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State v. Deville5/14/2004
nted by counsel when the plea was entered. After this burden is met by the state, the burden then shifts to defendant, if he desires to collaterally attack prior convictions. To prevail in such an attack, the defendant must "produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea." State v. Carlos, 98-1366 at pp. 6-7, 738 So.2d at 559.
In State v. Zachary, the Louisiana Supreme Court held that a transcript from a Florida nolo contendere plea was sufficient for the state to meet its burden and invoke the enhanced sentencing provisions of the Louisiana habitual offender statute, La. R.S. 15:529.1. State v. Zachary, 01-3191 at p. 1, 829 So.2d at 406. We note Zachary did not involve the use of a prior uncounseled plea to enhance sentencing under the DWI statute. Despite the absence of a prior uncounseled plea being used to enhance sentencing, the Zachary court stated the following, "Under the court's present jurisprudence, to use a prior guilty plea to enhance punishment under La. R.S. 15:529.1, the State need prove only the fact of conviction and that the defendant was represented by counsel (or waived counsel) at the time he entered his plea. Thereafter, the defendant bears the burden of proving a significant procedural defect in the proceedings." Zachary, 01-3191 at p.3, 829 So.2d at 407. (Emphasis added.)
The State argues that such language extended the Carlos and Shelton rationale to cases where uncounseled pleas are used for enhancement purposes under the DWI statute. We disagree. First, despite the argument that prior uncounseled pleas could be used to enhance sentencing under the habitual offender law, Zachary did not address the use of uncounseled pleas as predicates under the recidivist portions of the DWI statute. We note in Zachary, there was evidence presented in the form of a "less than perfect" transcript of defendant's prior plea and a no contest plea form that adequately informed the defendant of her rights in entering the no contest plea that was ultimately used as a sentencing enhancement. Moreover, there is a long line of jurisprudence in this circuit that states an uncounseled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent waiver of counsel. State v. Lawrence, 600 So.2d 1341, 1342-43 (La.App. 1st Cir.1991) (and authority cited therein).
In the present case, the evidence introduced by the state included a "Waiver of Rights to an Attorney" form signed by defendant and the judge. The form indicates defendant has the right to be represented by an attorney, whether he chooses to hire his own, or if financially unable to hire his own attorney, that one would be appointed for him. The form indicates defendant read the statement of rights and understood what those rights were. However, merely informing defendants of the right to be represented by an attorney does not satisfy the burden on the state to prove the right was knowingly and intelligently waived. When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial court should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The court should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity, and seriousness of the charge. State v. Marcoux, 96-0453, pp. 2-3 (La.App. 1st Cir.3/27/97), 691 So.2d 775, 777.Under the evidence presented there is no showing that defendant waived his right in a knowing and i
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