ON APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT NUMBER 05-08-0071, SEC. VII, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE DONALD R. JOHNSON, JUDGE
Hillar C. Moore, III, D.A. C. Dylan Alge Baton Rouge, Louisiana Counsel for Plaintiff-Appellee State of Louisiana
Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant-Appellant Wendell Tyrone Smith
Defendant, Wendell Tyrone Smith, was charged by grand jury indictment with the second degree murder of Phillip Robinson, a violation of La. R.S. 14:30.1 (count I). He initially pled not guilty. Following jury selection and pursuant to a plea agreement, defendant withdrew his not guilty plea, and, after a Boykin hearing, pled guilty to the responsive offense of manslaughter, a violation of La. R.S. 14:31, on count I. The State also amended the indictment to charge defendant with illegal use of a weapon by discharging a firearm while committing a crime of violence, a violation of La. R.S. 14:94(F) (count II). In accordance with the plea agreement, defendant also pled guilty to count II. On count I, defendant was sentenced to forty years at hard labor. On count II, he was sentenced to ten years at hard labor, without benefit of probation, parole, or suspension of sentence, to run consecutively with the sentence imposed on count I. A motion for appeal was not made by defendant's counsel, but defendant successfully moved for postconviction relief seeking an out-of-time appeal. Defendant now appeals, assigning error to his Boykin hearing. For the following reasons, we affirm the defendant's convictions and sentences.
STATEMENT OF FACTS
Because defendant pled guilty, the facts of his offenses were not developed at trial. The following facts are taken from the Boykin hearing. On April 19, 2008, defendant went to an apartment located on Jade Avenue in Baton Rouge that was the home of Jasmin Ennis, the mother of defendant's brother's child. When defendant arrived, he began to "have words" with Jasmin and threatened to slap her. During the confrontation, defendant had a firearm in his pocket that he did not attempt to conceal. The victim, Phillip Robinson, and his friend, Quinton Johnson, were also present at the apartment. When Johnson noticed defendant approaching and that he was armed, Johnson motioned to the victim that they should leave the scene. As the victim walked away, defendant shot him in the back eleven times. It was undisputed that the victim was mortally wounded.
A review of the record reflects that after jury selection, a plea agreement was struck between defendant and the State, which included agreed-upon pleas and sentences. The minutes taken on the day of the Boykin examination reflect that the trial court informed and obtained a waiver of all three of defendant's Boykin rights:
The accused was advised that the accused possessed certain constitutional rights that would be surrendered upon acceptance of a guilty plea, namely: the right to a trial by jury or by the Court, the right to confront and cross-examine the witnesses testifying on behalf of the State, the right to compulsory process, and the right against compulsory self-incrimination.
In response to examination by the Court, the accused indicated an understanding of these rights and waived said rights.
The transcript of the plea reflects the trial court failed to inform defendant of his right against compulsory self-incrimination and to obtain a valid waiver thereof. On appeal, defendant does not allege any prejudice that resulted due to the trial court's failure to inform him of this privilege and he does not challenge the length of his sentences on appeal.
In his sole assignment of error, defendant claims both of his convictions are constitutionally infirm because the trial court failed to advise him, or obtain a waiver, of his privilege against self-incrimination. As such, he asserts his convictions should be set aside.
In Boykin, the United States Supreme Court stated, "Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers." The Court went on to state, "We cannot presume a waiver of these three important federal rights from a silent record." Boykin, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712 (internal citations omitted). The Louisiana Supreme Court has specifically held that on direct review of a conviction resulting from a ...