions of the plea agreement were fully covered with

the defendant. On February 8, 2023, the motion to withdraw was re -urged and

denied again by the trial court.

The record does not reflect that the instant case involved a plea pursuant to

Alford. As previously detailed, at the Boykin hearing the defendant did not claim

his innocence or enter an Alford plea, he specifically stipulated to the existence of

a factual basis for the plea, and he agreed that he committed the offense. Since the

defendant did not proclaim his innocence, the trial court was not put on notice that

there was a need for an inquiry into the factual basis. Thus, a factual basis was not

required during the guilty plea colloquy. See State v. Fullilove, 2011- 34 ( La.

App. 5th Cir. 12/ 13/ 11), 81 So. 3d 809, 815; see also State v. Gonzalez, 2009- 2282

La. App. lst Cir. 5/ 7/ 10), 2010 WL 1838401, * 2 ( unpublished) ( the due process

clause imposes no constitutional duty on state trial judges to ascertain a factual

basis prior to accepting a guilty plea). Further, at the pre -plea hearing to discuss

possible terms of the pleas, the defendant made clear he had no intention to plead

under Crosby. Subsequently, at the guilty plea proceedings, the defendant did not

preserve any issue for appeal pursuant to Crosby. An unqualified plea of guilty

waives all nonjurisdictional defects and precludes their review by either appeal or

post -conviction relief. Crosby, 338 So. 2d at 588. Accordingly, insofar as the

defendant seeks to assert a claim of actual innocence on appeal, any such claim

was waived when he entered the unqualified guilty plea.'

Moreover, we find the defendant has failed to show any breach of the terms

of the plea agreement. In its letter detailing the terms of the plea, the State noted it

had no objection to the release of the defendant' s property to his family. The

5 We note that the pre -plea agreement indicates that the defendant wished to make an Alford
plea, as he felt it was in his best interests. However, as stated above, because the defendant
stipulated in court that he committed the offense, an Alford plea was not possible in this matter.
See McCoil, 924 So. 2d at 1122.

7

record reflects the defendant pled guilty on June 27, 2022, and the property was

ordered released on June 28, 2022. However, the defendant moved to withdraw

the plea on June 30, 2022, and July 8, 2022, and the property was ordered held

pending resolution of the motions. As previously stated, the motions were denied

on August 3, 2022, and February 8, 2023. Subsequently, the defendant' s property

was again ordered released on March, 3, 2023. There was no specific deadline or

time period stated in the agreement regarding the release of the defendant' s

property, only that the State would not object thereto. Thus, there is no indication

in the record of a breach by the State regarding the release of the defendant' s

property. See Sheppard, 2019 WL 2635678 at * 4.

In his pro se brief, the defendant also makes a general, unsupported inquiry

as to whether he believed he was pleading guilty with an agreement to reduce his

sentence. A mere statement of an assigned error in brief without argument or

citation of authority does not constitute briefing. State v. Jarvis, 2021- 1181 ( La.

App. 1st Cir. 2/ 25/ 22), 340 So. 3d 1137, 1141- 42. This court may consider as

See Uniform Rules
abandoned any assignment of error that has not been briefed.

of Louisiana Courts of Appeal, Rule 2- 12. 4( B)( 4). As the defendant failed to

develop any argument in support thereof, we consider pro se assignment of error

number sixteen abandoned.

Further, we cannot say that the trial court abused its discretion in refusing to

allow the defendant to withdraw his guilty plea in this case. As stated, a defendant

has no absolute right to withdraw a guilty plea. Such a withdrawal is predicated on

a legal cause, that is, on a showing made by a defendant that his plea bargain was

constitutionally infirm, creating a legal defect that nullifies the agreement between
the parties. See State v. Williams, 2017- 0339 ( La. App. 1st Cir. 9/ 15/ 17), 2017

WL 4082429, * 1 ( unpublished). The record reflects a knowing and voluntary

waiver of the defendant' s rights and the trial court' s compliance with the

constitutional requirements for the taking of voluntary guilty pleas. The defendant

was sentenced in accordance with the sentencing agreement set forth in the record

prior to and at the time of the pleas, to twenty years on each habitual offender

adjudication, to be served concurrently. Thus, we find no merit in counseled

assignment of error number one, or pro se assignments of error numbers six, ten,

and twelve through sixteen.

COUNSELED ASSIGNMENT OF ERROR NUMBER 2
PRO SE ASSIGNMENTS OF ERROR NUMBERS 5 AND 8

In counseled assignment of error number two, the defendant argues his

waiver of counsel was not intelligently and voluntarily made. In pro se

assignments of error numbers five and eight, he argues the trial court erred in

allowing him to plead guilty pro se and stipulate to the habitual offender bill of

information without a hearing pursuant to Faretta v. California, 422 U.S. 806, 95

S. Ct. 2525, 45 L.Ed.2d 562 ( 1975).

The Louisiana and United States Constitutions guarantee a criminal

defendant' s right to the assistance of counsel. However, a defendant may elect to

represent himself if the choice is " knowingly and intelligently made" and the

assertion of the right is " clear and unequivocal." U.S. Const. amend. VI; La. Const.

art. 1, § 13; Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; State v. Bonit, 2005- 0795

La. App. 1st Cir. 2/ 10/ 06), 928 So. 2d 633, 637, writ denied, 2006- 1211 ( La.

3/ 16/ 07), 952 So. 2d 688. An accused has the right to choose between the right to

counsel and the right to self r-epresentation. See State v. Brown, 2018- 01999 ( La.

9/ 30/ 21), 330 So. 3d 199, 223, cert. denied, _ U.S. _, 142 S. Ct. 1702, 212

L.Ed.2d 596 ( 2022) ( citation omitted).

In Faretta, the United. States Supreme Court recognized that a trial court

may not force a lawyer upon a defendant when he insists he wants to conduct his

0

own defense and voluntarily and intelligently elects to proceed without counsel.

However, he must ask clearly and unequivocally to proceed pro se and he must

also make his request in a timely manner. See Faretta, 422 U.S. at 834- 35, 95

S. Ct. at 2541; Bonit, 928 So.2d at 637. Further, he must be made aware of the

dangers and disadvantages of self r-epresentation so the record demonstrates " he

knows what he is doing and his choice is made with eyes open." Faretta, 422 U.S.

at 835, 95 S. Ct. at 2541. Faretta made clear that an accused' s " technical legal

knowledge, as such, [ is] not relevant to an assessment of his knowing exercise of

the right to defend himself." Td. 422 U.S. at 836, 95 S. Ct. at 2541. In State v.

Santos, 99- 1897 ( La. 9/ 15/ 00), 770 So. 2d 319 ( per curiam), the Louisiana

Supreme Court held that a trial court confronted with an accused' s unequivocal

request to represent himself need only determine whether the accused is competent

to waive counsel and is " voluntarily exercising his informed free will." Santos,

770 So. 2d at 321 ( quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541).

The United States Supreme Court has not prescribed any formula or script to

be read to a defendant who elects to proceed without counsel. The information a

defendant must possess in order to make an intelligent election to proceed without

counsel will depend on a range of factors, including the defendant' s education or

sophistication, the complex or easily grasped nature of the charge, and the stage of

the proceeding. Evidence of a defendant' s prior experience with the criminal

justice system is relevant to the question of whether or not he knowingly waived

constitutional rights. State v. Robinson, 2008- 0820 ( La. App. 1 st Cir. 6/ 4/ 10), 42

So. 3d 435, 437- 38, writ denied 2010- 1549 ( La. 5/ 20/ 11), 63 So. 3d 974. Whether

the defendant has knowingly, intelligently, and unequivocally asserted the right to

self r-epresentation must be determined based on the facts and circumstances of

each case. See Brown, 330 So. 3d at 223 ( citation omitted).

10

Herein, the record reflects that prior to his guilty plea, the defendant

confirmed he wished to terminate his counsel' s appointment, also noting he had

informed her of such.' The trial court stated it could not advise the defendant to

represent himself, adding, " It' s never a good idea for a person to represent

themselves ... I know you have a lot of experience with the law, but it' s a

layman' s experience, not an attorney' s. So it' s not wise for you to not have an

attorney." The defendant reiterated that he did not want an attorney, adding, " It' s a
simple plea. I' ve done it before a few times."

The defendant said he understood the ramifications of his decision and

confirmed it was his desire to represent himself. The trial court then discussed the

terms of the plea agreement as to both cases and the habitual offender proceedings.

The defendant stated he understood the agreements, noting the terms were

previously discussed, and confirmed he was previously advised against self -

representation.
The first Boykin colloquy then began. The defendant was again

advised of his right to an attorney and again stated he did not want an attorney.

After a thorough review of the record and the applicable jurisprudence, we

find no violation of the defendant' s constitutional right to counsel or Faretta in

this matter.
The record shows the trial court judge carefully inquired into the

defendant' s decision to terminate counsel and represent himself at the guilty plea
and habitual offender proceedings. The defendant clearly and unequivocally

asserted his right to represent himself in proper person. He made this decision

despite the trial court' s warnings about the dangers and disadvantages of self -

representation. Further, the defendant' s prior experience with the judicial process

and criminal justice system is relevant to his waiver of counsel.' We find the

Several other attorneys appointed to represent the defendant withdrew due to his apparent
aversion to being represented by counsel.

The instant record shows the defendant has a history of pro se filings and self -representation.
In State v. Wetzel, 2014- 1788 ( La. App. 1st Cir. 3/ 27/ 15) ( unpublished), this court noted the

11

defendant' s decision was made with his eyes wide open. Thus, the record does not

support the defendant' s claims to the contrary in his counseled and pro se brief

Accordingly, counseled assignment of error number two, and pro se assignments of

error numbers five and eight are without merit.

PRO SE ASSIGNMENTS OF ERROR NUMBERS 3, 4, 7, AND 11

In his pro se brief, the defendant raises additional arguments challenging his

stipulation as a habitual offender. Specifically, his asserts four pro se assignments

of error arguing the trial court: failed to advise him of his right to remain silent

number three); failed to advise him of his right to a hearing ( number four); erred

in finding his stipulation was free and voluntary ( number seven); and failed to

advise him of the fifteen -day period to enter objections ( number eleven).

A trial court' s failure to properly advise a defendant of his rights under the

Habitual Offender Law requires that the habitual offender adjudication and

sentence be vacated. Prior to accepting a defendant' s acknowledgement,

confession, or admission to the allegations of the habitual offender bill, the trial

court must advise the defendant of the right to remain silent and of the right to a

formal hearing wherein the State would have to prove the allegations of the

habitual offender bill. State v. Harmason, 2008- 0399 ( La. App. 1st Cir.

11/ 14/ 08), 2008 WL 4908728, * 2 ( unpublished). Furthermore, the language of the

Habitual Offender Law must be strictly construed. An implicit and integral aspect

of the requirements of La. R.S. 15: 529. 1 is the court' s duty to inform the defendant

defendant had filed more than fifty writ applications in the six-year period prior to that decision,
further stating the defendant has habitually burdened and abused the legal system. In Wetzel v.
Tanner, 2016- 5765 ( E. D. La. 2016), 2016 WL 3127302, * 1 ( unpublished), it was noted that,
according to the federal court' s records, he filed more than forty civil lawsuits in that particular
federal court. At least twelve of his prior civil complaints, filed while he was incarcerated, were
dismissed as frivolous and/ or for failure to state a claim for which relief could be granted. He
was barred on at least twenty-three occasions from proceeding with his civil complaints as a
pauper in federal district court pursuant to 28 U. S. C. § 1915( g).

12

of his right to remain silent. State v. Gonsoulin, 2003- 2473 ( La. App. 1st Cir.

6/ 25/ 04), 886 So. 2d 499, 501 ( en bane), writ denied, 2004- 1917 ( La. 12/ 10/ 04),

888 So. 2d 835.

La. R. S. 15: 529. 1( D)( 1)( a), which details the requirements for advising a

defendant of his rights under the Habitual Offender Law, in pertinent part,

provides:

If, at any time ... it shall appear that a person convicted of a
felony has previously been convicted of a felony . . . the district
attorney of the parish in which subsequent conviction was had may
file an information accusing the person of a previous conviction.
Whereupon the court in which the subsequent conviction was had
shall cause the person ... to be brought before it and shall inform him

of the allegation contained in the information and of his right to be
tried as to the truth thereof according to law and shall require the
offender to say whether the allegations are true. If he denies the
allegation of the information or refuses to answer or remains silent,
his plea or the fact ofhis silence shall be entered on the record and he
shall be given fifteen days to file particular objections to the

information ...

Emphasis added).

Louisiana Code of Criminal Procedure article 551 provides that an

arraignment " consists of the reading of the indictment to the defendant by the clerk

in open court, and the court calling upon the defendant to plead." The reading of

the indictment may be waived. The arraignment and the defendant' s plea shall be

entered into the minutes of the court and shall constitute a part of the record. La.

Code Crim. P. art. 551( A). While a habitual offender proceeding results in

sentencing enhancement, rather than a separate criminal conviction, the

requirement under La. R.S. 15: 529. 1( D( 1)( a) that the defendant be brought before

the court, informed of the allegations and of his right to a formal hearing, and be

made to admit or deny the allegations, conforms with the above definition of an

arraignment. Gonsoulin, 886 So. 2d at 501- 02.

13

In the instant case, after the trial court accepted the defendant' s guilty plea

and imposed the original sentence, the trial court announced the habitual offender

bill of information filed by the State, asked the defendant if he had reviewed it, and

read the predicate offense alleged therein. The trial court informed the defendant

of his rights regarding the habitual offender bill of information, stating, " You don' t

have to admit that you' re a multiple offender. It would be up to the State to prove

to my satisfaction[.]" The trial court stated the defendant had the privilege against

self-incrimination and could not be forced to testify, had the right to subpoena

witnesses, and had the right to confront and cross- examine witnesses. The trial

court further reiterated, " Do you understand that you do not have to stipulate, but

you can if you' d like." The defendant then confirmed that he wished to stipulate to

the allegation.

Initially, we note the trial court was not statutorily required to inform the

defendant of the fifteen days to object to the habitual offender bill of information,

as the defendant did not deny the allegation, refuse to answer, or stand silent as to

the bill. We further find the defendant was sufficiently advised of his rights at his

arraignment, the advice of rights was sufficient to comply with the requirements of

La. R.S. 15: 529. 1( D)( 1)( a), and the defendant confirmed he understood those

rights. The law does not expressly state the court is required to inform the

defendant of his rights at each phase of the habitual offender proceeding. The law

requires the record demonstrate the proceedings as a whole were fundamentally

fair and accorded the defendant due process of law. See Gonsoulin, $$ 6 So. 2d at

502. Herein, the record as a whole demonstrates the defendant was accorded

fundamental fairness and due process of law. We find the defendant' s interests

were fully protected. Thus, we find no merit in pro se assignments of error

numbers three, four, seven, and eleven.

14

PRO SE ASSIGNMENTS OF ERROR NUMBERS 1, 2, AND 9

In pro se assignment of error number one, the defendant argues the trial

court erred in denying his motion to suppress the search warrant and the items

found in executing the warrant. In pro se assignment of error number two, he

argues the trial court erred in finding probable cause to support the charge at the

preliminary hearing. Finally, in pro se assignment of error number nine, the

defendant argues the " cumulative impact" of the errors raised in the pro se brief

violated his due process rights.

Under both state and federal jurisprudence, an unqualified plea of guilty

waives all nonjurisdictional defects and precludes their review by either appeal or

post -conviction relief. Crosby, 338 So.2d at 588; State v. Kendall, 2016- 0207

La. App. 1st Cir. 9/ 15/ 17), 231 So3d 661, 663. In this case, no pre -plea rulings

were preserved for appeal under Crosby. Moreover, the primary function of the

preliminary examination is to ensure that probable cause exists to hold the accused

in custody or under bond obligation. Thus, errors alleged to have occurred at the

preliminary examination hearing are moot after the defendant has been convicted.

State v. Irby, 2012- 0713 ( La. App. 1st Cir. 6/ 7/ 13), 2013 WL 2490363, * 4

unpublished), writ denied, 2013- 1606 ( La. 1/ 27/ 14), 130 So. 3d 958. Thus, the

issues raised in pro se assignments of error numbers one and two were not

preserved for review and/ or are otherwise moot. Moreover, as no merit has been

found in the defendant' s other assigned errors, his due process claim raised in pro

se assignment of error number nine based on the alleged cumulative impact of the

other assigned errors is likewise meritless.

In his pro se brief, the defendant asks this court to review the record for

patent errors. Whether requested or not on appeal, pursuant to La. Code Crim. P.

15

art. 920( 2), this court routinely conducts a review of all appeals for error

discoverable by mere inspection of the pleadings and proceedings and without

inspection of the evidence. State v. Anthony, 2023- 0117 ( La. App. 1st Cir.

11/ 3/ 23), 378 So. 3d 766, 775, writ denied, 2024- 00027 ( La. 5/ 21/ 24), 385 So. 3d

242. After a careful review of the record, we have found one patent error.

The record reflects the trial court advised the defendant he had " two years to

file" for post -conviction relief. A defendant generally has two years " after the

judgment of conviction and sentence has become final" to seek post -conviction

relief. La. Code Crim. P. art. 930. 8( A). Thus, the trial court failed to adequately

advise the defendant of the prescriptive period for seeking post -conviction relief.

However, the trial court' s failure to properly advise the defendant has no bearing

on the sentence and is not grounds to reverse the sentence or remand for

resentencing. State v. Hollins, 2023- 0785 ( La. App. 1st Cir. 3/ 19/ 24), 387 So. 3d

641, 652, writ denied, 2024- 00487 ( La. 10/ 1/ 24), So. 3d , 2024 WL

4355007. Out of an abundance of caution and in the interest of judicial economy,

we instead advise the defendant La. Code Crim. P. art. 930. 8 generally provides

that no application for postconviction relief shall be considered if it is filed more

than two years after the judgment of conviction and sentence have become final

under the provisions of La. Code Crim. P. arts. 914 or 922. Hollins, 387 So. 3d at

652.

For all of the above reasons, the defendant' s conviction, habitual offender

adjudication, and sentence are affirmed.

CONVICTION, HABITUAL OFFENDER
SENTENCE AFFIRMED.

1W