State of Louisiana v. Mack Henry Johnson, Jr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-937

STATE OF LOUISIANA

VERSUS

MACK HENRY JOHNSON, JR.

************

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 60371
HONORABLE CHARLES BLAYLOCK ADAMS,
DISTRICT COURT JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese, Judges.

REVERSED AND REMANDED.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Mack Henry Johnson, Jr.

Don M. Burkett - District Attorney
ADA Clifford R. Strider, III
Post Office Box 1557
Many, Louisiana 71449-1557
(318) 256-6246
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

GENOVESE, Judge.

Defendant, Mack Henry Johnson, Jr., was charged by bill of information with

one count of simple escape, a violation of La.R.S. 14:110. Trial by jury commenced

on January 30, 2006. On the same day, a jury found Defendant guilty as charged. On

February 2, 2006, the State filed a multiple offender bill against Defendant. On April

27, 2006, Defendant was adjudicated a third-time felony offender and sentenced to

five years at hard labor, to be served consecutively to any other sentence Defendant

was currently serving. A motion to reconsider the sentence was filed on May 4, 2006,

which was subsequently denied on May 15, 2006 without written reasons.

Defendant is now before this court on appeal. He assigns four errors: 1) the

trial court allowed Defendant to proceed to trial without counsel, despite the fact that

counsel was appointed and the record does not reflect that counsel withdrew from the

case; 2) the trial court failed to inquire as to whether Defendant knowingly and

intelligently waived his right to counsel; 3) Defendant was denied his right to counsel

when defense counsel, who had been appointed after trial, asserted that he was

unprepared to proceed, but the trial court proceeded with the habitual offender

hearing regardless; and 4) the trial court erred when it used two felony convictions

which arose out of the same occurrence, and pled on the same date, as two separate

predicates for the purpose of the habitual offender adjudication, or in the alternative,

defense counsel “rendered ineffective assistance and Mack Henry Johnson, Jr. was

prejudiced by counsel’s actions (or inactions) when he was adjudicated a third felony

offender.”

For the following reasons, we find merit in Defendant’s first two assignment

of errors. Accordingly, we reverse Defendant’s conviction for simple escape; we

reverse Defendant’s habitual offender adjudication; we vacate Defendant’s sentence;

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and we remand for further proceedings consistent herewith.

FACTS:

On or about April 21, 2005, Defendant was picked up for a parole violation and

taken to the Sabine Parish Detention Center for processing. While waiting to be

booked, Defendant, without permission, walked out of the detention center and fled.

ASSIGNMENTS OF ERROR NUMBER 1 AND 2:

We will address assignments of error number one and two together because the

facts and issue of the first assignment are pertinent to the issue of the second

assignment. The questions presented by these two assignments of error are whether

Defendant was effectively denied the right to counsel and, under the circumstances,

whether he knowingly and intelligently waived his right to counsel.

An accused whose offense subjects him to the possibility of imprisonment is

guaranteed the right to counsel. U.S. Const. Amend. VI; La.Const. art. I, § 13. State

v. Hayes, 95-1170 (La.App. 3 Cir. 3/6/96), 670 So.2d 683. Further, in State v.

Whatley, 03-655, pp. 22-23 (La.App. 3 Cir. 11/5/03), 858 So.2d 751, 765-66, this

court cited Hayes as follows:

Before a defendant may waive his right to counsel, the trial court
must determine whether the defendant’s waiver of counsel is
intelligently and voluntarily made, and whether his assertion of his right
to represent himself is clear and unequivocal. State v. Hegwood, 345
So.2d 1179 (La.1977). The determination of whether there has been an
intelligent waiver of the right to counsel depends upon the facts and
circumstances surrounding the case, including the background,
experience, and conduct of the accused. State v. Harper, 381 So.2d 468
(La.1980). Although a defendant should be made aware of the dangers
and disadvantages of self-representation, there is no particular formula
which must be followed by the trial court in determining whether a
defendant has validly waived his right to counsel. State v. Carpenter,
390 So.2d 1296 (La.1980). However, the record must establish that the
accused knew what he was doing and that his choice was made “with
eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The Third Circuit Court of Appeal has repeatedly required the

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trial court meet the following requirements in determining whether a
defendant has validly waived his right to counsel: first, determine a
defendant’s literacy, competency, understanding and volition, i.e. was
defendant’s waiver of counsel made voluntarily and intelligently; and
second, warn the defendant of the dangers and disadvantages of self-
representation, so that the record establishes that the defendant knew
what he was doing. [State v.] Mitchell, 580 So.2d 1006 [(La.App. 3 Cir.
1991) writ denied, 613 So.2d 969 (La.1993)]; [State v.] Smith, 479 So.2d
1062 [La.App. 3 Cir. 1985)]; State v. Adams, 526 So.2d 867 (La.App.
3 Cir.1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989);
and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ
denied, 572 So.2d 85 (La.1991).

In the current case, Defendant was initially assigned counsel. According to the

minute entry dated April 26, 2005, he was brought before the court on a “72 hour”

hearing where he was advised of the charge against him and of his right to counsel.

At this time, Defendant requested the appointment of counsel. The trial court

appointed Attorney Joseph D. Toups to represent him. There was no transcript

available of this hearing. The order for indigent representation was signed and filed

into the record on April 26, 2005.

According to the minutes, Defendant was scheduled to be arraigned on July 28,

2005; however, neither he nor counsel were present, and the matter was refixed for

September 29, 2005. On September 29, 2005, Defendant was present, but without

counsel. The Court advised him of the charge against him, his right to counsel, and

his right to formal arraignment. Defendant advised the trial court that he could afford

counsel and wished to have counsel present for arraignment. The matter was refixed

for October 27, 2005. There is no transcription of the September 29th hearing.

Defendant was arraigned on the charge of simple escape on October 27, 2005.

At arraignment, the trial court asked Defendant if he was represented by counsel. The

following conversation took place.

THE DEFENDANT-JOHNSON: No sir, but I just got a job like
about this last week right here. I’m trying to save my money and get
one.

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THE COURT: How much do you earn at your job?

THE DEFENDANT-JOHNSON: Uh like $5.75 an hour.

THE COURT: Okay. Mr. Johnson, you would qualify for a
court-appointed attorney but you also have the opportunity to hire the
attorney of your choice at any time during the proceedings up until it
gets too late. Do you wish to have a court-appointed attorney at this time
or not?

THE DEFENDANT-JOHNSON: No, sir.

THE COURT: You don’t wish to have a court appointed
attorney?

THE DEFENDANT-JOHNSON: No, sir.

THE COURT: Okay. Any pending cases on Mr. Mack Henry
Johnson not tried?

MR. BRANDON: (No response)

COURT: Simple is with or without, do y’all know?

MR. TOUPS: Yes sir.

THE COURT: It is. Category four allotment.

DEPUTY CLERK: Division B.

THE COURT: Division B. Your pretrial date is January 9th and
your trial date is January 30th.

THE DEFENDANT-JOHNSON: Can you tell me the penalties
on that?

....

THE COURT: All right, thank you. Hold on, that was A-2. That
was work release. I told you wrong. A-3--A-1, shall be imprisoned with
or without hard labor for not less than two years nor more than five
years. And it is a consecutive sentence. So it’s at least two years and no
more than five years.

THE DEFENDANT-JOHNSON: All right. There ain’t no fine
on that huh?

THE COURT: Nope.

Nothing further occurred in the record until the January 9, 2006 pre-trial

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hearing. At that time, the State noted there still was not an enrollment of counsel for

Defendant. Defendant explained that he had been incarcerated in November and in

a rehabilitation facility in October. He stated he wanted to represent himself.

THE COURT: It’s a bad idea.

THE DEFENDANT-JOHNSON: Naw.

THE COURT: Do you understand what the charge of simple
escape is?

THE DEFENDANT-JOHNSON: Yes, sir.

THE COURT: Do you understand what the penalty provisions for
it are?

THE DEFENDANT-JOHNSON: Yes, sir.

THE COURT: What are they?

THE DEFENDANT-JOHNSON: Uh start off at two years.

THE COURT: And do you understand that it runs--any sentence
on an escape charge run, by law, consecutively with anything else you’re
serving?

THE DEFENDANT-JOHNSON: Yes, sir.

THE COURT: Okay. You’re not--obviously you’re here and
you’re not asking for a court-appointed attorney, is that correct?

THE DEFENDANT-JOHNSON: No, sir.

THE COURT: Mr. Strider, anything you want me to add to
that?

MR. STRIDER: What is his education level?

THE COURT: Mr. Johnson, what kind of education have you
received?

THE DEFENDANT-JOHNSON: High school diploma.

THE COURT: You graduated?

THE DEFENDANT-JOHNSON: Uh yes, sir.

THE COURT: What year did you graduate in?

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THE DEFENDANT-JOHNSON: Uh 2002, yeah, it was 2002.

THE COURT: Okay. What kind of work have you done?

THE DEFENDANT-JOHNSON: Uh nothing really. Just here
and there odd and end jobs. I used to work at Burger King but I got a
probation violation and got fired.

THE COURT: All right. You’re ready for trial January 30th?
That’s your trial date.

....

MR. STRIDER: Your Honor, just for the record, the Defendant
has two prior convictions. To test the Court’s knowledge of whether he
is capable of representing himself, perhaps you could inquire if he
knows what that means and the possible results of being convicted.

THE DEFENDANT-JOHNSON: Yelp [sic], that means that if I
do get convicted they probably gonna violate my probation which I have
to back up my probation and that’s gonna run wild with the time on my
escape what they gonna be wild, so I’ll do one and then the other after
that.

THE COURT: How about an habitual offender bill?

THE DEFENDANT-JOHNSON: I done been convicted on one.
They ran both of them on the same docket. I got one year on both of
them at the same time.

THE COURT: It’s still possible to be a second felony offender.

THE DEFENDANT-JOHNSON: I’m ready to deal with that then.

THE COURT: You’ve heard the saying of a man who represents
himself as an attorney has a fool for a client, you’ve heard that?

THE DEFENDANT-JOHNSON: Yeah, I’ve heard that before.

THE COURT: Okay.

Defendant then proceeded to trial on January 30, 2006. There was no further

discussion at trial regarding Defendant’s literacy, competency, understanding and

volition. Defendant argues that the trial court’s brief interview with him “falls short

of the requirements necessary to determine whether he validly waived his right to

counsel.”

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Initially, at the “72 hour” hearing, Defendant requested and was assigned

indigent defense counsel. As noted above, while there is apparently no transcript of

the hearing, the written appointment was filed into the record. On the first

arraignment date, Defendant informed the trial court he had not been able to obtain

counsel, and the matter was reset at his request. However, on October 27, 2005, at

the time scheduled for arraignment, Defendant stated that he had not been able to

retain counsel because he had been in rehabilitation and incarcerated. During the

hearing, the trial court informed Defendant that he would qualify for a court-

appointed attorney. However, there was no indication in the record that Defendant

was even aware that he had been appointed counsel, or if there were reasons he chose

not to utilize appointed counsel’s services. Without further ado, the trial court set

pre-trial and trial dates, without even taking Defendant’s guilty plea. Notably, during

the hearing, prior court-appointed counsel, Joseph D. Toups, even answered one of

the trial court’s questions regarding the offense.

Whether or not Defendant was represented by counsel at arraignment is

potentially problematic; however, a trial court may take an accused’s guilty plea

without counsel. La.Code Crim.P. art. 516. According to Louisiana jurisprudence,

an arraignment is not necessarily a critical stage of the criminal process, and available

defenses are not lost if not pled at arraignment. Article 516 permits a subsequently

appointed or procured counsel to withdraw any motion, plea, or waiver made by the

accused for a reasonable time before trial. See State v. Tarver, 02-973 (La.App. 3 Cir.

3/12/03), 846 So.2d 851, writ denied, 03-1157 (La. 11/14/03), 858 So.2d 416.

Therefore, at this point, there was no error with the trial court assuming Defendant’s

guilty plea and setting the case for trial without defense counsel being present right

at the time.

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Defendant argues, however, that the “record of this case does not show that Mr.

Toups appeared on the record in a representative capacity for Mack Henry Johnson,

Jr., at any stage of these proceedings.” Defendant further argues:

In the instant case, trial counsel’s total failure to meet with or
otherwise make any contact with Mack Henry Johnson, Jr. at any
moment in the pendency of these proceedings constitutes a denial of
counsel during the pretrial phase of these criminal proceedings.
Because the right to counsel “includes the concomitant right to
communicate with counsel at every critical stage of the proceedings,”
the total failure to meet or represent Mack Henry Johnson, Jr. in anyway
constitutes a denial of counsel. Perry v. Leeke, 488 U.S. 272, 298, 109
S.Ct. 594, 609, 102 L.Ed.2d 624 (1989)(Marshall, J., dissenting)(citing
Powell, 287 U.S. at 68-69, 53 S.Ct. at 64).

Regardless of whether Defendant was or was not represented at this point,

when Defendant informed the trial court at the pre-trial hearing he could not afford

to retain counsel and would represent himself, the trial court should have obtained

an adequate waiver of the right to counsel, which it failed to do.

In Whatley, 858 So.2d 751, this court found that there was insufficient inquiry

into the accused’s competency to represent himself. The accused was not represented

by counsel at the arraignment or at trial. He had indicated to the trial court that he

desired to retain counsel; however, at the time of trial, he indicated he would defend

himself because he could not afford to retain counsel. The trial court then inquired

into the accused’s literacy by having him read a page of jury instructions in court.

There was no further inquiry into his background or the complexity of the case. The

trial court then went on to discuss whether the accused could afford to hire counsel

and advised him he could have counsel appointed to represent him. The trial court

discussed some trial procedure with the accused and advised him that he had not been

trained in the law, and that the prosecutor was an experienced attorney. After noting

that throughout the colloquy, the accused said several times that he would like to have

counsel, but could not afford one, this court stated:

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Simply put, the overall colloquy suggests Defendant did not understand
his rights. Further, although the court conducted a clear and practical
inquiry into Defendant’s literacy by having him read in open court, there
was no further inquiry into his education or background, or the relative
complexity of the case. As shown by the Jackson review in the
previously-discussed assignments, the issue of co-ownership gave this
case nuances that Defendant, a layman, may not have appreciated. As
the lower court did not inquire into these factors or similar issues, it is
clear the trial court did not make a sufficient inquiry into whether
Defendant knowingly and intelligently waived his right to obtain trial
counsel.

Id. at 767.

An example of an adequate inquiry into whether the accused intelligently and

knowingly waived his right to counsel can be found in State v. Bruce, 03-918, pp. 5-6

(La.App. 5 Cir. 12/30/03), 864 So.2d 854, 858, as follows:

[T]he record in the present case shows a detailed inquiry into the
understanding of defendant in waiving his right to counsel. On June 17,
2002, defendant appeared in open court and unequivocally stated his
desire to represent himself. Prior to reviewing the waiver of right to an
attorney form, the trial court cautioned defendant against self-
representation by explaining several times that defendant was facing a
life sentence as a multiple offender if convicted on the underlying
charge. The trial court also reviewed the current plea offer by the State
which was five years as a multiple offender. The trial court expressed
its opinion that self-representation places defendant at a tremendous
disadvantage because the State will use an experienced prosecutor to
attempt to convict defendant. While acknowledging defendant’s right
to self-representation, the trial court stringently discouraged it.

The trial court further advised defendant that it could give only
limited help in making sure defendant took advantage of the procedural
laws available to him and even discussed defendant’s option under
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970). The trial court reminded defendant that appointed counsel could
remain on the case as an adviser to help defendant with procedural
matters. The trial court expressed concern that defendant was making
a decision out of anger or frustration and took a break in the proceedings
to allow defendant an opportunity to think about his decision.
Defendant assured the trial court he was not choosing self-representation
out of anger or frustration.

After the break, defendant again stated he wanted to defend
himself. The trial court then reviewed with the defendant in open court
the waiver of right to an attorney form which defendant had executed.
The form indicated defendant could read and write. It advised defendant

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that an attorney is experienced and may know of certain defenses
available or procedures which may result in defendant’s case being
dismissed or the charges being reduced that may not be known to
defendant. Defendant was further advised that he would have to file his
own motions, make his own objections, cross-examine witnesses at trial
and prepare his own defense.

Defendant was also told of his right to have an attorney appointed
to assist him.

In Bruce, 864 So.2d 854, the fifth circuit found that the trial court adequately

complied with the requirements for ascertaining that the accused knowingly and

intelligently waived his right to counsel. The fifth circuit also stated:

In accepting a waiver of counsel, the trial court should advise the
defendant of the nature of the charges, the penalty range for the charges
and of the dangers and disadvantages of self-representation such as the
failure to recognize objections to inadmissible evidence and the inability
to adhere to technical rules governing trials. State v. Strain, 585 So.2d
540, 542-543 (La.1991). Additionally, the trial court should inquire into
the defendant’s age, education and mental condition and should
determine according to the totality of circumstances whether the accused
understands the significance of the waiver. [Id.] In order to sufficiently
establish on the record that defendant is making an intelligent and
knowing waiver, the inquiry should involve more than an interchange
of “yes” or “no” responses from the defendant. Id.

There is no inflexible criteria or magic word formula for
determining the validity of a defendant’s waiver of the right counsel.
Rather, the validity of the waiver must take into account the totality of
the circumstances in each case. State v. Stevison, 97-3122 (La.10/30/98),
721 So.2d 843, 845.

Id. at 857.

In a recently decided case, State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924

So.2d 1225, this court analyzed the trial court’s inquiry of the accused to determine

if he waived his right to counsel. Poche, while assisted by counsel, took over his

defense at the close of the State’s case. The transcript of the dialogue between the

trial court and Poche indicated that the trial court perfunctorily asked him if he

understood what was going on, to which the accused answered in the affirmative.

The trial court told Poche that he must follow the rules of criminal procedure and

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evidence, and that if he was incapable of doing so, his counsel would take over the

questioning of the witnesses. Based on the trial transcript alone, this court stated:

The trial court’s interview with Defendant did not comply with
the requirements necessary to determine whether Defendant validly
waived his right to counsel. The trial court did not make an express
determination regarding Defendant’s literacy, competency, or
understanding. Although the trial court asked Defendant if he wished
to act as his own counsel, it failed to determine whether his waiver was
intelligently made. Also, the trial court failed to adequately warn
Defendant of the dangers and disadvantages of self-representation: it did
not inform him that self-representation might have an adverse effect on
the outcome of the case, tell him the elements of the offenses, or explain
the maximum penalties that he would fact if convicted.

Id. at 1233.

In the case sub judice, the trial court asked Defendant if he understood the

charge, to which Defendant answered, “Yes.” The trial court asked if he knew the

penalty for the offense and Defendant answered, “start off at two years.” The trial

court then explained that any sentence imposed would run consecutively. Defendant

responded, “Yes.” The State then asked the only question concerning Defendant’s

literacy, which was whether Defendant had graduated from high school. Defendant

said he did. When asked what employment he had since high school, Defendant

answered, “Uh nothing really.” He stated that he had worked at Burger King briefly

until he was fired because of a probation violation. The State then insisted that the

trial court question Defendant regarding the consequences of being convicted as

charged and the court mentioned a habitual offender bill. While Defendant had really

been told that if he was convicted he would be required to serve the sentence

consecutively to the sentence imposed on his prior convictions, his answer to whether

he understood a habitual offender charge was not necessarily responsive, and

indicated that he only understood that he had prior convictions.

During the dialogue at the pre-trial hearing, the trial court did not reiterate that

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Defendant had the right to counsel, nor did the trial court advise Defendant he could

be assisted by counsel. At no time, in the record, did the trial court discuss the

elements of the offense. Other than telling Defendant it was a bad idea and that an

attorney who represented himself had a fool for a client, the trial court did not advise

him of the dangerousness and disadvantages of self-representation. The trial court

did not warn him about the experience of the State’s prosecutor in prosecuting cases,

or discuss filing motions such as discovery motions or motions to suppress, trial

procedures, objections, or the consequence of putting himself on the stand to testify.1

Accordingly, based on the transcript of the pre-trial hearing, we find that the

trial court did not adequately ascertain whether Defendant knowingly and

intelligently waived his right to counsel.

However, this court in Poche, 924 So.2d 1225, held that the entire “record

should be examined for indications that a defendant was aware of the dangers and

disadvantages of self-representation.” Id. at 1233 (citing State v. Norman, 99-600

(La.App. 5 Cir. 2/16/00), 756 So.2d 525, writ denied, 00-971 (La.3/23/01), 787 So.2d

1007). In Poche, the accused had filed several pre-trial pro se briefs, and on several

occasions the trial court allowed him to argue the motions. Therefore, by the time of

trial, this court found that “the trial court was well aware that he was literate,

competent, and understood the charges against him.” Id. This court stated, “we find

that, at the time of the waiver, the trial court only needed to ascertain Defendant’s

volition, which it did, to satisfy the first step of the Hayes test.” Id.

Moreover, as in Bruce, 864 So.2d 854, the trial court knew that Poche had

1
In the presentation of his case, Defendant put a woman on the stand who testified that the
police officers came to her house to locate Defendant after he fled the detention center. According
to her testimony, Defendant had hid in her house. She testified that she told the officers where to
find him. Defendant also took the stand on his own behalf. During cross examination, the State
asked him about any prior convictions. When he objected, the trial court told him he had to answer
the question because he was under cross-examination. Defendant then admitted to having two prior
felonies.

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prior convictions. This court noted that at sentencing the trial court discussed Poche’s

extensive criminal record. He was a five-time felony offender and had several

misdemeanor convictions; thus, he had knowledge of the judicial process through his

past experiences.

In the case sub judice, there were no motions filed prior to the pre-trial hearing,

and nothing filed prior to trial. Moreover, the record shows that Defendant’s two

prior convictions were a possession of marijuana with intent to distribute and a simple

kidnapping, both of which occurred on the same day and pled to on the same day. It

is not clear from the record whether these offenses were pled before this judge.

Under the facts and circumstances of this case, the trial court failed to

adequately ascertain whether Defendant knowingly and intelligently waived his right

to counsel. The trial court’s dialogue with Defendant did not sufficiently address his

literacy, competency, understanding, or volition; nor did the trial court adequately

advise Defendant of the dangers and disadvantages of self-representation. We find

that Defendant’s right to counsel was violated when the trial court permitted him to

represent himself without adequate warning, particularly since Defendant had

originally asked for counsel, had been appointed counsel, and on two occasions had

advised the trial court he desired counsel, then finally admitted to the trial court he

could not afford counsel.

CONCLUSION

For these reasons, we reverse Defendant’s conviction of simple escape. As a

consequence thereby, Defendant’s habitual offender conviction as a second-time

felony offender is reversed, his sentence is vacated, and the matter is remanded to the

trial court for further proceedings.

Because we reverse Defendant’s conviction of simple escape, thereby reversing

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the habitual offender adjudication, the remaining two assignments of error are moot.

REVERSED AND REMANDED.

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