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State v. Frisella2/23/2004
stated by the trial judge as well as the right to counsel and appointed counsel if indigent. Further, the record of the predicate offense reflected that the defendant had been informed of his right to counsel at arraignment, and the signed waiver of rights form acknowledged his right to ask questions. Based on these factors, this Court concluded that defendant validly waived his right to counsel, despite the trial judge not inquiring into the defendant's background or education or verbally advising defendant of his right to counsel.
In the instant case, the "Waiver of Rights" form signed by defendant indicates he was advised of his right to counsel. However, an examination of the 1995 guilty plea colloquy fails to clearly indicate that defendant was verbally advised of that right. Furthermore, unlike the situation in Theriot, there is no indication in the record that defendant was afforded the opportunity to ask questions, that he met with the district attorney concerning the 1995 guilty plea, or that the plea agreement was to defendant's benefit. Additionally, neither the "Waiver of Rights" signed by defendant nor the guilty plea colloquy reflects that defendant was specifically advised of his right to appointed counsel if he was indigent as required by the constitution and LSA-C.Cr.P. art. 514.
Since the documents introduced concerning defendant's 1995 guilty plea fail to show that defendant was advised of his right to court appointed counsel as mandated by LSA-C.Cr.P. art. 514, we fail to find that defendant's waiver of counsel was intelligently and knowingly made. See, State v. Vezina, 391 So.2d 450, 452 (La. 1980); State ex rel. Bishop v. Blackburn, 384 So.2d 406, 408 (La. 1980). Furthermore, the record fails to contain any evidence in the record from which the trial court could have determined defendant knowingly and intelligently waived his right to counsel. See, State v. Granier, 03-447 (La.App. 5 Cir. 9/30/03), 857 So.2d 1176, 1182; State v. Deroche, 96-1376 (La. 11/8/96), 682 So.2d 1251.
Accordingly, we conclude that the trial court erred in failing to grant defendant's Motion to Quash the 1995 predicate guilty plea in this case.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Although errors patent were found regarding the sentence, our disposition of this appeal renders this discussion moot.
CONCLUSION
Accordingly, the ruling of the trial court denying Kirk Frisella's motion to quash as it applies to the 1995 predicate offense is hereby reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED
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