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State v. Lokey11/30/2004
This is defendant Paul Lokey's second appeal. Here, Lokey argues that the State failed to prove that he waived his right to a jury trial, and that the five-year home incarceration sentence was excessive. Because we find merit in his contention regarding waiver of a jury trial, we vacate the conviction and remand the matter for a new trial.
We initially considered the merits of this matter in the first appeal [FN1], and need not reiterate the underlying facts here. In that case, in an error patent review, this Court found that the record failed to reflect that Lokey waived his right to a jury trial. We conditionally affirmed Lokey's conviction and remanded the case for an evidentiary hearing on the question of whether Lokey validly waived his right to a jury trial and for further proceedings, if necessary.
On July 21, 2003, the trial court held an evidentiary hearing and found that there was a valid jury trial waiver. On that same date, the trial court resentenced Lokey to sixty days without benefit of parole, probation, or suspension of sentence, with the balance of the ten-year sentence which was originally imposed to remain in effect. The court also ordered Lokey to serve five years of home incarceration once he was released, to be followed by five years of active probation; to pay a fine of $5,000; and to comply with all the other conditions required under the statute. On October 21, 2003, the original commitment was amended to show that the balance of the ten-year sentence was suspended.
Lokey argues that the State failed to prove that he validly waived his right to trial by jury. La. R.S. 14:98(E) provides that conviction of a fourth offense DWI subjects a defendant to a sentence of between ten and thirty years at hard labor in prison. Under La.C.Cr. P. art. 782, Lokey was entitled to a 12-person jury trial.
During the evidentiary hearing, attorney Darryl Harrison testified that, in the course of representing Lokey, he discussed with him the benefits of choosing a judge (bench) trial. Mr. Harrison stated that he was concerned that Lokey's previous DWI convictions could prejudice the jury, and that he explained to Lokey at that time that DWI cases were very high profile cases of which the public would probably have a very bad perception.
Mr. Harrison informed Lokey that a judge would be more objective and listen strictly to the evidence. He recalled explaining the benefits of a bench trial to him on at least two occasions: the first time was shortly after Lokey was arraigned, and the second time was before the trial started. Mr. Harrison testified that Lokey indicated to him that he understood the benefits of a bench trial and that based on Lokey's understanding, Mr. Harrison chose the bench trial.
Mr. Harrison further testified that Lokey was in agreement with that course of action on the two occasions that he met with him. Mr. Harrison stated that he had been practicing law for approximately nineteen years. He testified that Lokey had engaged his services in May of 2001, that he had met with him approximately five to eight times, and that, in his opinion, Lokey knowingly and intelligently waived the jury trial.
*2 Lokey testified that Mr. Harrison represented him for the fourth offense DWI trial. He explained that he did not know what kind of trial he was going to have until they got to the courtroom, and that Mr. Harrison told him he was not going to put him on the stand because it might look bad. Lokey testified that it was Mr. Harrison's decision to waive the jury and proceed to trial with the judge. He claimed that Mr. Harrison did not discuss that option with him, and that Mr. Harrison just told him that "that's the way it was."
On cross-examination, Lokey testified that he and Mr. Harrison had discussed his cas
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