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State v. Deville5/14/2004
ntelligent manner. Accordingly, we cannot say the trial court's decision to quash the bill of information was erroneous. This assignment of error is without merit.
DECREE
We affirm the judgment of the trial court granting the motion to quash.
AFFIRMED
DISSENTING OPINION
McCLENDON, J., dissenting.
For the following reasons, I respectfully dissent. In State v. Carlos, the Louisiana Supreme Court extended the burden-shifting principles for habitual offender proceedings to the recidivist portions of the DWI statute. Accordingly, when a defendant challenges the constitutionality of a predicate guilty plea, the state's initial burden is to show the existence of a guilty plea and that the defendant was represented by counsel when the plea was entered. After this burden is met by the state, the burden then shifts to the defendant to collaterally attack prior convictions. To prevail in such an attack, the defendant must "produce affirmative evidence showing infringement of his rights or a procedural irregularity in the taking of the plea." State v. Carlos, 98-1366, pp. 6-7 (La.7/7/99), 738 So.2d 556, 559.
Following the Carlos decision, 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, LSA-R.S. 15:529.1. State v. Zachary, 01-3191, p. 1 (La.10/25/02), 829 So.2d 405, 406. In so holding the court stated, "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 this language by the Louisiana Supreme Court extended the Carlos and Shelton rationale to cases where uncounseled pleas are used for enhancement purposes under the DWI statute.
I agree. Although Zachary did not involve a DWI proceeding, the supreme court has previously recognized there is a presumption of regularity in out of state proceedings. See State v. Shelton, 621 So.2d 769 (La.1993). Thus, if a waiver of counsel, executed by the defendant at the time a prior guilty plea was entered, satisfies the state's burden to invoke enhanced sentencing under the habitual offender law, it should also apply to satisfy the state's burden in DWI recidivist proceedings. See State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. Accordingly, when uncounseled guilty pleas are used as predicate offenses in DWI proceedings, the state may use a waiver of counsel executed by a defendant to satisfy its initial burden of proving the predicate offense. Thereafter, the defendant bears the burden of proving a significant procedural defect in the proceedings. In the present case, the defendant presented no affirmative evidence that his guilty plea from Mississippi was tainted by any procedural irregularity. As a result, there is no basis in the record to conclude the defendant's guilty plea cannot be used as a predicate offense. I would reverse the decision of the trial court and reinstate the bill of information.
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