author: PER CURIAM. DENNIS, Justice, DIXON, Chief Justice and CALOGERO, Justice, LEMMON, Justice, WATSON, Justice, BLANCHE, Justice

text:
    STATE of Louisiana v. John L. JONES.
    No. 67400.
    Supreme Court of Louisiana.
    Sept. 10, 1981.
    Concurring Opinion Sept. 15, 1981,
    Dissenting Opinion Sept. 17, 1981.
    Concurring Opinion Nov. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for defendant-appellant.
    James S. Gravel, of Gravel, Schley & Van ■ Dyke, Alexandria, for defendant-appellant.
   PER CURIAM.

On March 17, 1980, the defendant, represented by counsel, entered a plea of guilty to operating a vehicle while intoxicated, third offense in violation of La.R.S. 14:98(d) (DWI-3). The defendant, with the approval of the state and trial judge, expressly conditioned his guilty plea by reserving his right to appeal to this Court under State v. Crosby, 338 So.2d 584 (La.1976), on the issue of whether the court minutes showing his two prior guilty pleas to charges of violation of La.R.S. 14:98 could serve as a valid predicate for the present charge. Defendant was sentenced to one year in jail and a $500 fine, and on default, six months in jail. Defendant appealed, urging the Crosby reservation.

Following a bench conference with the judge on March 7, 1980, counsel for the defendant and the state made a joint offer of copies of court minutes showing defendant’s plea of guilty to DWI-1 entered on May 28, 1976 and a subsequent guilty plea to DWI-2 on June 15, 1978. The prosecutor commented that the minutes speak for themselves. Defense counsel objected “not to the actual offerings themself [sic], but to the content of the offering[s] because they do not lay a proper predicate” for the offense charged. The trial judge noted the objection to the offerings, but accepted the conditional guilty plea despite his doubts “whether this was procedurally proper under Crosby.”

The defendant filed no pretrial motions. His only argument on appeal is that he cannot be properly charged as a third offender on the basis of the minutes showing his two prior convictions. The defendant contends that his earlier pleas cannot be used to enhance his status and sentencing liability under La.R.S. 14:98 because the pleas were not taken in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Specifically, the defendant argues that the state must produce a contemporaneous record affirmatively showing a knowing and voluntary waiver of the privilege against self-incrimination, right to a trial, and a right to confrontation of accusers.

This case raises the following questions:

(1) Is a Crosby reservation an appropriate procedural vehicle to allow this Court to reach the merits of the defendant’s argument?

(2) If we reach the merits, does the three-right articulation rule we established in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), apply to misdemeanor guilty pleas which will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony?

CROSBY RESERVATION

A defendant who enters a guilty plea may appeal his conviction and sentence just as the defendant convicted following trial. La.C.Cr.P. art. 912. However, the issues appealable are more limited. It has been traditionally held that a plea of guilty waives all nonjurisdictional defects in the proceedings prior to the plea. State v. Torres, 281 So.2d 451 (La.1973); State v. Coats, 260 La. 64, 255 So.2d 75 (1971); Joseph, The Work of the Appellate Courts for the 1975-76 Term — Postconviction Procedure, 37 La.L.Rev. 568 (1977). In State v. Crosby, 338 So.2d 584 (La.1976), we departed from this rigid position and joined a growing number of jurisdictions and commentators favoring acceptance of conditional guilty pleas in some contexts. The principal nonjurisdictional issue the defendant reserved in Crosby was the denial of his motion to suppress certain physical evidence which he alleged was illegally seized. Crosby has routinely been followed in subsequent cases involving reservations of similar Fourth Amendment claims. E. g., State v. Lewis, 385 So.2d 226 (La.1980); State v. Neyrey, 383 So.2d 1222 (La.1980); State v. Hutchinson, 349 So.2d 1252 (La.1977); State v. Lain, 347 So.2d 167 (La.1977). This is the most common context in which conditional guilty pleas have been found appropriate. See 93 Harv.L.Rev. 564 and 26 U.C.L.A.L. Rev. 360, supra.

We must determine whether it is appropriate to allow the defendant to reserve his due process claim that his Boykin rights were violated by application of the principles established in Crosby, supra, 338 So.2d 590-92. Without lengthy discussion, we conclude that these principles weigh in favor of reaching the merits rather than simply setting aside the plea and remanding.

The defendant raises a purely legal question of whether our Boykin-Jackson rule provides him with a legal defense to the instant charge. Thus, unless we allow this reservation, a trial will be necessary, not for the resolution of any factual dispute, but as a means of preserving the defendant’s constitutional claim for appeal. As we stated in Crosby, it would be wasteful to force a sham trial in order to avoid a forfeiture of appellate review. 338 So.2d at 389. Accepting a conditional plea also spares the defendant from making the somewhat inequitable choice of either foregoing the potential benefits of plea bargaining or sacrificing his constitutional claims. In addition, the record of this case allows adequate review of the assignment presented us. Lastly, we note that the trial judge accepted the conditional plea, but has great discretion to reject such pleas if the situation demands.

APPLICATION OF BOYKIN^JACKSON TO CERTAIN MISDEMEANOR GUILTY PLEAS

The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) noted that several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial, viz., the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the right to trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and the right to confront one’s accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and held that it “cannot presume a waiver of these three important federal rights from a silent record.” 395 U.S. at 243, 89 S.Ct. at 1712.

This court in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), expounding Boykin, held that “in taking a plea of guilty, an express and knowing waiver of at least these three federal constitutional rights must be made, which waiver cannot be presumed.” 260 La. at 103, 255 So.2d 85.

Boykin and Jackson involved guilty pleas to felony offenses. Two of the same federal constitutional rights involved in those cases, and sometimes all three, are involved in a waiver that takes place when a guilty plea is entered in a state misdemeanor trial. However, the opinions in Boykin and Jackson do not explicitly state whether an appellate court can presume a waiver of these federal rights from a silent record in a misdemeanor case.

A majority of this court is of the opinion that the three right articulation rule is applicable to a misdemeanor guilty plea used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony. Some members of the court draw the line at these points by analogy to the holdings in Baldasar v. Illinois, 446 U.S. 222, 101 S.Ct. 1585, 65 L.Ed.2d 1125 (1980); Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Others are of the view that, since guilty pleas to misdemeanors involve waivers of federal constitutional rights which cannot be presumed from a silent record, the three right articulation rule should be applicable to all misdemeanors except for minor traffic offenses.

Accordingly, whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where it is applicable; (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and of its consequence. See State ex rel. Jackson v. Henderson, supra, 260 La. at 101, 103.

In the present case, the minute entry showing defendant’s guilty plea to his first DWI offense does not show that he had waived any constitutional right other than his right to counsel. This misdemean- or guilty plea was used as a basis for conversion of a subsequent misdemeanor, DWI 1, into a felony, DWI 3d. See La.R.S. 14:98. Also, because defendant received a one year jail sentence, the misdemeanor guilty plea was used to enhance his actual imprisonment beyond the maximum six months jail sentence he could have received for DWI 2d. See La.R.S. 14:98. Accordingly, we are required to declare the misdemeanor guilty plea to defendant’s first DWI offense invalid for these purposes. Consequently, defendant’s DWI third offense conviction and sentence must be set aside because his invalid first offense DWI guilty plea conviction was an essential element thereof.

Our decision will be fully applicable to this case and any other case filed and presently pending in this court involving the issue presented herein. In all other cases, however, we will apply our holding to guilty pleas entered after this decision becomes final.

Decree

Accordingly, for the reasons assigned, we conclude that we are required to set aside the defendant’s conviction of driving while intoxicated, third offense, La.R.S. 14:98 (d), the defendant’s underlying guilty plea, and the defendant’s sentence herein. The case is remanded to the trial court for further proceedings not inconsistent with this opinion.

CONVICTION AND SENTENCE VACATED AND CASE REMANDED.

LEMMON and DENNIS, JJ., DIXON, C. J., and CALOGERO, J., assign additional reasons.

BLANCHE, J., concurs and assigns reasons.

WATSON, J., dissents and assigns reasons.

DENNIS, Justice, DIXON, Chief Justice and CALOGERO, Justice,

assigning additional concurring reasons.

We believe that a trial judge has a duty to protect every person entering a guilty plea from an unknowing or involuntary waiver of his constitutional rights, not just those who end up in jail or in felony court. Accordingly, we think that in every case except minor traffic offenses a judge must inform an accused of the rights he is waiving, make sure he understands the nature of the plea and its consequence and leave a record adequate for review. Moreover, it appears that this court could better promote judicial efficiency by adopting a simplified Boykin procedure and requiring that it be applied to all misdemeanor guilty pleas except in minor traffic offenses.

As pointed out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), a guilty plea amounts to a conviction and involves the waiver of several constitutional rights including the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It has long been held that courts are not to presume acquiescence in the loss of fundamental rights; that a waiver is valid only if voluntarily and knowingly made. Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); Johnston v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1464 (1938). In Boykin, the United States Supreme Court elaborated on this principle, holding that the appellate court could not presume a valid waiver of the constitutional rights a defendant implicitly relinquishes by entering a guilty plea from a “silent record.” 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

This Court in State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), interpreting Boykin, held a guilty plea would not be considered knowingly made unless the three constitutional rights mentioned in Boykin were explained to the defendant and expressly waived. As to Louisiana guilty pleas entered after the date Jackson became final (December 8, 1971), we have since required “that the record contain on its face direct evidence that the accused was made aware by the trial judge of his right to jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination.” State v. Williams, 384 So.2d 779, 781 (La.1980). See State v. Martin, 382 So.2d 933 (La.1980); State v. Bolton, 379 So.2d 722 (La.1979); State v. Holden, 375 So.2d 1372 (La.1979); State v. Lewis, 367 So.2d 1155 (La.1979). Our three-right articulation rule is designed to insure both that a defendant is aware of his constitutional rights and voluntarily and knowingly waives them and that an adequate record is made of these facts to facilitate review on appeal or collateral attack.

' The extent to which our three-right articulation rule applies to misdemeanors has not been squarely addressed by this Court. While it is true that the seminal decisions dealing with guilty pleas all involve felonies, the rationale underlying our rule and the aims the rule is designed to fulfill appear equally applicable to misdemeanors. The waiver of constitutional rights made by a defendant entering a guilty plea to a misdemeanor is virtually identical to that made by a defendant in a felony prosecution. A defendant’s constitutional rights in a misdemeanor proceeding include the right to have his guilt proved by the state at trial beyond a reasonable doubt, the right to confront his accusers, and the privilege against compulsory self-incrimination. See, e. g., District of Columbia v. Clawans, 300 U.S. 607, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); La.Const. Art. I, § 16. There is, however, no right to trial by jury under the federal or state constitution if the offense charges is considered “petty” and carries a potential punishment of six months or less. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); La.Const.Art. I, § 17. Although most misdemeanors fall within the petty offense category and carry a potential punishment of six months in jail or less, numerous misdemeanors carry maximum penalties in excess of six months imprisonment in jail or a fine exceeding $500. A person accused of violating a misdemean- or in this category has the right to trial by jury, and his decision to plead guilty entails exactly the same waiver of rights as that made .by one pleading guilty to a felony. La.C.Cr.P. art. 779.

There seems to be no significant distinction drawn in the federal system regarding the taking of guilty pleas in felony and misdemeanor prosecutions; Rule 11 of the Federal Rules of Criminal Procedure governs both. See United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) for a thorough analysis of Rule 11 and its proper application.

Courts in several states have expressly found Boykin applicable to misdemeanors. See Mills v. Municipal Court for the San Diego Jud. Dist. 10 Cal.3d 288, 110 Cal.Rptr. 329, 505 P.2d 273 (1973); City of Fairborn v. Vannicola, 31 Ohio App.2d 167, 287 N.E.2d 281 (1972); City of Cleveland v. Whipkey, 29 Ohio App.2d 79, 278 N.E.2d 374 (1972); State v. Driver, 290 N.W.2d 856 (S.D.1980); Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974). Some of these state courts have determined, however, that identical procedures that are required in felony proceedings need not be followed in implementing Boykin in the misdemeanor context. See particularly, Mills v. Municipal Court, supra, 515 P.2d 273.

We see no reason to insulate misdemean- or guilty pleas from the beneficial effects which application of our Boykin-Jackson rule has had in felony proceedings. In Boy-kin, the Court spoke of the great solicitude demanded to insure that a defendant facing death or imprisonment understands the consequences of his plea. Boykin v. Alabama, supra, at 243-44, 89 S.Ct. at 1712, 23 L.Ed.2d at 280. Virtually all misdemean-ants face the possibility of imprisonment and relatively serious collateral consequences that may accompany a conviction. Though misdemeanors carry a shorter maximum incarceration than felonies, they are not necessarily less complex; indeed, many “petty” offenses present complex legal and factual issues, including thorny constitutional problems. Argersinger v. Hamlin, 407 U.S. 25, 47, 92 S.Ct. 2006, 2017, 32 L.Ed.2d 530, 544 (1972) (Powell, J., concurring); Sibron v. New York, 392 U.S. 40, 52, 88 S.Ct. 1889, 1897, 20 L.Ed.2d 917, 929 (1968).

It is of great importance for the trial judge to discharge his affirmative duty of insuring that the plea is knowingly and voluntarily entered and that a record is left to demonstrate such. A person charged with a misdemeanor may be more likely to forego the assistance of counsel, and even though innocent, may conclude that the savings in time and money gained by pleading guilty and avoiding a trial and costly legal representation outweighs the potential punishment if convicted, particularly if appearances are against his being found innocent. Also, since plea bargaining may in some cases be less common in the misdemeanor context, a misdemeanor defendant could be less likely to derive the usual benefits associated with a negotiated plea. Bar-kai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants, 126 U.Pa.L.Rev. 88, 101 (1977).

Accordingly, the rationale underlying our Boy kin-Jackson rule should be made applicable to misdemeanor guilty pleas. It should be incumbent upon the trial judge to inform the defendant that by pleading guilty he'waives; (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where same is applicable; (c) his right to confront his accusers. See State ex rel Jackson v. Henderson, supra, 255 So.2d at 90. The trial judge should be required to find that the defendant intelligently and voluntarily waives these rights and makes his plea. These are minimum requirements. There are additional desirable safeguards which may be employed. See Criminal Justice Standards Bench Book for Special Judges, pp. 12 — 15.

Boykin and Jackson, as earlier discussed, are generally designed to fulfill two purposes: first, insuring that the defendant is aware of his constitutional rights and knowingly waives them; and second, insuring that an adequate record of that waiver is made to facilitate appellate review. In our view, these purposes may be accomplished by procedures which vary somewhat from those required in felony proceedings as long as these procedures afford adequate protection of the constitutional interests at stake. See Mills v. Municipal Court, supra, 515 P.2d at 283-89: ABA Project on Standards for Criminal Justice, Pleas of Guilty 1 (1968). We believe that by allowing flexible procedural implementation of our felony rule to misdemeanor proceedings the defendant’s interests may be safeguarded and “assembly-line justice” avoided without unduly sacrificing the interest of the parties and court in convenience and efficiency.

For example, a misdemeanor defendant is allowed to plead guilty through counsel with the court’s consent in this state and in the federal system. La.C.Cr.P. arts. 553, 833; Fed.R.Crim.P. 43(c)(2). We believe that a guilty plea could be validly accepted by the trial court judge if coupled with an adequate waiver form and the defendant’s lawyer attests in writing and in open court that the defendant personally completed the form and knowingly and voluntarily waived the various Boykin rights. See Mills, supra, at 286.

An acceptable and workable procedure might be fashioned whereby the trial judge collectively advises a manageable number of misdemeanor defendants at once, explaining the various rights waived by entering a guilty plea in some detail, and thereafter inquires of each individual defendant before arraignment whether he heard and understood the general instruction, quickly repeating the applicable rights to refresh the defendant’s memory. Such procedure would produce minutes which contain an express waiver of the defendant’s right to a trial, right to confront accusers, and the privilege against self-incrimination. We believe that such a procedure could be efficiently completed without sacrificing the necessary degree of reliability. This general instruction could be supplemented with a written waiver form signed by the defendant which when entered into the record gives direct evidence that the defendant was apprised of his rights and waived them.

These examples are illustrative only; we do not suggest that other acceptable means could not be fashioned. The trial judge must have some discretion to adjust the procedures he uses to the particular defendant and offense.

Our overburdened judicial system and defendants both would be better served, we respectfully submit, by a clear-cut abbreviated minimum Boykin requirement, similar to those suggested above which are already used by many of our trial courts. Much needed finality would be promoted without sacrificing the safeguards required by fairness: If trial judges followed the rule and recorded the proceedings, defendants would have little complaint and small chance at setting guilty pleas aside later. On the other hand, in the small number of cases in which the trial court failed to preserve a record of the guilty plea proceedings, the plea should be set aside and the defendant allowed to replead, both to do fairness to the defendant and to relieve the justice system of the time-consuming process of holding trials on whether the unrecorded guilty pleas were taken properly.

The United States Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) held that under Federal Rule 11, the trial judge must personally inquire whether the defendant understood the nature of the charge against him, the rule being designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary, and to produce a complete record at the time of the plea of the factors relevant to such voluntariness determination, and that noncompliance with the basic requirements of the rule constituted reversible error, entitling the defendant to plead anew. The underlying reasons for the court’s decision, which was made pursuant to its supervisory power over the lower federal courts, are the same as those which should guide us in formulating a rule in this case. As the Supreme Court stated:

“ * * * Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.” 394 U.S. at 472, 89 S.Ct. at 1174, 22 L.Ed.2d at 428-29.

In summary, from the standpoint of either constitutional law or sound judicial administration, this Court should require that a trial judge, before sentencing defendants who plead guilty to misdemeanors, take some form of basic precaution necessary to inform them of their rights and to determine whether they understand the action they are taking.

LEMMON, Justice,

Assigning Additional Concurring Reasons.

I subscribe to the result of the decision stated in the per curiam opinion and offer some additional observations.

This case decides where the line should be drawn as to the type of cases in which Boykinization should be required. Although there are persuasive arguments for drawing the line elsewhere as a matter of policy, I prefer to decide the issue purely on a constitutional basis. In my view constitutional due process requires a showing that the guilty plea was voluntarily made with a knowledgeable waiver of basic constitutional rights, if the conviction based on the plea (in felony or non-felony cases) is ever to be used to impose imprisonment for that offense, to charge the subsequent commission of the same offense as a felony, or to enhance actual imprisonment in any manner. The underlying rationale is that a person should not be imprisoned as a consequence of an unconstitutional guilty plea.

While I agree that some type of Boykini-zation is required in these types of misdemeanor cases, however, I disagree that literal compliance with the three-right articulation rule announced in State ex rel Jackson v. Henderson, 255 So.2d 85 (La.1971) is always constitutionally required for a valid guilty plea. The Jackson rule is an excellent prophylactic rule, issued by this court in a supervisory capacity and designed to prevent most post-conviction attacks on guilty pleas. However, the only requirement of constitutional magnitude for the validity of guilty pleas is that the record, either of the guilty plea or of a subsequent post-conviction proceeding, establish that the defendant at the time of the plea was aware, through the trial court or through defense counsel, of the constitutional rights that were relinquished, of the nature of the offense, and of the possible penalty, and that he pleaded guilty voluntarily. The constitutional validity of the plea is ultimately determined by the overall circumstances of each case.

Finally, the burden placed on trial judges by the present decision should not be too great, because a trial judge in misdemeanor cases can validly utilize an en masse instruction to a manageable number of people, as long as the judge thereafter determines from each person individually that the person heard and understood the general instruction and is voluntarily waiving the explained rights. In such cases a written waiver form would be a significant addition to the record, when completed and signed by the defendant in connection with the general instruction.

The bottom line of the current rash of guilty plea decisions is the recognition that sloppy guilty plea procedures cause the defendant to suffer inadequate protection of his rights and, equally important, cause society to suffer uncertainty in the finality of convictions. Simple efficient and thorough procedures protect both interests.

WATSON, Justice,

dissenting.

The majority takes a giant step backwards in the administration of criminal justice. This decision will require Boykinization, that is, the recitation to a defendant at the time of his guilty plea in misdemeanor cases of his (1) right to trial by jury, (2) right to confront the witnesses against him, and (3) right to remain silent. This has previously been required only in felony cases. I dissent for several reasons, among them the following:

(1) Not even the United States supreme Court has gone this far.

(2) A heavy and unnecessary burden will be placed on our City and District courts by requiring them to recite Boykin rights to each misdemeanor defendant.

(3) One particularly disastrous result will be wiping the slate clean for multiple offender DWIs.

(4) The three-right articulation rule which has been required in felony cases by this court is not applicable to “petty” offenses because there is no right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

In the present case, the defendant has two perfectly valid previous convictions for DWI. Legally and practically, he is a third offender and I would affirm his conviction.

Accordingly, I respectfully dissent.

BLANCHE, Justice

(concurring)

As previously expressed by this writer, Boykin does not compel the guilty plea procedure we have developed in felony cases, and for even less reason in a misdemeanor case. See this writer’s dissenting opinion in State v. Williams, 400 So.2d 868 (La. 1981) and concurring opinions in State v. Cusher, 400 So.2d 601 (La. 1981) and State v. Warren a/k/a Mason, 402 So.2d 662, (La. 1981). Nevertheless, the majority of the Court as presently constituted is committed to a compulsory three-right articulation rule in felony cases, and it may as well be made applicable to misdemeanors. It is really very convenient, quickly articulated and, in exceptional cases, see State v. Galliano, 396 So.2d 1288 (La. 1981), is airtight proof of the voluntary and knowing standard which Boykin actually espouses.

This writer would also observe that as the Boykin standard is one requiring a voluntary and knowing guilty plea, intellectually we should possibly apply it to all pleas instead of practically to those which are serious (jail time, enhancement, conversion of misdemeanor to felony). With the foregoing observations, this writer concurs with the opinion because he believes that our courts’ past investment in the compulsory three-right articulation rule should not, at this late date, be discarded and will give direction to our judges in serious misdemeanor cases involving jail time or enhancement despite the above observations.

      . Minutes showing defendant’s guilty plea to DWI-1 entered on May 28, 1976:

        “156,323 — State vs. John L. Jones. (Drunk Driving)
      The accused was present in open Court without counsel. Court explained to the accused of his right of representation by counsel, the accused waived said right, was arraigned and pleaded guilty. Court sentenced the accused to pay a fine in the sum of $250.00 and $28.00 Court costs.”

      . Minutes showing defendant’s guilty plea to DWI-2 entered on June 15, 1978:

        “1048140 — City vs Jonn L. Jones (DWI) (c) The accused present in Open Court, without counsel, advised of his rights as stated in opening of Court, in answer to the Judge’s questions, the accused stated he understood and wish [sic] to waive all rights, accused arraigned and pleaded guilty. Sentenced by the Court to ... 125 days in jail on DWI (c).”
      The city court judge gave an en masse instruction to all present in the courtroom prior to arraignment of those individuals accused of traffic offenses. This instruction included an explanation of the right to court-appointed counsel, right against self-incrimination, right to confront and cross-examine accusers, and the right to compulsory process.

      . The defendant’s assignment of error, that the minutes reflecting his two prior guilty pleas do not constitute a valid foundation for charging him with DWI-3, is broad enough to raise the question of whether his right to court-appointed counsel was shown to have been validly waived. Though a right to counsel would have merit, the defendant does not specifically so contend in brief and has arguably waived this point. See State v. Vezina, 391 So.2d 450 (La.1980); State ex rel Bishop v. Blackburn, 384 So.2d 406 (La.1980); LeBlanc v. Watson, 378 So.2d 427 (La.1979); State v. Carlisle, 315 So.2d 675 (La.1975); La.C.Cr.P. arts. 513-14.

      . See United States v. Burke, 517 F.2d 377 (2d Cir. 1975); United States ex rel Rogers v. Warden of Attica State Prison, 381 F.2d 209 (2d Cir. 1967); United States v. Moskow, 588 F.2d 882 (3d Cir. 1978); United States v. Zudick, 523 F.2d 848 (3d Cir. 1975); Nickels v. State, 545 P.2d 163 (Alaska 1976); Dorsey v. Cupp, 12 Or.App. 604, 508 P.2d 445 (1973). Several states allow conditional guilty pleas by statute. E. g., Cal. Penal Code § 1538.5(m) (West Supp.1979); N.Y.Crim.Proc. Law § 710.-70(2) (McKinney 1971); Vt.Stat.Ann. tit. 13, § 7401 (1974); Wis.Stat. § 971.31(10) (1977).
      The United States Supreme Court, in dicta, approved of the New York statute allowing conditional pleas in Lefkowitz v. Newsome, 420 U.S. 283, 293, 95 S.Ct. 886, 891, 43 L.Ed.2d 196, 204 (1975), commending the state’s efforts “to relieve the problem of congested criminal trial calendars in a manner that does not diminish the opportunity for the assertion of rights guaranteed by the Constitution.”

      .See, Uniform Rules of Criminal Procedure 444(d); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Criminal Appeals § 1.3(a)(iii) (1969); 3 W. La-Fave, Search and Seizure § 11.1(d) (1978); 1 C. Wright, Federal Practice and Procedure (Criminal) § 175 (1969 & 1979 Supp.); Barkai, Accuracy Inquiries For All Felony and Misdemeanor Pleas; Voluntary Pleas But Innocent Defendants? 126 U.Pa.L.Rev. 88 (1977); Comment, Conditioned Guilty Pleas: Post-Guilty Appeal of Nonjurisdictional Issues, 26 U.C.L.A. L.Rev. 360 (1978); Comment, Conditional Guilty Pleas, 93 Harv.L.Rev. 564 (1980).

      . See State v. Vezina, 391 So.2d 450 (La.1980) (decided on other grounds); State v. Woodard, 387 So.2d 1066 (La.1980) (question avoided for lack of an apt objection); State ex rel Bishop v. Blackburn, 384 So.2d 406, 408 (La.1980) (Dixon, C. J., concurring) (expresses opinion Boy-kin and Lewis should be applied to violations of La.R.S. 14:98).

      . E. g., La.R.S. 14:52 (simple arson); 14:67.1 (theft of livestock); 14:91.11 (sale, exhibition or distribution of material harmful to minors); 14:93.2 (tattooing minors); 14:119 (bribery of voters); 14:119.1 (bribery of parents of school children); 14:122.1 (intimidation and interference in the operation of schools); 14:125 (false swearing); 14:210 (taxicabs, tampering with meter forbidden); 14:211 (willful purchase of timber not paid for by seller); 14:212 (false statement by seller of timber); 14:219 (removal of building or structure from immovable property subject to a conventional mortgage); 14:221 (avoiding payment for telecommunication services); 14:222 (possession, manufacturing, or sale of devices for avoidance of telecommunications service); 14:224 (transportation of water from St. Tammany Parish); 14:226 (protection of owners of crayfish farms); 14:227 (removal or alteration of identification number); 14:285 (improper language, harassment by use of telephone); 14:286 (sale of minor children); 14:313 (wearing masks or hoods in public places prohibited); 14:314 (making unauthorized cut-offs in Mississippi River); 14:315 (stopping outlets or bayous prohibited); 14:324 (abandoning or discarding ice boxes or air tight containers); 14:326 (processions, marches, demonstrations prohibited); 14:327 (obstructing a fireman); 14:356.1 (unlawful referrals by wrecker drivers); 14:356.2 (unlawful appearance bond procurement); 14:513 (possession of loanshark records); 32:1480, 1481 (motor vehicle habitual offender law); 40:1035 (transactions in drug related objects — penalties).

      . Fed.R.Cr.P. art. 43(c)(2) allows the court to permit arraignment and plea in the defendant’s absence with the written consent of the defendant in prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both. Similarly, La.C.Cr.P. arts. 553 (Supp.1980) and 833 allow the accused to plead guilty to a misdemeanor through his counsel with the consent of the court.

      . We would not require Boykinization in minor traffic offenses in which the accused is allowed to remit his fine calculated according to an authorized parish or municipal schedule rather than appearing in person or through an attorney. See, La.R.S. 13:1900; 32:641. We do not believe that Boykin was intended to have any application to such offenses. Requiring a defendant to appear in person or through an attorney in such cases would impose an onerous burden on both the court and the defendant unjustified by any benefit obtained. See Mills v. Municipal Court, supra, 515 P.2d at 283.

      . Argersinger v. Hamlin, 407 U.S. 25, 36, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972).

      . In effect I would draw the line at the precise point that the United States Supreme Court did on the issue of right to counsel in the Baldasar, Scott and Argersinger cases cited in the per curiam opinion.

      . I hasten to add that the conscientious trial judge, who strictly complies with the Jackson rule or who follows the procedure suggested in Louisiana Judges’ Benchbook, Criminal Proceedings, Guilty Pleas (Judicial College 1980) by conducting an examination of the defendant and making a record of the colloquy, will insure the finality of the conviction, while at the same time protecting the defendant’s basic constitutional rights.

      . Important considerations include whether the defendant was represented by counsel, whether there were extensive pretrial proceedings, whether there was a plea bargain, whether the subsequent attack is on a relatively recent plea, and, most importantly, whether the trial judge or the defense attorney adequately explained the basic rights relinquished by a plea, the essential elements of the offense and the possible range of sentences.

      . Some of the concurring members of the court would require a mass Boykinization, then an individual Boykinization, and finally a written form Boykinization — a triple procedure not now required in felony cases.


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Carl WHITE.
    No. 81-KA-0197.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, David Pad-dison, Asst. Dist. Attys., for plaintiff-appel-lee.
    Jasper Pharr, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This appeal presents two principal issues: (1) whether the evidence is sufficient to sustain the defendant’s conviction of felony theft and (2) whether errors normally considered “patent on the face of the record” require reversal without a showing of prejudice.

Facts

Defendant entered a jewelry store and asked to view a ring. After examining the ring, defendant asked for the salesperson’s business card. The salesperson, being suspicious, recovered the ring from defendant and walked over to another area of the small store to get her card. Observing defendant slide open one of the showcases and remove a display case which contained seven diamond rings having a total value of approximately $8,000, the salesperson immediately returned to the counter. Because she had seen defendant .place the case of rings under a box from another store, she demanded that defendant return the rings. Defendant responded by asking “What rings?”, and she knocked the box aside and grabbed the rings. She retreated, rings in hand, to the telephone, informing defendant that she was going to call the police, whereupon defendant fled rapidly from the store into the parking area of the shopping mall.

Another employee, who also witnessed the events, pursued defendant, but lost sight of him and sought aid from security officers in the mall. By the time she located an officer, she was informed that the police already had defendant in custody.

Defendant was charged with theft of jewelry valued at $7991. After a jury trial defendant was found guilty as charged and sentenced to serve eight years imprisonment at hard labor. Defendant then moved for a new trial, challenging the sufficiency of the state’s evidence to sustain the jury’s verdict. The motion was denied, and defendant appealed.

Sufficiency of Evidence

Viewed in a light most favorable to the state, the evidence was sufficient to convince a reasonable juror beyond a reasonable doubt that defendant committed the offense charged. The evidence clearly supported the jury’s finding that defendant acted with a specific intent to steal the seven rings. See State v. Byrd, 385 So.2d 248 (La.1980). The evidence also amply supported their finding regarding the value of the rings. Compare State v. Peoples, 383 So.2d 1006 (La.1980).

Defendant’s only complaint with arguable merit relates to the sufficiency of the proof of a “misappropriation” or “taking”. See R.S. 14:67. However, the unauthorized removal of the rings from the closed display case clearly constituted “an exercise of wrongful dominion” or “unauthorized control” of the object of the theft (the rings). State v. Victor, 368 So.2d 711 (La.1979). The fact that the rings were not removed from the store, or even from the general area where they were kept, does ”.ot govern.

In Victor this court rejected defendant’s argument that an “asportation” was required to fully accomplish a theft. Justice Tate, writing for a unanimous court, stated:

“. .. La.R.S. 14:67 provides that a theft may occur when there is a ‘misappropriation’ (exercise of wrongful dominion) or a ‘taking’ (unauthorized control) of the property of another, without regard to whether there is physical movement (as-portation) . . . . ” 368 So.2d at 714.

In the present case defendant’s secret removal of the rings from their display case and his concealment of them under a box from another store was sufficient to prove the elements of misappropriation or taking.

Errors Patent

More troubling problems have surfaced from our inspection, upon defendant’s request, of the record of the proceedings. Defendant was sentenced, without objection, immediately after his new trial motion was denied. The minutes do not reflect a waiver of the otherwise mandatory 24-hour delay in sentencing required by C.Cr.P. Art. 873. Further, the copy of the bill of information included in the record on appeal does not reflect that the district attorney ever signed the formal charging document, as required by C.Cr.P. Art. 384. Although no objection was raised in the trial court, both of these deficiencies may be noticed by this court on appeal for the first time (even if not assigned as error by defendant), because they are discoverable by “a mere inspection of the pleadings and proceedings”. C.Cr.P. Art. 920(2).

Although C.Cr.P. Art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged. See State v. Haarala, 398 So.2d 1093 (La.1981).

Defendant had a full opportunity to raise his complaint regarding the sufficiency of evidence in the new trial motion. The time lapsed between the defendant’s conviction, March 18, 1980, and the date on which sentence was finally imposed, May 30, 1980, was substantial. There are no indications that defendant’s sentence was hurriedly imposed without due consideration. Indeed, the minutes of March 18,1980 reflect that a presentence investigation was ordered.

A remand would only serve to lengthen unnecessarily the already substantial delays involved in this case and would in no way further the goal of achieving a fair and just decision on either verdict or sentence. It is illogical for this court to remand for the reimposition of sentence merely because there is an “error” in the minutes’ lack of an affirmative waiver of the 24-hour delay. Just as non-prejudicial violations of the accused’s statutory rights do not mandate reversal, an error in procedure which does not affect the fundamental fairness of the process does not necessarily require reversal and remand, unless prejudice is shown. C.Cr.P. Art. 921. In fact, C.Cr.P. Art. 921 mandates that this court not reverse a judgment because of an “error, defect, irregularity or variance which does not affect substantial rights of the accused”.

We accordingly hold that there is no need to equate errors discoverable on the face of the pleadings and proceedings with reversible error. Whether a patent error, like other statutory error, requires reversal must be evaluated in light of the potential impact on the fairness of the proceedings.

For similar reasons we decline to reverse this conviction, based on a jury verdict following proceedings in which the fairness has not been challenged, merely because the prosecutor’s signature may have been omitted from an otherwise fully sufficient bill of information that fairly apprised defendant of the nature and cause of the accusation against him. The minutes of March 19, 1980 reflect that defendant filed and withdrew a request for a bill of particulars and for other discovery, because the state had afforded “full discovery” of the state’s evidence. By responding to defense motions and by presenting the case at trial, the prosecution fully ratified the filing of formal charges. Any protection that is afforded to the accused and to society by the requirement that the district attorney’s signature appear on the bill of information was fully accorded here. If there were any doubts concerning the authenticity of the prosecutorial instrument, those were undoubtedly dispelled by the district attorney’s active prosecution of this case.

Further, C.Cr.P. Art. 534(1) provides that the district attorney’s failure to apply his signature is a ground for quashing an information. The following article, C.Cr.P. Art. 535, sets forth the time limits within which motions to quash on various grounds must be filed. The article also explicitly provides that the failure to file a motion to quash on grounds other than those set forth in art. 535 A and B waives defendant’s right to complain of the defect. The provisions of paragraph A and B do not include the prosecutor’s failure to comply with the signing requirement of C.Cr.P. Art. 384.

Thus, defendant’s failure to file a motion to quash waived his right to complain of the failure of the prosecutor to sign the bill of information.

Decree

The conviction and sentence are affirmed.

DENNIS, J., concurs in part and dissents in part with reasons.

CALOGERO, J., concurs in part and dissents in part for reasons assigned by DENNIS, J.

      . The hearing on the motion for new trial was, according to the minutes, postponed at least twice on defendant’s request.

      . No copy of the report is contained in the record, apparently because defendant had no objection to the severity of the sentence.

      . A similar result was reached in State v. Sears, 298 So.2d 814 (La.1974). There, this court rejected defendant’s contention that the failure of the foreman (as opposed to the deputy foreman) to sign the grand jury indictment required reversal of his conviction, despite his failure to file a motion to quash. The court held that defendant had waived his right to raise the alleged violation of C.Cr.P. Art. 383.


author: GUIDRY, Justice Ad Hoc. LEMMON, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Thurman L. CAMPBELL, Jr.
    No. 81-KA-0295.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Earl Piper, Jr., of Piper & Brown, Shreveport, for defendant-appellant.
   GUIDRY, Justice Ad Hoc.

Defendant, Thurman Campbell, Jr., was indicted by a Caddo Parish Grand Jury for second degree murder, a violation of La. R.S. 14:30.1. The defendant pled not guilty and trial of the matter began on September 30, 1980. On the fourth day of trial and prior to completion of the State’s case, Campbell changed his plea to that of guilty of manslaughter, a violation of La.R.S. 14:31. Following a pre-sentence investigation and subsequent sentencing hearing, the defendant was sentenced to serve twenty years at hard labor in the custody of the Louisiana Department of Corrections. Campbell appeals on the basis of three assignments of error.

FACTS

On March 29, 1979, defendant loaned a rented U-Haul truck to two acquaintances, Charles Lacour and Dennis Ray Brown. Lacour and Brown failed to return the truck to defendant and abandoned the vehicle when it ran out of fuel. On April 1, 1979, the defendant and a companion accosted Lacour and Brown as they left a liquor store in Shreveport. According to testimony received at Campbell’s trial, the defendant was armed with a gun and demanded a sum of money from the two men. Subsequently, defendant ordered the men to walk to the deserted parking lot of the liquor store where he again demanded a sum of money. Thereafter, Campbell struck Brown over the head with the gun. Allegedly, Brown, as he turned to run, saw Lacour raise his arm and then heard a gunshot. Lacour subsequently died of a gunshot wound to the head. At trial, the defendant contended that the gun accidently discharged when Lacour grabbed for the weapon.

ASSIGNMENTS OF ERROR 1 & 2

Defendant assigns as error the imposition by the trial court of an allegedly excessive sentence and the alleged failure of the trial judge to articulate sufficient reasons for such sentence in accordance with the provisions of La.C.Cr.P. Article 894.1.

The imposition of a sentence, even though within statutory limits, may violate a defendant’s right, under the Louisiana Constitution, against excessive punishment. Therefore, excessiveness of sentence is an appropriate question for review on appeal. See State v. Sepulvado, 367 So.2d 762. (La.1979). In State v. Bonanno, 384 So.2d 355 (La.1980) we set forth the standard to be used in reviewing a sentence alleged to be excessive. Therein we commented:

“As stated previously, to determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. State v. Goode, supra. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980).”

Additionally, in State v. Sepulvado, supra, we concluded that the statutory criteria legislatively provided by La.C.Cr.P. Article 894.1 affords appropriate criteria by which to measure whether a sentence within the statutory limits is nevertheless excessive. Under La.C.Cr.P. Article 894.1, the sentencing judge must state for the record those considerations taken into account in imposing sentence and the factual basis for such considerations. State v. Jackson, 360 So.2d 842 (La.1978). Simply stated, the record must reflect that the trial court adequately considered these criteria in imposing sentence.

The instant record indicates that sentence was imposed after a lengthy sentencing hearing during which several character witnesses and the defendant, himself, testified. Although the defendant contends that the trial judge failed to provide sufficient reasons for sentencing, an examination of the record reveals that defendant’s allegation is totally without merit.

In this case, the trial judge provided an unusually thorough discussion of the factual basis for defendant’s sentence. He noted the seriousness of the offense as well as trial testimony indicating that the defendant was additionally suspected of committing the crimes of aggravated kidnapping and armed robbery arising out of the same incident. Further, the trial court noted that defendant acted without strong provocation and noted that there existed no grounds to excuse or justify his behavior. The trial judge considered that the defendant had a prior history of crime as evidenced by his lengthy rap sheet and concluded that if he were placed on probation there existed a distinct probability that he would commit another crime. In support of this conclusion, the trial judge noted that Campbell had previously been placed on probation for a prior offense, yet had not discontinued his criminal activities. Although cognizant of the hardship on defendant’s family which will result from his incarceration, the trial judge concluded that the risk of continued criminal activity by Campbell militated against the imposition of a lesser sentence. The trial judge commented that a lesser sentence would surely deprecate the seriousness of Campbell’s crime.

In State v. Spencer, 374 So.2d 1195 (La.1979), we stated:

"... The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvado, supra.

Our careful review of the record in light of the standards set forth above reveals no abuse of the trial court’s discretion.

The defendant had originally been indicted for the crime of second degree murder which carries a mandatory sentence of life imprisonment without benefit of probation, parole, or suspension of sentence. After four days of trial, the defendant, fearing conviction on the murder charge, changed his guilty plea to one of guilty of manslaughter with no sentence limitations or recommendations imposed upon the trial court. As we have repeatedly stated, the trial judge exercised all due diligence in specifically delineating his reasons for imposing a twenty year sentence on defendant. The record clearly supports the trial court’s conclusions regarding the defendant, therefore, we conclude that the sentence imposed is both reasonable and just.

ASSIGNMENT OF ERROR 3

By this assignment of error, defendant urges that this Court review the instant record for patent errors. In brief and as a footnote only, defense counsel alleges that during the Boykinization process, the trial judge failed to specifically inform Campbell of the waiver by virtue of his guilty plea, of his right against compulsory self-incrimination. Defendant now urges that this alleged defect in the Boykinization proceedings is an error patent on the face of the record and constitutes reversible error.

This court has previously addressed this precise issue in State v. Knighten, 320 So.2d 184 (La.1975) and State v. Williams, 327 So.2d 379 (La.1976). In the cited cases, we held that the voluntariness of a guilty plea is not an error discoverable on the record and that barring a motion to withdraw the guilty plea or the perfection of an assignment of error, the alleged error is not reviewable on appeal.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for reasons of CA-LOGERO, J.

LEMMON, Justice,

concurring.

I concur in the result because the record establishes the guilty plea was constitutionally valid.

The 15-page Boykinzation, conducted when defendant decided to plead guilty just before completion of the state’s case in the fourth day of trial, did not mention the right against self-incrimination. However, adhering to his contention that the killing was accidental, defendant referred to the state’s witnesses as liars and admitted he had no witnesses to present other than himself. Under thorough questioning by the court defendant and his counsel then declared clearly and convincingly that since the defense evidence would not likely overcome the evidence presented by the state, defendant would prefer to plead to manslaughter than risk conviction for second degree murder and a mandatory life sentence.

Under these circumstances defendant was obviously aware of his right to remain silent and obviously concluded that the exercise of the right was of little benefit. When the overall circumstances are considered, this record establishes that defendant’s guilty plea was entered voluntarily and knowingly.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion for the following reasons.

The defendant, who pled guilty to manslaughter on the fourth day of his trial and was sentenced to 20 years imprisonment, appealed on the grounds that his sentence was excessive. He also urged the Court to vacate his guilty plea because of a patent error in the guilty plea proceedings, that is, it does not appear on the record that he was informed by the trial judge of his privilege against compulsory self-incrimination.

An error patent is “an error that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence,” and should be considered by this Court on appeal. La.C.Cr.P. art. 920(2). While I agree with the majority that the review of the guilty plea proceedings to determine whether the guilty plea was voluntary does not present a patent error and is, therefore, not subject to review on appeal [State v. Williams, 327 So.2d 379 (La. 1976); State v. Knighten, 320 So.2d 184 (La.1976)] defendant does not request a review for voluntariness, but rather, only requests that the Court determine whether it appears on the record that he was advised by the trial judge of his right against compulsory self-incrimination. Such a review would only require an inspection of the pleadings and proceedings and not an inspection of the evidence.

This Court recently reaffirmed its requirement that for there to be a valid guilty plea, the trial judge must advise defendant of his right to a trial by jury, his right against compulsory self-incrimination and his right to confront his accusers, and that a contemporaneously recorded record must evidence this advice and the defendant’s affirmative “waiver of three constitutional Boykin rights.” State v. Williams, 400 So.2d 868 (La.1981); State ex rel. Warren v. Blackburn, 394 So.2d 276 (La.1981); and State ex rel. Cusher v. Blackburn, 400 So.2d 601 (La.1981). Since a review to determine whether this requirement has been complied with only requires a review of the proceedings and does not require an inspection of the evidence, it presents a patent error reviewable by this Court on appeal.

To hold otherwise would serve no legitimate purpose, and might, in fact, make it more difficult for the state to bring the defendant to trial for the offense. Unlike the case where the voluntariness of the plea is in question and a remand for an eviden-tiary hearing could be beneficial in providing supplemental information, in this case the record contains the guilty plea transcript from which it can be determined that defendant was not properly advised of his rights prior to pleading guilty. Thus a remand in this case, or a requirement that defendant proceed by habeas application, would add to the record required for our determination of the issue, nothing that is not already before us, and to the contrary, would only cause unnecessary delay in the proceedings to the prejudice of the state if defendant’s guilty plea is ultimately vacated in a post conviction writ application.

In the interest of judicial economy and of expediting retrial of this defendant, I think we should as a matter of patent error determine that this defendant was not properly Boykinized and order him retried.

       Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeal, Third Circuit and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.

      . La.C.Cr.P. Article 894.1 states:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused not threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

      . At the time he changed his plea, Campbell acknowledged that he was fully cognizant of the maximum sentence which could be imposed upon him as a result of his guilty plea.

      . Judicial efficiency dictates that this constitutional issue not be relegated to post-conviction attack, when no additional evidence is necessary to sustain the constitutional validity of the plea. See State v. Bowick, 403 So.2d 673 (La.1981).

      . Defendant has five prior convictions and was evidently aware of his right to remain silent.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Charles P. COOK.
    No. 81-KA-0345.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Richard Petre, Asst. Dist. Attys., for plaintiff-appel-lee.
    Elizabeth Cole, Supervising Atty., New Orleans, John A. Murphy, Student Practitioner, Tulane Appellate Advocacy Clinic, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Charles P. Cook, was arrested in his home on August 27, 1980 pursuant to an arrest warrant issued on August 13, 1980. He was charged in the warrant with “theft and possession, La.R.S. 14:67, 14:69.” Following the United States Supreme Court’s holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) that warrantless arrests in the home are unreasonable per se, the validity of this arrest warrant assumed critical importance. The warrant of arrest and its supporting affidavit, which are the objects of defendant’s attack, read as follows:

“WARRANT OF ARREST
TO: THE SUPERINTENDENT OF THE NEW ORLEANS POLICE DEPARTMENT, HIS AUTHORIZED REPRESENTATIVE(S), AND ALL OTHER PEACE OFFICERS IN THE STATE OF LOUISIANA
AFFIDAVIT(S) HAVING BEEN MADE BEFORE ME, UNDER OATH, BY P/O Michael Melton, EMPLOYED BY THE NEW ORLEANS POLICE DEPARTMENT, ON THE 13th DAY OF AUGUST, 1980, THAT ON THE 13th DAY OF AUGUST, 1980, THE OFFENDER, Charles P. Cook B of I # 116-267, DID COMMIT THE CRIME OF Theft and Possession of property $200.00, AS DEFINED IN LOUISIANA REVISED STATUTE Art. 67, 69, WHICH CRIME WAS COMMITTED IN THE PARISH OF ORLEANS, STATE OF LOUISIANA.
YOU ARE, THEREFORE, COMMANDED TO ARREST SAID OFFENDER AND TAKE HIM/HER FORTHWITH TO BE BOOKED AND . CHARGED IN ACCORDANCE WITH LAW.”
* * * * * *
“BEFORE ME, the undersigned Judge of Magistrate Court, Parish of Orleans, State of Louisiana, personally came and appeared: P/O Michael Melton, employed by the New Orleans Police Department, 715 South Broad Street, New Orleans, Louisiana WHO, after first being duly sworn by me, deposed and stated that a warrant of arrest should issue ordering the arrest of: Charles P. Cook who, on the 13th day of August, 1980, in the Parish of Orleans, State of Louisiana, did commit the crime of Theft and Possession, as defined in the Louisiana Revised Statute Article 14-67, 69, 108. The facts and circumstances given to support the issuance of this warrant are: Victim has special Black Mustang (Hood stolen). Victim found hood (described dents and cracked front and broken bolt). Checked with owner of car with stolen hood on it. He admitted to stealing it along with # 2 subject. (Gave name and address and second subject also admitted. Both gave name of # 3 subject.). Officers went to third subject’s house told mother subject identified as one in theft and subject jumped out of window and fled. All three subjects have records and are known characters to the 7th district police.
/s/ MICHAEL S. MELTON AFFIANT”

After his arrest, Cook was advised of his rights and interrogated as to a variety of offenses. He was continually in the custody of the arresting officer from 11:30 a. m. to 4:00 p. m., at which time he was taken to the Central Lockup. During this 4!4 hour period, petitioner made a statement which led to his booking on unrelated counts of burglary. Defendant was charged in separate bills of information with two counts of residence burglary and two counts of simple burglary.

On the date his trial was to commence, the state nolle prosequied the second count in both informations and reduced the first charge to simple burglary. Cook then pleaded guilty to Count # 1 in both matters, but reserved his right to appeal the denial of his motion to suppress his confession and palmprint obtained while in police custody. It is contended by Cook that this evidence was obtained after an unlawful arrest based on an invalid warrant. Consequently, his confession and palmprint, which were the basis of his present convictions, were tainted and inadmissible as evidence against him.

Defendant’s sole assignment of error relates to the failure of the affidavit to establish probable cause. If the affidavit is inadequate, the arrest warrant based upon the affidavit would be defective and Cook’s subsequent arrest unlawful. Defendant contends that any evidence obtained pursuant to the arrest would be inadmissible against him. Cook relies on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) to support his argument. In these cases, the U.S. Supreme Court held that evidence obtained from an unlawful arrest is the “fruit” of official illegality and should be excluded as evidence under the Fourth Amendment. Hence, the admissibility of Cook’s admissions and the palmprint obtained while he was in police custody hinge solely upon the adequacy of the affidavit upon which the arrest warrant was issued.

Article 202 of the Louisiana Code of Criminal Procedure provides:

“A warrant of arrest may be issued by any magistrate, and except where a summons is issued under Article 209, shall be issued when:
“(1) The person making the complaint executes an- affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
“(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.
“(3) A justice of the peace shall not have the authority to issue a warrant for the arrest of a peace officer for acts performed while in the course and scope of his official duties.
“When complaint is made before a magistrate of the commission of an offense in another parish, the magistrate shall also immediately notify the district attorney of the parish in which the offense is alleged to have been committed.”

The arrest warrant affidavit need only specify the nature, date and place of the offense along with the name of the offender. Although the affidavit meets all of these requirements it is the position of the defendant that the affidavit in question fails to meet the federal due process requirements with respect to probable cause. In Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the U.S. Supreme Court stated:

“The purpose of the complaint, then, is to enable the appropriate magistrate, here a commissioner, to determine whether probable cause required to support the warrant exists. The commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusions that the person whose arrest is sought has committed a crime.”

Defendant argues that probable cause to support the warrant must be shown within the “four corners” of the affidavit. However, this Court ruled in State v. Hynie, 395 So.2d 669 (La.1981) that the issuance of an arrest warrant, unlike a search warrant, is valid if the magistrate has within his knowledge sufficient facts to establish probable cause for the arrest. We held that an arrest warrant does not depend solely upon the information recorded within the “four corners” of the affidavit. Consequently, when this Court is confronted with an arrest warrant based upon a confusing or constitutionally inadequate affidavit, the matter will be remanded for additional information regarding the facts within the magistrate’s possession. Because we find the affidavit in question to be constitutionally sound, a remand is not necessary.

In interpreting the text of the affidavit, this Court is guided by our ruling in State v. Babbitt, 363 So.2d 690 (La.1978). We held that “affidavits must be given a common sense and realistic interpretation; and' a doubtful or marginal case will be resolved in favor of upholding the validity of the warrant.”

The affidavit is clear that the police had located two persons suspected of participating in the theft of the hood from the victim’s auto. These suspects admitted their participation in the theft and named “Subject # 3” as a co-participant. Further, the affidavit states that “Subject # 3” fled after the police arrived at his residence. Though the affidavit does not name Charles Cook in the supporting facts, a careful reading of the entire document reveals that the third subject is the defendant herein.

Defendant correctly contends that the affiant did not possess first hand knowledge of the crime and had relied upon an informant. Thus, the statements by Subjects # 1 and # 2 in the affidavit are hearsay. Because this hearsay information was an essential element in establishing probable cause, the magistrate was bound by the “two-pronged” test as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and adopted by this Court in State v. Paciera, 290 So.2d 681 (La.1974). These requirements are: (1) that the magistrate must be informed of some underlying circumstances upon which the informant’s conclusions were based; and (2) the underlying circumstances from which the affiant concluded that the informant was credible or his information was reliable. Thus, the affidavit must demonstrate that the informant is credible and that his information is reliable.

The affidavit recites that Subjects # 1 and # 2 admitted their participation in the offense. Because of this “direct personal observation” (Paciera, supra), the second requirement is met.

Defendant’s claim that the affidavit does not sufficiently establish the credibility of the informants presents a more interesting question. Defendant argues that statements against Penal interest alone are not enough to support the credibility of these unidentified informants.

In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), a case which involved inculpatory statements by a confidential informant, the U.S. Supreme Court stated:

“Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.” (403 U.S. at 583, 91 S.Ct. at 2082)

The rationale of Harris was adopted by this Court in State v. Mena, 399 So.2d 149 (La.1981). We held that an affidavit need not contain an averment of previous reliability. It was concluded that, in determining probable cause, the proper inquiry was whether the present information supplied by the informant is truthful or reliable. Further, we found an admission of criminal activity to carry its own indicia of reliability sufficient to support a finding of probable cause.

Cook argues that Mena is factually distinguishable. There, unlike the present case, the identity of the informant was noted in the affidavit. Consequently, it is urged by the defendant that additional verification is required. The admission of participation in the theft is not, by itself, enough to find these unidentified informants to be credible. State v. Welsh, 371 So.2d 1314 (La.1978). Thus, before the informants’ incul-patory statements can flower into probable cause, independent factual corroboration must exist.

We find the affidavit to contain substantial facts to support the credibility of the informants. Hence, we need not address the sufficiency of a declaration against penal interest, standing alone, to establish the credibility of hearsay information. An examination of the affidavit supports our conclusion.

First, there is the observation by the victim of the stolen hood in the possession of one of the informants. The affidavit recited that he was the owner of the stolen hood and was able to recognize it because of “dents and cracked front and broken bolt.” The sighting of his property in the possession of one of the suspects/informants clearly gave weight to the credibility of the inculpatory statement which followed.

Second, the hearsay statements by each suspect supported the admission of the other. Upon being confronted, the owner of the car upon which the stolen hood had been installed not only admitted his participation, but also implicated “Subject # 2” and Cook. When the second subject was approached, he confirmed the accuracy of the earlier statement made to the victim. Both of these subjects then named Cook as a participant in the theft. These inculpato-ry statements, made on separate occasions and by separate individuals, are most significant in establishing the credibility of these informants.

Further, the affidavit states that the police, upon learning of defendant’s participation, went to his house. His mother came to the door and was informed that her son was identified as a participant in the theft. At this point, Cook jumped out of a window and fled. This action on the part of Cook was not, by itself, adequate to establish his participation in the crime. But, as we stated in State v. Herbert, 351 So.2d 434 (La.1977):

“Furtive actions and flight at the approach of law officers may indeed be proper factors in the decision to make an arrest — if ‘coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime.’ Peters v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904 [20 L.Ed.2d 917] (1968).”

We believe that defendant’s flight, under the circumstances, inferentially corroborated the inculpatory statements of the other two suspects.

We conclude that the observation by the victim, the separate admissions by each suspect along with defendant’s flight from the officers give ample support to the credibility of the hearsay statements. Though the affidavit in question was poorly drafted, this Court has previously held that a “policeman’s affidavit should not be judged as an entry in an essay contest . . . but rather must be judged by the facts it contains.” State v. Welsh, supra. Affidavits are usually drafted by law enforcement officers in the haste of a criminal investigation. To mandate technical requirements of elaborate specificity would tend to discourage police officers from submitting their findings to a magistrate before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

The information within the affidavit supported the statements against penal interest. It was sufficient to warrant a person of reasonable caution to believe the person to be arrested has committed a crime and was, therefore, constitutionally sound. As a consequence, the arrest of Cook pursuant to the warrant was lawful. The evidence obtained as a result of his arrest was not tainted and was admissible against him.

Accordingly, the conviction and sentence of defendant are affirmed.

AFFIRMED.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . One of the charges listed in the affidavit is “Resisting an Officer”, R.S. 14:108. Subject # 3 fled when the police went to his house to question him about the theft. Thus, this charge supports the identification of Charles P. Cook as Subject # 3.


author: SWIFT, Justice Ad Hoc. DENNIS, Justice,

text:
    STATE of Louisiana v. Frederick Dwain GRAY.
    No. 81-KA-0337.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Ronald R. Inderbitzin, Dale G. Cox, Asst. Dist. Attys., for plaintiff-appellee.
    S. P. Davis, Shreveport, for defendant-appellant.
   SWIFT, Justice Ad Hoc.

Defendant, Frederick Dwain Gray, was indicted for attempted aggravated rape, aggravated rape and simple burglary of an inhabited dwelling in violation of La.R.S. 14:27, 14:42 and 14:62.2, respectively. The indictment states that all three offenses occurred in Caddo Parish on June 30, 1979. Pursuant to a plea bargain agreement the defendant pleaded guilty to attempted aggravated rape and a reduced charge of forcible rape (La.R.S. 14:42.1). The simple burglary count was dismissed. The parties agreed to sentences of twenty years for each offense, to run consecutively, the first with and the other without benefit of parole, probation or suspension of sentence. The trial judge sentenced the defendant in accordance therewith. Gray has appealed, urging two assignments of error.

The record reflects that on June 30, 1979, defendant Gray visited the Haystack Apartment complex in Shreveport at approximately midnight to attend a party. He was unable to find it, so he proceeded to South-field Apartments, another complex. There he observed a young female leaving a laundry room. At gunpoint the defendant forced her into a nearby field and made her remove her clothing. He attempted to have sexual intercourse with her, but was unable to achieve penetration. Gray then returned to the Haystack apartments where he stole the peepholes from several apartment doors and threw rocks through windows of other apartments in an attempt to get someone to come to the door.

At some point he entered an apartment and stole money from a tenant’s wallet. Later, after observing a white male leaving an apartment, he entered it through an unlocked door and with a weapon forced a woman inside to have sexual relations with him. The entire sequence of events took place between midnight and 6 a. m. that morning.

The defendant was apprehended by the police in an adjoining field shortly after 6 a. m. and later at the police station orally admitted his guilt in the above incidents. However, he denied that he was armed when the rapes took place.

Initially, the defendant pleaded not guilty to all charges and later changed his plea to not guilty and not guilty by reason of insanity. A sanity commission was appointed to determine Gray’s mental capacity to proceed and also his capacity at the time of the offenses. After a hearing he was adjudged competent to stand trial. This Court has twice denied an application for writs relating to that issue. 385 So.2d 264 and 782 (La.1980).

Defendant filed a motion to suppress in-culpatory statements, urging his incapacity to make them and also that any such statements resulted from coercion. The motion was heard and denied. This Court also denied defendant’s applications for writs on that issue and another. 393 So.2d 107 and 394 So.2d 274 (La.1980).

Before accepting his guilty pleas to the crime of attempted aggravated rape and the reduced charge of forcible rape, the trial judge “Boykinized” the defendant and ascertained not only that his pleas were free and voluntary but also that he understood the court would impose the previously negotiated sentences. Defendant now argues that the trial court erred in failing to articulate reasons for sentencing in compliance with Article 894.1 and further that the two consecutive sentences were excessive.

It is settled that excessiveness of sentence poses a question of law reviewable under the appellate jurisdiction of this Court. Also, the trial judge must consider the guidelines for sentencing set forth in La.C.Cr.P. Art. 894.1 and state specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. However, this court has recently ruled that a defendant’s agreement to a recommended sentence in a valid plea bargain and the court’s imposition of that sentence relieves the trial judge of his duty to articulate reasons under Art. 894.1 and precludes a defendant from complaining of excessiveness of the sentence before this Court. State v. Curry, 400 So.2d 614 (La.1981).

In Curry, as in the present case, the sentence was agreed to by all parties involved, including the trial judge, prior to acceptance of the plea and imposition. Nevertheless, as in this instance, it was challenged as excessive and imposed without enumerated reasons. A unanimous court denied such challenges in Curry, stating that “[ujnder these circumstances we believe there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length.”

The assignments of error therefore lack merit.

For the foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons..

DENNIS, Justice,

concurring.

I respectfully concur.

However, I disagree that the defendant is precluded from complaining of excessiveness of sentence before this court. The guarantee against cruel, excessive or unusual punishment is a constitutional safeguard. La.Const.Art. I, § 20. The mere fact that an accused enters a plea bargain does not necessarily establish that his waiver of this constitutional right was knowing or voluntary. Accordingly, in my opinion, a plea bargain cannot operate as an absolute bar to the challenge of a sentence as excessive. Nor does State v. Curry, 400 So.2d 614 (La.1981) stand for this proposition. In that case, this court, with only four of its permanent members sitting, expressed the opinion that under the circumstances therein, there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length. I respectfully disagree with both the dicta of Curry and the present majority’s misinterpretation of it. Although I agree that the failure of the trial judge to comply with his duty under La.C.Cr.P. art. 894.1 does not require that the sentence be set aside if the record otherwise clearly illumines his sentencing choice and demonstrates that the sentence is not arbitrary or excessive, State v. Martin, 400 So.2d 1063, on rehearing 400 So.2d 1074 (La.1981), our review for constitutional error cannot be precluded by a defendant’s agreement to plead guilty or to receive a particular sentence.

Nevertheless, in the present case, the record clearly illumines the sentencing choice and the sentences do not appear excessive or arbitrary. The plea bargain reduced defendant’s sentencing exposure. Consecutive sentences were justified by the dangerous propensities manifested by the offender. The sentences were midway of the statutorily provided ranges.

       Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeal, Third Circuit and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Nery S. CAMPUZANO.
    No. 81-KA-0375.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., Stephen T. Wimberly, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Peter Castaño, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Nery Campuzano was convicted of aggravated rape, R.S. 14:42, and was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant appeals, presenting five assignments of error.

On May 31, 1980 the victim reported to the Kenner Police Department that she had been raped at knifepoint in her bedroom by an intruder who wore a nylon stocking over his face. She stated that the incident took place during the early morning hours of the previous day, May 30, 1980. Detective Joseph Nicholosi, Jr. was assigned to the case. The victim told the detective that she knew the man who raped her because of familiar comments he made during the incident, and that he lived two doors down from her residence. At approximately 4:25 p. m. on May 31, 1980 Detective Nicholosi and a uniformed policeman arrived at defendant’s residence; defendant was asked to accompany the detective to police headquarters for questioning. While enroute to the police station defendant allegedly admitted to having committed the rape.

Assignment of Error No. 7

By this assignment defendant contends that the trial judge erred in admitting into evidence defendant’s typed confession, and, more specifically, the page on which defendant’s signature did not appear.

It is clear that the state has the burden of affirmatively showing that a confession was made freely and voluntarily, and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. R.S. 15:451; C.Cr.P. 703. See also, State v. Robinson, 384 So.2d 332 (La.1980). However, defendant does not assert that the confession was obtained under the influence of any of the defenses enumerated in R.S. 15:451. He merely states that because the last page of the confession was signed by Detective Nicholosi and not by defendant, the state failed to meet its burden of affirmatively showing that the confession was given freely and voluntarily.

At the hearing of defendant’s motion to suppress the confession, Detective Nicholosi testified for the state with respect to its voluntariness. Defendant did not testify at this hearing.

The detective’s testimony, essentially, was to the effect that on May 31, 1980 he and Patrolman Robert Hare of the Kenner Police Department approached defendant at his home. The detective identified himself, told the defendant that he wanted to speak with him in reference to a rape which occurred in the vicinity, and advised him of his Miranda rights. Defendant stated that he understood his rights and would cooperate in any way he could. Defendant was asked if he would go down to the investigations office in the detective’s police unit to answer some questions. On the way to headquarters defendant stated that he had committed the rape. Detective Nicholosi then advised defendant not to say anything more until they reached his office. When they arrived at police headquarters the detective again advised defendant of his rights, this time using a printed Miranda waiver form. The defendant was asked specific questions, to which he responded, and Detective Nicholosi typed in the answers. The statement totaled six pages. The detective signed the statement and gave it to defendant to read and sign. The defendant signed his full name to each page except the last page. When questioned on cross-examination concerning the omission of defendant’s signature from the last page, Detective Nicholosi stated that defendant obviously missed the last page.

Detective Nicholosi was asked during trial to read the statement to the jury. Defense counsel objected, urging that the omission of defendant’s signature on the last page rendered the confession constitutionally invalid. The trial judge overruled the objection and admitted the confession. He stated, correctly, under the circumstances, that the omission of the signature would go to the weight that the jury would give to the confession.

The admissibility of a confession is a question for the presiding judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981).

The state having presented testimony to substantiate the voluntariness of defendant’s confession, and there being no specific testimony introduced by defendant that the state was required to rebut, the state met its burden of affirmatively showing that the confession was free and voluntary.

This assignment lacks merit.

Assignment of Error No. 9

By this assignment defendant contends that the trial judge improperly denied his motion for a new trial based on newly discovered evidence and imposed an unusually cruel and excessive penalty. The issue raised by the motion for a new trial is discussed in Assignment of Error No. 10.

The statute under which defendant was convicted provides for a mandatory sentence of “life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” R.S. 14:42. We upheld the constitutionality of this statute in State v. Prestridge, 399 So.2d 564 (La.1981), and still adhere to that decision.

This assignment lack merits.

Assignment of Error No. 10

By this assignment defendant urges that the trial court erred (1) in denying his motion for a new trial based on the insufficiency of the evidence, and (2) in denying his motion for a new trial based on “newly discovered” evidence without having conducted a hearing on the motion.

Insufficiency of the Evidence

Defense counsel urges that although the victim testified that defendant was armed with a knife at the time of the crime, defendant never threatened her with “great and immediate bodily harm.” He argues, therefore, that defendant should not have been convicted of aggravated rape because of the lack of an essential element of the crime.

The victim testified that she began hollering and screaming after she became aware of defendant’s presence on her bed. She testified that defendant stuck her in the side of the neck with a knife and stated: “Shut up. I’m not going to hurt you if you do what I tell you to. You’re going to be alright (sic).” The victim testified that she thought defendant was going to kill or torture her, and she didn’t want to do anything wrong.

The standard used in reviewing the sufficiency of evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980).

We think that credible testimony to the effect that defendant placed a knife at the victim’s neck and stated that he would not hurt her if she did what he told her to do, accompanied by sexual intercourse, is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt the essential elements of aggravated rape.

Newly Discovered Evidence

Strongly argued was the denial of the motion for new trial based on newly discovered evidence.

The motion for a new trial alleged only that the verdict was contrary to the law and the evidence and that Officer Ni-cholosi was “bias (sic) and was a very close friend of the victim. This was discovered after the trial.” A motion for a new trial based on newly discovered evidence must contain allegations of fact, sworn to, showing that notwithstanding reasonable diligence, the new evidence was not discovered before or during trial, the names of the witnesses, the facts which the witnesses will establish and that the witnesses (or the essential evidence) are available. C.Cr.P. 854.

On the argument for a motion for a new trial, the defense lawyer merely repeated that Nicholosi was a close friend of the victim, and was biased and prejudiced.

The inference is that Nicholosi fabricated the defendant’s confession. The officer, the complaining witness, and the defendant, each testified at length in the trial. The officer also testified at a motion to suppress. Each was subject to cross-examination. The victim adequately explained the delay in reporting the attack to the police. The defendant testified fully about his ability to read and his version of the episode between him and the victim. The defendant’s testimony at trial was that he had been invited to come to the victim’s house late in the night, and that the sexual encounter was consensual.

Neither in the motion for a new trial nor in argument before the judge was there anything to suggest that a hearing to determine the relationship between the police officer and the victim would disclose any evidence that ought to produce a different result at trial. We cannot say that the trial judge abused his discretion in denying the motion for a new trial without an evidentia-ry hearing.

The conviction and sentence are affirmed.

CALOGERO, J., concurs, but would remand for a hearing on motion for new trial for reasons assigned by LEMMON, J.

DENNIS, J., concurs in affirming the sentence and conviction but would remand for a hearing on the motion for a new trial for the reasons assigned by LEMMON, J.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting in part.

I concur in affirming the sentence and conviction, but would remand for a hearing on the motion for a new trial.

The evidence in the original hearing showed that the victim did not report the alleged rape immediately; the accused, a 20-year old Honduran with a ninth grade education claimed that the sexual intercourse was consensual and that the answers contained in the written confession were not the answers he stated to the officer; and the investigating officer who took defendant’s statement was the sole witness to the accuracy of the contents of the confession. When defense counsel learned after the conviction of a close relationship between the victim and the officer, he was entitled to an opportunity to present evidence in an attempt to establish that the evidence of bias ought to produce a different result in regard to his defense of consent.

The trial court erred in denying defendant an opportunity to present that evidence.

      . Defendant originally assigned eleven errors, but having failed to brief or argue Assignment Nos. 1, 2, 3, 4, 6 and 8, we consider them to be abandoned. Assignment No. 5 was based on an objection to a leading question about a “Miranda” card and is without merit.

      . R.S. 14:42 provides in pertinent part:
      “Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:

      2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.”

      . If during the trial defense counsel had questioned the officer about his relationship with the victim and the trial judge had excluded the evidence, we would certainly reverse because of the denial of the right to confrontation. The present decision, which denies defendant the right at a hearing to confront one of his principal accusers with newly discovered evidence of bias, similarly infringes on this basic right.