State of Louisiana v. David Stapleton

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-0685

STATE OF LOUISIANA

VERSUS

DAVID STAPLETON

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT,
PARISH OF GRANT, NO. 07-169
HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and James T. Genovese, Judges.

CONVICTION AFFIRMED. SENTENCE VACATED, AND CASE
REMANDED FOR RESENTENCING.

James P. Lemoine
District Attorney, 35th JDC
Jimmy D. White
Assistant District Attorney, 35th JDC
Post Office Box 309
Colfax, LA
(318) 627-3205
COUNSEL FOR APPELLEE:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, LA 71457
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
David Stapleton

David L. Stapleton
Caldwell Correctional Center
671 Highway 845
Grayson, LA 71435
PRO SE

PETERS, J.

The State of Louisiana (state) charged the defendant, David Stapleton, by bill

of information with the offense of driving while intoxicated, fourth offense, a

violation of La.R.S. 14:98. A jury convicted him of the charge, and the trial court

sentenced him to serve thirty years at hard labor, without benefit of probation, parole,

or suspension of sentence. After the trial court rejected his motion to reconsider his

sentence, the defendant perfected this appeal, asserting three assignments of error

through his appellate counsel and three pro se assignments of error.

The defendant was initially charged by bill of information on March 21, 2007,

charging that the offense occurred February 4, 2007. A two-day trial ended on

January 15, 2008, with the jury’s verdict of guilty as charged. The trial court

sentenced the defendant on February 7, 2008, and rejected his motion for

reconsideration of sentence on March 27, 2008. On appeal, the defendant’s appellate

counsel asserted the following assignments of error:

1. The trial court erred in sentencing Mr. Stapleton to the maximum
sentence of 30 years imprisonment, without benefit of probation,
parole or suspension of sentence, without complying with the
requirements of La.C. Cr.P. art. 894.1.

2. The maximum, 30-year sentence imposed by the trial court was
cruel, unusual and excessive, in violation of Article I, § 20 of the
Louisiana Constitution of 1974.

3. The trial court erred in sentencing Mr. Stapleton without him
being represented by his trial counsel, in not first determining if
Mr. Stapleton actually wanted to waive counsel and represent
himself.

The three pro se assignments of error filed by the defendant read as follows:

1. Rather the defendant was denied rights by allowing the Hon.
Judge Allen A. Krake to preside over this case

2. The mis-use of time on predicates used to enhance

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3. Was the defendant represented by retained counsel in an
appropriate manner

Considering the assignments of error asserted by the defendant’s appellate

counsel, we find merit in the third. Because disposition of that assignment of error

renders consideration of the first two assignments moot, we will address it first.

The question raised by the third assignment of error relates to the defendant’s

legal representation, or lack thereof, at the sentencing proceedings. A finding that the

defendant was not represented by counsel at the sentencing proceeding, and that he

did not waive his right to counsel or invoke the right to self-representation, would

require that his sentence be vacated.

A defendant has the right to counsel at every critical stage of the
proceedings against him, including sentencing. See, State v. Kirsch,
01-1017 (La.App. 5 Cir. 3/26/02), 815 So.2d 215, 217, citing McConnell
v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); La. Const. art. I,
§ 13. Furthermore, the constitutional right to the assistance of counsel
provided by the Sixth Amendment of the United States Constitution
mandates the right, unless waived, to the assistance of counsel at every
critical stage of the proceedings, including an initial or deferred
sentencing. See, State v. Lefeure, 01-1003 (La.App. 5 Cir. 1/15/02), 807
So.2d 922, 923-924, and cases cited therein. Sentence imposed without
the presence of defendant’s attorney is illegal and of no effect, for
certain vital issues cannot be raised and important rights may be lost if
not raised or exercised prior to this stage of the proceedings. Id. Unless
a defendant has made a knowing and intelligent waiver of his right to
counsel, any sentence imposed in the absence of counsel is invalid and
must be set aside. See, State v. Lefeure, at 924, and the cases cited
therein.

State v. Price, 06-440, p. 3 (La.App. 5 Cir. 1/16/07), 951 So.2d 1152, 1153-54.

This court has addressed this issue as well, and in setting forth the applicable

guidelines, has stated the following:

Louisiana Constitution Article 1, Section 13 and the Sixth
Amendment of the United States [Constitution] guarantee a criminal
defendant the right to assistance of counsel. While a defendant may
represent himself, his choice to do so must be knowingly and
intelligently made and the assertion of the right to self-representation

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must be clear and unequivocal. State v. Brown, 03-897 (La.4/12/05),
907 So.2d 1 (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975)). The supreme court reiterated that a defendant
must “ask clearly and unequivocally to proceed pro se.” Id. at 22.

With regard to a defendant’s waiver of his or her right to counsel,
a panel of this court has stated:

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 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).

State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670
So.2d 683, 685-86. See also State v. Johnson, 06-937 (La.App. 3 Cir.

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12/6/06), 944 So.2d 864, and State v. Whatley, 03-655 (La.App. 3 Cir.
11/5/03), 858 So.2d 751.

State v. Francis, 07-373, pp. 3-4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1096, 1098-99

(footnotes omitted).

The record before us establishes that the defendant was not represented by

counsel at the sentencing hearing. As the hearing began, the defendant’s trial counsel

was present. However, the defendant informed the trial court that his trial counsel no

longer represented him. From that point forward in the proceeding, the former trial

counsel made no comment on the record. After addressing the defendant’s concerns

concerning access to copies of records in the proceedings, the trial court had the

following exchange with the defendant before sentencing him:

Q. Do you have any thing [sic] to say on your sentencing?

A. Yes, sir.

Q. What do you wish to say on your sentencing?

A. Sir.

Q. What do you wish to say on your sentencing?

A. Well, not much I can tell you.

The trial court then proceeded to sentence the defendant.

Thus, the defendant was not represented by counsel when the trial court

imposed sentence, and nothing in the record indicates that the defendant waived

assistance of counsel at this stage of the proceedings. Therefore, we vacate the

sentence imposed and remand the matter to the trial court for resentencing. Because

we find it necessary to set the sentence aside, we need not consider the issues raised

in the first two assignments of error raised by the defendant’s appellate counsel.

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In his first pro se assignment of error, the defendant asks the rhetorical

question whether he was denied rights because Judge Allen A. Krake presided over

the case. He raises this question with the following statement:

The defendant believes his rights to a fundamentally fair trial was
very much abused, if not altogether denied him, in that the trial Judge,
who was on probation for substance abuse and in fact removed from the
bench for not meeting the terms of his probation and refusing to submit
to urinalisis [sic] test not two days after the sentence of defendant.
Whose to say that he was or was not impared [sic] during the trial and
or sentense [sic], that and that he was under surveillance by certain
parties in some manner seems unfair to the defendant. Is not a minister
of the law also ministered by the law?

However, the record contains nothing to support the defendant’s assertions. We find

nothing to suggest that, in this matter, Judge Krake conducted himself in an

inappropriate manner or committed any act during the course of the proceedings that

prejudiced the defendant. Thus, we find no merit in this assignment of error.

In his second pro se assignment of error, the defendant asserts that the state

misused predicates to enhance his sentence. He makes the following argument in his

brief to this court:

The Bill of Information presented in Discovery uses three prior
D.W.I. convictions to enhance to 4th offense D.W.I. The Asst. D.A.
claimed the conviction in Rapides Parish, on June 14, 2004, DKT -
271,113, carried two and one half years (2 1/2) jail time. When in fact
the sentence was to two years H.L. under Act 138 and would require
only one year jail time, thereby putting the 1993 conviction out of time,
allowing that the Asst. D.A. could only go back 13 1/2 years rather than
the 15 years he claims.

The defendant further asserts that had his trial counsel investigated this issue, an

objection from his trial counsel would have changed the outcome of the trial.

As we understand the defendant’s argument, he appears to suggest that there

was a problem with the sentence he received for his 2004 conviction, and that this

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problem would have caused his 1993 conviction to fall outside of the ten-year

cleansing period provided for in La.R.S. 14:98(F)(2) which states:

For purposes of this Section, a prior conviction shall not include
a conviction for an offense under this Section or R.S. 14:32.1 or R.S.
14:39.1 or under a comparable statute or ordinance of another
jurisdiction, as described in Paragraph (1) of this Subsection, if
committed more than ten years prior to the commission of the crime for
which the defendant is being tried and such conviction shall not be
considered in the assessment of penalties hereunder. However, periods
of time during which the offender was incarcerated in a penal institution
in this or any other state shall be excluded in computing the ten-year
period. Subsections B and C shall include a screening procedure to
determine the portions of the program which may be applicable and
appropriate for individual offenders.

The predicate offenses giving rise to the fourth offense conviction in this

matter occurred in 1993, 1994, and 2003. The 1993 offense arose in Ouachita Parish,

Louisiana. He was charged in Ouachita Parish with having, on January 17, 1993,

committed the offense of D.W.I-fourth offense, and pled guilty to D.W.I.-third

offense on March 5, 1993. He was then charged in LaSalle Parish, Louisiana, with

having committed the offense of D.W.I.-fourth offense on May 17, 1994, and pled

guilty to the offense on November 28, 1994. He was then charged in Rapides Parish,

Louisiana, with having committed the offense of D.W.I.-third offense on July 20,

2003, and pled guilty to the offense on June 14, 2004. The current offense occurred

on February 4, 2007. The defendant was incarcerated for these prior offenses from

June 21, 1993, through November 17, 1993; May 17, 1994, through November 25,

1996; September 13, 1997, through March 13, 1999; and October 10, 2003, through

October 19, 2004.

Based on the evidence presented, we find that the state proved that the ten-year

preclusion provided for in La.R.S. 14:98(F)(2) did not apply to any of the predicate

offenses. Furthermore, we find no merit in the defendant’s assertion that an objection

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by his trial counsel would have changed the outcome of the trial. In State v. Matthis,

07-691, p. 7 (La. 11/2/07), 970 So.2d 505, 509, the supreme court discussed

ineffective assistance of counsel as follows:

[T]the standard for ineffective assistance of counsel set out in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
adopted by this Court in State v. Washington, 491 So.2d 1337, 1339
(La.1986), requires respondent to show not only that his trial attorney’s
performance fell below an objective standard of reasonableness under
prevailing professional norms but also that counsel’s inadequate
performance prejudiced him to the extent that the trial was rendered
unfair and the verdict suspect, i.e. that counsel’s errors undermined the
proper functioning of the adversary process.

In State v. Duplichan, 06-852, p. 9 (La.App. 3 Cir. 12/6/06), 945 So.2d 170,

177, writ denied, 07-148 (La. 9/28/07), 964 So.2d 351, this court stated the following:

[T]his court often defers such claims to the post-conviction process, so
the record can be developed in regard to the issue at hand. However,
this court will address ineffective assistance claims on appeal, when the
record is sufficient to analyze the claim. State v. Wommack, 00-137
(La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051
(La.9/21/01), 797 So.2d 62.

Because the state met its burden of proof in establishing that the cleansing

period had not lapsed, the defendant cannot show that he was prejudiced by his trial

counsel’s failure to object to any allegedly incorrect comments by the state regarding

the sentence imposed on the defendant in 1994.

In his third and final pro se assignment of error, the defendant asks whether he

was properly represented by his retained trial counsel. In asking the question, the

defendant discusses a parole hold against him in Union Parish, Louisiana, and asks

whether the parole hold would have been dismissed had his trial counsel represented

him in a more professional manner. He suggests that if he had been able to at least

post bond on the parole hold, his release would have increased his chances at his trial.

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The defendant further asserts that his trial counsel was unprepared to represent

him because he did not prepare “adequately in discovery.” In support of this

assertion, the defendant points to a film submitted in evidence by the state of which

the trial counsel was not aware. Had the trial counsel been better prepared, the

defendant asserts, he could have filed a motion to suppress the film. The defendant

also asserts that his trial counsel failed to obtain cellular telephone records of

witnesses to his behavior and to subpoena his sister-in-law, as these records and her

testimony could have been used to contradict the testimony of the Louisiana State

Police Trooper who investigated the criminal charge.

All of these assertions are claims of ineffective assistance of counsel.

It is well settled that decisions relating to investigation, preparation, and
strategy require an evidentiary hearing and cannot possibly be reviewed
on appeal. Only in an evidentiary hearing in the district court, where the
defendant could present evidence beyond that contained in the instant
record, could these allegations be sufficiently investigated.

State v. Smith, 06-820, pp. 17-18 (La.App. 1 Cir. 12/28/06), 952 So.2d 1, 12, writ

denied, 07-211 (La. 9/28/07), 964 So.2d 352 (citation omitted, footnote omitted).

Furthermore, “[f]or purposes of an ineffective assistance of counsel claim, the filing

of pretrial motions is squarely within the ambit of the attorney’s trial strategy, and

counsel is not required to engage in futility.” State v. Pendelton, 96-367, p. 23

(La.App. 5 Cir. 5/28/97), 696 So.2d 144, 156, writ denied, 97-1714 (La. 12/19/97),

706 So.2d 450 (citation omitted).

Because the record before this court is insufficient to address the defendant’s

claims, we relegate them to post-conviction relief proceedings. Thus, we decline to

consider this assignment of error.

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DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction in all respects.

However, we vacate the sentence imposed by the trial court and remand the matter to

the trial court for resentencing. At the resentencing, the trial court must ensure that

the defendant either is represented by counsel or waives the assistance of counsel.

CONVICTION AFFIRMED. SENTENCE VACATED, AND CASE
REMANDED FOR RESENTENCING.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform
Rules, Courts of Appeal.

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