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State v. Loupe8/29/2000
CONVICTION AND SENTENCE AFFIRMED; REMANDED.
On February 5, 1999, defendant, Kirk Loupe, was charged by bill of information with driving while intoxicated, fourth offense (DWI-4), in violation of La. R.S. 14:98. Defendant pled not guilty and moved to quash the bill of information on the basis that two of the three prior DWI convictions (in 1989 and 1991) could not be used as predicate offenses. At the hearing on defendant's motion, the state did not contest the motion to quash the 1989 conviction, and the trial court granted defendant's motion to quash in that regard. However, the trial court denied defendant's motion to quash the 1991 conviction.
On October 20, 1999, defendant entered into a negotiated guilty plea under State v. Crosby, 338 So.2d 584 (La.1976) to DWI-3, reserving his right to challenge the trial court's ruling on the motion to quash. Defendant executed a waiver form in which he and his counsel initialed his understanding of his guilty plea and his Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) constitutional rights. Defendant waived all legal delays, and was thereafter sentenced pursuant to his plea.
The trial court sentenced defendant to three years with the Department of Corrections. The sentence was suspended for one and one-half years, with six months of the sentence to be served in Parish Prison. Defendant was ordered to serve one year of home incarceration upon his release from Parish Prison. Additionally, defendant was placed on active probation for three years, commencing upon his release from Parish Prison. Further, the trial court imposed special conditions of probation, and allowed defendant to remain free on bond pending the outcome of his appeal.
In defendant's sole assignment of error, defendant asserts that the trial court erred in denying the motion to quash his 1991 conviction. Defendant argues that his 1991 conviction could not be used as a predicate because of a defective Boykin colloquy.
At the hearing on defendant's motion to quash, the defense introduced a certified copy of the transcript from defendant's May 6, 1991 guilty plea proceeding in the Twenty-Ninth Judicial District Court. The transcript shows that defendant was represented by counsel and that pursuant to defendant's plea of guilty to DWI-1, the state agreed to nolle prosse other charges pending against defendant, including illegal discharge of a weapon, failure to maintain control, hit and run, and operating a vehicle with a suspended license.
The transcript also shows that the trial judge informed defendant of the DWI charge against him by reading the bill of information, recited the statute defendant was charged with violating (R.S. 14:98), and informed defendant of his sentencing exposure for a DWI-1 conviction. Thereafter, the following colloquy occurred between the trial judge and defendant:
THE COURT:
You have a right to have a trial before a judge. You have a right not to take the witness stand. You have a right to cross-examine people at this trial, and you have a right to have an attorney. Those rights can be waived provided you voluntarily and intelligently waive them.
As I understand, you want to plead guilty because you are, in fact, guilty. Is that correct?
ACCUSED:
Yes, your Honor.
Thereafter, the trial judge sentenced defendant to six months in Parish Prison, suspended, placed defendant on probation, fined defendant $500.00 plus court costs, and ordered defendant to perform thirty-two hours of community service and participate in substance abuse and driving improvement programs.
On appeal, defendan
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