author: WEIMER, Justice. CALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Shon P. SHAW.
    No. 2006-KO-2467.
    Supreme Court of Louisiana.
    Nov. 27, 2007.

      Loyola Law School Clinic, Ramona G. Fernandez, Deborah Majeeda Snead, for applicant.
    Charles C. Foti, Jr., Attorney General, Paul Carmouche, District Attorney, Catherine Marion Estopinal, Lea R. Hall, Jr., Assistant District Attorneys, for respondent.
   WEIMER, Justice.

hWe granted certiorari in this case to consider the continuing validity of our decision in State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991), which prohibited habitual offender enhancement of more than one conviction obtained on the same date arising out of a single criminal act or episode. The underpinnings of that decision were called into question by our recent decision in State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568, which repudiated the jurisprudentially created “one day, one conviction” rule in determining a defendant’s habitual offender status. In Johnson, we held that our previous interpretation of the effect of Act 688 of 1982, amending the Habitual Offender Law, LSA-R.S. 15:529.1, was incorrect, and that the amendment removed the statute’s sequential requirement for enhanced penalties in the sentencing of multiple offenders. The Johnson decision was limited by its facts to the computation of predicate offenses for purposes of determining habitual offender status; it did not address whether the habitual offender statute precludes the enhancement of multiple sentences, entered on the same day, arising out !{>of a single criminal act or episode. This case brings that issue, as well as the continuing validity of Porter, squarely before this court.

Defendant, Shon P. Shaw, was convicted of five felony offenses stemming from an episode of criminal behavior and was adjudicated a third felony offender based on two predicate offenses: a 1994 conviction for possession of a controlled dangerous substance and a 1998 conviction for unauthorized use of a movable. All five of defendant’s sentences were enhanced under the Habitual Offender Law based upon his adjudication as a third felony offender. The defendant appealed, arguing that his sentences were illegally enhanced. Relying on Porter, defendant asserted that multiple sentences arising out of a single criminal episode cannot be enhanced under LSA-R.S. 15:529.1, and that, as a result, his sentences must be vacated and his case remanded for re-sentencing with the habitual offender bill applied to only one of his sentences. The court of appeal disagreed, finding that the rationale of Porter has been undermined by this court’s decision in Johnson and the legislature’s subsequent amendment of the Habitual Offender Law by 2005 La. Acts No. 218, and that, as a result, the district court did not err in applying third felony enhancement to all five of defendant’s sentences. The defendant applied to this court for writs. We granted the defendant’s application, primarily to consider whether all multiple sentences imposed after a single course of criminal conduct can be enhanced under the Habitual Offender LaWi and to clarify whether Porter remains the controlling jurisprudence on this issue.

After examining the language of LSA-R.S. 15:529.1, the jurisprudence, and recent legislation regarding the same, we find that the lower courts correctly concluded that all multiple sentences imposed after a single course of criminal conduct can be enhanced under the Habitual Offender Law. To the extent that the | .opinions of this court in Porter and State v. Sherer, 411 So.2d 1050 (La.1982), are inconsistent with this conclusion, those opinions are expressly overruled. Finding no merit in the only other argument raised and briefed by the defendant, the alleged abridgement of his right to testify in his own behalf, we affirm the defendant’s conviction, adjudication as a third felony offender, and sentences.

FACTS AND PROCEDURAL HISTORY

This matter stems from a series of events occurring on June 26, 2004. , On that date, Karen Harris, and some girlfriends, among them defendant’s sister, Sheryl Jeter, were having dinner at an International House of Pancakes restaurant in Shreveport, Louisiana. Harris had recently ended a year long relationship with defendant, but, earlier on the day in question, had met with defendant and discussed resuming the relationship.

During the course of the dinner, defendant repeatedly called his sister’s cell phone, asking to speak to Harris. When Harris refused to meet with defendant that evening, and stopped taking his calls, he became angry. At one point, defendant drove to the restaurant in search of Harris, but she hid in the restroom until police were called and defendant left the parking lot.

Defendant then traveled to his mother’s home, where he insisted that his mother, Jessie Jeter, telephone his sister and ask her to bring Harris to Mrs. Jeter’s house. Defendant’s mother complied with her son’s demands, but when she indicated to her daughter that it was defendant who wanted to see Harris, he became enraged, snatched the phone from his mother, and began hitting '.her in the head with it. Overhearing her mother’s predicament, Sheryl Jeter asked the women to accompany her to her mother’s home. Jeter, Harris, Shana Taylor, Marvette Jones, and Danielle 14Adams proceeded to Mrs. Jet-er’s home; Taylor and Jeter were in one car, with Harris, Jones, and Adams following in the Adams car.

When the women arrived at Mrs. Jeter’s home, defendant and his mother emerged from the house. Harris remained, in the back seat of the Adams vehicle, which was parked in the street at the end of the driveway. After exchanging words with Harris, defendant shouted at his mother to get into her car, which was parked in the driveway. When she resisted, defendant physically pushed his mother into the car and then jumped into the driver’s seat. Suspecting defendant was going to back out of the driveway, Adams drove off, with Jones in the front passenger seat and Harris in the back. With his mother in the front seat of her vehicle, defendant proceeded to back out of the driveway and follow the Adams vehicle down the street.

Adams observed defendant following her. Suddenly, defendant accelerated and rammed the Adams vehicle from behind, knocking both cars off the roadway and into a pine tree. The Adams vehicle “ac-cordioned,” its rear end pushing up into the back seat area. The car’s doors jammed, forcing its three occupants to climb out through a broken window. Both vehicles were totaled in the collision. Harris sustained two broken bones in her neck and multiple leg injuries, while defendant’s mother suffered a broken pelvis and -head injuries.

Unable to flee due to her injuries, Harris was approached by the defendant who proceeded to strike Harris on the back with a tree branch. Defendant subsequently led and intermittently dragged Harris into a nearby wooded area, where he continued to strike her with the tree branch. When police sirens were heard drawing near, Harris convinced defendant to let her go and she managed to escape to a nearby service station;

^Following the issuance of an arrest warrant, defendant turned himself in to police. In a recorded statement given after waiving his Miranda rights, defendant maintained that he simply lost control of his mother’s vehicle and accidentally rear-ended the Adams vehicle while the entire group was on the way to have dinner together.

Initially having charged defendant with four counts of attempted first degree murder, the State subsequently amended the bill of information to charge defendant with one count of attempted second degree murder, a violation of LSA-R.S. 14:30.1 and LSA-R.S. 14:27; two counts of second degree kidnapping, violations of LSA-R.S. 14:44.1; and two counts of aggravated criminal damage to property, violations of LSA-R.S. 14:55. At the close of a two-day jury trial, the jury found the defendant guilty of the responsive verdict of attempted manslaughter. The jury also found the defendant guilty as charged of two counts of second degree kidnapping and two counts of aggravated criminal damage to property.

Thereafter, the State filed a bill of information charging the defendant as a third felony offender. Following a hearing, defendant was adjudicated a third felony offender on the basis of a 1994 conviction for possession of a schedule II controlled dangerous substance and a 1998 conviction for unauthorized use of a movable. All five of his sentences were then enhanced under the Habitual Offender Law based upon his adjudication as a third felony offender. Ultimately, defendant was |fisentenced to forty years at hard labor for attempted manslaughter; eighty years at hard labor, without benefit of probation, parole, or suspension of sentence, for each count of second degree kidnapping; and thirty years at hard labor for each count of aggravated criminal damage to property. The sentences were ordered to be served concurrently.

Defendant filed motions for post-verdict judgment of acquittal, new trial, and reconsideration of sentence. These motions were denied, and the defendant appealed.

On appeal, the court affirmed the defendant’s conviction and sentences. State v. Shaw, 41,233 (La.App. 2 Cir. 8/23/06), 939 So.2d 519. In addressing the legality of defendant’s sentences, imposed pursuant to the Habitual Offender Law, the court of appeal acknowledged that our decision in State ex rel. Porter v. Butler, supra, prohibits the habitual offender enhancement of more than one conviction obtained on the same date arising out of a single criminal episode, and thus potentially precludes the enhancement of all but one of defendant’s current sentences arising out of the June 26, 2004 crime spree. Nevertheless, the court pointed out that in our recent decision in State v. Johnson, supra, we held that our previous interpretation of the 1982 version of LSA-R.S. 15:529.1 was incorrect. The court of appeal reasoned that although our decision in Johnson did not explicitly overrule Porter, it did expressly overrule State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), which approved the rationale of Porter, rendering the continued viability of Porter questionable after Johnson. Agreeing with the State’s contention that Porter is “no longer good law,” the court of appeal found that the district court did not err in applying third felony enhancement to all five sentences arising out of defendant’s criminal conduct.

The defendant applied to this court for writs, arguing, among other errors, that his adjudication as a third felony offender was improperly used to enhance the sentence on each of his convictions arising out of a single course of criminal conduct, in direct contravention of Porter. We granted writs, primarily to consider whether LSA-R.S. 15:529.1 precludes the enhancement of multiple sentences, entered on the same day, arising out of a single criminal episode, and whether Porter remains the controlling law on this issue. State v. Shaw, 06-2467 (La.5/18/07), 957 So.2d 160.

LAW AND ANALYSIS

Habitual Offender Sentencing

The Habitual Offender Law, LSA-R.S. 15:529.1, provides, in relevant part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
|s(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime. Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.

Defendant maintains that the jurisprudence has consistently interpreted this statute as distinguishing between convictions that arise from a single criminal act or episode and those that do not, with the result that, under the statute, only one of multiple sentences imposed after a single course of criminal conduct can be enhanced. Defendant relies for this proposition on our decision in Porter which indeed holds that “policy considerations” underpinning the statute preclude habitual offender enhancement of more than one conviction obtained on the same date arising out of a single criminal act or episode. Porter, 573 So.2d at 1109. According to defendant, because his current convictions arose from a single course of criminal conduct, the district court erred in using his adjudication as a third felony offender to enhance the sentences on each of his current convictions. Defendant asks that his sentences be vacated and his case remanded for re-sentencing with instructions that only one of his sentences can be enhanced under the Habitual Offender Law.

| flThe “one day, one conviction” rule of Porter and the distinction drawn therein between convictions arising out of a single criminal act or episode and those arising out of “unrelated” criminal acts actually finds its origin in an earlier decision of this court, State v. Sherer, 411 So.2d 1050 (La. 1982). The defendant in Sherer had been convicted of two counts of negligent homicide arising out of an automobile accident in which the defendant driver of a truck crossed the center line of the highway and crashed head-on into an approaching vehicle, killing both of the vehicle’s occupants. After determining that the defendant had two prior felonies, the district court sentenced the defendant as a multiple offender on each of the two counts of negligent homicide. On appeal, this court vacated the defendant’s habitual offender adjudication and sentencing, finding that the district court erred in sentencing the defendant as a habitual offender on each of the two counts. In reaching this conclusion, the court relied on two previous decisions, State v. Schamburge, 344 So.2d 997 (La. 1977), and State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973), which addressed a different aspect of the habitual offender statute: whether multiple convictions entered on the same day must be treated as a single predicate for purposes of determining one’s status as a multiple offender. In Jackson, this court interpreted a 1956 amendment to the Habitual Offender Law as imposing a sequencing requirement such that:

in order for one to be considered a second offender, the second offense must have been committed after the first conviction. To be a third offender the third offense must have been committed after the conviction which caused him to be a second offender, and the fourth offender is one who commits a felony after the conviction which caused him to be a third offender.

State ex rel. Jackson v. Henderson, 283 So.2d at 212. In Schamburge, this court summarized that sequencing requirement as directing that “previous convictions 110entered on the same date should be treated as one for applying the multiple offender statute.” Schamburge, 344 So.2d at 1002. (Emphasis added.) The court in Sherer stated the rule more broadly, citing Jackson and Schamburge as holding that “convictions on more than one count entered on the same date should be treated as one conviction for applying the habitual offender statute.” The court then relied on this broader language to hold that only one of two convictions entered on the same date was eligible for enhancement under the Habitual Offender Law. Sherer, 411 So.2d at 1057.

The decision in Sherer garnered criticism almost immediately. See, State v. Lennon, 427 So.2d 860, 862 (La.1983) (Lemmon, J. concurring) (“Furthermore, the court should take this opportunity to overrule State v. Sherer, 411 So.2d 1050 (La.1982), which misinterpreted La. R.S. 15:529.1 by prohibiting the trial judge from sentencing Sherer, who had been convicted of two felonies on the same day, from being sentenced as a habitual offender on each of the two convictions.”); State ex rel. Thibodeaux v. Waltzer, 444 So.2d 623 (La. 1984) (Calogero, J. concurring) (“[T]he Sherer rule is questionable.”) (Lemmon, J. concurring) (“[T]he Sherer decision is wrong and should be overruled.”); State ex rel. Alpine v. Butler, 549 So.2d 859 (La. 1989) (Calogero, J. dissenting) (“State v. Sherer, 411 So.2d 1050 (La.1982), was wrong and should be overruled.”). In Porter, this court availed itself of the opportunity to revisit Sherer.

The defendants in Porter were both convicted of multiple counts of armed robbery arising out of a single criminal episode: defendant Porter robbed three occupants of an apartment at gunpoint; defendant Nelson robbed two motorists stopped at an intersection. Both defendants were adjudicated habitual offenders and their sentences were enhanced as to each of the convictions. Relying on Sherer, the 1 vi defendants argued that it was error to sentence them as habitual offenders under LSA-R.S. 15:529.1 on each conviction obtained on the same day arising from a single criminal incident.

After noting the criticism that the Sherer decision had attracted, this court acknowledged:

The “one day, one conviction” rule of State ex rel Jackson v. Henderson, supra, relied on in Sherer, provides little support for and certainly does not compel the extension of the rule made in Sherer. In Jackson the court, as a matter of statutory interpretation, held that multiple prior convictions obtained on the same date could not serve as multiple predicates for a fourth felony adjudication because the predicate felonies were not committed successively after prior convictions as required by LSA-R.S. 15:529.1(B), as amended in 1956. Thus, it was not the fact that the predicate convictions occurred the same day, per se, that precluded the use of more than one conviction as a predicate in a subsequent prosecution, it was the fact that none of the offenses were committed after a prior conviction so as to legally classify the offender a second or third offender as required by the statute. See State v. Simmons, 422 So.2d 138 (La.1982). Nothing in the statute requires the same analysis or result in dealing with enhancement of the sentences for multiple convictions obtained on the same date.

Porter, 573 So.2d at 1108-1109. (Emphasis added; footnote omitted.)

Recognizing that “there is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same day,” this court ultimately ruled that Sherer, which involved convictions arising out of a single criminal act, should not be applied to limit enhancement of more than one conviction obtained on the same day arising out of separate criminal offenses committed at separate times. Porter, 573 So.2d at 1109. Nevertheless, the court found that “policy considerations” support the continued viability of Sherer in a scenario limited to its facts: multiple convictions obtained on the same date arising out of a single criminal act or episode. The court reasoned:

Severe penalty enhancement statutes must be strictly construed. The purposes of the habitual offender statute to discourage commission of |iasuccessive felonies and to enhance punishment for subsequent felonies are not served by enhancing punishment for multiple offenses arising out of one incident of criminal conduct.

Porter, 573 So.2d at 1109. (Citations omitted.)

After Porter, courts have generally permitted the enhancement of multiple convictions obtained on the same date, which arise from separate criminal offenses committed at separate times, while continuing to prohibit the enhancement of multiple convictions arising out of a single criminal episode. The basis of this rule, however, has remained wholly jurisprudential, founded on the “policy considerations” noted in Porter, notwithstanding the acknowledged lack of support for the rule in the statutory language.

With the passage of Act 688 of 1982, the legislature effected a major change in the Habitual Offender Law. In State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), this court was asked to determine the effect of that legislative action on the sequential requirement for computing offender status that had been recognized in State ex rel. Jackson v. Henderson, supra, and summarized as the “one day, one conviction” rule for purposes of imposing enhanced penalties under the Habitual Offender Law. Finding no clear indication of the legislative intent with respect to the amendment, this court ultimately drew upon principles of strict statutory construction and the doctrine of lenity to hold that the sequencing requirement, and the “one day, one conviction” rule, survived the 1982 amendment. Mims, 601 So.2d at 650.

| nMims remained the controlling law until this court’s recent decision in State v. Johnson, supra, in which this court reexamined its conclusions in Mims after uncovering legislative materials not available at the time Mims was decided. Finding that the analysis in Mims was “ultimately flawed and deviated from well-established rules of statutory interpretation,” we returned to the clear and unambiguous language of the statute to conclude that our original interpretation of the effect of Act 688 of 1982 on the sequencing requirement of LSA-R.S. 15:529.1 was erroneous. Johnson, 03-2993 at 12, 884 So.2d at 575. We held:

[T]he habitual offender statute, LSA-R.S. 15:529.1, as it appears post-amendment, is clear and unambiguous. There is no statutory bar to applying the law in sentencing for more than one conviction obtained on the same date based on unrelated conduct. The statute simply does not contain a sequential conviction requirement. Rather, the only requirement in the statute is one which has been imposed from the inception: for sentence enhancement purposes, the subsequent felony must be committed after the predicate conviction or convictions.

Johnson, 03-2993 at 17-18, 884 So.2d at 578. Concluding that the passage of Act 688 of 1982 legislatively repudiated the “one day, one conviction” rule of State ex rel. Jackson v. Henderson, supra, we expressly overruled our contrary conclusion in Mims.

Johnson is a decision purely about computing offender status under LSA-R.S. 15:529.1. It does not address the issue framed in Porter and presented again here: whether all multiple convictions obtained on the same day arising out of a single criminal episode may be enhanced under the Habitual Offender Law. Nevertheless, as the court of appeal recognized in affirming the defendant’s sentences in this case, “[wjhile State v. Johnson did not explicitly overrule State ex rel. Porter, supra, it did overrule State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), which approved the rationale of State ex rel. Porter.” Shaw, 41,233 at 10, 939 So.2d at 525.

Given our repudiation of the Mims “one day, one conviction” rule in the context of computing predicate offenses for purposes of determining habitual offender status, we find it appropriate to re-examine Porter and the “policy considerations” that prompted the adoption of the “one day, one conviction” rule in the context of enhancing sentences on multiple convictions obtained on the same date.

As we did in Johnson, we begin our analysis with the proposition that the starting point in the interpretation of any statute is the language of the statute itself. Johnson, 03-2993 at 11, 884 So.2d at 575; Theriot v. Midland Risk Insurance Company, 95-2895 (La.5/20/97), 694 So.2d 184, 186; Touchard v. Williams, 617 So.2d 885, 888 (La.1993). Our interpretation of the language of a criminal statute is governed by the rule that the articles of the criminal code “cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” LSA-R.S. 14:3; State v. Skipper, 04-2137, p. 3 (La.6/29/05), 906 So.2d 399, 403. Further, although criminal statutes are subject to strict construction under the rule of lenity, State v. Carr, 99-2209, p. 4 (La.5/26/00), 761 So.2d 1271, 1274, the rule is not to be applied with “such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and enforce the true meaning and intent of the statute.” State v. Everett, 00-2998, p. 12 (La.5/14/02), 816 So.2d 1272, 1279, quoting State v. Broussard, 213 La. 338, 342, 34 So.2d 883, 884 (La.1948). See State v. Brown, 03-2788, pp. 5-6 (La.7/6/04), 879 So.2d 1270, 1280, quoting Perrin v. United States, 444 U.S. 37, 49 n. 13, 100 S.Ct. 311, 317, 62 L.Ed.2d 199 (1979) (“The general rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity applies when the court is uncertain about the statute’s meaning and is ‘not to be used in complete disregard of the purpose of the legislature.’ ”). Consequently, a criminal statute, like all other statutes, should be interpreted so as to be in harmony with and to preserve and effectuate the manifest intent of the legislature; an interpretation should be avoided which would operate to defeat the object and purpose of the statute. Brown, 03-2788 at 6, 879 So.2d at 1280; Broussard, 34 So.2d at 884. What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. State v. Williams, 00-1725, p. 13 (La.11/28/01), 800 So.2d 790, 800. Therefore, where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit. LSA-R.S. 1:4; State v. Freeman, 411 So.2d 1068, 1073 (La.1982).

With these precepts in mind, we turn to an examination of the Habitual Offender Statute, LSA-R.S. 15:529.1, which provides, in relevant part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows[.] [Emphasis added.]

This language is simple and straightforward. The Porter court scrutinized it and acknowledged that “there is no statutory bar to applying the habitual- offender law in sentencing for more than one conviction obtained on the same date.” Porter, 573 So.2d at 1109. Accordingly, the court held that where an offender with a prior felony conviction subsequently commits multiple separate felonies at separate times and is | ^thereafter convicted of the subsequent felonies, he is subject to being adjudicated a habitual offender as to each conviction, regardless of whether the convictions are entered on the same date. Id. Nevertheless, the court refused to extend its holding to multiple convictions arising out of a single criminal act, finding such a refusal justified by “policy considerations” outside the plain language of the statute. Id. In reaching this conclusion, the Porter court deviated from well-settled rules of statutory construction.

First, the court failed to give effect to the clear and unambiguous language of the statute. The statute is plain and straightforward. It reflects a legislative intent to expose a person who has previously been convicted of a felony to imposition of habitual offender penalties for any felony committed after the date of the prior felony conviction. There is no support in the statute’s language for the rule, superimposed upon the statute by the courts, limiting its application to only one of multiple felonies committed on the same day arising out of a single course of criminal conduct. The statute and the enhanced penalties provided for therein are triggered by the subsequent commission of “any felony.” In maintaining the “one day, one conviction” rule in the context of a “single criminal act or episode,” the Porter court ignored the plain language of the statute in favor of perceived “policy considerations.” In so doing, the court failed to adhere to the admonition that where the words of a law are clear and unambiguous, they are not to be disregarded under the pretext of pursuing their spirit. LSA-R.S. 1:4; State v. Freeman, 411 So.2d at 1073.

[17Second, the court failed to construe the statute in a manner consistent with its object and purpose. As the Porter court correctly noted, the purpose of the Habitual Offender Law, is “to discourage commission of successive felonies and to enhance punishment for subsequent felonies.” Porter, 573 So.2d at 1109. However, the Porter court’s reasoning that the purpose of the statute is not served by enhancing punishment for multiple offenses arising out of one incident of criminal conduct has no basis in the statutory language.

As we have explained, the habitual offender statute was enacted “as a deterrent and a warning to first offenders and as a protection to society by removing the habitual offender from its midst.” State v. George, 218 La. 18, 26, 48 So.2d 265, 267 (La.1950). The habitual offender statute does not create a separate offense or punish an individual for past crimes; rather, the statute increases punishment on the basis of an individual’s status as a repeat offender. The goal is to deter and punish recidivism by punishing more harshly those who commit the most crimes. State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677. (“Under this statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a long sentence because he continues to break the law.”)- Contrary to the conclusion of the Porter court, this goal is not served when a defendant commits multiple felonies in a continuous episode of criminal activity but is punished more severely for only one of those felonies. The purpose of the statute, to dissuade first offenders from committing subsequent felonies and to punish more harshly those who commit the most crimes, is served only when the repeat offender is subject to sentence enhancement for each subsequent felony. Enhancing the sentence on only one of multiple convictions arising out of a single criminal episode actually thwarts |1sthe goal of protecting society by removing the most egregious offenders from its midst. The single enhancement produces the incongruous and illogical consequence of removing any incentive the statute might otherwise impose on a recidivist to cease criminal activity once begun, a result directly at odds with the purpose of the statute. We cannot endorse an interpretation of the statute that would attribute this consequence to the legislation. Savoie v. Rubin, 01-3275, p. 4 (La.6/21/02), 820 So.2d 486, 488 (“The function of the court is to interpret the laws so as to give them the meaning which the lawmakers obviously intended them to have and not to construe them so as to give them absurd or ridiculous meanings.”). Contrary to the conclusion of the Porter court, we find that it is unnecessary to superimpose upon the habitual offender statute a limitation permitting enhancement of only one of multiple sentences entered on the same date arising out of a single criminal episode.

In summary, we find that the Porter court strayed too far from the language and intent of LSA-R.S. 15:529.1 by en-grafting upon the statute the “one day, one conviction” rule in the context of multiple sentences arising out of a single criminal episode. The statute, by its plain terms, subjects “any subsequent felony” to enhanced penalties. Had the legislature intended to limit enhancement where multiple convictions result from offenses arising out of the same criminal act or transaction, it could have done so by including the appropriate language, as it did in enacting LSA-C.Cr.P. 883, which mandates the imposition of concurrent sentences where a defendant is convicted of “two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan” unless the court expressly directs 1^otherwise. The legislature did not do so, opting simply for enhancement of “any subsequent felony.”

Ultimately, the Porter decision to leave intact the one day, one conviction rule of Sherer with respect to multiple convictions arising out of a single criminal episode was based entirely on “policy considerations” founded in the rule of lenity. However, it is unnecessary to resort to the previously mentioned rule of lenity where, as here, there is no ambiguity in the statute or the intent of the legislature.

Further, we note the legislature enacted 2005 La. Acts 218, amending LSA-R.S. 15:529.1(B) to provide that “[mjultiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.” This amendment, which adopts Johnson’s repudiation of the “one day, one conviction” rule in the computation of predicate offenses for purposes of determining habitual offender status, but accords the decision only prospective effect, reflects a legislative endorsement of this court’s interpretation of the Habitual Offender Law and its return to the plain language of the statute. The amendment evidences a legislative repudiation of the “one day, one conviction” rule and a determination that convictions (such as defendant’s) obtained after October 19, 2004, should be counted individually for purposes of sentence enhancement.

By departing from the language of LSA-R.S. 15:529.1, and superimposing on the statute a rule permitting enhancement of only one of multiple sentences entered on the same date arising out of a single criminal episode or act, the Porter court needlessly interjected confusion and uncertainty into an already difficult area of the law. Porter limited enhancement when multiple sentences arise from a “single criminal act or episode,” but offers no definition of “criminal episode,” leaving it to the lower courts to attempt to determine, on a case by case basis, the parameters of li,nan “episode.” Finding that the Porter court erroneously elevated “policy considerations” over the words of the statute, today we return the statute to its simpler form, unadulterated by Porter’s jurisprudential gloss on the plain language.

We therefore hold that the language of LSA-R.S. 15:529.1 contains no prohibition against enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode. Unlike the Porter court, we find no legislative purpose or policy that is contradicted by failing to read such a prohibition into the statute’s language. Nor does a plain reading of the statute generate absurd or unjust results. In clear and unambiguous terms, the statute exposes a person who has previously been convicted of a felony to enhanced penalties for any felony committed after the date of the prior felony conviction. There is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. To the extent that the opinions in Porter and Sherer are inconsistent with this conclusion, they are overruled.

As a result of the foregoing analysis, we find that the trial court did not err in enhancing all five of defendant’s sentences based upon his adjudication as a third felony offender.

Right to Testify

In his only other assignment of error to this court, defendant complains that the trial court improperly interjected itself into the defendant’s decision to waive his right to testify in his own defense when the court asked the defendant, outside the presence of the jury, whether he wished to testify. Defendant asserts that the trial court’s | ^inquiry deprived him of a fundamentally fair trial by inducing his decision not to take the stand.

After the State called its last witness, the trial court excused the jury to resolve an objection to certain documentary evidence. The following colloquy ensued:

THE COURT: For the record the jury is outside the courtroom. I think Mr. Hall is about ready to rest. Ms. Harried, I need to — so I don’t have to run the jury back outside the courtroom, I need to know whether or not your client intends to take the witness stand. And if not, I need his statement for the record as to the fact that he chooses not to testify.
MS. HARRIED: Your Honor, I have had an opportunity to speak with Mr. Shaw. I have told him that it is my advice that he not take the stand. I have explained what dangers he faces if he takes the stand. I’ve explained to him that his entire criminal history would come out in front of the jury. In fact, I would have to ask him prior to Mr. Hall cross-examining him so that it did not look like we were hiding anything from the jury.
I explained to him the dangers that he would face on cross-examination and how I thought that that may impact the jury. He agreed with my assessment, and he agreed that he did not wish to testify.
THE COURT: Mr. Shaw, is that correct?
MR. SHAW: Yes, sir.
THE COURT: Your lawyer has explained the advantages and disadvantages of testifying verus[versus] not testifying. And my understanding is that your choice is that you not testify.
MR. SHAW: Yes, sir.

An accused’s right to testify is a fundamental right of constitutional dimension. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2710, 97 L.Ed.2d 37 (1987); State v. Hampton, 00-0522, pp. 4-5 (La.3/22/02), 818 So.2d 720, 723-724. Because the right is personal, it may be relinquished only by the defendant, and the defendant’s relinquishment of the right must be knowing and intentional. Hampton, 00-0522 at 7, 818 So.2d at 725.

In Hampton, this court established a framework for determining whether a defendant’s right to testify was violated or waived by his silence during trial. In doing so, a plurality commented in dicta that absent extraordinary circumstances that should alert the trial court to a conflict between attorney and client, the court should not inquire into a criminal defendant’s right to testify; rather, the court should assume that a criminal defendant, by not attempting to take the stand, has knowingly and voluntarily waived his right. Hampton, 00-0522 at 14, 818 So.2d at 729, quoting Passos-Paternina v. United States, 12 F.Supp.2d 231 (D.P.R.1998).

It is firmly established that a trial judge may not actively interject himself into the defendant’s decision, aided by input from his attorney, whether to testify in his own defense because judicial interference with this strategic decision poses a danger that the judge will appear to encourage defendant to invoke or waive this right. United States v. Joelson, 7 F.3d 174, 178 (9th Cir.1993). For this reason, the federal courts subscribe to the rule that a trial court has no duty to advise the defendant of his right to testify, or to ensure that an on-the-record waiver occurs. Joelson, 7 F.3d at 177. However, the absence of a duty in this regard clearly does not mean that a court does not have the discretion to conduct an on-the-record waiver outside the presence of the jury, so long as the court does not interject itself into the strategic decision made by the defendant with advice from his counsel.

Nevertheless, defendant argues that in the absence of any indication of a disagreement between counsel and defendant, the trial court erred in conducting this inquiry into his decision to waive his right to testify in his own defense, and, further, that this inquiry was presumptively prejudicial, requiring the reversal of hisj^eonviction. The defendant additionally argues the trial court’s timing of its inquiry, shortly before the State rested its case, also inappropriately affected his decision to forego testifying, compounding the error.

We disagree. A review of the exchange between defendant and the trial court reveals no evidence of improper influence. The inquiry was an entirely neutral one in which the court neither urged nor prevented the defendant’s testimony. Although the court’s inquiry came after the State called its last witness but before it formally rested, there is no indication that the timing of the inquiry impacted the defendant’s decision to waive his right to testify. That waiver appears on the record in unequivocal terms. In response to a benign inquiry from the trial court, devoid of any indicia of coerciveness, the defendant unhesitatingly waived his right to testify and further indicated that he discussed his waiver with his attorney.

Under these circumstances, there is simply no evidence from which this court could conclude that the defendant’s right to testify in his own defense was violated or that the trial court impermissibly discouraged the defendant from testifying. This assignment of error is without merit.

CONCLUSION

After examining the language of LSA-R.S. 15:529.1 and reviewing the jurisprudence interpreting same, we find that the lower courts correctly concluded that all multiple sentences imposed after a single criminal act or episode can be enhanced under the Habitual Offender Law. To the extent that the opinions of this court in State v. Sherer, supra, and State ex rel Porter v. Butler, supra, are inconsistent with this conclusion, they are expressly overruled. Finding no merit in the only other assignment of error raised by defendant, the alleged abridgement of his right to testify in his own defense, we affirm the defendant’s conviction, the adjudication as a third felony offender, and the sentences.

AFFIRMED.

CALOGERO, C.J., concurs and assigns reasons.

JOHNSON, J., dissents.

CALOGERO, Chief Justice,

concurring.

I respectfully concur in the majority’s decision to overrule State v. Sherer, 411 So.2d 1050 (La.1982), which had been reaffirmed in State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991).

As the majority opinion points out, I have previously stated my view that Sherer was a misapplication of the “sequencing requirement” for enhanced penalties in the sentencing of repeat offenders, a rule of law recognized in State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973). See State ex rel. Thibodeaux v. Waltzer, 444 So.2d 623 (La.1984), Calogero, J., concurring; State ex rel. Alpine v. Butler, 549 So.2d 859 (La.1989), Calogero, J., dissenting. In the context of multiple prior convictions entered on the same date, the “sequencing requirement” has been summarized as the principle that “previous convictions entered on the same date should be treated as one for applying the multiple offender statute.” State v. Schamburge, 344 So.2d 997, 1002 (La.1977)(emphasis supplied). However, the word “previous” was subsequently omitted, and the principle came to be stated more broadly as “convictions on more than one count entered on the same date should be treated as one conviction for applying the multiple offender statute.” State v. Sherer, 411 So.2d 1050, 1057 (La. 1982). In Sherer, wherein two homicide convictions arose out of the same criminal act, this broader language was invoked to hold that only one of the two convictions entered on the same day would be eligible for enhancement under the habitual offender law. Id. Although the court in Porter reaffirmed the rule announced in Sherer, I believe that Sherer was an unnecessary and erroneous application of the “sequencing requirement” set forth in the habitual offender statute. Therefore, I concur in the majority’s decision today overruling Sherer and Porter.

Notwithstanding my opinion of the wrongness of Sherer, I continue to adhere to my view that the majority opinion in State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568, cited by the majority today as the basis for revisiting Sherer, erred in holding that Act 688 of 1982 amending La.Rev.Stat. 15:529.1 removed the statute’s “sequencing requirement” and that this amendment legislatively repudiated the rule of law recognized in Jackson. For the reasons stated in my dissent thereto, I believe the Johnson court erred in overruling State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), and thereby doing away with the “sequencing requirement” present in our habitual offender law since 1928. Johnson, 03-2993, 884 So.2d at 579-82, Calogero, C.J., dissenting.

Because I disagree with much of the majority’s reasoning today, including its reliance on Johnson, which I believe wrongfully interpreted the 1982 amendment to the habitual offender law and erroneously overruled Mims, I concur, for the reasons set forth above, only in the result the majority reaches today, i.e., overruling Sherer and affirming the defendant’s convictions and the enhanced sentences as imposed.

      . In imposing sentence, the trial court stated: The facts of what happened June 26, 2004, are severe. There were significant personal injuries sustained by Ms. Jessie Jeter Williams, the defendant’s mother, and Miss Karen Harris, who was at that time the defendant’s girlfriend. There was extensive property damage committed to a Lincoln Town Car owned by Ms. Jeter Williams, and there was extensive property damage done to the Nissan Altima owned by Danielle Adams.
      Specifically, both ladies were hospitalized.
      It is unclear exactly the number of times [defendant has] been arrested, but it appears to be at least 20 times from my count, possibly up to 25 times, all within a very relatively short period of time.
      I want the Court of Appeal to understand the following three things regarding this sentence: I believe that all the convictions, all five of them, are subject to enhancement in accordance with the habitual offender law; number two, I believe that the maximum penalty should be ordered on all five felony convictions; number three, I believe, however, because I intend to impose the maximum possible penalty that these sentences should run concurrently, that is together.

      . The court of appeal also reviewed the record for errors patent, and found that defendant’s sentences for attempted manslaughter and two counts of aggravated criminal damage to property were illegally lenient because defendant was not denied benefit of probation, parole, or suspension of sentence in connection with these sentences. However, the court pointed out that this error patent would be automatically corrected by operation of LSA-R.S. 15:301.1.

      . In his writ application to this court, defendant additionally asserted that the evidence adduced at trial was insufficient to support his conviction for each offense, that his right to testify in his own behalf was improperly abridged by the district court, that the district court failed to specify the predicate offenses that were used to enhance his sentences, and that his commitment order was erroneous. In his brief to this court following the grant of writs, defendant failed to raise, brief, or argue any assignments of error other than those addressing the recidivist enhancement of each of his convictions in contravention of Porter, and the alleged abridgement of his right to testify. Accordingly, the remaining assignments of error originally asserted by defendant are deemed abandoned. See, State v. Williams, 366 So.2d 1365, 1366 (La. 1978) (“As counsel failed to brief or argue the remaining five assignments of error, we deem them abandoned.”).

      . Compare, e.g., State v. Ward, 94-0490, pp. 13-14 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, 568-569, writ denied, 97-0642 (La.9/19/97), 701 So.2d 165 (Defendant’s multiple convictions which arose out of three separate and distinct criminal episodes on different dates and against three different victims could all be enhanced even though the convictions were obtained on the same date.); with State v. Francis, 97-0201, pp. 10-11 (La.App. 1 Cir. 2/20/98), 709 So.2d 834, 840-841, writ denied, 98-1054 (La.5/8/98), 719 So.2d 57 (finding error in the enhancement of more than one of three convictions that arose out of one criminal episode).

      . Although the defendant in Johnson was convicted of both second degree battery and purse snatching, only his sentence for purse snatching was enhanced. Johnson, 03-2993 at 8, 884 So.2d at 573.

      . The use of the singular does not indicate an intent to prohibit use of the Habitual Offender Law to enhance multiple sentences. In the Revised Statutes, "[wjords used in the singular number include the plural and the plural includes the singular.” LSA-R.S. 1:7.

      . As we noted in Johnson, an accused becomes a recidivist at the time he commits a subsequent crime, whether or not he has previously been exposed to sentencing as a multiple offender. Johnson, 03-2993 at 18, 884 So.2d at 579. Under this rationale, there is no logical basis for holding that an offender can be considered a recidivist for purposes of one sentence among several, but not all. A recidivist does not cease to be one because he was convicted of multiple offenses.

      . In fact, the record is devoid of a contemporaneous objection to the trial court’s questions, indicating that, at the time it occurred, the inquiry was not deemed by either defendant or his counsel to be improper or coercive.

      . Our holding in this regard, correcting erroneous statutory construction, applies retroactively to all non-final convictions. State v. Ruiz, 06-1755, p. 5 (La.4/11/07), 955 So.2d 81, 85.

      . This court in Jackson stated:
      The plain meaning of the statute as it now stands requires that in order for one to be considered a second offender, the second offense must have been committed after the first conviction. To be a third offender the third offense must have been committed after the conviction which caused him to be a second offender, and the fourth offender is one who commits a felony after the conviction which caused him to be a third offender.

        Jackson, 283 So.2d at 212 (citations omitted). See also State v. Simmons, 422 So.2d 138 (La.1982).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re John F. CRAWFORD, II.
    No. 2006-OB-0844.
    Supreme Court of Louisiana.
    Dec. 7, 2007.
    Taylor, Porter, Brooks & Phillips, William Luther Wilson, Baton Rouge, Eric L. Pittman, Denham Springs, for Applicant.
    Richard Anthony Goins, Scott Thomas Whittaker, New Orleans, Monique R. Drake, Charles Bennett Plattsmier, Baton Rouge, for respondent.
   hON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, John F. Crawford, II, to sit for the Louisiana Bar Examination based on character and fitness concerns. We subsequently granted petitioner permission to sit for the bar exam, with the provision that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Crawford, 05-1907 (La.7/20/05), 905 So.2d 1086.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we appointed a commissioner to take evidence and report to this court whether he possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in August 2006, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and his witnesses. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

IgAfter reviewing the evidence and considering the law, we conclude petitioner, John F. Crawford, II, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for two years from the date of admission.

2. During the period of this conditional admission, petitioner shall continue to treat with his psychiatrist and comply with all recommendations regarding treatment and medication.

3. Petitioner shall be responsible for ensuring that his psychiatrist forwards biannual reports of his psychiatric treatment to the Office of Disciplinary Counsel.

4. Petitioner shall request that the ODC appoint a practice monitor to supervise his professional activities during the period of this conditional admission. Petitioner shall comply with all reasonable requests of his practice monitor.

5. Petitioner shall be responsible for ensuring that bi-annual reports of his compliance with these conditions are forwarded to the ODC. The reports shall be supported by appropriate documentary evidence.

6. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend whether the conditional admission be allowed to terminate or be extended.

7. Petitioner shall cooperate with the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon him by the Office, of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional | aright to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re Eric F. WRIGHT.
    No. 2006-OB-2395.
    Supreme Court of Louisiana.
    Dec. 7, 2007.
    Shows, Cali, Berthelot & Walsh, Edmond Wade Shows, Amy Lynn Mclnnis, Baton Rouge, Eric F. Wright, New Orleans, for applicant.
    Richard Anthony Goins, Scott Thomas Whittaker, New Orleans, Monique R. Drake, Charles Bennett Plattsmier, Baton Rouge, for respondent.
   LON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Eric F. Wright, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify him for admission to the Bar based upon character and fitness concerns. On petitioner’s application to this court, we appointed a commissioner to take character and fitness evidence and authorized the Office of Disciplinary Counsel (“ODC”) to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in April 2007, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and his witnesses. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law.

After considering the joint agreement of petitioner and the Committee, the evidence, and the law, we conclude petitioner, Eric F. Wright, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

|⅞1. The term of this conditional admission shall be for two years from the date of admission.

2. Petitioner shall request that the ODC appoint a practice monitor to supervise his professional activities during the period of this conditional admission. Petitioner shall comply with all reasonable requests of his practice monitor.

3. Petitioner shall be responsible for ensuring that bi-annual reports of his compliance with this condition are forwarded to the ODC. The reports shall be supported by appropriate documentary evidence.

4. Within thirty days prior to the expiration of the conditional admission, the ODC shall file a report in this court in which it shall recommend whether the conditional admission be allowed to terminate or be extended.

5. Petitioner shall cooperate with the ODC, and shall comply with any and all requirements imposed upon him by the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

      . The Committee originally filed an objection to the commissioner’s recommendation, necessitating the setting of this case on the court’s docket for oral argument; however, at oral argument, the Committee implicitly withdrew its objection when the Director of Character and Fitness expressed his support for petitioner's admission to the practice of law.


author: PER CURIAM. JOHNSON, J.

text:
    STATE of Louisiana v. Henrietta WILLIAMS.
    No. 07-K-1111.
    Supreme Court of Louisiana.
    Dec. 7, 2007.
    Rehearing Denied Jan. 25, 2008.
   PER CURIAM.

| granted. The decision of the Third Circuit is reversed, and the district court’s sentence is reinstated. Given its detailed consideration of the aggravating and mitigating factors relating to defendant’s case, we find the district court did not impose a constitutionally excessive sentence of five years imprisonment, the maximum term permitted by the sentencing statute, La.R.S. 14:133, but then suspended all but 18 months of the term. See State v. Taves, 03-0518, p. 4 (La.12/3/03), 861 So.2d 144,147 (“[T]he determination of whether a sentence which otherwise falls within the range of punishment provided by the legislature for a particular offense is excessive, ie., so disproportionate to the offense that it represents the needless infliction of pain and suffering ... entails more than a priori judgments by an appellate court.... ‘[T]he statutory criteria legislatively provided by La.C.Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.’ ” (quoting State v. Sepulvado, 367 So.2d 762, 769 (La.1979) (citation omitted))). Sentence review under La. Const, art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. State v. Walker, 00-3200, p. 2, 799 So.2d 461, 462 (“On appellate review of sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.”) (citing State v. Cook, 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996)); see also State v. Humphrey, 445 So.2d 1155, 1165 (La. 1984)(same).

CALOGERO, Chief Justice, dissents and would deny the writ application.

JOHNSON and WEIMER, JJ., dissent and assign reasons.

WEIMER, J. dissents.

hi would grant and docket this matter for a more complete evaluation.

JOHNSON, J.

dissenting:

hi agree with the appellate court that the sentence was excessive. I also agree with the appellate court’s remand of the case for a determination of whether defendant is indigent and unable to pay the fine and costs imposed. An indigent defendant may not be subjected to default time in lieu of payment of fine and costs. See, Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).


author: JOHNSON, Justice,

text:
    STATE of Louisiana v. Kurt NEHER.
    No. 2007-KK-2076.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
    CALOGERO, C.J., and WEIMER, J., would grant.
    JOHNSON, J., would grant this writ application and assigns reasons.
   JOHNSON, Justice,

would grant this writ application and assigns reasons.

hi would grant the motion to suppress the defendant’s incriminatory statement. I find it troubling that Ms. Wendy Lem-oine, a supervisor in child protection services employed with the Livingston Parish Office Community Services (OCS), represented this juvenile as an “interested adult” during the custodial interrogation by the West Feliciana Detectives in this Livingston Parish murder investigation. Ms. Lemoine testified that the juvenile and his grandparents were her former neighbors and friends. Ms. Lemoine stated that the juvenile contacted her and asked if he could come over and talk with her, that he just needed a place to come and talk. Ms. Lemoine testified that the juvenile and her stepson were friends, and that he occasionally spent time at her residence.

Ms. Lemoine testified that Kurt’s grandmother initially called her and asked if Kurt had contacted her, to which she replied no. She stated that she later called the grandmother back to inform her that Kurt had come to the house, and that the police wanted to question him. Ms. Lem-oine testified that she was asked to stand in as the ROCS representative during the questioning of the juvenile. At that point, she informed the grandmother that she would accompany Kurt, due to her position with OCS to represent juveniles on occasion for questioning in lieu of a parent. Ms. Lemoine testified she did not ask the grandmother’s permission to stand in as an “interested or concerned adult.” She further testified that during questioning she was acting in her official capacity with OCS, and as the “interested or concerned adult” representing the juvenile’s interest.

Even more disconcerting, is the fact that, during their private conversation at the police station, the juvenile stated to Ms. Lemoine “I need a lawyer.” However Ms. Lemoine, the “interested adult” encouraged the juvenile to waive his right to an attorney. The following colloquy occurred between the defense counsel and Ms. Lemoine at the hearing on the motion to suppress the statement:

MR. DAMPF:
Q. Now, when you went over the form with him, or when you talked to him privately, what is the first thing Kurt told you?
MS. LEMOINE:
A. I need a lawyer.
MR. DAMPF:
Q. Okay. Now at that point, did you stop everythinh or did you start discussing with him or did you explain to him he might no — tell us what you did?
MS. LEMOINE:
A. I wanted to know why he said that. I told him that if he didn’t have anything to do with it, he needed to cooperate, give his statement, and tell his side of the story, and cooperate with law enforcement. I felt that was the best thing for him to do.

In my mind, since this juvenile was the accused perpetrator of a crime, it was impossible for the OCS agent to act as an “interested or concerned adult” in the best |,.¡interest of the child. A man cannot serve two masters. This inherent conflict cannot be ignored. Ms. Lemoine is a sworn member of law enforcement which requires her to report crime committed against children, and cooperate with solving them.

In my view, after the juvenile stated, “I need a lawyer,” any further questioning by the police officers should have ceased. State v. Bell, 958 So.2d 1173 (La.2007). Once a suspect has “expressed his desire to deal with the police only through counsel,” all questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).

La. Const, art. I, § 13 incorporates the prophylactic rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which require that a prosecutor, before using an accused’s confession at trial, establish that the accused was informed of his or her rights against self-incrimination and to have an attorney present at any interrogation; that the accused fully understood the consequences of waiving those rights; and that the accused in fact voluntarily waived those rights without coercion. The constitutional privilege against self-incrimination and the constitutional right to counsel apply to juveniles as well as to adults. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State ex rel. Coco, 363 So.2d 207, 208 (La.1978) (recognizing that juveniles are entitled to same constitutional protections as adults).

Here, we have a 16 year-old juvenile with an 8th grade education, whom Ms. Lemoine describes as developmentally and socially delayed, who was told by a person |4he trusted, in effect, that if he was not guilty he should cooperate with the police and waive his rights. Thus, Ms. Lemoine failed to act in the best interest of this juvenile and stop the interrogation after he requested an attorney. Ms. Lemoine testified at the hearing on the motion to suppress, “in retrospect” she may have misled the juvenile, and that she made a mistake by not stopping the questioning after the request for an attorney. Even if the OCS agent could be temporarily relieved of her oath and duty to the State, under the totality of the circumstances test set forth in State v. Fernandez, 712 So.2d 485 (La.1998), the writ in this matter should be granted.

      . La. Const, art. 1, § 13 provides in part:
      When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel.


author: EZELL, Judge.

text:
    STATE of Louisiana v. D.G.H.
    No. KA 2007-524.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Van Hardin Kyzar, District Attorney, Tenth Judicial District Court, Natchitoch-es, LA, for Plaintiff/Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, D.G.H.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hOn May 29, 2003, the Defendant, D.G.H., was charged by bill of information with three counts of indecent behavior with a juvenile, in violation of La.R.S. 14:81, two counts of sexual battery, in violation of La.R.S. 14:43.1, and molestation of a juvenile, in violation of La.R.S. 14:81.2. The Defendant entered pleas of not guilty on July 18, 2003. On May 7, 2004, the Defendant withdrew his former pleas and entered pleas of guilty to two counts of indecent • behavior with a juvenile. The remaining counts in the bill of information were dismissed and all counts in docket number C7704, violation of protective orders, were also dismissed.

On March 23, 2005, the Defendant filed a “Motion to Withdraw Plea of Guilty.” The motion was denied in open court on April 20, 2005. The Defendant was subsequently sentenced to three years in the Department of Corrections. A motion to reconsider sentence was filed on May 23, 2005, and denied on June 29, 2005.

A motion for out of time appeal was filed on April 12, 2006, and subsequently denied. The Defendant filed a writ with this court seeking review of the denial of his motion on April 26, 2006. In an opinion rendered on July 25, 2006, this court remanded the matter to the trial court for an evidentiary hearing to determine whether the Defendant was entitled to reinstatement of his right to seek appellate review. On October 25, 2006, the trial court granted an out-of-time appeal.

The Defendant is now before this court asserting one assignment of error. Therein, the Defendant contends the trial court erred in denying his motion to withdraw his guilty pleas. We find this assignment of error lacks merit.

I ¡¿FACTS

The Defendant committed indecent behavior with a six-year-old girl and a ten-year-old girl.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are errors patent with the sentence imposed.

The minute entry of sentencing, which accurately reflects the transcript of the sentencing hearing, provides in pertinent part:

THE COURT SENTENCED DEFENDANT TO 3 YEARS WITH THE DEPARTMENT OF CORRECTIONS. THE COURT ADVISED DEFENDANT THAT HE WAS ADVISED UNDER ARTICLE 894.1 OF THE CODE OF THE CRIMINAL PROCEDURE THAT HIS SENTENCE IS NOT SUBJECT TO DIMINUTION FOR GOOD BEHAVIOR.

Although the Defendant entered guilty pleas to two counts of indecent behavior with a juvenile, the trial court imposed only one sentence. Consequently, the Defendant’s sentence is indeterminate and should be set aside and remanded to the trial court for resentencing on both counts of indecent behavior with a juvenile. See La.Code Crim.P. art. 879 and State v. Hongo, 625 So.2d 610 (La.App. 3 Cir.1993), writ denied, 93-2774 (La.1/13/94), 631 So.2d 1163.

Additionally, La.R.S. 15:537(A) requires that diminution of sentence be denied to a person who is sentenced to imprisonment for a stated number of years or months and is convicted of or pleads guilty to certain sex offenses, including indecent behavior with a juvenile, a violation of La.R.S. 14:81.

After imposing the sentence, the trial court stated in pertinent part: “[Y]ou are advised under Article 894.1(D) of the Code of Criminal Procedure ... that your sentence is not subject to diminution for good behavior. This is an 85% sentence. And Number 2, if the sentence imposed was not enhanced pursuant to R.S. 15:529.1 et. seq.... ” Louisiana Code of Criminal Procedure Article 894.1(D)(1) requires the trial court to advise the defendant, immediately following the imposition of a felony sentence, “[wjhether, pursuant to the provisions of R.S. 15:571.3, the offender’s sentence is subject to diminution for good behavior.” Pursuant to La.Code CrimJP. art. 894.1(D)(2), the court is also required to advise the defendant “[wjhether the sentence imposed was enhanced pursuant to La.R.S. 15:529.1 et seq., Article 893.3, or any other relevant provision of law.” We find the trial judge was simply complying with Article 894.1(D) when he informed the Defendant of his ineligibility for diminution of sentence. Consequently, the trial judge’s statement was a mere advisement which resulted in the Defendant receiving an illegally lenient sentence.

Recently, this court addressed this issue in State v. S.D.G., 06-174, pp. 4-5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247, writ denied, 06-1917 (La.3/16/07), 952 So.2d 694:

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the defendant diminution eligibility under La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the trial court’s failure to deny diminution of sentence renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make |4a notation in the minutes reflecting the amendment.

Upon remand for resentencing, the trial court is instructed to deny the Defendant eligibility for diminution of sentence on both counts of indecent behavior with a juvenile.

ASSIGNMENT OF ERROR

In his only assignment of error, the Defendant contends the trial court erred in failing to grant his motion to withdraw his guilty pleas.

The Defendant, in his motion to withdraw his guilty pleas, set forth the following: “at the time Defendant entered the plea of guilty, he was under extreme emotional stress, was under the care of a physician, and his mental and physical state [sic] was such that he did not fully appreciate the consequences of his actions.” The trial court denied the motion after a hearing.

Louisiana Code of Criminal Procedure Article 559 states that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” The withdrawal of a guilty plea is within the broad discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Blanchard, 00-1147 (La.4/20/01), 786 So.2d 701.

State v. Roe, 05-116, p. 8 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, 1271, unit denied, 05-1762 (La.2/10/06), 924 So.2d 163 (alteration in original).

In brief to this court, the Defendant asserts that it is apparent from the suddenness of the plea offered by the State that the deal was conditioned on the Defendant’s accepting it immediately, so that the victims would not have to testify at the preliminary examination. The Defendant further asserts that when a man with paranoid personality disorder is presented with a decision he must make immediately, 1 sthe pressure of the situation is likely to arouse his paranoia. Further, paranoid people often experience delusions which have no basis in reality. Someone whose world view is not based in reality cannot be said to have knowingly and intelligently entered into a plea. The Defendant further notes that at the time he entered his guilty plea he stated he was not taking medication; thus, his mental condition was untreated.

A report prepared by Dr. John Simo-neaux was admitted at the hearing on the Defendant’s motion. The report contains the following information:

His scores are consistent with a paranoid orientation. People who score this way are usually very suspicious, angry, and brooding resentful. [D.G.H.] has a tendency to over-interpret situations as “directed at him.” Most often these behaviors are clearly paranoid, with ideas of reference, projection as a primary defense mechanism, poor reality testing, and even delusions of persecution and/or grandeur.
It seems very clear from this evaluation that he may be suffering from a Paranoid Personality Disorder which would suggest that he probably otherwise would look “fairly normal” but that he would tend to be very suspicions, mistrusting, presumptuous, and even irrational at times.
The results of this evaluation suggest that [D.G.H.] may well pose a significant risk for future sexual acting out. This is particularly true with a sense that he continues to feel so much anger over how he perceives that he has been “wronged.” Most of that anger is directed at the mother of his child and her family.
It is difficult to imagine why he would have chosen to plead guilty to a crime that would have severely compromised his time with his child and then rescind that plea.

After accepting this report, the trial court denied the Defendant’s motion, stating the following (alteration in original):

the Court was of the opinion that he knew what he was doing, that he had time to meet with his attorney and reflect on what he was doing. My questions, asked very carefully, do you want to do this? Uh ... among the questions the Court asks, the Boykinization that we go through probably takes fifteen (15) minutes, and uh, I ... I advise him if he’s had ... if he’s discussed what he’s doing with his attorney. I tell him has he had enough time to talk with his attorney. I ... I advise him |nof the consequences, if he maintained his plea of not guilty. Asked him if anybody made any threats or promises to him, other the [sic] plea bargain ... was anybody forcing him to do it. I asked the State if there was a sound factual basis for the offense. I asked Mr. Higgins, if it was his opinion, from the facts stated, that the uh, elements that constitute the crime that he was pleading to were present. Uh, I told him other consequences of his plea. And uh, I feel like he knew what he was doing, almost a year ago. That hasn’t changed.

Dr. Simoneaux’s report states the Defendant has delusions of persecution and/or grandeur. The report does not state these delusions interfered with the Defendant’s ability to enter knowing and intelligent pleas of guilty or that medication is needed to control his “condition.”

Prior to accepting the Defendant’s guilty pleas, the trial court interrogated him. It informed the Defendant of the various rights he would forego by pleading guilty to the charges and ascertained that the Defendant fully understood the nature of the sentences negotiated pursuant to his plea bargain.

Based on the record, we find the Defendant’s guilty pleas were valid, as they were both voluntarily and intelligently given; therefore, the trial court did not abuse its discretion when denying the Defendant’s “Motion to Withdraw Plea of Guilty.” Accordingly, this assignment of error lacks merit.

CONCLUSION

The Defendant’s convictions are affirmed. However, his sentence is vacated as indeterminate and the case remanded for resentencing on both counts of indecent behavior with a juvenile. Additionally, the trial court is instructed to deny the Defendant eligibility for diminution of sentence on both counts of indecent behavior with a juvenile.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . The record does not indicate the Defendant was sentenced on each count of indecent behavior with a juvenile.

      . The Defendant pled guilty during his preliminary examination.