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State v. Nabak12/30/2003
Defendant, Michael W. Nabak, appeals his conviction of driving while intoxicated, third offense, a violation of LSA-R.S. 14:98(D)(1). Michael Nabak pleaded guilty to the charge under State v. Crosby [FN1] and assigns as error the trial court's denial of his Motion to Quash, which alleged that the guilty pleas in his two predicate offenses were obtained without valid waivers of counsel, and thus, cannot be used to enhance the current charge. This appeal followed.
FN1. 338 So.2d 584 (La.1976).
ASSIGNMENT OF ERROR NUMBER ONE
On appeal, Michael Nabak contends that the trial judge erred in refusing to grant the Motion to Quash the Bill of Information. In particular, he alleges that the predicate guilty pleas were constitutionally infirm in that he was not represented by counsel, and the proof presented in support of the predicate guilty pleas was insufficient to establish that he made knowing waivers of his right to counsel. [FN2]
FN2. Additionally, Michael Nabak argued that during the Mississippi plea he was not informed of the possible consequences of a future conviction. This latter claim is not raised by this appeal.
The State replies that since the documents show that Michael Nabak was advised of and waived the right to counsel, the proof presented was sufficient to establish a knowing waiver of counsel, relieving the State of the necessity of producing the transcripts.
The predicate offenses listed in the Bill of Information were: (1) a guilty plea entered in Hancock, Mississippi, on November 17, 1998 in Docket No. 176-523, and (2) a guilty plea entered in Jefferson Parish in First Parish Court on June 28, 1999 in Docket No. F1217824.
Both predicate guilty pleas are the subject of Michael Nabak's Motion to Quash. The evidence offered by the State in support of the first predicate guilty plea consists of a single page, Mississippi Waiver of Rights form. The evidence offered by the State in support of the second predicate guilty plea consisted of certified copies of the Bill of Information, a minute entry reflecting the charges and disposition, and a Waiver of Rights form.
A presumption of regularity attaches to prior convictions in multiple-offender DWI cases and the burden is on the defendant to show the prior plea is constitutionally deficient. [FN3]
FN3. State v. Pickett, 99-532, p. 1 (La.App. 5 Cir. 10/26/99), 746 So.2d 185, 187, citing State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556.
The Louisiana Supreme Court, in State v. Carlos, 738 So.2d at 559, found that the burden shifting principles set forth in State v. Shelton, 621 So.2d 769 (La.1993) applied to the recidivist portion *761 of the DWI statute, LSA-R.S. 14:98. Thus, under Carlos, when a defendant collaterally attacks a prior DWI guilty plea by a Motion to Quash, the State bears the initial burden of submitting sufficient evidence of the existence of the prior guilty plea and that the plea was counseled. State v. Carlos, 738 So.2d at 559. If the State meets this burden, the defendant must then produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. State v. Carlos, supra. If the defendant is able to do this, then the burden shifts to the State to prove the constitutionality of the plea. State v. Carlos, supra. The State will meet this burden by producing a "perfect" transcript of the guilty plea colloquy. Anything less than a "perfect" transcript, such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant's Boykin rights were prejudiced. State v. Carlos, supra.
In support of its position that the predicate guilty pleas were constitutionally sound, the State prese
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