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State v. Dubroc

Court of Appeals of Louisiana, Third Circuit

November 21, 2018

STATE OF LOUISIANA
v.
BISHOP SLADE DUBROC

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 26837-13 HONORABLE RONALD F. WARE, DISTRICT JUDGE

          John Foster DeRosier District Attorney Fourteenth Judicial District Carla S. Sigler Karen C. McLellan Elizabeth B. Hollins COUNSEL FOR STATE/APPELLEE: State of Louisiana

          Brent Hawkins Derrick Kee Hawkins Kee Law Group COUNSEL FOR DEFENDANT/APPELLANT: Bishop Slade Dubroc

          Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.

          JOHN D. SAUNDERS JUDGE.

         On December 19, 2013, Defendant, Bishop Slade Dubroc, and a co-defendant were charged by grand jury indictment with two counts of attempted second degree murder, violations of La.R.S. 14:27 and 14:30.1. The indictment was amended on April 14, 2015, to charge Defendant with a third count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1; and a fourth count of distribution of marijuana, a violation of La.R.S. 40:966(A)(1). On that same date, Defendant waived his right to a jury trial. On June 3, 2015, after a two-day bench trial, the trial judge found Defendant guilty of all counts.

         Subsequently, on July 10, 2015, Defendant was charged as a second habitual offender in a separate docket number. [1] On August 24, 2015, the trial court accepted Defendant's admission to his status as a second habitual offender on his two convictions for attempted second degree murder and his one conviction for distribution of marijuana. The trial court sentenced Defendant as follows:

Attempted second degree murder - second habitual offender (two counts) - thirty-five years in DOC on each count.
Distribution of marijuana - second habitual offender - fifteen years in DOC.

         Possession of a weapon by a convicted felon - ten years in DOC. The trial court ordered all sentences to run concurrently. The trial court also found Defendant violated his probation in a separate docket number and ordered that sentence to run consecutively to the sentences above.[2] On August 31, 2015, Defendant filed a pro se Motion to Reconsider Sentence in the docket number for the underlying convictions. Defendant filed another pro se Motion to Reconsider Sentence on September 22, 2015. Without specifying which of the two motions to reconsider sentence it was denying, the trial court denied the motion by written order on January 5, 2016.

         Thereafter, a Motion and Order for Out of Time Appeal was filed on November 17, 2016. The trial court granted the out-of-time appeal that same date.[3]Now before the court is a brief filed by Defendant alleging four assignments of error, two of which involve Defendant's waiver of his right to jury trial and the other two involve Defendant's adjudication as a second habitual offender.

         FACTS:

         The following Statement of Facts is set forth in Defendant's brief:

At Mr. Dubroc's bench trial, the judge concluded that on November 3, 2013, Mr. Dubroc traveled in a vehicle to St. Charles apartments located at 101118th Street Lake Charles, Louisiana to sell marijuana. It was at this location Mr. Dubroc was alleged to have committed the subject offenses, purportedly discharging a weapon striking two persons. It is from this verdict of guilt, and subsequent sentencing, that Mr. Dubroc appeals.

         ERRORS PATENT:

         In 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 recognize one error patent. However, it involves Defendant's waiver of his right to jury trial. Since the validity of Defendant's jury-trial waiver has been assigned as error, we will discuss the waiver as an assigned error rather than an error patent.

         ASSIGNMENT OF ERROR NUMBER ONE:

         Defendant asserts the trial court violated his right to a jury trial by failing to require a written motion forty-five days prior to trial pursuant to La.Const. art. I, § 17 and La.Code Crim.P. art. 780.[4] For the reasons that will be discussed, we find that this assignment lacks merit.

         Defendant was entitled to a jury trial in this case. See La.R.S. 14:30.1 and La.Code Crim.P. art. 782. Both the Louisiana Constitution and the Code of Criminal Procedure provide for the waiver of this right in certain circumstances. La.Const. Art. I, § 17 and La.Code Crim. P. art. 780. In 2010, the Louisiana Constitution was amended to require the waiver be made no later than forty-five days prior to the trial date:

Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.

La.Const. art. I, § 17(A) (in pertinent part).

         In State v. Bazile, 12-2243, p. 20 (La. 5/7/13), 144 So.3d 719, 735, the supreme court interpreted "trial date" in La.Const. art. I, § 17 to mean the initial trial setting. In the present case, the initial trial setting was June 9, 2014. The trial date was refixed several times. On April 14, 2015, the State amended the grand jury indictment to charge two additional crimes, and Defendant entered a plea of not guilty to the new charges. Defendant also waived his right to a jury trial at the April 14, 2015 hearing. Since Defendant's waiver of his right to jury trial was entered after the initial trial fixing, Defendant's waiver was not timely under the provisions of La.Const. art. 1, § 17. However, in light of the cases discussed below, the violation of La.Const. art. I, § 17 is harmless and waived by Defendant's failure to object.

         In State v. McKeel, 13-855 (La.App. 3 Cir. 2/12/14), 153 So.3d 1029, this court found the error in allowing the defendant to waive his jury trial in violation of the time period set forth in La.Const. art. I, § 17 was harmless where the defendant requested a waiver of his right to jury trial and did not object to the granting of the waiver. This court additionally noted the defendant did not assign as error or argue the jury waiver issue on appeal.[5] Like in McKeel, the present Defendant did not object when the trial court granted his untimely waiver. The present Defendant does, however, assign the untimely waiver as an assignment of error on appeal. Despite the fact that Defendant has assigned the untimeliness as an error on appeal, the jurisprudence discussed below supports a finding that the error is harmless and waived by Defendant's lack of objection in the trial court.

         In State v. McKnight, 16-310, p. 14 (La.App. 1 Cir. 9/16/16) (unpublished opinion), writ denied, 16-1769 (La. 6/16/17), 219 So.3d 340, the first circuit stated the following regarding a defendant's relinquishment of his right to challenge his untimely jury trial waiver:

As noted by the trial court, pursuant to both La. Const. art. I, § 17A and La. C.Cr.P. art. 780D, the waiver of a trial by jury is irrevocable and cannot be withdrawn by the defendant. Even if the defendant's exercise of this right might have been untimely under Article I, Section 17A and Article 780D (the defendant's waiver was not made more than forty-five days before the trial date), any such error is not structural in nature and was waived when the defendant elected to be tried before the trial judge in a bench trial. Once the trial court accepted the defendant's untimely waiver with no objection by the State, that waiver became irrevocable by operation of the amendments to Article I, Section 17A and Article 780. To allow the defendant to knowingly and intelligently waive his right to trial by jury and then to reverse the defendant's convictions and sentences on appeal because of an untimely waiver, would be to allow the defendant to seek a favorable outcome from the judge and then to resort on appeal to an error that he instigated in the trial court. Such an outcome would not be in the interests of justice. See State v. Boudreaux, 2015-1945 (La. 1/6/16), 182 So.3d 940 (Crichton, J., concurring); State v. T.T., 2012-0146 (La.App. 1st Cir. 9/21/12), 111 So.3d 71, 75.

         In one of the cases cited by McKnight, Justice Crichton assigned the following reasons in his concurrence in the supreme court's writ denial:

I write separately to note that although the state finely parses La.C.Cr.P. art. 841, which provides (emphasis added) "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence", to argue that no contemporaneous objection is necessary to preserve a claim for review on a pre-verdict supervisory writ, such an argument runs afoul of principles of judicial economy. See generally State v. Herrod, 412 So.2d 564, 566 (La.1982) ("Our law requires that defendant make a contemporaneous objection and state the reason therefor to allow the trial judge the opportunity to rule on it and prevent or cure error."). Moreover, the language of the amended constitutional provision itself declares that "the waiver shall be irrevocable." Thus, once the district court accepted the defendant's untimely jury waiver with no objection by the state, and thus no opportunity to cure the error, that waiver became irrevocable by operation of the 2010 amendment. It would be unwise for this court to impair the ability of both the State and defendant to agree on a trial date less than 45 days before trial, as this would lead to inefficient use of judicial resources for the reasons discussed at length in the concurrence in State v. Chinn, 11-2043, pp. 1-2 (La.2/10/12), 92 So.3d 324, 332- 33 (Kimball, C.J., concurring), whose views on this question appear to have prevailed in State v. Simmons, 11-2130 (La.10/11/11), 74 So.3d 711 (per curiam), noting that "[a]lthough the Defendant did not make a jury waiver 'no later than 45 days prior to trial,' the State did not object and the case proceeded to trial." For the above reasons, I concur in the denial of this writ application.

State v. Boudreaux, 15-1945, pp. 1-2 (La. 1/6/16), 182 So.3d 940, 940 (emphasis added).

         In State v. Simmons, 11-2130 (La. 10/11/11), 74 So.3d 711, 711, the supreme court stated the following:

Granted. Although the Defendant did not make a jury waiver "no later than 45 days prior to trial," the State did not object and the case proceeded to trial, ending in a mistrial. The ruling of the trial court allowing the Defendant to revoke his irrevocable waiver of a jury trial is therefore reversed, and the case is remanded to the trial court for a bench trial.

         Considering the cases cited above, Defendant's waiver of his right to jury trial, although untimely under La.Const. art. I, § 17, became irrevocable once it was accepted by the trial court. The waiver was made by Defendant without objection by either Defendant or the State. Any error based on the untimeliness, therefore, is harmless and waived.

         Although Defendant asserts his untimely waiver also violated La.Code Crim.P. art. 780, this assertion has no merit. Louisiana Code of Criminal Procedure Article 780 states:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.
B. The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel.
C. With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.
D. A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.

         In the present case, there is no indication the State objected to Defendant's waiver of his right to jury trial on April 14, 2015. In State v. Jones, 14-172, p. 2 (La.App. 3 Cir. 10/1/14) (unpublished opinion)(emphasis added), this court found that the State's lack of objection constituted "consent" to the untimely jury trial waiver:

La.Code Crim.P. art. 780(C) allows a waiver within forty-five days prior to the commencement of trial with the consent of the district attorney. As previously mentioned, Defendant waived his right to a jury trial on September 16, 2013. Court minutes indicate Defendant was present in open court with his attorney when his right to a trial by jury was discussed and waived. There is no indication that the State objected to the waiver. For those reasons, we conclude that no violation of La.Code Crim.P. art. 780 occurred.

         Based on the State's consent in the present case, no violation of La.Code Crim.P. art. 780 occurred.

         Defendant additionally asserts that the record contains no written waiver of jury trial as required by La.Code Crim.P. art. 780. However, the court minutes and transcript reflect that defense counsel advised the court in Defendant's presence and that Defendant elected to be tried by a judge alone. The minutes further indicate the trial court questioned Defendant, and Defendant waived a jury trial as to all charges.

         In State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, this court held that the absence of a written waiver of jury trial as required by La.Code Crim.P. art. 780 was harmless error where the defendant and his counsel were in open court when the judge addressed the defendant's right to a jury trial and his waiver thereof. Accordingly, the error in failing to obtain a written waiver in violation of La.Code Crim.P. art. 780 is harmless under the facts of this case.

         For the foregoing reasons, this assignment of error lacks merit.

         ASSIGNMENT OF ERROR NUMBER TWO:

         Defendant contends the trial court violated his constitutional right to a jury trial by failing to ensure Defendant knowingly and intelligently waived his right to a jury trial. Defendant claims the colloquy between the trial judge and Defendant concerning Defendant's waiver of his right to a jury trial shows the trial judge failed to advise Defendant of "the choice confronting him, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by the judge." The State responds that the trial court's colloquy was sufficient, that Defendant has waived his right to challenge the waiver by failing to object, and that any error is harmless in light of the evidence against Defendant.

         At a hearing held April 14, 2015, the State amended the grand jury indictment against Defendant to charge two additional charges - possession of a firearm by a convicted felon and distribution of marijuana. The trial judge and Defendant engaged in the following colloquy:

THE COURT: - - right. Okay.
Mr. Dubroc, I need to talk with you too. Sir, there's been extensive negotiations about these charges that you're scheduled for trial this week on, they're very serious charges. And, sir, you are on probation for a robbery and now you're charged with shooting up the neighborhood and hitting two people. Two counts of attempted murder, that's the charge. Your attorney and I and the State's counsel has - -we've been talking about it. I think there's a firearm enhancement filed.
MR. HOLMES: That's - - that's correct, Judge.
THE COURT: Which means that if you're convicted of even one of the attempted murders the minimum sentence is 15. An offer has been tendered to you which is a - - I will tell you is a reasonable offer. And it's up to you, sir, if you don't want to accept the offer, that is fine and there's no offense taken, there's no harm done. I just want this on the record. If that's what you - - if you want to take what's been offered today the cases are resolved. If you do not there's either two ways to take care of the case, guilty plea or no - - well, three ways, I guess, guilty plea, no contest plea, or a trial. Now, if we go to the trial route the State is not going to amend the bill to one count of attempted murder. It's going to be two counts of attempted murder. That changes the plea offer or the sentencing recommendations or my considerations quite a bit. With these new changes, if you're convicted on either one of those, that changes everything. If a habitual offender bill is filed and you're found to be a second or a third or a fourth habitual offender with these types of offenses it's lights out. Do you understand what I'm saying?
MR. DUBROC: Yes, sir.
THE COURT: Okay. Now I want you to make a decision. If you want some time to think about it, that's fine. And, sir, I am not trying to twist your arm and make you plead guilty. I don't know what the facts are going to show if we go to trial. But the exposure is so great that you really need to think about it and I'm not - - I'm going to stop because I don't want it to be interpreted or seem I'm telling you to plead guilty because I am not. We will try the cases one at a time if we have to. We will do what we need to do. But you have some input and some control over what happens and I just want you to make a well reasoned decision on how you want to handle these cases. So, any questions? Okay. Mr. Shelton, I'm going to appoint you on the new charges.
MR. SHELTON: Yes, sir.
THE COURT: And what is the - - call up for the language. What are the pleas?
MR. SHELTON: We enter a plea of not guilty to the charges, Your Honor, and request trial by jury.
THE COURT: Trial by?
MR. SHELTON: Jury. I have discussed the trial proceedings.
THE COURT: Yes.
MR. SHELTON: With Mr. Dubroc.
THE COURT: Right.
MR. SHELTON: And at this time he has indicated that he would prefer a bench trial. I'm also going to ask him that right now.
THE COURT: Okay. On the charges that are pending - - on all charges?
MR. SHELTON: On all charges.
THE COURT: Okay.
MR. SHELTON: Am I correct?
MR. DUBROC: (No verbal response.)
MR. SHELTON: So I would the [sic] record to reflect we enter a plea of not guilty and we request a bench trial.
THE COURT: Okay. Mr. Holmes, did you call up the attempted murders?
MR. HOLMES: I did, Judge. That was 26837-13, two counts of attempted murder, Judge.
THE COURT: Okay. Now, Mr. Dubroc, what is the plea on the new charges?
MR. SHELTON: The plea on the new charges is ...

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