State of Louisiana v. Charles Wray Robertson

Judgment rendered June 30, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,970-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHARLES WRAY ROBERTSON Appellant

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 232,402

Honorable Michael O. Craig, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Edward K. Bauman

J. SCHUYLER MARVIN Counsel for Appellee
District Attorney

ALEXANDRA AIELLO
JOHN M. LAWRENCE
Assistant District Attorneys

*****

Before PITMAN, ROBINSON, and HUNTER, JJ.

PITMAN, J.

Defendant Charles Wray Robertson pled guilty to operating a vehicle

while intoxicated (“DWI”), fourth offense, and was sentenced to 20 years at

hard labor. He appeals his sentence as excessive. For the following reasons,

we affirm the conviction and sentence, but remand for correction of the

sentence consistent with instructions contained herein.

FACTS

Defendant was charged by bill of information with operating a vehicle

while intoxicated, fourth offense, in violation of La. R.S. 14:98.4.1 The

offense occurred on June 5, 2019, in Bossier Parish. The bill of information

stated that Defendant had three previous convictions for DWI — one from

September 11, 2012, and two from January 3, 2017.

On February 18, 2020, after a Boykin2 exam, Defendant pled guilty as

charged, and the state dismissed other pending charges. Prior to his Boykin

exam, Defendant mentioned multiple times that he was hard of hearing and

was having trouble understanding what was being said. His attorney had to

speak to him twice off the record to explain his guilty plea to him. She

stated that she had spoken to him earlier in the morning, but that her client

did not appear to remember what had been said regarding his sentencing

exposure for pleading. She asked the trial court for permission to speak to

Defendant in the back of the courtroom, and the trial court stated, “And just

1
The transcript of the guilty plea of February 18, 2020, indicates that two other
charges were pending against Defendant, including one of theft and one of domestic
abuse battery. The state agreed to dismiss these charges in exchange for a guilty plea to
the charge of driving while intoxicated, fourth offense.
2
See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

make sure he understands that it’s . . . a DWI Fourth that he’s pleading to

and what the sentencing range on that is.”

The trial court did not advise Defendant of the sentencing range for

DWI, fourth offense, and the sentencing range is not stated in the Boykin

transcript. It did ask Defendant if his attorney had explained to him the

minimum and maximum penalties associated with the offense, and

Defendant replied affirmatively.

The state provided a factual basis for the guilty plea, explaining that

on June 5, 2019, in Bossier Parish, Defendant submitted to a breathalyzer

test, and his blood alcohol content registered .133, which exceeded the legal

limit of .08. It also provided details of Defendant’s three prior convictions

for DWI, which had been listed on the bill of information, including a

conviction on January 3, 2017, in Bossier Parish, docket number 220,172; a

conviction on January 3, 2017, in Bossier Parish, docket number 209,979;

and a conviction on September 11, 2012, in Jackson Parish, docket

number 44,988.

Defendant agreed that the facts recited were substantially correct. His

attorney affirmed that she believed he understood his rights and that he

freely and voluntarily waived them. The trial court accepted Defendant’s

guilty plea and, in accordance with La. C. Cr. P. art. 875, ordered a

presentence investigation report (“PSI”).

Defendant appeared for sentencing on May 11, 2020. The trial court

stated it had reviewed the PSI in accordance with the guidelines of La. C. Cr.

P. art. 894.1. It noted the circumstances of his most recent arrest for DWI,

including that his blood alcohol level exceeded the legal limit and that he

failed the field sobriety test.
2

The trial court noted that Defendant had a criminal history, which

began in February 1992 when he was arrested for possession of a controlled

substance and was convicted in January 1993. His criminal history

continued through the 1990s and included a DWI in Caddo Parish in 1996, a

second DWI in Bienville Parish in March 1998 and a third DWI in January

2002 in Bossier Parish. In 2005, he was convicted of felony second degree

battery. In 2007, he was charged with a felony DWI in Bienville Parish, and

he pled guilty to that charge as a DWI, third offense. In 2008, he was

charged with second degree battery, which was reduced to domestic abuse

battery. In 2010, he was charged with domestic abuse battery.3 In 2014, he

was charged with DWI, second offense, which the trial court noted was

actually his fifth DWI. In 2016, he was charged with DWI, fourth offense,

which was pled down to a third offense, but which was actually his sixth

charge of DWI. In 2017, he was charged with felony DWI in Webster

Parish, but there was no resolution of that charge indicated in the PSI.

After noting Defendant’s many charges of DWI, the trial court stated

that while not all of these previous charges could be used against him to

determine the number of the DWI offenses with which he was charged, they

could be considered by the court for purposes of determining a sentence. It

noted that the previous charges show a pattern of behavior and that

Defendant obviously has an alcohol problem, but, “it doesn’t bother you

enough to stop you from driving a car.” It stated that Defendant was placing

everyone in Bossier, Webster, Bienville and Caddo Parishes in danger. It

further stated that it was obvious Defendant was not going to stop drinking

3
The trial court did not mention the charge listed on the bill of information
regarding the prior DWI in 2012 in Jackson Parish. It was also not listed in the PSI.
3

and driving and the only way to protect the community was to put him in

prison. For those reasons, it sentenced Defendant to serve 20 years at hard

labor with credit for time served since the date of his arrest on the charge for

which he was before the court that day. He was advised that he had 30 days

to appeal his sentence and also that he had two years from when his

“conviction becomes final” to seek post-conviction relief pursuant to La. C.

Cr. P. art. 930.8.

After sentence was pronounced and after receiving permission from

the trial court, Defendant’s attorney asked him if he wished to appeal the

sentence. He replied that he did not understand her. The trial court then

asked if he wanted to appeal the sentence, and Defendant replied, “Uh, I-I

thought you said four years.” The trial court replied that it had said 20 years,

and Defendant questioned, “Twenty?” At that point, he stated that he did

want to appeal and objected to the sentence.

Defendant filed a timely motion to reconsider sentence and argued

that his sentence was excessive and unconstitutional. The motion to

reconsider sentence was denied. This appeal followed.

DISCUSSION

Guilty Plea

Defendant asserts that the trial court erred in allowing defense counsel

to assume the trial court’s role in informing him of the minimum and

maximum sentences he would face by pleading with an open-ended term.

He claims this error is significant since he is hard of hearing and did not sign

a plea of guilty and waiver of constitutional rights form. He argues that the

trial court’s failure to advise him of the minimum and maximum penalties

for pleading guilty was not merely harmless error and that it violates the
4

requirements of La. C. Cr. P. art. 556.1. He contends that he was confused

at sentencing and shocked when the trial court repeated that he had been

sentenced to 20 years and not 4 years. He requests that this court vacate his

guilty plea, set aside his conviction and sentence, and remand for further

proceedings.

The state argues that Defendant was fully questioned and informed of

his rights in the guilty plea colloquy, and his own attorney stated on the

record that she believed Defendant understood his rights and freely and

voluntarily waived them.

Whether a trial court complied with La. C. Cr. P. art. 556.1 is not

subject to error patent review, but must, instead, be designated as an

assignment of error by defendant on appeal. State v. Guzman, 99-1528 (La.

5/16/00), 769 So. 2d 1158. A judgment or ruling shall not be reversed by an

appellate court because of any error, defect, irregularity or variance which

does not affect substantial rights of the accused. La. C. Cr. P. art. 921.

In a felony case, the court shall not accept a plea of guilty or nolo

contendere without first addressing the defendant personally in open court

and informing him of any mandatory minimum sentence and the maximum

possible penalty provided by law. La. C. Cr. P. art. 556.1(A)(1). Any

variance from the procedures required by La. C. Cr. P. art. 556.1 that does

not affect substantial rights of the accused shall not invalidate the plea.

La. C. Cr. P. art. 556.1(E).

Even though “advice with respect to the defendant’s sentencing

exposure may facilitate the taking of a voluntary guilty plea, [it] does not

form part of the core Boykin requirements for the entry of a presumptively

valid guilty plea.” State v. Anderson, 98-2977 (La. 3/19/99), 732 So. 2d
5

517; State v. Burford, 39,610 (La. App. 2 Cir. 5/11/05), 902 So. 2d 1190,

writ denied, 05-1573 (La. 1/27/06), 922 So. 2d 545.

In State v. Demease, 33,047 (La. App. 2 Cir. 4/5/00), 756 So. 2d 1264,

writ denied, 00-1488 (La. 5/25/01), 792 So. 2d 750, this court determined

that the trial court’s failure to inform the defendant of the sentencing

consequences or exposure before he pled guilty to the predicate offense did

not result in constitutional infirmity. This court stated that while advice as

to a defendant’s sentencing exposure may facilitate the taking of a voluntary

guilty plea, it never formed part of the court’s core Boykin requirements for

the entry of a presumptively valid guilty plea. Thus, there was no

constitutional infirmity as to the failure to inform the defendant of

sentencing consequences or exposure. Id., citing State v. Anderson, supra.

The record in the case sub judice shows that prior to accepting the

guilty plea, the trial court advised Defendant of his substantive rights under

Boykin. Defendant told the court that he understood his rights and

understood he was waiving those rights by pleading guilty.4

Although the 20-year sentence imposed may have been a longer term

of imprisonment than Defendant expected, he confirmed to the trial court at

the time of the plea that he had been advised by his attorney of the potential

sentencing range for the offense. At his Boykin exam, Defendant was

offered an open-ended plea deal, whereby his two other charges were

dismissed, and he was to receive a sentence within the sentencing range

4
The trial court asked Defendant if his attorney had explained the minimum and
maximum penalties of DWI, “first offense,” and Defendant replied affirmatively,
although the actual charge was DWI, fourth offense. Despite this misstatement of the
charge, the record indicates that Defendant understood the offense that was charged,
since the trial court later correctly referred to DWI, fourth offense, when asking him how
he wished to plead.
6

provided by law. His guilty plea was voluntarily and knowingly given, and

the trial court’s failure to state his potential sentencing exposure on the

record was harmless error.

Defendant’s argument that his guilty plea was invalid lacks merit.

Ineffective Assistance of Counsel

Defendant argues that he received ineffective assistance of counsel

below that guaranteed by the U.S. Constitutional Amendment VI because,

during sentencing, his attorney failed to request a full sentencing hearing

where she could present mitigating evidence on his behalf. He claims

counsel failed to object to the trial court’s failure to consider any mitigating

circumstances for the record and, in the motion to reconsider the sentence,

failed to preserve for appellate review the issues of the trial court’s failure to

consider the factors set forth in La. C. Cr. P. art. 894.1 in imposing the

sentence and its excessiveness.

The state argues that the record does not support the claim that

Defendant’s attorney failed to render effective assistance of counsel by not

requesting a full sentencing hearing, nor is there anything to indicate what

mitigation could have been presented at a full sentencing hearing.

A claim of ineffective assistance of counsel is generally not urged on

appeal. It is usually raised in the trial court through the means of an

application for post-conviction relief. However, when the record is

sufficient, an appellate court may resolve this issue on direct appeal in the

interest of judicial economy. State v. Cooley, 51,895 (La. App. 2 Cir.

5/23/18), 247 So. 3d 1159, writ denied, 18-1160 (La. 3/6/19), 266 So. 3d

899.

7

The right of a defendant in a criminal proceeding to the effective

assistance of counsel is mandated by U.S. Constitutional Amendment VI.

Under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Louisiana Supreme

Court in State v. Washington, 491 So. 2d 1337 (La. 1986), a conviction must

be reversed if the petitioner proves (1) that counsel’s performance fell below

an objective standard of reasonableness under prevailing professional norms,

and (2) counsel’s inadequate performance prejudiced the defendant to the

extent that the trial was rendered unfair and the verdict suspect. State v.

Cooley, supra.

A deficient performance is established by showing that the attorney’s

actions fell below the standard of reasonableness and competency required

for attorneys in criminal cases and is evaluated from the attorney’s

perspective at the time of the occurrence. Strickland v. Washington, supra.

A reviewing court must give great deference to the trial counsel’s judgment,

tactical decisions and trial strategy, strongly presuming he has exercised

reasonable professional judgment. State v. Nixon, 51,319 (La. App. 2 Cir.

5/19/17), 222 So. 3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d

836. A defendant making a claim of ineffective assistance of counsel must

identify certain acts or omissions by counsel which led to the claim; general

statements and conclusory charges will not suffice. Strickland v.

Washington, supra; State v. Nixon, supra.

The record in this case is sufficient for this court to resolve the issue

of ineffective assistance of counsel on direct appeal. Defendant fails to

establish how his counsel’s alleged deficient performance at his sentencing

hearing, and afterward, prejudiced him or resulted in the imposition of a
8

harsher sentence. A review of the transcript shows the trial court gave great

weight to his prior, very lengthy, criminal history when it sentenced him to

the midrange sentence for his crime of DWI, fourth offense. The trial court

recited many instances of criminal behavior by Defendant and failed to

recite any mitigating factors because there do not appear to be any in the

PSI. His social history states that Defendant was born in Shreveport and

was 61 years old when he committed the offense for which he was being

sentenced. He graduated from high school, but did not go to college or trade

school. He has worked odd jobs and has not had steady employment. He

was in an accident in 2007 and was ejected from an automobile. He claimed

that prior to the accident, he never suffered from any emotional or mental

disorders. These social factors do not explain or mitigate his long history of

criminal behavior.

Defendant has failed to establish that his attorney’s performance was

deficient in any way or that her actions fell below the standard of

reasonableness and competency required for attorneys in criminal cases. His

mere allegation that she failed to interject mitigating factors at the

sentencing hearing is a conclusory charge which cannot prove the claim of

ineffective assistance of counsel.

This assignment of error is without merit.

Excessive Sentence

Defendant argues that his sentence is excessive, that there was no

sentencing hearing and that the trial court set forth no mitigating factors, but,

instead, relied solely on his criminal record in imposing his sentence.

Defendant claims that because he is now 62 years old, the 20-year sentence

9

imposed by the trial court amounts to a life sentence for him, which he

claims is disproportionate to his offense.

The state argues that the trial court ordered a PSI be completed, and a

midrange sentence was imposed after it considered the provisions of La. C.

Cr. P. art. 894.1. The state points out that other charges against Defendant

were dismissed in exchange for his plea for DWI, fourth offense. It

contends that the trial court has great discretion to sentence a defendant

within the statutory limits, including the maximum sentence, even when the

defendant pleads guilty.

An excessive sentence claim is reviewed by examining whether the

trial court adequately considered the guidelines established in La. C. Cr. P.

art. 894.1 and whether the sentence is constitutionally excessive. State v.

Wing, 51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711. A review of the

sentencing guidelines does not require a listing of every aggravating or

mitigating circumstance. State v. Boehm, 51,229 (La. App. 2 Cir. 4/5/17),

217 So. 3d 596. When the defendant’s motion to reconsider sentence raises

only a claim that the sentence imposed was constitutionally excessive,

review of the sentence on appeal is restricted to that claim. La. C. Cr. P.

art. 881.1; State v. Satterfield, 53,809 (La. App. 2 Cir. 3/3/21) 315 So. 3d

425; State v. Turner, 50,221 (La. App. 2 Cir. 1/20/16), 186 So. 3d 720, writ

denied, 16-0283 (La. 2/10/17), 215 So. 3d 700.

A sentence violates La. Const. art. I, § 20, if it is grossly out of

proportion to the seriousness of the offense or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La. 1980).

A sentence is considered grossly disproportionate if, when the crime and
10

punishment are viewed in light of the harm done to society, it shocks the

sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166.

The trial court has wide discretion in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Allen, 49,642 (La.

App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La. 1/25/16),

184 So. 3d 1289. On review, an appellate court does not determine whether

another sentence may have been more appropriate, but whether the trial

court abused its discretion. Williams, supra.

La. R.S. 14:98.4 states in pertinent part:

A. (1) Except as modified by Subparagraphs (a) and (b) of this
Paragraph, or as provided by Subsections B and C of this
Section, on a conviction of a fourth or subsequent offense
violation of R.S. 14:98, regardless of whether the fourth offense
occurred before or after an earlier conviction, the offender shall
be fined five thousand dollars and imprisoned, with or without
hard labor, for not less than ten years nor more than thirty
years. Two years of the sentence of imprisonment shall be
imposed without benefit of parole, probation, or suspension of
sentence. Except in compliance with R.S. 14:98.5(B)(1), the
mandatory minimum sentence cannot be served on home
incarceration.

(a) Except as prohibited by Subparagraph (b) of this
Paragraph, the two-year period, which shall otherwise be
imposed without benefit of parole, probation, or
suspension of sentence, may be suspended if the offender
is accepted into a drug division probation program
pursuant to R.S. 13:5301 et seq. The provisions of
R.S. 14:98(F) relative to vehicle seizure and sale shall
also be applicable to any offender whose sentence is
served with the benefit of parole, probation, or
suspension of sentence pursuant to the provisions of this
Paragraph.

(b) If the offender has previously participated in a drug
division probation program pursuant to R.S. 13:5301 et
seq., pursuant to a sentence imposed on a third or
subsequent offense conviction under R.S. 14:98, three
11

years of the sentence imposed in this Paragraph shall be
imposed without benefit of parole, probation, or
suspension of sentence. Notwithstanding any other law to
the contrary, the offender shall not be eligible to have the
mandatory portion of his sentence suspended because of
his participation in a drug division program under Item
(2)(b)(ii) of this Subsection.

***

B. (1) If the offender has previously been required to participate
in substance abuse treatment or home incarceration pursuant to
a sentence imposed on a conviction of a third offense violation
of R.S. 14:98, then on a conviction of a fourth or subsequent
offense, notwithstanding any other provision of law to the
contrary and regardless of whether the fourth offense occurred
before or after an earlier conviction, the offender shall be fined
five thousand dollars and imprisoned at hard labor for not less
than ten nor more than thirty years, at least three years of which
shall be imposed without benefit of parole, probation, or
suspension of sentence. Notwithstanding any provision of law
to the contrary, the offender shall not be eligible to have the
mandatory portion of his sentence suspended because of his
participation in a drug division program under Item
(A)(2)(b)(ii) of this Section, and except in compliance with
R.S. 14:98.5(B)(1), the mandatory minimum sentence cannot be
served on home incarceration.

***

C. If the offender has previously received the benefit of parole,
probation, or suspension of sentence on a conviction of a fourth
or subsequent offense violation of R.S. 14:98, then on a
subsequent conviction of a fourth or subsequent offense,
notwithstanding any other provision of law to the contrary and
regardless of whether the offense occurred before or after an
earlier conviction, the offender shall be fined five thousand
dollars and imprisoned at hard labor for not less than ten nor
more than thirty years. No part of the sentence shall be imposed
with benefit of parole, probation, or suspension of sentence, and
no portion of the sentence shall be imposed concurrently with
the remaining balance of any sentence to be served for a prior
conviction for any offense.

At Defendant’s sentencing hearing, the trial court noted that it had

ordered a PSI, which had been reviewed in accordance with the guidelines

under La. C. Cr. P. art. 894.1. The transcript indicates that the trial court

considered Defendant’s criminal history, particularly his history of driving
12

while intoxicated, to be the most important factor at his sentencing. Also, as

heard in the factual basis for his guilty plea, Defendant was administered a

breathalyzer test which showed his blood alcohol content to be over the legal

limit for safely operating a vehicle.

The trial court noted that Defendant had at least seven previous

convictions since 1996 for operating a vehicle while intoxicated. It stated

that he had continuously flouted the law and driven while intoxicated,

putting human life in danger. It also stated that Defendant’s past behavior

indicated that he will continue to drive while intoxicated and that he needed

punishment and correctional treatment.

The trial court has wide discretion in the imposition of sentences

within the statutory limits, including the imposition of a 20-year sentence,

which is in the midrange of the statutory punishment for this crime. This

sentence is not excessive in light of Defendant’s continued alcohol abuse

and criminal record, and we find no abuse of discretion in its imposition.

This assignment of error lacks merit.

Errors Patent

A review of the record reveals errors patent. First, the trial court

imposed an illegally lenient sentence. La. R.S. 14:98.4 requires a mandatory

fine of $5,000. The trial court did not sentence Defendant to pay that fine.

However, the state has not raised this issue; therefore, this court will not

correct this error patent.

Second, there was no proper restriction of benefits in Defendant’s

sentence, or a discretionary suspension of the restriction of benefits, if

applicable. There is a mandatory restriction of at least two years without

benefits found in La. R.S. 14:98.4(A)(1); any further restriction of benefits
13

beyond those two years is discretionary. However, there are exceptions

found in La. R.S. 14:98.4, paragraphs (A)(1)(a), (A)(1)(b), (B), and (C), and

which exception applies to Defendant, if any, depends upon whether he is or

was accepted into a “drug division probation program,” or if he previously

received benefits when sentenced for a prior conviction under La.

R.S. 14:98, et seq. These restrictions of benefits must first be investigated by

the trial court before the sentence can be corrected to reflect the proper

restriction.

We remand for the trial court to determine the proper restriction of

benefits, depending upon Defendant’s eligibility for a drug division

probation program, his past participation in such a program, whether he

received benefits for a prior conviction, or if the provision requiring at least

two years without benefits is applicable.

Third, the trial court advised Defendant that he has two years from the

date his “conviction becomes final” to seek post-conviction relief. La. C.

Cr. P. art. 930.8 provides that a defendant has two years from the date his

“judgment of conviction and sentence become final” in which to seek post-

conviction relief. Defendant’s case is being remanded for correction of

sentencing errors. At the time the correction is being made regarding the

errors patent discussed above, the trial court should correct the record and

advise Defendant that he has two years from the date his conviction and

sentence become final to seek post-conviction relief.

Fourth, the minutes of the sentencing on May 11, 2020, fail to note

that the trial court gave Defendant credit for time served, and those minutes

should be amended to reflect that fact.

14

CONCLUSION

For the foregoing reasons, the conviction and sentence of Charles

Wray Robertson are affirmed. This matter is remanded for imposition of the

proper restriction of benefits in a manner consistent with this opinion. The

trial court is also instructed to advise Defendant that he has two years from

the date his conviction and sentence become final to seek post-conviction

relief and to order that the minutes of May 11, 2020, be corrected to reflect

that Defendant was given credit for time served.

CONVICTION AND SENTENCE AFFIRMED; REMANDED

WITH INSTRUCTIONS.

15