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State v. Hales

Court of Appeals of Louisiana, Fifth Circuit

November 16, 2018

STATE OF LOUISIANA
v.
TODD DAVID HALES IN RE TODD DAVID HALES

          APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE EDWARD J. GAIDRY, PRO TEMPORE, DIVISION ''B'', NUMBER 62, 852

          Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst

         WRIT GRANTED; GUILTY PLEA VACATED; RELATOR RELEASED ON OWN RECOGNIZANCE

         This application is before us on supervisory review and request for expedited consideration of a sentence imposed upon relator on November 5, 2018, by the Fortieth Judicial District Court. On October 23, 2018, relator was arrested and imprisoned for the violation of protective order(s) in accordance with LSA R.S. 14:79. On October 25, 2018, the duty judge made a preliminary determination of indigency and appointed a Public Defender.[1] A bill of information was filed on October 30, 2018. On November 5, 2018, relator pled guilty and was sentenced to imprisonment in the Parish Jail for six months and ordered to pay a fine of one hundred and fifty dollars ($150) plus court cost of one hundred and sixty-nine dollars ($169).

         We direct the trial court's attention to holdings by both the United States and Louisiana Supreme Courts which have found that an indigent person may not be incarcerated simply because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221(1983); State v. Monson, 576 So.2d 517 (La. 1991). State v. Cox, 2002-0333 (La.App. 5 Cir. 9/30/02); 829 So.2d 521, 524. Further, we take notice that the trial judge imposed an illegal, indeterminate sentence in that he failed to clarify whether the fines, fees, and court costs imposed by the court upon relator would still be owing after relator has served some or all of his sentence incarcerated.

         On November 9, 2018, relator filed a Motion to Reconsider Sentence which has been set for hearing on December 3, 2018 and a Notice of Intent to Apply for Writ to Review of the November 5, 2018, decision of the trial court. Relator argues that the trial court erred by sentencing an indigent defendant unable to post bond to additional incarceration in lieu of payment of fine and court costs; in denying the requested Stay of Incarceration and request for release pending appellate review; and by imposing the statutory maximum jail time and creating uncertainty as to whether the fines, fees, and court costs would still be owing at the conclusion of the term of incarceration. Relator seeks reconsideration of the November 5, 2018 sentence by the trial court, a stay of incarceration, and release pending review.

         For the following reasons, we grant the relator's writ, vacate his guilty plea, and order that relator be released on his own recognizance pending trial or guilty plea.

         Lack of Boykin Colloquy

         A guilty plea is constitutionally infirm if it is not entered into freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. For a guilty plea to be valid, there must be a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

         Based upon the transcript of the November 5, 2018, guilty plea and proceeding provided to this Court, no Boykin colloquy occurred between the trial judge and relator before the relator pled guilty. The transcript indicates that the following exchange occurred prior to the relator's guilty plea:

MR. JASMINE: Next, Your Honor, we have State of Louisiana versus Todd David Hales docket number 2018-MM-62852.
MS. LEE: Iriane Lee, Public Defender Office representing Mr. Todd Hales who's present in court and coming in shortly.
THE COURT: He's on his way.
MS. LEE: Yes.
THE COURT: Okay. Mr. Hales, you're here for an arraignment to plead guilty or not guilty. You're charged with violation of protective order. We're going to read ...

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