State of Louisiana Versus Ricky Joseph, Jr.

STATE OF LOUISIANA NO. 23-K-275

VERSUS FIFTH CIRCUIT

RICKY JOSEPH, JR. COURT OF APPEAL

STATE OF LOUISIANA

July 10, 2023

Linda Wiseman
First Deputy Clerk

IN RE RICKY JOSEPH, JR.

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ST. JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE KATHERINE TESS
STROMBERG, DIVISION "C", NUMBER 19,1225 & 19,8208

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

WRIT GRANTED IN PART; DENIED IN PART

Relator, Ricky Joseph, Jr., seeks review of the trial court’s denial of his
motion to quash his three predicate driving while intoxicated (DWI) convictions.
For the following reasons, we grant the writ in part and find that the trial court
erred in denying relator’s motion to quash as to his first predicate conviction. As
to the second and third predicate convictions, we find the trial court did not abuse
its discretion in denying the motion to quash and we deny the writ in part as to
those predicate convictions.

On May 22, 2019, the District Attorney for St. James Parish filed a bill of
information charging relator with driving while intoxicated, fourth offense, in
violation of “La. R.S. 14:98(98.4).” On March 24, 2023, relator filed a “Motion to
Quash Predicate Offenses,” seeking to quash the three predicate convictions relied
upon in the bill of information—(1) an April 8, 2010 DWI conviction in violation
of La. R.S. 14:98; (2) a December 28, 2010 DWI conviction in violation of La.
R.S. 14:98; and (3) a March 21, 2011 DWI conviction in violation of La. R.S.
14:98. Following a March 27, 2023 hearing, the trial judge denied relator’s motion
to quash the three predicate convictions. This writ application followed.

A ruling on a defendant’s motion to quash the bill of information is a
discretionary ruling and should not be disturbed absent an abuse of discretion.
State v. Boudreaux, 13-394 (La. App. 5 Cir. 12/12/13), 131 So.3d 342, writ denied,
14-115 (La. 6/20/14), 141 So.3d 807. This Court, in State v. Dillon, stated:

A presumption of regularity attaches to prior convictions in
multiple offender DWI cases and the burden is on the defendant to show

23-K-275

the prior guilty plea is constitutionally deficient. State v. Collins, 04-
255 (La. App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04-
2798 (La. 3/11/05), 896 So.2d 62. When a defendant challenges the
constitutionality of a predicate guilty plea involving the recidivist
portion of the DWI statute, the State has the initial burden to prove the
existence of the prior guilty plea and that the defendant was represented
by counsel when the plea was taken. If the State meets this initial
burden, the burden shifts to the defendant to produce affirmative
evidence showing an infringement of his rights or a procedural
irregularity in the taking of the plea. If the defendant makes the required
showing, then the burden shifts back to the State to prove the
constitutionality of the plea. State v. Carlos, 98-1366 (La. 7/7/99), 738
So.2d 556, 559.

State v. Dillon, 12-67 (La. App. 5 Cir. 9/11/12), 101 So.3d 970, 974.

If the record reflects that the predicate plea was uncounseled, the State has
the burden of proving a valid waiver of counsel. State v. Domino, 10-661 (La. App.
5 Cir. 1/25/11), 60 So.3d 659, 664-65. The right to counsel is a fundamental right
guaranteed by the federal and state constitutions. U.S. Const. amend. VI; La.
Const. of 1974, art. 1, § 13. An uncounseled misdemeanor conviction, absent a
valid waiver of counsel, may not serve as a predicate for enhancement of a
subsequent DWI offense. State v. Dillon, 12-67 (La. App. 5 Cir. 9/11/12), 101
So.3d at 975. The State bears the burden of proving that an unrepresented
defendant knowingly and intelligently waived his right to counsel before pleading
guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI
offense. Id.

Before accepting a misdemeanor guilty plea, the trial judge should expressly
advise the defendant of his right to counsel and to appointed counsel if he is
indigent. State v. Nabak, 03-919 (La. App. 5 Cir. 12/30/03), 864 So.2d 758, 762;
State v. Rodrigue, 01-377 (La. App. 5 Cir. 8/28/01), 795 So.2d 488, 493, citing
State v. Garrity, 97-958 (La. App. 5 Cir. 1/27/98), 708 So.2d 1096, 1098. The trial
judge should determine if the waiver is knowing and intelligent under the
circumstances. Id. In determining the knowing and intelligent nature of the waiver
of right to counsel, the trial judge should consider such factors as the age,
education, experience, background, competency and conduct of the accused as well
as the gravity of the offense. Whether an accused has made a knowing and
intelligent waiver of his right to counsel is a question which depends upon the facts
and circumstances of each case. Id., citing State v. Strain, 585 So.2d at 542 (La.
1991). Evidence of waiver alone, without evidence to support a determination that
such waiver was knowing and intelligent, is insufficient to meet the State’s burden
to prove that a defendant waived his right to counsel. State v. Nabak, supra.

Upon review of the writ application and the attachments thereto, we find that
the trial court erred in denying relator’s motion to quash as to the April 8, 2010 or
first predicate conviction. The evidence introduced in connection with the hearing
on relator’s motion to quash reflects that relator’s April 8, 2010 predicate
conviction is the result of a guilty plea during which relator was unrepresented by
counsel. The April 8, 2010 Waiver of Rights Form and minute entry introduced
into evidence do not reflect that relator was represented by counsel at the time of
the guilty plea. Further, although the minute entry states that relator was informed
of and waived his Boykin rights, the Waiver of Rights form introduced into

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evidence is incomplete—with many provisions left blank and not initialed by
relator, including the provision stating, “I desire to represent mysef knowing that I
could have an attorney if I desired one. I believe this plea is in my best interest and
I recognize the dangers of representing myself.” At the motion to quash hearing,
the State failed to introduce the guilty plea transcript reflecting a colloquy during
which relator knowingly and intelligently waived his right to counsel. Based upon
the evidence presented at the hearing, we find the State failed to meet its burden to
prove that relator knowingly and intelligently waived his right to counsel and, thus,
the predicate conviction may not be used to enhance the current DWI charge. State
v. Dillon, supra; State v. Nabak, supra.

Concerning the December 28, 2010 and the March 21, 2011 predicate
convictions, relator acknowledges that the Boyin forms are completed and that
relator was represented by counsel at the time he entered into both guilty pleas. He
acknowledges that neither plea is constitutionally infirm. However, relator asserts
that the Waiver of Rights forms, which reference the habitual offender law and not
specifically the enhanced penalties for a third or subsequent DWI offense, are not
sufficient to notify him of the potential enhancements in the context of DWI law.

Louisiana law has never extended the core Boykin constitutional
requirements to include advice with respect to sentencing. State v. Nuccio, 454
So.2d 93, 104 (La. 1984). The Louisiana Supreme Court has instructed that such
advice is not part of the core Boykin constitutional requirements. State v. Guzman,
99-1528 (La. 5/16/00), 769 So.2d 1158, 1164, citing State v. Anderson, 98-2977
(La. 3/19/99), 732 So.2d 517. Moreover, there is no requirement that the trial judge
advise a defendant of subsequent enhanced penalties before accepting a guilty plea.
See La. C.Cr.P. arts. 556 and 556.1; State v. Guzman, supra; State v. Douglas,
39,036 (La. App. 2 Cir. 10/29/04), 888 So.2d 982, writ denied, 04-3146 (La.
4/1/05), 897 So.2d 601. Nonetheless, the record in this case reflects that the Waiver
of Rights forms, which are completed and demonstrate that relator was counseled
at the time of both the December 28, 2010 and March 21, 2011 guilty pleas,
contain the following advisal or statement:

I understand that this plea can be used to multiple-bill me as a second,
third or greater offender and if this happens this plea would seriously
affect me under the Habitual Offender Law and to enhance any future
sentence that I may receive.

I understand that in order to be multiple billed under the Habitual
Offender Law, it does not matter whether one offense occurred before
or after any other offense. I also understand that the District Attorney’s
Office can go back 10 years in order to use prior offenses for multiple-
billing purposes. I also understand that if I’m multiple-billed and
convicted in the future as a second or greater offender of D.W.I., the
Court must order the interlock system to be installed on my vehicle
during the length of any probation in order that I may drive.

Upon review of relator’s writ application and the attachments thereto, we
find that the trial judge did not abuse her discretion in finding that the State met its
burden to prove that relator knowingly and voluntarily waived his Boykin rights
when he entered into his December 28, 2010 and March 21, 2011 counseled guilty
pleas. We therefore find that the trial judge did not abuse her discretion in the
denial of relator’s motion to quash the second and third predicate convictions.

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Accordingly, this writ is granted in part and we reverse the trial court’s
judgment as to relator’s April 8, 2010 predicate conviction and find that the April
8, 2010 predicate conviction may not be used to enhance the current DWI charge.
In all other respects, this writ is denied.

Gretna, Louisiana, this 10th day of July, 2023.

FHW
JGG
RAC

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 07/10/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

23-K-275
E-NOTIFIED
23rd Judicial District Court (Clerk)
Hon. Katherine Tess Stromberg (DISTRICT JUDGE)
Gordon D. Bush (Relator)

MAILED
Honorable Ricky L. Babin (Respondent)
District Attorney
23rd Judicial District Court
Post Office Box 1899
Gonzales, LA 70707

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, SENDER: COMPLFTL THIS SECTION COMP/ I· f f THIS ';ECTION ON Df-l IVU1Y

• Complete Items 1, 2, Md 3.
• Print your name and address on the reverse CJ Agent
so that we can return the card to you. a Addressee
• Attach this card to the back o1 the mailpleoe, B. T&~ Name) IC. Date of Dellvery
or on the front if space permits.
1. Article Addressed to: D. Is dellveiy address dllfenlnt from item 1? 0 Yes
If YES, enter deliv«y address below: 0 No
Honorable Ricky L. Babin
District Attorney
23rd Judicial District Court
Post Office Box 1899
Gonzales, LA 70707
23-K-275 07- 10-23
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