FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 6736-09 HONORABLE GUY BRADBERRY, DISTRICT
F. DeRosier 14th Judicial District Court District Attorney
Carla S. Sigler Elizabeth B. Hollins Assistant District
Attorney COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
J. Sullivan COUNSEL FOR DEFENDANT/APPELLANT: Timothy H. Queen
Timothy Hugh Queen Louisiana State Penitentiary Main Prison
Angola, LA PRO SE
composed of Sylvia R. Cooks, John D. Saunders, and Candyce G.
D. SAUNDERS, JUDGE
January 15, 2009, Defendant, Timothy H. Queen (hereinafter,
"Defendant") was charged by grand jury indictment
with one count of armed robbery, a violation of La.R.S.
14:64, one count of armed robbery with a firearm, a violation
of La.R.S. 14:64.3, one count of possession of a weapon by a
convicted felon, a violation of La.R.S. 14:95.1, and one
count of possession of a firearm in a firearm free zone, a
violation of La.R.S. 14:95.2. On January 16, 2009, Defendant
pled not guilty to the charges. On August 20, 2009, Defendant
filed several motions, including a Motion to Substitute
Counsel. According to the minutes, the trial court granted
Defendant's request to represent himself, in part, and
appointed co-counsel. On September 22, 2009, the State
severed the charges of possession of a weapon by a convicted
felon and possession of a firearm in a firearm-free zone.
September 22, 2009 hearing, Defendant withdrew his plea of
not guilty and tendered a plea of not guilty and not guilty
by reason of insanity. On November 4, 2009, the trial court
appointed a sanity commission to determine Defendant's
competency to proceed and stayed all proceedings. On April
14, 2010, the trial court found Defendant competent to
proceed and relieved the Public Defender's Office from
21, 2010, upon the State's motion, the trial court
amended the indictment to include the names of the victims to
counts one and two, to add predicate convictions on count
three, and to correct a spelling error in count four.
Defendant tendered a plea of not guilty and not guilty by
reason of insanity to the amended bill.
October 17, 2016, the day before trial, the trial court heard
a motion in which Defendant requested that he be represented
by counsel in entirety. The trial court granted the motion
after Defendant stated under oath that he wanted counsel to
represent him. On October 18, 2016, the State reiterated its
decision to sever certain charges from the bill and proceed
to trial on armed robbery and armed robbery with a firearm.
Upon the State's motion, the trial court ordered counts
one and two of the bill amended as to the names of the
victims. Defendant was re-arraigned on the amended bill and
maintained his previous plea of not guilty and not guilty by
reason of insanity.
trial held October 18, 2016, and October 19, 2016, a
unanimous jury found Defendant guilty as charged of armed
robbery and armed robbery with a firearm. Subsequently, on
December 14, 2016, the trial court denied Defendant's
motion for new trial. After Defendant waived the twenty-four
hour delay for sentencing, the trial court sentenced
Defendant on the armed robbery conviction to seventy-five
years in the Department of Corrections to be served without
benefit of probation, parole, or suspension of sentence and
on the armed robbery with a firearm conviction to five years
to be served without benefit of probation, parole, or
suspension of sentence. The trial court ordered the armed
robbery with a firearm sentence to run consecutively to the
sentence imposed for armed robbery. The State also gave
notice of its intent to file a habitual offender bill.
January 3, 2017, Defendant filed a Motion and Order for
Appeal, which was granted that same date. Defendant's is
now before this court, in brief alleging three assignments of
November 19, 2008, Defendant went into Thrifty Way Pharmacy
in Lake Charles, Louisiana, armed with a firearm, and
demanded the pharmacist give him certain pills. Defendant was
apprehended shortly after the robbery and identified by the
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed by this court for errors patent on the face of the
record. After reviewing the record, we find that there is one
potential error patent regarding Defendant's waiver of
his right to counsel and an error patent regarding the
advisement of the time period for filing post-conviction
possible error patent concerns Defendant's waiver of his
right to counsel. The record contains multiple minute entries
and hearings regarding Defendant's request to represent
himself. At most proceedings, Defendant was assisted by
co-counsel. Ultimately, Defendant was represented by counsel
in full at trial and at sentencing. Because several hearings
occurred with Defendant either representing himself or having
the assistance of co-counsel, we will address Defendant's
waiver of right to counsel.
conducting an error patent review of the waiver of the right
to counsel, this court has examined the adequacy of the
waiver. State v. Montgomery, 10-1151 (La.App. 3 Cir.
4/6/11) (unpublished opinion), writ denied, 11-1742
(La. 5/4/12), 88 So.3d 449, cert denied, __U.S.__,
134 S.Ct. 95 (2013). Thus, we will look beyond the court
minutes to determine whether a waiver was required and, if
necessary, whether the waiver was valid.
State v. Dupre, 500 So.2d 873, 876-78 (La.App. 1
Cir. 1986), writ denied, 505 So.2d 55 (La.1987)
(footnote omitted), the first circuit discussed a waiver of
right to counsel when standby counsel was also appointed:
The Sixth and Fourteenth Amendments of the United States
Constitution guarantee that a person brought to trial must be
afforded the right to assistance of counsel before he can be
validly convicted and punished by imprisonment. The Sixth
Amendment further grants to an accused the right of
self-representation. State v. Carpenter, 390 So.2d
1296 (La.1980). In Faretta v. California, 422 U.S.
806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States
Supreme Court raised to constitutional level the right of a
state criminal defendant to represent himself. Because an
accused managing his own defense "relinquishes . . .
many of the traditional benefits associated with the right to
counsel", he "must 'knowingly and
intelligently' forego those relinquished benefits"
in order to represent himself. Faretta, 95 S.Ct. at
Although a defendant does not have a constitutional right to
be both represented and representative, the district court
has the discretion to appoint an attorney to assist a pro se
defendant. See State v. Bodley, 394 So.2d 584
(La.1981); State v. Boettcher, 338 So.2d 1356
(La.1976). When the trial court allows this kind of
arrangement the defendant acts as his only legal
representative. The legal counsel that is appointed does not
represent the defendant; he only advises him. Because the
court appointed attorney is only acting as an advisor, the
accused is abandoning his right to be represented by counsel.
At the same time he is exercising his right to self-
representation. Therefore, when an attorney is appointed as
an advisor the accused must knowingly abandon his right to be
represented by counsel.
In this case, although co-counsel was appointed as an advisor
to Dupre, counsel spent a significant portion of the trial
representing Dupre. Taylor argued motions, made objections,
examined witnesses and assisted in closing arguments. The
fact that Taylor partially represented Dupre at trial raises
the initial issue of whether Dupre was thereby afforded all
the benefits of legal representation and whether this
representation abrogated the need for an adequate waiver of
We hold that it did not. Even though he has an attorney
partially representing him, when the accused assumes
functions that are at the core of the lawyer's
traditional role, as Dupre did, he will often undermine his
own defense. Because he has a constitutional right to have
his lawyer perform core functions, he must knowingly and
intelligently waive that right. See United States v.
Kimmel, 672 F.2d 720 (9th Cir.1982); Maynard v.
Meachum, 545 F.2d 273 (1st Cir.1976); State v.
Bell, 381 So.2d 393 (La.1980). This reasoning is "a
logical extension of the well-established rule that a waiver
is required despite the presence of a court-appointed
advisor." Kimmel, 672 F.2d 720, 721, [citing
United States v. Dujanovic, 486 F.2d 182 (9th
. . . .
In general, if a defendant desires to represent himself, he
should be required to waive counsel and proceed on his own.
If the trial court wishes to appoint an advisor, a waiver of
counsel is still required and problems will be avoided if the
advisor is restricted to advising and not allowed to
partially conduct the defense.
State v. Poche, 05-1042, pp. 8-9 (La.App. 3 Cir.
3/1/06), 924 So.2d 1225, 1231-32, this court explained, in
In State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir.
3/6/96), 670 So.2d 683, 685-86, this court stated:
Before being allowed to represent himself, a criminal
defendant must knowingly and intelligently waive his
constitutional right to counsel. State v. Mitchell,
580 So.2d 1006 (La.App. 3 Cir.1991), writ denied,
613 So.2d 969 (La.1993).
A criminal defendant is guaranteed the right to counsel by
both the state and federal constitutions. U.S. Const. amend.
VI; La. Const. art. I, § 13. Absent a knowing and
voluntary waiver of the right to counsel, no person may be
imprisoned unless represented by counsel at trial. State
v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing
Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006,
32 L.Ed.2d 530 (1972).
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. Mitchell, 580
So.2d 1006; Smith, 479 So.2d 1062; 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).
The correctness of granting a defendant the right to
represent himself is judged by the record made in recognizing
his right to do so, not by what happens in the course of his
self-representation. State v. Dupre, 500 So.2d 873
(La.App. 1 Cir.1986), writ denied, 505 So.2d 55
this jurisprudence in mind, we will determine the adequacy of
Defendant's waiver of his right to counsel in the present
case. On August 20, 2009, the trial court addressed
Defendant's "Motion to Substitute Counsel, "
which Defendant agreed was actually a request to represent
himself. Defendant argued that he was being forced to
represent himself because he could not get adequate
representation through the Public Defender's Office.
Defendant asserted that no attorney in the Public
Defender's Office could adequately represent his
interests. The trial court then questioned Defendant as to
his competency to represent himself. The following colloquy
took place between the trial court and Defendant:
Q. Give me your full name. What is your full name.[sic]
A. Timothy Hugh Queen.
Q. And your date of birth, Mr. Queen?
A. October 31st, 1966.
Q. October, 1966?
A. Yes, sir.
Q. So, you're 30 - - 43 years old?
A. 43 this year.
Q. You're 42 now, will be 43 this year?
A. Yes, sir.
Q. Okay. What kind of education background do you have, Mr.
A. I completed my GED in high school. I've got
approximately a year in college toward an associate applied
science in paralegal study.
Q. Okay. And you've been in a criminal court setting
before this time?
A. Yes, sir.
Q. How many times?
A. Several times in Texas.
Q. Have you gone through trials before?
A. Yes, sir.
Q. Have you ever represented yourself?
A. Yes, sir.
Q. In what case?
A. A couple in Texas.
Q. What were they?
A. One was a felony possession case, and the other one was -
- it was felony theft.
Q. Okay. What was the result of those verdicts?
A. The theft was dismissed, and the possession was dropped to
a Class A misdemeanor, time served.
Q. Did you go to trial on those cases?
A. I went to trial on the theft case; and before we went in
there to pick a jury, they dismissed it.
Q. And you were representing yourself, you didn't have -
A. Yes, sir.
Q. Did you have court-appointed counsel who was assisting
Q. Did you conduct any discovery in those proceedings?
A. Yes, sir.
Q. What kind of discovery did you conduct?
A. I just filed basic [sic] motion for discovery and - - you
know, typical in a criminal case; and they provided what
evidence they had.
Q. What did you do with that evidence or that information
that you got?
A. Basically - - well, I was originally able to get the theft
case reduced from a felony to a misdemeanor; and then when we
went to trial on the misdemeanor is when they finally
dismissed it because of evidence that I had obtained, you
know, concerning the value of the items they claimed were
stolen. And there was also an issue pertaining to the manner
that I came across the property and related to the theft
Q. You've been incarcerated before?
A. Yes, sir.
Q. Have you had an opportunity to review the laws of the
State of Louisiana?
A. Yes, sir.
Q. Are you familiar with the laws as it concerns armed
A. Yes, sir.
Q. In what respect? How are you familiar with that?
A. As I understand, sir, the charge of armed robbery carries
from 10 to 99 years.
Q. What are the requirements for the proof of the elements of
A. The elements would be that I had intention to deprive an
owner of property through threats or with a weapon.
Q. That's pretty close. Have you ever appeared in a court
proceeding like you are doing today representing yourself?
A. Yes, sir. Yes, sir, I have.
Q. In what case?
A. I don't have the cause [sic] number off the top of my
head, but there's the theft case. The possession - -
Q. I thought you told me they dropped it before - -
A. Yes, sir.
Q. -- you began?
Did you have an opportunity the [sic] ask anybody any
A. Not in that case, no, sir; but I did represent myself - -
there's one case I did forget about. It was a civil
matter, and it is a recorded decision where I represented
myself in Texas and it was concerning the relinquishment of
my parental rights in an adoption. And I did - -I did
question witnesses in that case. The matter, though, once the
case was - - proceeded to trial, I was actually represented
by counsel from - - what they call state counsel for the
offenders over in Texas that's supplied by the prison
system; and I participated as co-counsel there and questioned
witnesses. And the case eventually went to the Ninth Circuit
in Beaumont and I was granted full relief. The adoption was
overturned and my parental rights restored.
Q. Have you gotten from Mr. Alexander information about your
arrest and how the incident was reported and those kinds of
A. He filed discovery motions, yes, sir; and we obtained
And I don't think it's full discovery. I don't
think the state has disclosed everything that they had; but,
yes, we do - - we've obtained evidence.
Q. You've looked at it?
A. Yes, sir.
Q. Is everything that you're charged with come out of one
A. Yes, sir.
I will note for the record that you have in the past written
a couple of letters to the court concerning maybe a writ of
habeas that you asked for.
Yes, sir. That wasn't really intended for this court; but
this is where it ended up.
-- and you also wrote another letter to me - -
For the indictment and information.
-- asking for copies of indictments or maybe the bill of
Yes, sir; and also, I believe, I wrote you earlier this year
pertaining to not having seen any counsel for my first three
or four months here.
You wrote to me March the 2nd of '09. It was filed in the
record on March the 20th.
All right. I'm going to grant your request in part.
I'm going to allow you to represent yourself, together
with Mr. Alexander. He will serve as your co- counsel, and
y'all can decide your trial strategies as you go along.
You seem intelligent enough and able to make your point. So,
I think you've had sufficient experience and are
familiar, in some respects, but not totally familiar with all
of the laws of State of the Louisiana [sic]; but you, I
think, you can adequately represent yourself; so, I'm
going to grant your wish.
And appoint you as co-counsel with court-appointed counsel,
the public defenders office.
Although the trial court did not specifically advise
Defendant of the dangers and disadvantages of proceeding to
trial without counsel, considering the record as a whole, as
this court did in Poche, the trial court was aware
that Defendant was "literate, competent, and understood
the charges against him and the judicial process."
Poche, 924 So.2d at 1233. Furthermore, Defendant was
well aware of the judicial process and was assisted by
co-counsel at numerous proceedings. Thus, the record as a
whole supports a finding that Defendant adequately waived his
right to counsel during pre-trial proceedings.
that after the August 20, 2009 waiver, the subject of
Defendant's representation was revisited many times, most
of which were brought about by Defendant's request to
change his co-counsel and Defendant's request to have
Peart hearings regarding the adequacy of funding
available to the Public Defender's Office.
Defendant was found competent to proceed on April 14, 2010,
the trial court granted the Public Defender's
Office's "Motion to Be Relieved as Counsel of
Record" because Defendant had filed suit against the
Public Defender's Office. Defendant asked the court to
clarify that he was proceeding without the assistance of
co-counsel. At the next hearing held May 21, 2010, Defendant
did not have the assistance of co-counsel. At that
proceeding, the trial court again dealt with the issue of
Defendant's access to legal resources, which was reset
for July 21, 2010. The trial court also denied
Defendant's claim that his protection against double
jeopardy was being violated by being charged with both armed
robbery and armed robbery with a firearm. Additionally, the
trial court denied Defendant's motion to quash based on
lack of discovery and denied a motion for preliminary
May 21, 2010 proceeding, Defendant also filed a motion
concerning conflict of interest of co-counsel, which the
trial court denied since Defendant was representing himself.
Defendant argued that he had a right to build a record as to
why he was representing himself, but the trial court denied
Defendant's request. At that same proceeding, the State
amended the bill to change the victims and to add a predicate
offense to the charge of possession of a firearm by a
convicted felon. Defendant re-entered his same plea of not
guilty and not guilty by reason of insanity.
cover page of a hearing held July 21, 2010, indicates
Defendant again had co-counsel, but nothing in the transcript
of the hearing indicates co-counsel participated. On August
25, 2010, the trial court heard Defendant's motion to
vacate the order relieving the Public Defender's Office.
The State informed the trial court that it believed Defendant
needed to be represented and that an attorney not associated
with the Public Defender's Office should be appointed to
represent Defendant. Noting that Defendant was a named
plaintiff in a class action lawsuit against the Public
Defender's Office, the trial court refused to vacate its
earlier order relieving the Public Defender's Office from
representing Defendant. Instead, the trial court appointed
Eugene Bouquet, an independent contractor with the Public
Defender's Office, to represent Defendant. When Defendant
asked the trial court if Mr. Bouquet was representing him in
full or as co-counsel, the trial court responded:
I'm going to leave you as co-counsel, if you want to be.
If you don't want to be, then stop talking and stop
filing papers. If you want to be co-counsel, then you can
continue to do stuff. Okay? But it has to be signed by you
and Mr. Bouquet, co- counsel - -
Defendant informed the trial court that it was never his
intention to represent himself and that he did so only
because of the lack of competent counsel. The trial court
proceeded with Defendant's Motion to Recuse the District
Attorney, apparently without Mr. Bouquet. After Defendant
questioned a witness, the trial court denied the motion to
hearing held May 11, 2011, Defendant was assisted by
co-counsel Eugene Bouquet. The trial court denied a motion to
recuse the trial judge filed by Defendant. The trial court
decided that after the doctors reported on Defendant's
insanity at the time of the offense, it would decide whether
Defendant should represent himself in the entirety or have
co-counsel. At a hearing held August 17, 2011, the trial
court heard a bond reduction hearing with the presence of
co-counsel. A motion for the appointment of ad hoc counsel
was denied because Defendant had been allowed to represent
himself. At that same proceeding, the trial court heard a
Peart motion filed by Defendant, which was held in
abeyance until other witnesses could be called.
hearing held October 31, 2012, James Dixon of the Public
Defender's Office summarized Defendant's attorney
situation as follows:
MR. DIXON: James Dixon, Your Honor, from the Public
Defender's Office. Your Honor, I have been subpoenaed in
the matter of State V. Timothy Queen, Case No. 6736-09.
Your Honor, I have requested - - I submitted a handwritten
motion to quash the subpoena. The basis for Mr. Queen's
motion is essentially this: Initially, he was appointed
Eugene Bouquet to represent him from the Public
Defender's Office. And as you recall, he filed various
motions stating that Mr. Bouquet was overworked, had too many
cases. He had about 150 cases.
When we hired Donald Sauviac, we thought, "Well, we can
remedy that situation." We transferred the case to Mr.
Sauviac, who had fewer than 50 cases. And when Mr. Sauviac
left and his cases were transferred to Mike McHale, that case
went to Mike McHale. Mr. McHale also has fewer than 50 cases.
So Mr. Queen got exactly what he wanted for [sic], an
attorney with fewer cases.
He has now filed a motion asking that Mr. Bouquet be
reappointed and has subpoenaed me to testify in that hearing.
My point is this: At this point, it would seem that Mr.
Bouquet - - excuse me - - Mr. Queen is simply abusing the
trial court denied Defendant's motion to have Mike McHale
dismissed from the case and Eugene Bouquet reappointed. When
Mr. McHale asked the trial judge to clarify his role in
representing Defendant, the trial judge responded:
THE COURT: You would be considered, I guess, lead counsel.
MR. MCHALE: All right.
THE COURT: I'm not sure how else to describe it. I have
given Mr. Queen the opportunity to in part represent himself.
And Mr. Kimball has explained to him that one of his defenses
doesn't make a whole lot of sense, that he believes
himself capable enough to represent himself, yet he wants to
claim insanity at the time and the commission of the offense
as a defense. And that probably is not going to bode well
with the jury, but that's his business.
MR. MCHALE: Yes, sir.
THE COURT: Okay? So any motions that he files on his own, you
may give him some advice, but he is on his own on those
motions. Any motions that you file on your own - -
MR. MCHALE: Yes, sir.
THE COURT: - - you control the motions that you file, and he
controls the motions that he files. And he's not having
very much luck with his motions.
next hearing transcript in the record, September 27, 2013,
indicates Mr. King Alexander was back as counsel for
Defendant. In the body of the transcript, however, it appears
Mr. McHale terminated his contract with the Public
Defender's Office; thus, all of his files were being
assigned to Mr. Shelton. Mr. Shelton assisted Defendant at
another proceeding held January 15, 2014, at which Defendant
filed a motion to substitute counsel. According to the trial
judge's summary of the motion, Defendant was seeking to
substitute another counsel because Mr. Shelton had not helped
him and had not prepared. The trial court denied the motion
Shelton assisted Defendant at a hearing on a motion to recuse
the trial judge held June 27, 2014. At a subsequent
proceeding held October 6, 2014, Defendant appeared without
the assistance of co-counsel on a motion to declare La.Code
Crim.P. art. 782(a) and La.Const. Article I, § 17
unconstitutional. The trial court denied the motion. On
November 25, 2014, Defendant appeared with Mr. Shelton, again
filing a motion to substitute counsel. Defendant alleged that
Mr. Shelton had a conflict of interest between some of his
clients and Defendant. The trial court denied the motion to
substitute counsel. The following colloquy took place as to
Defendant's assistance from Mr. Shelton:
Mr. Queen actually desires to represent himself. I'm