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State v. Spears

Court of Appeals of Louisiana, Fifth Circuit

November 16, 2018

STATE OF LOUISIANA
v.
EDWON SPEARS IN RE EDWON SPEARS

          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, 823

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

         WRIT GRANTED; GUILTY PLEA VACATED

         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 14, 2018, relator was arrested and imprisoned for simple assault in violation of LSA R.S. 14:38 with bail set at $750. Relator was also held on a detainer from the Kenner Police Department. On October 15, 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 ninety days and ordered to pay a fine and court cost totaling $269.00.[2]

         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 to 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 maximum jail time. 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 relator's writ application and vacate his guilty plea and sentence.

         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. JASMIN: Your Honor, we're going to briefly skip Mr. Shane Scallan. And we're going to move on to Edwon Spears, docket number 2018-MM-62823.
THE COURT: Ms. Lee, you're going to stand in for Mr. Ortiz?
MS. LEE: Yes, sir, I'll stand in for him, Your Honor.
THE COURT: Okay. Mr. Thomas, you're here, no, it's Mr. Spears. Excuse me. Mr. Spears, you're here for an arraignment to plead guilty or not guilty to the charge of simple assault. We're going to ...

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