FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF
ALLEN, NO. CR-2015-1500 HONORABLE JOEL GERARD DAVIS, DISTRICT
Herbert Todd Nesom District Attorney Joe Green, Assistant
District Attorney Thirty-Third Judicial District Court P. O.
COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
M. Ikerd COUNSEL FOR DEFENDANT/APPELLANT: John Colby Manuel
Colby Manuel Pro-Se Defendant.
composed of Sylvia R. Cooks, Billy Howard Ezell, and John E.
HOWARD EZELL JUDGE.
April 23, 2015, the State filed a bill of information
charging Defendant, John Colby Manuel, with two counts of
possession of a firearm by a convicted felon, violations of
La.R.S. 14:95.1; two counts of possession of controlled
dangerous substances, violations of La.R.S. 40:966 and
La.R.S. 40:967; and first-offense possession of drug
paraphernalia, a violation of La.R.S. 40:1023 and La.R.S.
40:1025. On February 15, 2017, a jury heard evidence and
convicted Defendant of the two charges for possession of a
firearm. The jury acquitted him of the third charge, which
related to methamphetamine. The other two counts were
misdemeanors; they were not tried with the three felony
23, 2017, the district court denied Defendant's motion
for new trial, then sentenced him to ten years at hard labor
for each conviction for possession of a firearm; said
sentences to run concurrently.
has filed a brief seeking to withdraw pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
Counsel alleges there are no non-frivolous issues to raise on
appeal. Our analysis indicates the motion to withdraw should
February 22, 2015, Sergeant Steven Clement of the Oberlin
Police Department responded to 911 calls regarding shots
fired in a residential area. In the course of his
investigation, Sergeant Clement spoke to Defendant, who was
an area resident. Defendant denied shooting a gun recently
but admitted to firing one earlier in the day. He revealed
that he was wearing a holstered pistol and that he had
another weapon in his truck. Upon Sergeant Clement's
instruction, Defendant put both pistols in the officer's
possession. Sergeant Clement wrote him a citation for
discharging a weapon within the city limits and returned the
Sergeant Clement determined that Defendant was a convicted
felon, prepared a search warrant, and executed it. The
search, conducted on February 26, led to the seizure of two
firearms: one was in the house and the other was seized from
Defendant's girlfriend who pulled up while the search was
taking place; the pistol was in her purse.
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. After
reviewing the record, we find two errors patent and one
possible error patent which will be discussed first.
there is a possible error patent concerning Defendant's
waiver of his right to counsel. Recently, in State v.
Queen, 17-599, 2018 WL 1044848, at *2-4, pp. 3-6
(La.App. 3 Cir. 1/ 4/18), __So.3d__, __(alterations in
original), this court addressed this issue on error patent
In 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.
In 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.
In 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
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
Queen, the questioning of the defendant prior to the
waiver of his right to counsel established the following: he
was forty-two with one year of college education in paralegal
studies; he had been involved in prior criminal proceedings
in Texas, and in one proceeding, he had represented himself
up to the point of jury selection; he had been successful in
having a theft charge reduced from a felony to a misdemeanor;
he represented himself in a civil matter; he was familiar
with the laws and penalty concerning the charge he faced; he
had reviewed the evidence provided by the State as a result
of discovery motions filed by his attorney; and he had
written letters to the court concerning a writ of habeas
corpus and requesting copies of his charging instrument.
court allowed his request in part by allowing him to
represent himself with co-counsel appointed to assist. This
court found that although the trial court did not
specifically advise the defendant of the dangers and
disadvantages of self-representation, considering the record
as a whole as in Poche, 924 So.2d 1225, this court
found that the right to counsel was adequately waived during
pre-trial proceedings considering the trial court was aware
that the defendant was "literate, competent, and
understood the charges against him and the judicial
process." Queen, __So.3d at __(quoting
Poche, 924 So.2d at 1233). Additionally, this court
noted that the defendant was assisted by co-counsel at
numerous proceedings and it discussed those proceedings which
occurred after the August 20, 2009 waiver before reaching the
conclusion that the defendant was aware of the judicial
process and that his choice to represent himself was part of
a strategy. Thus, this court concluded the waiver was
Poche, the issue of self-representation was raised
by the defendant on appeal. This court found that the trial
court's interview of the defendant regarding
self-representation did not meet the Hayes
requirements necessary to determine whether the
defendant's waiver was valid because the court did not
make an express determination regarding his literacy,
competency, or understanding; it did not determine whether
his waiver was intelligently made; and it failed to inform
him of the dangers and disadvantages of self-representation.
However, based on the record as a whole, this court found the
trial court's determination was not error. It noted that
the defendant had filed numerous pre-trial pro se briefs with
the trial court, some of which he argued himself at hearings
on the motions. The defendant was also made aware of the
elements of each crime at arraignment, which was prior to his
request to represent himself. Thus, this court found that at
the time of the waiver, the trial court was aware that the
defendant was literate, competent, and understood the charges
against him and the judicial process. Thus, to satisfy the
first step of the Hayes test, all that was left was
for the trial court to determine the defendant's
volition, which it had done. This court had to only determine
whether the defendant was made aware of the dangers and
disadvantages of self-representation. In concluding that
defendant was aware of the dangers and disadvantages of
self-representation, this court stated:
In 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, the fifth circuit concluded that the record
should be examined for indications that a defendant was aware
of the dangers and disadvantages of self-representation,
noting that prior extensive experience with the judicial
process and the criminal justice system, such as experience
obtained through prior felony convictions, indicates that a
defendant is aware of the dangers and disadvantages of
At the sentencing hearing, the trial court discussed
Defendant's prior extensive experience with the judicial
process. Defendant is a fifth felony offender with a record
dating back to December 27, 1983. In addition to the
felonies, he has been convicted of six misdemeanor charges
and has pled guilty to reduced charges on at least one
occasion as a result of a plea bargain. Based on his prior
extensive experience with the criminal justice system, we
find that Defendant was aware of the dangers and
disadvantages of self-representation. This assignment of
error is without merit.
Poche, 924 So.2d at 1233-34.
present case, counsel represented Defendant throughout his
trial, but at his April 28, 2017 hearing on post-trial
motions, Defendant indicated he wished to waive his right to
counsel. No examination was conducted regarding the waiver.
Defendant subsequently represented himself at the May 23,
2017 hearing on his motion for new trial and sentencing.
These two matters were combined in a single proceeding.
Because sentencing is a critical stage of the proceedings, it
is unnecessary to determine whether a hearing on a pro se
motion for new trial is such a proceeding. State v.
Carpenter, 390 So.2d 1296 (La.1980). At the start of the
hearing, defense counsel informed the court that his client
wished to represent himself, but she would be present
"to make sure he (Defendant) underst[ood] his
constitutional rights and on that motion he will be making
the argument." The following colloquy ensued between the
judge and Defendant:
What grade in school did you finish?
MR. MANUEL: GED.
GED, you want to argue your motion for new trial rather than
have Ms. Guillory argue your motion?
Well, I had re-filed it this morning to put - - all the
grounds on it.
You re-filed it when?
It probably went out Friday so if I can get it ...