author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Teddy M. HUNTLEY.
    No. 10-KA-406.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Virginia Skaer, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

| ?Defendant/Appellant, Teddy M. Huntley, appeals his conviction of possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A), and his enhanced 30-year hard labor sentence. Mr. Huntley assigns as errors insufficient evidence to convict him and the trial court’s denial of his motion to suppress evidence. For the reasons that follow, we find no merit to the assignments and affirm the conviction and sentence.

Procedural History

Mr. Huntley was charged by bill of information with possession with intent to distribute marijuana. He filed various pretrial motions, including a motion to suppress the evidence. The trial judge denied the motion and the defendant was tried by a 12-person jury which found the defendant guilty as charged. Mr. Huntley filed a motion in arrest of judgment or alternatively for new trial. He asserted that there was insufficient evidence to convict him of the charged offense. The trial judge denied the motion. Approximately one month later, the trial judge |ssentenced Mr. Huntley to 20 years at hard labor. Mr. Huntley thereafter filed a timely motion for appeal which the trial court granted. Shortly thereafter, on November 25, 2009, the state filed a habitual offender bill of information alleging that Mr. Huntley was a third felony offender. The trial judge heard and denied Mr. Huntley’s motion to reconsider sentence. Also, Mr. Huntley was arraigned on the habitual offender bill and Mr. Huntley denied the allegations. A few months later, the trial court conducted a habitual offender hearing. The state withdrew the allegation as to the other predicate. The trial court found Mr. Huntley to be a second felony offender. The court thereafter vacated Mr. Huntley’s original sentence and imposed an enhanced sentence of 30 years at hard labor, without benefit of probation or suspension of sentence. Mr. Huntley timely orally re-urged his motion for appeal. Mr. Huntley thereafter filed a motion to reconsider the sentence, which was denied.

The Trial

On May 19, 2009, Detective Justin Brown arrested Mr. Huntley for possession with intent to distribute marijuana. He based the charge on the packaging of the marijuana, and the fact that Mr. Huntley did not possess any paraphernalia that would indicate personal use. At the time, Mr. Huntley had in his possession one plastic bag containing 10 smaller bags of marijuana. Raven Barrios, an expert in the field of forensic science, testified that she tested the green vegetable matter from four of the 10 small baggies, and that the tests were positive for marijuana. She further testified that the gross weight of the evidence was 14.81 grams.

14Lieutenant Daniel Jewell, a nine-year veteran with the Jefferson Parish Sheriffs Office and a seven-and-one-half year veteran with the narcotics section, testified as an expert in the use, packaging, distribution, and value of narcotics in the Jefferson Parish area. He stated that he participated in about 240 hours of specialized narcotics training. Lieutenant Jewell testified he took part in thousands of narcotics arrests.

Lieutenant Jewell stated that the three main factors that distinguish possession of narcotics from possession with intent to distribute are the value of the drugs, the packaging, and the quantity. Secondary evidence of distribution in narcotics investigations includes digital scales, paperwork, and packaging materials. Paraphernalia commonly found on a person who uses marijuana includes rolling papers, hollowed out cigars, and pipes.

In the instant ease, the lieutenant stated, the fact that the marijuana was packaged in 10 individual baggies was indicative of intent to distribute. The bags would sell for about $10.00 each on the street, bringing in a total of $100.00 to $120.00. Lieutenant Jewell explained that it would not be rational for a heavy user to buy this much marijuana packaged as it was in this case. To buy this much marijuana at retail prices is more expensive than buying the same quantity wholesale. Lieutenant Jewell further testified that someone who is planning to use marijuana generally has in his possession some sort of device with which to smoke it.

Detective Brown testified that Mr. Huntley did not have any drug paraphernalia on him such as papers, cigars, pipes, or scales. On the other hand, Mr. Huntley testified that he also possessed a cigarette lighter, a cellular telephone, and two cigars.

|fiMr. Huntley testified that on May 19, 2009, between 3:30 and 4:00 PM, he was walking down the canal bank on his way to a friend’s house, when police officers grabbed him and searched him. He denied that the canal bank was used to avoid the police. He possessed about 10 bags of marijuana, all of which he planned to smoke. He had no money or scales on his person. He usually smokes two small bags of marijuana in a sitting. Mr. Huntley stated he bought all of the bags from a narcotics dealer for $40.00. He uses hollowed out cigars to smoke marijuana. In three to five hours he and his friends could smoke the entire bag of marijuana that the officers seized. Mr. Huntley testified that he does not sell marijuana. He has two prior convictions for possession of cocaine and one conviction for possession of stolen things.

Analysis

Sufficiency

Mr. Huntley complains that the evidence at trial was not sufficient to support his conviction of possession of marijuana with intent to distribute. He concedes that the state proved the element of possession, but he argues the state failed to prove the marijuana was intended for sale rather than for an addict’s personal use. The state disagrees.

The constitutional standard for sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the state proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. The reviewing court “does not determine whether another possible hypothesis suggested by a defendant |ficould afford an exculpatory explanation of the events” but rather must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La.R.S. 40:966(A); State v. Kelly, 01-321, p. 4 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 982, writ denied, 01-3266 (La.11/1/02), 828 So.2d 565. As noted above, Mr. Huntley does not challenge the finding that he was in possession of marijuana; only the determination that he had specific intent to distribute marijuana.

Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La.R.S. 14:10(1). Factors that may give rise to a reasonable inference that defendant had the specific intent to distribute include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. Kelly, supra (citations omitted). In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. State v. Hearold, 603 So.2d 731, 735-736 (La.1992).

|7Lieutenant Jewell, an expert in the use, packaging, distribution, and value of narcotics in Jefferson Parish, testified about his extensive experience and training in this area. He identified the three primary factors he uses to distinguish simple possession of narcotics from possession with the intent to distribute as value, packaging, and quantity.

Lieutenant Jewell stated that the manner in which the marijuana in this case was packaged did not indicate to him that it was intended for personal use. In particular, it would not be reasonable for a user to buy that much marijuana (14 to 15 grams) in small individual bags that retail on the street for $10.00 dollars.

Lieutenant Jewell further testified that a person who intends to use marijuana commonly has paraphernalia associated with marijuana use, such as cigars or pipes. The jury heard conflicting testimony from Detective Brown and Mr. Huntley regarding whether Mr. Huntley had paraphernalia indicative of marijuana use at the time of his arrest. The jury also heard testimony from Mr. Huntley explaining that he did consume more than one bag of marijuana at a time. The jury did not, apparently, credit Mr. Huntley’s testimony. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Stowe, 93-2020 (La.4/11/94), 635 So.2d 168, 171 (citation omitted).

Having reviewed the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that the state proved that Mr. Huntley knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. Accordingly, this assignment of error lacks merit.

Suppression

Mr. Huntley argues that . the police lacked reasonable suspicion to stop him; there was no probable cause to arrest him; and, the search was unwarranted.

|RMr. Huntley filed a motion to suppress evidence on the basis that the evidence was illegally obtained. At the hearing, Detective Justin Brown testified on behalf of the state. Detective Brown stated that since October 2008, he has been assigned to the Jefferson Parish Sheriffs Office Street Crimes Unit. As part of that operation, he conducted narcotics investigations. On May 19, 2009, he assisted in Mr. Huntley’s arrest.

He testified that he and his partner were assisting another unit at the intersection of Tallowtree Lane and 21st Avenue. Detective Brown was in uniform at the time. As he exited his car, he saw Mr. Huntley coming up the canal bank behind the apartments that run parallel to Tallow-tree Lane. Detective Brown stated that he was familiar with that canal bank, which was commonly used as a “cut;” that is, as a means to move in and out of the neighborhood without being observed, especially by the police. He explained that the canal bank was commonly used to avoid the police in that neighborhood. He saw Mr. Huntley on the canal bank walking toward them. At that point, Detective Brown did not think Mr. Huntley had yet seen them. However, at some point, Mr. Huntley saw the police vehicle. When he spotted the vehicle, Mr. Huntley looked at the officers, stopped abruptly, and thrust his hands in his pockets. These mannerisms drew the officer’s attention. Detective Brown thought that by thrusting his hands into his pockets, Mr. Huntley was trying to hide something. Consequently, Detective Brown decided to conduct a field interview. He asked Mr. Huntley to remove his hands from his pockets. Mr. Huntley refused and pushed his left hand further into his pocket. Detective Brown explained that he asked Mr. Huntley to remove his hands for the officer’s safety. Detective Brown moved toward Mr. Huntley. He and his partner escorted Mr. Huntley to a concrete barrier at the end of 21st Street. They grasped his arm and attempted to remove Mr. Huntley’s hand out of his pocket. They pulled his 19hand out of his pocket and in his hand were 10 bags containing what was later determined to be marijuana. Mr. Huntley was placed under arrest at this time and advised of his Miranda rights.

During cross-examination, Detective Brown testified that he did not see Mr. Huntley committing a crime as he walked on the canal bank. And, no one had alerted them that someone on the canal bank was committing a crime.

Defense counsel argued that Detective Brown lacked reasonable suspicion to stop Mr. Huntley and conduct a search. She stated that the pulling of Mr. Huntley’s hand out of his pocket and finding marijuana was, unlawful. The state responded that based on the officer’s training, the officer believed that Mr. Huntley was displaying suspicious behavior in making furtive movements. As a result of the continued refusal to remove his hands from his pocket, the officer was concerned for his safety. Thus, the officer physically removed the hands from the pockets so as to make certain that Mr. Huntley did not possess a weapon or anything that could be dangerous to the officers. As a result, they found 10 baggies of marijuana. There was reasonable suspicion to stop Mr. Huntley and probable cause for the arrest.

The trial judge found that for officer’s safety, the officer was entitled to have Mr. Huntley remove his hands and observe what was in his hands when they were removed. He denied the motion to suppress the evidence.

As a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress. State v. Sherman, 04-1019, p. 1 (La.10/29/04), 886 So.2d 1116, 1116 (per curiam) and the cases cited therein. This review may provide supplemental information relevant to the suppression issue. Id. It may also disclose conflicting | intestimony relevant to the credibility of the witness. However, in many cases the testimony at trial may not diverge from the evidence adduced at a pre-trial hearing on a motion to suppress. Id. at 2, 886 So.2d at 1116. An appellate court is therefore not required to review the testimony at trial in every instance. Id.

We have reviewed supplemental information given at the trial relevant to the suppression issue. That evidence, does not, however, affect the result we reach in the instant case. We have taken into consideration Detective Brown’s testimony at trial, in which he explained that the area was well known for street corner narcotics deals and he grabbed Mr. Huntley’s arm because he was concerned that Mr., Huntley might have a gun or a knife in his pocket. We have also taken into consideration Detective Brown’s trial testimony that after moving Mr. Huntley to the concrete barrier, he performed a patdown search of Mr. Huntley’s outer clothing and again ordered Mr. Huntley to take his hand out of his pocket. When Mr. Huntley refused, Detective Brown and his partner pulled his hand from his pocket. Mr. Huntley was holding a large plastic bag containing 10 individually-wrapped plastic baggies. Each baggie was hand-tied, and contained what Detective Brown believed to be marijuana. The officer performed a field test on the substance in the baggies, and it was positive for marijuana.

The state bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Honeycutt, 08-126, p. 6 (La.App. 5 Cir. 5/27/08), 987 So.2d 250, 253. The trial judge’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id. at 6, 987 So.2d at 253-54.

It is well established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articula-ble suspicion of criminal activity. 11La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Under the Terry standard, as codified in Article 215.1, police officers may stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Ayche, 07-753, pp. 6-7 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, 1148.

In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts must look at the totality of the circumstances of each case, a process which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. State v. Boyer, 07-476, p. 17 (La.10/16/07), 967 So.2d 458, 469-70. Police do not have to observe what they know to be criminal behavior before investigating. The requirement is that the officer have a reasonable suspicion of criminal activity. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989.

An officer’s mere unparticular-ized suspicion or “hunch” of criminal activity is insufficient to establish reasonable grounds to stop a person. State v. Burns, 04-175, p. 5 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076. Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s high incidence of crime. State v. Ayche, 07-753, p. 7 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, 1149. While an individual’s mere presence in a high-crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high crime area, coupled with nervousness, startled behavior, flight 1 i2or suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop. Burns, supra, 04-175 at 6, 877 So.2d at 1076.

Based on the totality of the circumstances, the officers had reasonable suspicion to support an investigatory stop. Detective Brown, an experienced narcotics officer, knew the neighborhood as a high crime area frequented by street corner drug dealers. He also knew that the canal embankment where Mr. Huntley was walking was traveled by persons involved in criminal activity who wished to elude police detection. Mr. Huntley stopped walking when he saw the officers, and he exhibited nervous behavior. He put his hands into his pockets as if he were hiding something. Since Detective Brown reasonably believed defendant was hiding something in his pockets that could pose a threat to his safety, and Mr. Huntley refused to show his hands despite several requests by the officers, the officers were justified in using physical force to remove Mr. Huntley’s hand from his pocket.

In State v. Kelly, 06-0475 (La.App. 4 Cir. 11/21/06), 946 So.2d 222, a New Orleans police officer assigned to patrol a public housing project received complaints from several residents of the project, an area well known for illegal drug activity, of drug trafficking in a specific hallway of a particular building. While on foot patrol in the project, the officer saw the defendant walking out of the hallway indicated by the complaining residents while looking down at an object in his right hand. Id., 06-0475 at 2, 946 So.2d at 224. When the defendant saw the uniformed officer, he immediately closed his hand, put his hand in his pocket, and moved in a nervous manner. The officer initiated an investigatory stop of the defendant and, for safety reasons, asked him to remove his hand from his pocket. The defendant gave his name but continued to move away from the officer with his hand in his pocket. The officer moved to force the defendant to remove his hand |1sfrom his pocket. At that point, the defendant opened his hand to reveal a syringe and a piece of foil containing heroin. The officer then placed the defendant under arrest. Id., 06-0475 at 2-3, 946 So.2d at 224. On appeal, the court determined that the police officer was justified in asking the defendant to remove his hands from his pockets, and in taking action to insure the defendant complied with that request, since the officer was acting to insure his own safety. Id., 06-0475 at 5, 946 So.2d at 225.

In State v. Gray, 99-47 (La.App. 5 Cir. 6/1/99), 738 So.2d 668, this Court upheld the seizure of marijuana that was discovered during a pat down search of the defendant for weapons, despite the fact that the defendant was in handcuffs prior to the frisk. The defendant was among four young men who were stopped by the police for a suspected curfew violation. The officer asked the suspects to place their hands on the car so that he could conduct a weapons search. The defendant continually refused to remove his hands from his pockets and was subsequently handcuffed. Id., 99-47 at 2, 738 So.2d at 669. While he was handcuffed, the officer conducted a frisk for weapons, at which time he discovered a plastic bag containing marijuana in the defendant’s pocket.

This Court commented that the officer was warranted in handcuffing the defendant prior to the patdown because he reasonably believed that his safety was at risk when the defendant continually refused to remove his hands from his pockets. This Court concluded that placing the defendant in restraints in order to search for a weapon was reasonable. See also: State v. Rabon, 00-0935, p. 1 (La.6/30/00), 764 So.2d 944, 945 (per curiam), citing 4 Warren R. LaFave, Search and Seizure, § 9.5(a), in which the Louisiana Supreme Court commented that a defendant’s inexplicable failure to remove a hand from a pocket may give rise to reasonable suspicion for a weapons search.

| uMr. Huntley also complains that his arrest was illegal. An arrest made without probable cause is illegal and the seizure of evidence pursuant to an illegal arrest is also illegal. State v. Graham, 01-1232, p. 10 (La.App. 5 Cir. 5/29/02), 820 So.2d 1101, 1106, unit denied, 02-1770 (La.12/19/02), 833 So.2d 329. In this case, Detective Brown’s discovery during the investigatory stop that Mr. Huntley was carrying plastic bags containing what he considered to be marijuana was sufficient to establish probable cause for a valid warrantless arrest.

Under these circumstances, we find no error in the trial court’s denial of Mr. Huntley’s motion to suppress the evidence. Thus, this assignment lacks merit.

Error Patent

Mr. Huntley requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. For the reasons that follow, we find no errors patent requiring corrective action.

La.R.S. 15:529.1(D)(l)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the state must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing rather than by admission of the defendant. However, when the guilt of the defendant is proven by his own stipulation or admission to the habitual offender bill of information, without having been informed of his right to a hearing or his right to remain silent 11sby either the trial court or his attorney, there is reversible error. State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 88 (citations omitted); State v. Delaney, 42,990, p. 18 (La.App. 2 Cir. 2/13/08), 975 So.2d 789, 799.

The trial judge’s failure to sufficiently advise the defendant of his statutory, La. R.S. 15:529.1, multiple offender rights is an error patent. State v. Babineaux, 08-705, p. 10 (La.App. 5 Cir. 1/13/09), 8 So.3d 621, 627.

In this case, the trial judge did not advise Mr. Huntley of his right to a formal hearing at which the state must prove its case or of his constitutional right to remain silent. Even so, the failure of the trial court to advise Mr. Huntley of these rights is not reversible error because Mr. Huntley’s habitual offender status was established by competent evidence offered by the state at a hearing rather than by Mr. Huntley’s admission.

In this case, the state introduced the bill of information containing fingerprints and the commitment/minute entry for the predicate conviction, which indicated that Mr. Huntley was represented by counsel and waived his Boykin triad of constitutional rights. The state also elicited testimony from an expert in the field of fingerprint analysis and examination. She linked Mr. Huntley’s fingerprints taken that day by her to. those contained in the record of the predicate conviction.

Conclusion

Because we find no merit in any of Mr. Huntley’s assignments of error, we affirm the conviction and the enhanced habitual offender sentence.

      . The record does not contain a written motion to reconsider the sentence imposed on November 6, 2009. We note that upon entering the order of appeal, the trial court is not divested of jurisdiction to “take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.” La. C.Cr.P. art. 916(3).

      . This Court granted defense counsel's motion to supplement the record with the habitual offender proceedings and to suspend briefing delays pending supplementation.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Christopher JOHNSON.
    No. 10-KA-612.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, MARC E. JOHNSON, and ROBERT L. LOBRANO, Pro Tempore.
   MARC E. JOHNSON, Judge.

^Defendant, Christopher Johnson, appeals his conviction and sentence for armed robbery. For the reasons that follow, we. affirm.

Defendant was charged in a bill of information with armed robbery in violation of La. R.S. 14:64. He pled not guilty and filed several pretrial motions, including motions to suppress statements which were denied after a hearing. He proceeded to trial on January 19, 2010. A unanimous 12-person jury found defendant guilty as charged. He was sentenced to 50 years at hard labor without benefit of parole, probation, or suspension of sentence.

The State filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant admitted to the allegations in the multiple bill and was adjudicated a multiple offender. The trial court vacated his original sentence and resentenced defendant as a second felony offender to 50 years at hard labor without benefit of parole, probation, or suspension of sentence. His sentence lswas ordered to run concurrently with the sentence imposed in a case from the 29th Judicial District Court.

FACTS

On December 1, 2007, Ms. Tracy Trues-dale was working at a Sonic fast food restaurant located on Airline Drive in Jefferson Parish when a man came into the food preparation area and asked for a job application. When Ms. Truesdale went to get an application, the man pointed a gun at her and demanded money. Ms. Trues-dale gave the man money from the safe and he walked away. The police responded to the scene and Ms. Truesdale gave a description of the perpetrator. She described him as a white male wearing a hoodie over his head with a tattoo on his neck.

Three days later, Detective Sergeant Darren Monie with the Jefferson Parish Sheriffs Office (JPSO) received information from the St. Charles Parish Sheriffs Office indicating they had interviewed defendant while investigating an unrelated matter. During the interview, defendant confessed to robbing the Sonic restaurant on Airline Drive three days earlier. Sgt. Monie subsequently met with and interviewed defendant at the St. Charles Parish Criminal Investigations Bureau. Defendant waived his Miranda rights and gave a statement to Sgt. Monie in which he admitted to robbing the Sonic. Defendant further stated he had discarded the Velcro straps that were around the packs of currency he had obtained during the robbery in the Kenner Rivertown neighborhood. Sgt. Monie traveled to Rivertown and recovered the straps.

At trial, the victim positively identified defendant as the person who robbed her.

J¿LAW AND ANALYSIS

Defendant’s sole assignment of error is that the trial court erred in proceeding to trial without determining defendant was competent to do so. The record shows the trial court expressly found defendant competent to proceed to trial. Thus, it appears defendant is arguing that the trial court erred in finding defendant competent.

On January 19, 2010, defendant appeared in court for trial. After some initial matters, defense counsel called defendant to the witness stand. Defense counsel asked defendant if he recalled the terms of a plea bargain offered by the State. Apparently, the State offered defendant a plea bargain whereby defendant would receive a sentence of 40 years for armed robbery and then an enhanced sentence of 49½ years as a second felony offender in exchange for his guilty plea. The defendant recalled the terms of the plea bargain, but stated he did not want to take it. The jury was then brought into the courtroom.

As the trial was getting ready to begin, defense counsel requested a bench conference. She informed the trial judge that defendant just advised her that he was not going to sit through the trial. She also indicated that she was concerned for her personal safety. The jury was removed from the courtroom.

The court then explored the matter with defendant. Defendant responded, “I’m not going to sit through another trial ... I might f*ck around and run over there and punch the f*ck out that D.A. That’s what I might do.” Defendant continued, “You’re going to see. All you have to do is tase me or gas me. I’m already on extended. I’m already locked up. I don’t give a f*ck what you all do. You all are going to see. Go ahead and start the trial.” Defendant was then shackled and restrained in his seat.

Thereafter; the following exchange took place:

|BTHE COURT: All right, you all are done? Mr. Johnson, your behavior thus far is not helping your case. I’m getting ready to call the jury in. Do you understand that? Sir, do you understand that?
MR. JOHNSON: No, I don’t.
THE COURT: You don’t understand that?
MR. JOHNSON: I don’t understand nothing. I ain’t capable of understanding.
THE COURT: All right. You know fúlly what—
MR. JOHNSON: When they come in, I’m going to take to them all through the trial. You’ll have to gag me and everything else.
THE COURT: You understand that what you’re doing right now is not beneficial to your case and that this Court, if you cannot control yourself will gag you, or if you continue, we will remove you from the courtroom. Do you understand that? We will have the trial without you. Do you understand that?
MR. JOHNSON: That’s what I want. I don’t want to be in here for trial. Do the trial without me.
THE COURT: Well, right now—
MR. JOHNSON: ‘Cause I won’t be in here.,
THE COURT: —you’re going to be here. Right now you’re going to be here and you’re going to be ordered to remain quiet and to assist your counsel. Do you understand that?

(NO RESPONSE)

Subsequently, “out of an abundance of caution,” the prosecutor asked the trial court to offer its • views concerning the defendant’s statement that he did not understand the proceedings. The trial court responded:

It is my belief based upon his presence before the court at least during the last year and having sat through a previous trial with Mr. Johnson, that he is competent. He does understand the proceedings before him and that his claim now of incompetence, while made after a fairly aggressive morning, are only coming to delay this trial as is his behavior.
I find that he is competent. I find that he does understand the things presented to him. However, is anybody concerned about his competence?

|fiThe prosecutor replied, “[ajbsolutely not.... It is abundantly clear to me that the defendant is attempting in any way possible to retard the progress of this prosecution.” Defense counsel did not respond to the trial court’s inquiry. (R., p. 264).

The trial continued. After the jury was selected, defense counsel requested a bench conference where the following colloquy took place:

DEFENSE COUNSEL: Your Honor, based on the defendant’s behavior this morning, the defendant telling me— making the comment that he doesn’t really understand everything that’s going on; he’s high on drugs or whatever—
THE COURT: He’s high on drugs? Is that what — I’m asking for a clarification.
DEFENSE COUNSEL: I don’t know. I don’t know.
THE COURT: Is that what his statement to you was; that he’s high on drugs right now?
DEFENSE COUNSEL: Yes.

Defense counsel then requested that defendant be drug tested. The trial judge refused again stating that she did not believe defendant was incompetent. She noted that defendant had been well behaved during jury selection. The trial court further stated:

I’ve observed him through the last trial. I observed him on court on numerous occasions. I have observed him this morning. Nothing in his behavior indicates to me that he is in any way incompetent or that he is under the influence of any type of narcotic that would impair his mental capacities.
His outburst this morning, and apparently his comments this afternoon are in line with the dilatory — with delaying this trial, than they have to do with anything else. He is sitting there rationally.
And as I said earlier, I commented to my staff how impressed I was with his behavior during the selection of the jury. He acted appropriately. He was not disruptive. He did not have any outbursts. He has been incarcerated for quite some time continuously and has been under the supervision of JPSO or the Department of Corrections for at least the past year and he has been handcuffed and shackled at this point within this court for at least the last four hours. Therefore, |7the opportunity for him to be under any type of narcotic seems to have severely diminished.
Therefore, I am not going to drug test him.
In terms of his behavior. He is under control right now. He is behaving himself. And again, I am looking at him. He appears just as he has on any other day before this court; competent and able to proceed.

Defense counsel objected to the trial court’s ruling and trial proceeded. There was no further mention of the defendant’s capacity to proceed.

A criminal defendant has a constitutional right not to be tried while legally incompetent. State v. Carmouche, 01-0405, p. 29 (La.05/14/02), 872 So.2d 1020, 1041. There is a legal presumption that a defendant is sane and competent to proceed. The legal presumption that a defendant is sane and responsible for his actions may be destroyed by rebutting evidence. Id.; La. R.S. 15:482.

La.C.Cr.P. art. 641 provides that “[mjental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” Thd two-fold test of capacity to stand trial is whether the defendant: (1) understands the • consequences of the proceedings, and (2) has the ability to assist in his defense by consultation with counsel. State v. Bridgewater, 00-1529, pp. 13-14, (La.1/15/02), 823 So.2d 877, 892, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

The mental incapacity of the defendant to proceed may be raised at any time by the defense, the district attorney, or the court. La.C.Cr.P. art. 642; State v. Williams, 03-942, p. 6 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, 1008, writ denied, 04-450 (La.6/25/04), 876 So.2d 832. Any question regarding a defendant’s mental capacity must be deemed by the court to be bona fide and- in | sgood faith before the court considers if there are reasonable grounds to doubt capacity. State ex rel. Seals v. State, 00-2738, p. 6 (La.10/25/02), 831 So.2d 828, 833. Reasonable ground in this context refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that the defendant can neither understand the proceedings, appreciate the significance of the proceedings, nor rationally aid his attorney in his defense. State v. Anderson, 2006-2987, p. 21 (La.9/9/08), 996 So.2d 978, 992, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009).

The trial court has discretion in deciding whether to order a sanity commission to inquire into the defendant’s present mental capacity to proceed. The appointment of a sanity commission is not a perfunctory matter, a ministerial duty of a trial court, or a matter of right. Carmouche, 01-0405 at 30, 872 So.2d at 1041-42. The Louisiana Supreme Court has explained that, “[a] trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant’s mental capacity to proceed.” Seals, 00-2738 at 5, 831 So.2d at 832.

A trial court’s determination on a defendant’s mental capacity to proceed is entitled to great weight on appellate review, and will not be overturned absent an abuse of that discretion. State v. Fish, 99-1280, p. 4 (La.App. 5 Cir. 4/12/00), 759 So.2d 937, 939.

In State v. Bridgewater, supra, the defense moved several times to have the trial court appoint a sanity commission. Although the defense expressed concern about the defendant’s competency to proceed, the attorneys’ main concern was that they could not communicate with the defendant because he was uncooperative, violent, and irrational, and disagreed with their trial strategies. The defense offered no medical evidence suggesting the defendant was incompetent. The trial judge | adenied the motions because the defendant was found competent a year earlier in an unrelated case, and because the trial judge had personally observed that the defendant exhibited a good understanding of his current circumstances and had a good handle on legal concepts.

On appeal, the defendant argued that the trial judge erred by refusing to appoint a sanity commission. The Louisiana Supreme Court held that the trial judge did not abuse his great discretion in declining to appoint a sanity commission under the circumstances of the case. The supreme court stated that, even assuming there was no prior evaluation in an earlier, unrelated case finding defendant competent to proceed, the trial judge was entitled to base his ultimate decision on his extensive prior dealings with the defendant. The supreme court noted that, although two defense attorneys voiced concern over the defendant’s behavior, those objections, standing alone, did not persuade them that the trial judge should have appointed a sanity commission. In sum, the supreme court concluded that, given the presumption of sanity and the trial judge’s numerous chances to observe defendant personally, defendant failed to demonstrate the trial judge abused his discretion in denying the numerous motions for the appointment of a sanity commission. Bridgewater, 00-1529 at 16, 823 So.2d at 893.

In the present case, the trial judge had personally observed defendant over the course of several criminal proceedings. Two months before the proceeding at issue, the trial judge had presided over a two-day trial in which defendant was charged with and convicted of simple robbery. In the present case, there were several pre-trial hearings where defendant was present and the trial judge had the opportunity to observe defendant’s demeanor. Immediately prior to trial, defendant acknowledged the State’s prior offer of a plea bargain and clearly stated 110that he had no interest in the plea bargain. Additionally, defendant presented no medical evidence to indicate he was incompetent.

Defendant’s actions showed complete disrespect for the court and the trial court proceedings and appear to have been nothing more than a manipulative attempt to delay the trial. We find defendant’s behavior did not provide reasonable grounds to doubt his mental capacity to proceed. Considering the presumption of sanity, the trial judge’s numerous opportunities to personally observe defendant, the lack of medical evidence suggesting defendant was incompetent, and defendant’s prior experience with the legal system, we do not find the trial judge abused her discretion in determining defendant was legally competent to proceed to trial.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547, and find no errors that require remedial action.

For the reasons stated above, defendant’s conviction and sentence for armed robbery are affirmed.

CONVICTION AND SENTENCE AFFIRMED


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Andre Arlan DOMINO, Jr.
    No. 10-KA-661.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux Jacqueline F. Maloney, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Max M. Chotto, Attorney at Law, Gret-na, LA, for Defendant/Appellee.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. MeMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|2The State of Louisiana appeals from the trial court’s judgment granting defendant’s motion to quash. We reverse the decision of the trial court and remand this case for further proceedings.

On March 31, 2008, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Andre Arlan Domino, Jr., with driving while intoxicated (DWI), third offense, in violation of LSA-R.S. 14:98(A)(D). The bill of information alleged that defendant had two prior convictions for DWI in violation of LSA-R.S. 14:98; the first on March 15, 2000, in case number S729608 in Second Parish Court, Division “B”; and, the second on February 18, 2004, in case number S892941 in Second Parish Court, Division “A.” Both prior convictions were obtained by guilty pleas.

The defendant filed a motion to quash the bill of information, alleging that the judge and the attorney failed to sign the waiver of rights form in his first predicate offense. Defendant then filed a supplemental motion in which he argued |3that a review of the transcript demonstrated his plea was not voluntarily or knowingly entered.

After a hearing was held, the trial court granted defendant’s motion to quash the first DWI predicate, finding that the State did not prove a valid waiver of Boykin rights. The State now appeals from the trial court’s ruling granting the motion to quash .

A presumption of regularity attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 04-255, p. 5 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. Procedurally, in an alternative argument, the State contends that defendant is barred from a collateral attack on his prior plea, and that his predicate conviction is now final.

In State v. Balsano, 09-0735, p. 8 (La.6/19/09), 11 So.3d 475, 479 (per cu-riam), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under LSA-R.S. 15:529.1, State v. Shelton, 621 So.2d 769 (La.1993) or in habitual offender D.W.I. prosecutions, State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. This line of jurisprudence appears to set forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the ’ recidivist habitual offender and driving while intoxicated statutes. Furthermore, this Court 1¿recognizes a motion to quash is the proper vehicle to challenge the constitutional validity of a prior DWI guilty plea. See State v. Lowry, 00-107 (La.App. 5 Cir. 6/27/00), 762 So.2d 1275, 1277.

The Louisiana Supreme Court’s decision in Carlos established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. Balsano, supra. Adopting the Court’s prior opinion in Shelton, and acknowledging the presumption of regularity that attaches to prior final convictions, Carlos placed on the State the initial burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. Balsano, supra (citing Carlos, 98-1366 at 6, 738 So.2d at 559). If the State meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Balsano, supra (quoting Carlos, 98-1366 at 6-7, 738 So.2d at 559). If the defendant makes the required showing, the burden reverts to the State to produce a “perfect” Boykin transcript, i.e., one “which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin.” Id. (quoting Carlos, 98-1366 at 7, 738 So.2d at 559 n. 4 and Shelton, 621 So.2d at 775 n. 12). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Balsano, supra (quoting Carlos, 98-1366 at 7, 738 So.2d at 559).

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 642, unit denied, 03-3401 (La.4/2/04), 869 So.2d 5874. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Under Boykin v. Alabama, the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his privilege against self-incrimination, and his rights to a trial by jury and confrontation. State v. Payton, 04-1024, p. 4 (La.App. 5 Cir. 1/11/05), 894 So.2d 362, 365. The record must also show the defendant freely and voluntarily waived those rights. Id.

The Balsano court explained that Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemeanor offenses as to which the defendant does not have the right to a jury trial, shrinking the three-right rule to two rights. Balsano, 09-0735 at 9,11 So.3d at 479-80.

Whenever a misdemeanor guilty plea is ,to 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 these enumerated constitutional rights. State v. Vu, 02-1243 (La.App. 5 Cir. 4/8/03), 846 So.2d 67, 71. The trial judge must also ascertain that the accused understands what the plea connotes and its consequences. “While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.” Id.

In this case, at the hearing on the motion to quash, defendant challenged the first DWI predicate and argued that he was not represented by counsel at the time IfiOf the plea. He also argued that the plea was a “group plea” with four individuals pleading at one time. He contended that there was no articulated waiver of rights in the transcript. Defendant testified at the hearing that he had an 11th grade education and no GED or high school diploma. Defendant recalled being in Second Parish Court in March of 2000. He testified that the district attorney told him to sign the document and things could be resolved without him having to go to jail. He testified that he had no legal training and that when he agreed to plead his main concern was to avoid going to jail. Defendant testified that he had no legal counsel present. He also testified that there were three or four other defendants present that day and so he was not sure who the judge was talking to. The trial court found that according to the transcript, defendant never affirmatively said he understood the rights being waived, stating that “[a]t no time did the defense, as I read the transcripts, affirmatively said (sic) that they understood the rights that they were waiving.” As such, the court granted defendant’s motion to quash.

Defendant challenged the constitutionality of his predicate DWI guilty plea. The State had the initial burden of showing the existence of the guilty plea and that defendant was represented by counsel when the plea was entered. We find that the State met the first prong of its initial burden by providing proof of the existence of the 2000 predicate guilty plea.

However, defendant was not represented by counsel at the time he pled guilty to this offense, as the March 15, 2000 transcript reflects that defendant was in proper person. Defendant had a right to counsel at the time of his predicate plea. Regardless of whether imprisonment is actually imposed, Article I, Section 13 of the Louisiana Constitution guarantees a defendant the right to counsel in any case punishable by a term of imprisonment. State v. Wise, 04-1445, p. 3 (La.App. 5 Cir. 5/31/05), 905 So.2d 387, 390. A defendant has the right to counsel under the 17Sixth Amendment of the United States Constitution only where a sentence of imprisonment is imposed. Id. A sentence of imprisonment includes a suspended sentence in which the defendant is placed on probation. Id. In this case, defendant received a sentence for his first predicate plea that included imprisonment for six months, all of which was suspended except for two days to be served in jail or on Home Incarceration, whichever defendant was qualified for. He received one-year of active probation. Thus, we find that defendant was entitled to counsel.

The right to counsel is a fundamental right guaranteed by the state and federal constitutions. State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 493. Once informed of the right to counsel, however, an accused may intentionally waive the right. Id. Because the predicate plea was uncounseled, the State had the burden of proving a valid waiver of counsel. An uncounseled misdemeanor conviction, absent a valid waiver of counsel, may not serve as a predicate for enhancement of a subsequent DWI offense. State v. Bush, 03-1438 (La.App. 5 Cir. 4/27/04), 873 So.2d 795, 798. The State bears the burden of proving that an unrepresented defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemean- or DWI that is used to enhance a subsequent DWI offense. Id. The determination of the validity of the accused’s waiver of counsel rests on the totality of the circumstances in each case. Id.

Before accepting a misdemean- or guilty plea, the trial judge should expressly advise the defendant of his right to counsel and to appointed counsel if he is indigent. State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 498. The trial judge should determine if the waiver is knowing and intelligent under the circumstances. Id. In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, 1 seducation, experience, background, competency and conduct of the accused as well as the gravity of the offense. Id. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question which depends upon the facts and circumstances of each case. Id. (citing State v. Strain, 585 So.2d 540, 542 (La.1991)). The critical issue on review of the waiver of rights is whether the defendant understood the waiver. State v. Nabak, 03-919 (La.App. 5 Cir. 12/30/03), 864 So.2d 758, 762.

In the present case, we find that the transcript of the March 15, 2000 predicate conviction reflects that defendant, who was unrepresented, knowingly and intelligently waived his right to counsel before pleading guilty to the predicate misdemeanor DWT that was used to enhance the subsequent DWI offense. According to the transcript, four defendants were present for the colloquy, with two of the defendants, including Domino, appearing in proper person. At the beginning of the proceeding, the trial judge confirmed defendant’s date of birth as May 16, 1971, and also confirmed his social security number and driver’s license number. The judge also confirmed that defendant had a twelfth grade education. He explained that defendant was charged with driving while intoxicated on September 18, 1999, was pleading under Article 894, and had a “reading” of .204. Defendant agreed that the judge was correct. After the judge individually addressed each defendant, confirming similar information with them, the judge explained the following:

I’m going to go through your rights. If at anytime [sic] somebody doesn’t understand something, please, stop me. It is important that you understand it and I’ll try to do the best I can to make you understand what’s going on.
Do you understand that the crime of operating a vehicle while intoxicated is the operation of any motor vehicle, aircraft, watercraft, 19vessel or other means of conveyance when: (a) the operator is under the influence of alcoholic beverages; or (b) the operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or (c) the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in La.R.S. 40:964?
You also understand by pleading guilty to this offense you are giving up the following rights here.
Does everybody understand the first section? Any questions?

Thereafter, the defendants, as a group, responded, “No, sir.”

The judge then said the following:

You are giving up your right to plead not guilty or to pursue the not guilty plea previously entered, and go forward with a trial. You waive the right to a Judge trial. You waive the right to require the State to prove your guilt beyond a reasonable doubt. The right to confront your accuser and cross-examine witnesses called to testify against you. The right not to be compelled to incriminate yourself. The right to appellate review. If you enter this plea without the assistance of a lawyer you are giving up the following rights: The right to the assistance of a lawyer at all stages of the proceedings. Your right to have a lawyer appointed, if you cannot afford one. Do you understand that by pleading guilty you authorize the Court to impose up to the maximum sentence provided by law without a trial? Do you all understand that? Any questions?

The defendants, as a group, responded, “No, sir.”

The trial judge then proceeded to explain to the group the maximum and minimum sentences that could be imposed for first offense DWIs. The judge specifically told Domino that he was the only defendant who qualified for the additional two days of parish prison or home incarceration due to his blood alcohol concentration. The judge then asked the following to the group in the colloquy:

Do you understand that this plea can be used against you as .a second, third or fourth offender and if this happens, this plea can seriously affect you under the Habitual Offender Law?
Do you understand that in order to be multiple billed under the Habitual Offender Law, it does not matter whether one offense occurred before or after any other offense? You also understand that | inthe District Attorney’s office can go back 10 years in order to use prior offenses for multiple billing purposes.

Thereafter, the judge explained the maximum and minimum sentences that could be imposed for second and third offense DWIs. He also explained that a third offense DWI is no longer a misdemeanor, but would be considered a felony. The judge then asked if there were any questions. The transcript reflects that the defendants responded, as a group, “No, sir.” The judge then explained the maximum and minimum sentences that could be imposed for fourth offense DWIs, which would also be considered felonies.

The judge then asked the following in the colloquy:

You acknowledge that your act of pleading guilty is a knowing, intelligent, free and voluntary act on your part? You also acknowledge that no promises or threats have been made to encourage you to enter a guilty plea to the above charges; is that correct?

The transcript reflects that the defendants responded as a group, “Yes, sir.” Thereafter, the transcript reflects the following:

THE COURT:
Let’s go through them one at a time. Mr. Forrest, do you have any questions?
MR. FORREST:
No, sir.
THE COURT:
No.
THE COURT:
Mr. Nichols.
MR. NICHOLS:
No, sir.
THE COURT:
Mr. Edwards.
MR. EDWARDS:
No, sir.
THE COURT:

| nI’m going to accept all your pleas.

The transcript shows that Domino was not specifically asked at this point if he had any questions. The transcript is unclear as to why the court responded “No” after the response of Forrest and before addressing Nichols.

After accepting the pleas, the trial judge sentenced each defendant individually.

We find that, according to the transcript, the trial judge did expressly advise defendant of his right to counsel and to appointed counsel if indigent. The judge explained that the right to counsel was being waived. Although the transcript does not reflect Domino declared that he understood this, the court asked if there were any questions and the defendants responded as a group that there were none. Further, at the beginning of the colloquy, the judge told the defendants to stop him at any time if they did not understand, stressing the importance of their need to understand. The transcript does not include any discussion regarding defendant’s mental condition or specific inquiries about defendant’s understanding of his waiver of counsel.

However, the determination of whether a defendant understood his waiver of counsel prior to pleading guilty to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. State v. Kerwin, 02-103 (La.App. 5 Cir. 5/15/02), 821 So.2d 28, 31. The Louisiana Supreme Court has recognized that crimes of driving while intoxicated are non-complex crimes, and are almost self-explanatory, thus requiring less judicial inquiry to determine if defendant understood his waiver of counsel in the case of a guilty plea. Nabak, 864 So.2d at 762 (citing Strain, 585 So.2d at 544). See also Theriot, supra at 1083-84, where this Court recognized that the judge did not make an inquiry into the defendant’s background and | ^competency. However, this Court determined that in light of the totality of the circumstances, there was a valid waiver of counsel.

The transcript also reflects that the trial judge informed defendant of the nature of the DWI charge and the penalty range for this charge, as well as the ranges for subsequent DWI offenses. Also, at the beginning of the colloquy, the judge confirmed defendant’s birthdate and education.

In the appeal presently before us, the trial judge concluded that according to the transcript there was no affirmative statement made by defendant that he understood the rights being waived. In the trial court’s ruling, however, no mention is made of the waiver of rights form that was executed in predicate guilty plea.

The waiver of rights form in case number S729608 (the predicate plea at issue) includes defendant’s date of birth, his social security number, his driver’s license number, and his education level. The waiver form reflects defendant was charged with an offense that occurred on September 18, 1999, in violation of LSA-R.S. 14:98(B), and that he was pleading guilty to the offense “under 894.” The form reflects his intoxilyzer reading was .204. The form also reflects the definition of the crime as well as the rights defendant was giving up, including his right to a judge trial, his right to confrontation, and his right not to be compelled to incriminate himself. Also, the form reflects the following language regarding waiver of counsel:

If I enter this plea without the assistance of a lawyer, I am giving up the following rights:
My right to the assistance of a lawyer at all stages of the proceedings.
My right to have a lawyer appointed, if I cannot afford one.

Further, the waiver of rights form provides that by pleading guilty defendant is authorizing the court to impose up to the maximum sentence provided by law 113without a trial. The form reflects the penalty ranges for first offense DWI, as well as for subsequent DWI offenses. The form also sets forth the sentence that defendant would actually receive for the charged offense.

The form provides the following regarding the guilty plea:

I acknowledge that my act of Pleading Guilty is a knowing, intelligent, free and voluntary act on my part. I also acknowledge that no promises or threats have been made to encourage me to enter a guilty plea to the above charge ***
My rights have been thoroughly explained to me by the trial judge, and I understand them. The trial judge has asked me if I have any questions and has given me an opportunity to ask questions. I have no further questions to ask.

Defendant then signed the form.

We find that there is sufficient evidence of a valid waiver of counsel when considering the colloquy and the waiver of rights form. Defendant was advised of his right to counsel at all stages of the proceedings and his right to appointed counsel if indigent. The judge confirmed information about defendant, including his birthdate and his level of education. The judge advised defendant of the nature of the offense and the penalty ranges he faced for the offense, as well as the penalty ranges for future DWI offenses. As recognized by the jurisprudence, defendant pled to an uncomplicated, misdemeanor offense. Defendant was given the opportunity to ask questions and was encouraged to do so. The record reflects he did not ask questions during the proceedings. See Theriot, 782 So.2d at 1085, where this Court, in determining the validity of a waiver of counsel, considered that the defendant signed a waiver of rights form acknowledging his right to ask questions and the transcript of the plea indicated that the defendant did not ask questions or hesitate in pleading guilty. Further, it appears that in the present case |i4defendant received the benefit of pleading under LSA-C.Cr.P. art. 894, a factor considered relevant by this Court in Theriot, supra.

Defendant claimed that the first predicate plea was invalid because there was no trial judge signature on the waiver of rights form. Even though the trial judge did not sign the waiver of rights form in the predicate guilty plea, the record of that predicate offense sufficiently established that defendant had knowingly and voluntarily waived his constitutional rights. See State v. Perkins, 99-1084, pp. 4-5 (La.App. 5 Cir. 1/25/00), 751 So.2d 403, 407-08, writ denied, 00-0656 (La.12/15/00), 777 So.2d 476. See also State v. Jones, 537 So.2d 1244, 1250 (La.App. 4 Cir.1989).

Further, although the trial judge did not sign the waiver of rights form, (thereby acknowledging that he read and reviewed the contents of the waiver of rights form with defendant and gave him an opportunity to ask questions), the transcript presented regarding the predicate offense reflects a colloquy with the judge, who personally addressed the details set forth in the waiver of rights form, including the advisal of defendant’s right to counsel and his Boykin rights. Although the transcript does not appear to reflect that defendant was personally asked if he had any questions, the group was advised of their opportunity to do so. Further, defendant acknowledged by means of his signature on the form that he was given an opportunity to ask questions and had no further questions. Defendant now argues that the only person he spoke with on the day of the plea was the Assistant District Attorney who explained the form to him. However, defendant signed the waiver of rights form, which expressly provides that defendant’s rights had been thoroughly explained to him by the trial judge. The signature also follows an acknowledgement that defendant understood his rights.

11sDefendant also challenges the colloquy of the predicate offense because a group of defendants was involved. While a personal colloquy between the trial court and the defendant is preferred, group guilty pleas are not automatically invalid. See State v. Filer, 00-0073, p. 2 (La.6/30/00), 762 So.2d 1080, 1081 (per curiam); State v. Verdin, 02-2671, p. 6 (La.App. 1 Cir. 2/3/03), 845 So.2d 372, 376-77 (per curiam). The judge personally addressed each defendant individually at times, and then collectively as a group as well. The proceedings were adequate to establish that defendant knowingly and expressly waived his Boykin rights and his right to counsel.

We therefore find that defendant failed to meet this burden of making an affirmative showing of an infringement of his rights or a procedural irregularity in the taking of the predicate plea. As such, the burden would not have returned to the State. Nevertheless, we could find that the State did produce a “perfect Boykin transcript, which reflected a voluntary, informed, and articulated waiver of the Boy-kin rights. The colloquy reflects that defendant was advised by the judge of his Boykin rights and that he was waiving these rights by pleading guilty. Further, the group agreed that pleading guilty was a knowing, intelligent, free and voluntary act on their part and acknowledged that no promises or threats were made to encourage the guilty pleas.

The trial court stated that it determined that the transcript was insufficient because there was no affirmative statement made by defendant that he understood the rights being waived. However, there is no inflexible, magic word formula for establishing the voluntariness of the plea, and that the court should have considered the waiver of rights form in addition to the transcript if the judge believed the transcript to be “imperfect.” He then should have weighed the evidence to ] ¶(¡determine whether the defendant’s Boykin rights were prejudiced as explained in Balsano, supra.

We find that the first predicate conviction is not constitutionally infirm and may be used for enhancement purposes, and therefore the trial court erred in granting defendant’s motion to quash.

For the above discussed reasons, the decision of the trial court granting the motion to quash is reversed and the matter is remanded for further proceedings.

      . The State also argued that the motion to quash should be denied because defendant's basis for quashing the bill of information was not a proper ground pursuant to LSA-C.Cr.P. art. 532. Defendant argued that a motion to quash is the proper grounds for attacking an improper bill of information. The court concluded that the motion to quash was the proper vehicle for the challenge. The State does not challenge this finding on appeal.

      . The State relies on Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) for the proposition that objection to the predicate plea is untimely. It appears Coss, however, concerned a different question, namely whether federal post-conviction relief was available when a prisoner challenged a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner was no longer in custody. 121 S.Ct. at 1570.

      . It is noted that defendant testified at the hearing on the motion to quash that he had an eleventh grade education and no GED or high school diploma.


text:
    Frank LOZANO v. Terry BROWN, his Insurance Company, U.S. Agencies Casualty Insurance Company, Inc., and Geico General Insurance Company, as the Uninsured/Underinsured Carrier for Frank Lozano.
    No. 10-CA-489.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Fred R. Defrancesch, Tomy J. Acosta, Attorneys at Law, LaPlace, LA, and James A. Harry, Attorney at Law, Springfield, LA, for PlaintiffyAppellant.
    T. Michael Masterson, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and ROBERT LOBRANO, pro tempore.
   MARC E. JOHNSON, Judge.

|2The parties appeal from a judgment awarding $7,823.89 to plaintiff, Frank Lo-zano, against defendant, GEICO General Insurance Company (GEICO), as a result of an automobile accident. For the reasons that follow, we reverse the judgment of the trial court.

This action arises out of an automobile accident that occurred on August 27, 2007, in which plaintiff was struck from behind by a vehicle driven by Terry Brown at the intersection of West 19th and Airline Highway. On June 20, 2008, plaintiff filed suit against Terry Brown, U.S. Agencies Casualty Insurance Company as Brown’s liability insurer, and GEICO as plaintiffs uninsured/underinsured motorist carrier. All three defendants filed answers, but only GEICO proceeded to trial.

At trial, the parties entered into several stipulations including the authenticity of certain medical bills, the use of Dr. Kenneth Adatto’s deposition as trial testimony, and GEICO’s status as plaintiffs uninsured/underinsured carrier, along with GEICO’s policy limits and declaration sheet. Plaintiffs counsel also goffered a stipulation that plaintiff “has received ten thousand dollars from, I believe it’s Permanent General as the at-fault liability carrier of the defendant in this case.” In addition to these stipulations, plaintiffs case consisted of his own testimony. In summary, plaintiff suffered an aggravation of a pre-existing neck and back injury as a result of the accident. In its defense, GEICO submitted various medical records of plaintiff pre-dating the accident.

The trial judge took the matter under advisement and the parties submitted post-trial memorandums. After the matter was submitted but before the trial court rendered judgment, plaintiff filed a partial motion to dismiss Terry Brown and U.S. Agencies with prejudice on the basis the parties had amicably resolved the matter, which was granted. Plaintiff specifically reserved his rights against any other party, including “GEICO as the UM provider.”

Thereafter, the trial judge rendered judgment in favor of plaintiff and against GEICO in the amount of $7,823.89. The trial judge explained that the amount awarded was based on medical bills for the hospital and ambulance and thirty percent of the medical bills for plaintiffs treatment with Dr. Adatto, which was the percentage of aggravation to plaintiffs pre-existing condition caused by the accident. Both plaintiff and GEICO timely appealed.

Plaintiff appeals seeking an increase of the award of damages claiming the trial court erred in failing to award general damages, damages for loss of enjoyment of life, and penalties and attorney’s fees for GEICO’s arbitrary and capricious failure to pay the claim after being presented satisfactory proof of loss. GEICO appeals seeking reversal of the judgment on the basis there was no evidence the offending driver was under-insured so as to impose liability on GEI-CO as plaintiffs underinsured motorist carrier (UIM). We agree with GEICO.

14In order for an insured to recover against his UIM insurer, he must first prove the underinsured status of the offending motorist. Finley v. “ABC” Ins. Co., 06-581, p. 6 (La.App. 5 Cir. 12/27/06), 946 So.2d 330, 334. Louisiana Revised Statute 22:1295(6) provides three methods for making a prima facie case that the owner or operator of the offending vehicle was either uninsured or underinsured: (1) an affidavit from the owner and operator of the alleged uninsured vehicle stating that they did not have automobile liability insurance at the time of the accident; (2) an affidavit from the Department of Public Safety and Corrections regarding inquiry into the insurance of the owner and operator; or (3) admissible evidence showing the owner and operator of the alleged uninsured vehicle was a nonresident or not a citizen of Louisiana on the date of the accident. The effect of the prima facie evidence is to shift the burden of proof from the party alleging the underinsured status of the vehicle in question to their UIM insurer. La. R.S. 22:1295(6)(d). If a plaintiff fails to utilize any of these three methods, the plaintiff has the burden of proving that the offending vehicle was un-derinsured by other admissible evidence. Finley, 06-581 at 7, 946 So.2d at 334.

In awarding damages in favor of plaintiff and against GEICO, the trial court necessarily found plaintiff met his burden of proving the underinsured status of the offending driver, Ms. Brown. In this regard, we find the trial court committed manifest error.

The only evidence regarding the insurance status of the offending driver was the stipulation at the beginning of trial that plaintiff received $10,000 from the at-fault liability carrier. Contrary to plaintiffs assertion, such a stipulation does not prove that the offending driver was underin-sured. The stipulation was somewhat | pvague in that plaintiffs counsel stated the payment was made by “Permanent General” as opposed to U.S. Agencies, the alleged liability carrier of the offending driver. There was no evidence in the record that the parties stipulated that the $10,000 payment represented Ms. Brown’s policy limits, and there was no evidence of Ms. Brown’s policy limits. The record does not contain a copy of Ms. Brown’s insurance policy, the declaration sheet, a copy of the settlement check, or the release, any of which might have indicated Ms. Brown’s policy limits. There was absolutely no evidence showing Ms. Brown was an underin-sured motorist. Absent any proof in the record that the offending driver was un-derinsured at the time of the accident, we are unable to find support for the imposition of liability against GEICO as plaintiffs UIM carrier.

We find that Mr. Lozano failed to present essential proof to establish the under-insured status of the offending driver, entitling him to recover against GEICO, his UIM provider. Accordingly, we reverse the trial court’s judgment casting GEICO in judgment and awarding $7,823.89 in damages, costs and judicial interest to Mr. Lozano, and dismiss Mr. Lozano’s petition against GEICO with prejudice. Because of our ruling, we find plaintiffs assignments of error regarding damages, penalties and attorney’s fees to be moot.

      . Formerly La. R.S. 22:680(6).

      . La. R.S. 22:1295(2)(b) provides that for purposes of coverage, the term "uninsured motor vehicle” is deemed to include an insured motorist vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages sustained.

      . Compare Gillmer v. Parish Sterling Stuckey, 09-901, p. 8 (La.App. 1 Cir. 12/23/09), 30 So.3d 782, 787-88, where the court found plaintiff sufficiently proved the underinsured status of the offending driver by submitting certified copies of the at-fault liability carrier’s declarations page and policy agreement, which established the monetary limits of the available liability coverage.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Shawn C. PETERS.
    No. 2010-KA-0326.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney Of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.

      Kevin V. Boshea Kevin V. Boshea, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

| STATEMENT OF CASE

By bill of information filed February 28, 2008, the appellant was charged with aggravated burglary. At his arraignment on March 26, 2008, the court ordered a competency hearing. The appellant was found competent on April 3, 2008, and he entered a not guilty plea. On August 21, 2008, a motion for speedy trial was granted; the appellant’s motion for a bond reduction was denied. The district court found probable cause on November 19, 2008 and November 21, 2008. The hearing on the motion to suppress the identification was continued until January 7, 2009, when it was denied. Following a bench trial on April 22, 2009, the appellant was found guilty as charged, and a presentence investigation was ordered. On January 23, 2009, the district court denied appellant’s motion for new trial. After waiving delays, he was sentenced to serve thirty years at hard labor, to run concurrently with any other sentence he may be serving. On July 28, 2009, counsel for the appellant filed a motion to reconsider sentence and motion for appeal. The motion for appeal was granted. There is no evidence of a ruling on the motion to reconsider sentence. A second motion to reconsider sentence was filed by counsel on August 6, 2009. There is no evidence of a ruling on the second [ 2motion to reconsider sentence. Neither motion to reconsider sentence is part of the record.

STATEMENT OF FACT

On February 11, 2008 at approximately 2:00 a.m., Jacqueline Thomas was preparing to go to bed when she heard a loud noise. She kept hearing the noise so she got out of bed to investigate. Ms. Thomas heard several loud knocks coming from her rear door. The door then flew open and the appellant stepped inside. She attempted to escape through the front of the house, but he caught her. The appellant told her that he came to rape her. He removed his shirt and unfastened his pants. His pants fell to his ankles. Ms. Thomas tried to escape again, but he grabbed her wrists. The appellant then told her that he changed his' mind about raping her. Instead, he told her that he wanted to make love to her, and she told him no. The appellant tightened his grip on her wrists when she tried to get loose. Ms. Thomas began talking to the appellant in an attempt to dissuade him from carrying out his threat. He told her his first name and that he had been watching her for a long time. He also told her that no one loved him. She then asked him if he could get something to fix the door. The appellant acquiesced. Before he left, he made her promise not to call the .police, and he apologized.

After the appellant left, Ms. Thomas drove to the Third District Police Station where she called 911 from the parking lot. Officer Watson was en route back to the station when he noticed Ms. Thomas crying hysterically in the parking lot. After speaking with her, he and Ms. Thomas relocated to her home at 3318 DeSaix Boulevard. No one was there but the officer noticed that the rear door was changing on one hinge and that there were wood splinters inside and outside of the house. Ms. Thomas told Officer Watson that the perpetrator was a neighbor that lived a couple of houses down from hers, and she gave the officer his name. Based upon the information provided by Ms. Thomas, an arrest warrant for the appellant was obtained. Detective Callouet executed the warrant later that morning. The appellant was found sleeping in a vehicle that was parked in his mother’s backyard at 3330 DeSaix Boulevard.

On February 19, 2007, Ms. Thomas was asked to come to the police station where she met with Detective Daggs. She was shown a photograph, and she identified the person in the photograph as the appellant.

The appellant testified that he lives with his mother and father. He stated that the first time he met Ms. Thomas, she asked him to carry two boxes into her home. Afterwards they had sex. He also said they were intimate on one other occasion. On the morning of the alleged burglary, he was returning home when he saw Ms. Thomas standing in her doorway. Ms. Thomas made rude comments to him, and he replied with a hand gesture. He proceeded home, but did not have his house keys. After ringing the doorbell twice with no reply, he slept in a vehicle parked in his parent’s backyard. The appellant denied entering Ms. Thomas’ home that night.

The State recalled Ms. Thomas. She avowed that the appellant was never in her home prior to the burglary and that she has never had sex with him.

ERRORS PATENT AND ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

By assignment of error number two, the appellant asserts that the district court erred in failing to rule on the motions to reconsider sentence that were filed on July 28, 2009 and on August 6, 2009. Neither motion is part of the record on Lappeal. The record also fails to reflect a ruling by the district court on either motion.

This Court has previously held that it is procedurally incorrect to review a defendant’s sentence prior to the district court’s ruling on a motion to reconsider sentence. See State v. Ferrand, 2003-1746 (La.App. 4 Cir. 1/14/04), 866 So.2d 322; State v. McQun, 2002-0259 (La.App. 4 Cir. 6/19/02), 828 So.2d 598; State v. Allen, 99-2579 (La.App. 4 Cir. 1/24/01), 781 So.2d 88. As this Court noted in State v. Temple, 2000-2183 (La.App. 4 Cir. 5/16/01), 789 So.2d 639, without a final sentence the conviction is not appealable. However, a trial court’s failure to determine a motion to reconsider sentence does not preclude review of the conviction. State v. Foster, 2002-0256 (La.App. 4 Cir. 9/11/02), 828 So.2d 72.

The appellant avers in his third assignment of error that his sentence is excessive. Accordingly, the appellant’s case is remanded to the district court for a ruling on the motions for reconsideration of sentence, reserving his right to appeal his sentence once the district court has ruled on the motion. As the motions are not part of the record for this Court to review the appellant has thirty (30) days from the date of this opinion in which to re-file the motions to reconsider.

No other errors patent were found.

ASSIGNMENTS OF ERROR NUMBERS 5 AND 6

By these assignments of error, the appellant asserts that the district court erred by denying the motion for new trial and motion for post-verdict judgment of acquittal because the verdict was contrary to the law and the evidence.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). 5State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55. Therefore, these assignments of error will be considered first.

The standard for determining a claim of insufficiency of evidence was set forth by the Court in State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

Based upon the evidence presented at trial, the State had to prove that the appellant’s entry into Ms. Thomas’ home was unauthorized, that he entered her home intending to commit a felony or theft therein, and that he committed a battery upon her while inside her home. La. R.S. 14:60(3).

The appellant does not argue that his entry into the residence was unauthorized. Indeed, the evidence presented at trial shows that the appellant’s entry into Ms. Thomas’ home was unauthorized as evidenced by the splintered door. Also, she specifically testified that she did not give him permission to enter her home. Instead, he first argues that the state failed to prove that he had the requisite intent to rape Ms. Thomas upon entering the |firesidence. He notes that Ms. Thomas did not mention anything about a rape when she made the 911 call or when she spoke to the responding officer, Watson. As noted in State v. Francis, 96-2389, 5 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461:

Intent is a question of fact, but it need not be proved as a fact. It may be inferred from the circumstances. State v. Kahey, 436 So.2d 475 (La.1983); State v. Robinson, 29488, p. 3 (La.App.2d Cir.6/18/97), 697 So.2d 607, 609, writ denied, 97-1845 (La.12/12/97), 704 So.2d 1200. For example, a defendant’s flight from the scene of a crime indicates consciousness of guilt. That is a circumstance from which guilt may be inferred. State v. Bell, 581 So.2d 384, 386 (La.App. 4 Cir.1991).

In Francis, the defendant, who was the victim’s ex-boyfriend, broke down the victim’s door, entered her house, ripped out her phone wires, and hit her several times in the head. The police caught the defendant as he chased the victim out of the house. On appeal of his aggravated burglary conviction, the defendant argued that the state failed to show that he intended to commit a felony or theft after entering. This Court rejected this argument, noting that the victim testified that she had moved to a women’s shelter to avoid the defendant and had only recently returned to her house. This Court found that the evidence of the defendant’s entry and beating was circumstantial evidence of his intent, stating: “The fact that Ms. Wells was able to escape before she was hurt more seriously is of no moment.” Francis at p. 5, 715 So.2d at 461.

Ms. Thomas testified at trial that upon entering her home, the appellant informed her that he came to rape her, and he proceeded to remove his clothing. Throughout the incident, the appellant restrained Ms. Thomas |7by her wrists, and when she attempted to escape, he would tighten his grip. Thus, not only did the appellant voice his intent, intent may also be inferred by the manner in which he entered the residence and prevented her from leaving.

Second, the appellant argues that there was insufficient evidence to prove that he committed a battery. Battery is defined by La. R.S. 14:33 as “the intentional use of force or violence upon the person of another.” His restraint of Ms. Thomas by her wrists is sufficient to show that he committed a battery upon her while inside her home. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment of error, the appellant argues that the record fails to show that he knowingly and intelligently waived his right to a trial by jury. He specifically argues that the record fails to show that he was personally advised by the court of his right to a jury trial at either his arraignment on April 3, 2008 or prior to trial.

A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive his right to trial by jury and elect to be tried by the judge. La.C.Cr.P. art. 780(A); State v. Lee, 2001-2082, p. 4 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 622. The waiver must be express and is never presumed. State v. Santee, 2002-0693, p. 3 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, 534. A waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. Kahey, 436 So.2d 475, 486 (La.1983); Santee, supra. However, while the trial judge must determine if the defendant’s Injury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. Santee, supra.

In the instant case, the following colloquy occurred between the trial court and the defense attorney:

THE COURT:
Okay, are you ready for trial?
MR. COUNCIL:
Yes, sir.
THE COURT:
Okay. Send for — jury trial?
MR. COUNCIL:
Judge, may I speak with Mr. Peters and come back?
THE COURT:
Sure.
(Non-related matters are handled.)
MR. COUNCIL:
We waive the jury, Your Honor.
THE COURT:
All right. They are waiving the jury.

This Court has considered what constitutes a knowing and intelligent waiver of the right to trial by jury in several cases and has made it clear that the preferred practice for obtaining a valid waiver of a defendant’s right to trial by jury is “for the trial judge to advise the defendant personally on the record of his right to trial |9by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record.” State v. Richardson, 575 So.2d 421, 424 (La.App. 4 Cir. 1/31/91). See also State v. Wolfe, 98-0345 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, and State v. Abbott, 92-2731 (La.App. 4 Cir. 2/25/94), 634 So.2d 911. However, this Court has also found that a knowing and intelligent waiver of a defendant’s right to a jury trial can be made even if the preferred practice of obtaining such a waiver is not followed. See State v. Santee, 2002-0693 (La.App. 4 Cir. 12/04/02), 834 So.2d 533, where this Court reiterated that “the Louisiana Supreme Court has refused to mandate this method as an absolute rule.” Id. at p. 3, 834 So.2d at 535. Moreover, in both San-tee and Wolfe, this Court held that the defendant’s failure to object when his counsel informed the court that a judge trial had been chosen was to be construed against the defendant in determining the validity of the waiver made while he was present in court.

In State v. Bryant, 2006-1154 (La.App. 4 Cir. 1/10/07), 950 So.2d 37, this Court again noted that both the Supreme Court and this Court have rejected an absolute rule that would require the trial judge to personally inform a defendant of his right to a jury trial. It then found Bryant’s waiver of a jury trial valid where the trial court noted that counsel had advised it that he had chosen to go to trial by judge and asked whether that was correct.

Although the trial court here did not personally advise the appellant of his right to a jury trial, the colloquy shows that the court asked whether this would be a jury trial. Counsel then requested time to confer with the appellant, after which, counsel informed the court that they were waiving the jury. The appellant did not object when counsel informed the court that a jury trial was being waived. Thus, | munder the circumstances, the jury waiver was valid, and this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 4

By his final assignment of error, the appellant asserts that the district court erred by denying the motion to suppress the identification.

To suppress an identification, a defendant must first prove that the identification procedure was suggestive and that there was a substantial likelihood of mis-identification as a result of the identification procedure. State v. Stovall, 2007-0343, p. 16 (La.App. 4 Cir. 2/06/08), 977 So.2d 1074, 1084, writ denied, 2008-0501 (La.9/26/08), 992 So.2d 984.; State v. Leger, 2005-0011, p. 59 (La.7/10/06), 936 So.2d 108, 151, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Holmes, 2005-1248, p. 6 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1161.

Here, the appellant argues that the identification procedure used in this case was suggestive in that Ms. Thomas was shown only one photograph of a suspect, that of the appellant. This Court has upheld one-photograph identifications where the victims have known their assailants. See State v. Weber, 2002-0618 (La.App. 4 Cir. 12/4/02), 834 So.2d 540; State v. Salone, 93-1635 (La.App. 4 Cir. 1112/28/94), 648 So.2d 494; and State v. Evans, 463 So.2d 673 (La.App. 4 Cir.1985).

Here, the likelihood of misidentification is not present. There is no question that Ms. Thomas knew her assailant as the appellant lived for many years two houses down from her. Also, she provided police with the appellant’s name and address. Thus, even if the single photograph identification procedure utilized was suggestive, it was reliable and admissible under the totality of the circumstances. This assignment of error is without merit.

CONCLUSION

Accordingly, we affirm the appellant’s conviction and remand the matter to the trial court for a ruling on the motions to reconsider sentence, reserving appellant’s right to appeal his sentence once the district court has ruled on his motions. Furthermore, as neither motion to reconsider sentence is part of this record, we grant the appellant thirty (30) days from the date of this opinion in which to re-file his motion to reconsider sentence with the trial court.

CONVICTION AFFIRMED; REMANDED.

      . The 911 tape was played after being authenticated by Office Lockett from the Communications Division of the police department.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Appellant has cited only one case in support of his claim wherein this Court found that counsel's waiving of a jury trial was insufficient to prove a valid waiver. State v. Page, 541 So.2d 409 (La.App. 4 Cir.1989). However, as the State points out, the case is easily distinguished. In Page, this Court specifically noted that the record was devoid of any evidence that counsel advised or consulted with Page prior to waiving the jury or that Page consented to the waiver.