FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 17799-15 HONORABLE RONALD F. WARE, DISTRICT
Foster DeRosier District Attorney Fourteenth Judicial
District Carla S. Sigler Karen C. McLellan Elizabeth B.
Hollins Assistant District Attorneys COUNSEL FOR
STATE/APPELLEE: State of Louisiana
Hawkins Derrick Kee Hawkins Kee Law Group COUNSEL FOR
DEFENDANT/APPELLANT: Bishop Slade Dubroc
composed of John D. Saunders, Marc T. Amy, and Elizabeth A.
D. SAUNDERS JUDGE
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.
on July 10, 2015, Defendant was charged as a second habitual
offender in a separate docket number.  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.
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. 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.
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.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. '
following Statement of Facts is set forth in Defendant's
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.
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 find no errors patent.
OF ERROR NUMBER ONE:
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. For the reasons that will be discussed, we
find that this assignment lacks merit.
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).
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.
State v. McKeel, 13-855 (La.App. 3 Cir. 2/12/14),
153 So.3d 10290, 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. 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.
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.
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
State v. Boudreaux, 15-1945, pp. 1-2 (La. 1/6/16),
182 So.3d 940, 940 (emphasis added).
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.
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.
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.
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
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.
on the State's consent in the present case, no violation
of La.Code Crim.P. art. 780 occurred.
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, 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
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
foregoing reasons, this assignment of error lacks merit.
OF ERROR NUMBER TWO:
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.
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:
- - 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.
That's - - that's correct, Judge.
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
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
And what is the - - call up for the language. What are the
We enter a plea of not guilty to the charges, Your Honor, and
request trial by jury.
Jury. I have discussed the trial proceedings.
Yes. MR. SHELTON:
With Mr. Dubroc.