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State v. Manuel

Court of Appeals of Louisiana, Third Circuit

May 2, 2018

STATE OF LOUISIANA
v.
JOHN COLBY MANUEL

          APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. CR-2015-1500 HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE.

          Herbert Todd Nesom District Attorney Joe Green, Assistant District Attorney Thirty-Third Judicial District Court P. O. COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

          Chad M. Ikerd COUNSEL FOR DEFENDANT/APPELLANT: John Colby Manuel

          John Colby Manuel Pro-Se Defendant.

          Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery, Judges.

          BILLY HOWARD EZELL JUDGE.

         On 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 charges.

         On May 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.

         Counsel 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 be granted.

         FACTS

         On 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 weapons.

         Subsequently, 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.

         ERRORS PATENT

         In 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.

         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 review:

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 2541.
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 counsel.
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 Cir.1973) ].
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 pertinent part:

         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 (La.1987).

         In 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.

         The 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 adequate.

         In 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 self-representation.
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.

         In the 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:

THE COURT:
What grade in school did you finish?
MR. MANUEL: GED.
THE COURT:
GED, you want to argue your motion for new trial rather than have Ms. Guillory argue your motion?
MR. MANUEL:
Well, I had re-filed it this morning to put - - all the grounds on it.
THE COURT:
You re-filed it when?
MR. MANUEL:
It probably went out Friday so if I can get it ...

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