FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #45
FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 22 nd day of October, 2019, are as follows:

PER CURIAM:
2019-K-00028 STATE OF LOUISIANA VS. DESMOND C. PARKER (Parish of Orleans)

We find the lack of an individually articulated waiver of each of the three Boykin rights in the documentary evidence produced by the State constitutes affirmative evidence showi ng an infringement of defendant’ s rights or a procedural irregularity in the taking of the plea, which is sufficient to shift the burden of proving the constitutionality of the plea to the State. Because the State rested on this documentary evidence and produced nothing else, the district court correctl y rejected the prior out-of-state guilty plea and adjudicated defendant as a third, rather than a fourth, felony offender. Accordingly, we affirm the ruling of the court of appeal that found defendant was correctly adjudicated a third-felony offender.
AFFIRMED. Chief Judge Susa n M. Chehardy of the C ourt of Appea l, F ifth Circuit
, appointe d as Justice pro tempore, sitting fo r the vacancy in the First District. Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Clark, J. Weimer, J., dissents and assigns reasons. Crichton, J., additionally concurs and assigns reasons.* Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, assigned as Justice pro tempore, sitting for the vacancy in the First District. Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Justice Marcus R. Cl ark. 10/22/19

SUPREME COURT OF LOUISIANA

No. 201 9

- K

- 002 8

STATE OF LOUISIANA

versus

DESMOND C. PARKER

ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL , PARISH OF ORLEANS

PER CURIAM : *
We granted the application to determine if the lower courts corr ectly found
that the State failed to carry its burden of proving a prior out

- of

- state guilty plea

was know ing, voluntary, and made with an express waiver of defendant ’ s rights in

accordance with Boykin v. Alabama
, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 27 4
(1969) , for purposes of recidivist sentence enhancement . Finding the State failed to
carry its burden, we affirm the ruling of the court of appeal, State v. Parker
, 16

-
1166 (La. App. 4 Cir. 12/12/18), 259 So.3d 1113, which found the district court

correc tly rejected this predicate guilty plea and a djudicated defendant as a third,
rather than as a fourth, felony offender.

After d efendant was found guilty of simple robbery and intimidating a

witness , the State filed a habitual offender bill of information alleging that

defendant was a fourth

- felony offender. The district court adjudicated defendant a s

a third

- felony offender after finding that the State failed to prove an out

- of

- state
guilty plea was entered in compliance with Boykin v. Alabama , 395 U.S. 23 8, 89

S. Ct. 1709, 23 L.Ed.2d 274 (1969)

. The district court sentenced d efendant to serve2 14 years imprisonment at hard labor for simple robbery and 10 years imprisonment

at hard labor for intimidation of a witness.

The State sought review of the district court ’ s determination that defendant
was only a third

- felony offender. A majority of the panel in the court of appeal
found that the documentation submitted by the State at the habitual offender
adjudication did not show that defendant voluntarily waived each of his Boykin
rights . The majority contrasted the proof submitted in the present case with the
proof submitted in State v. Shelton , 92

- 3070 (La. 7/1/93), 621 So.2d 769, and
found it lacking :

In Shelton , the State submitted into evidence a minute entry that stated the judge “gave the defendant his rights” and a “Waiver of Constitutional Rights/Plea of Guilty Form” (“the form”). The form listed the Boykin rights with Defendant ’ s initials behind each indicating that he waived the right. The form had addit ional statements providing that Defendant was well informed of the consequences of his plea. The form was signed by Defendant, the attorney for Defendant, and the trial judge. Considering that evidence, the Supreme Court found that the State met its burden of proving the guilty plea was informed, free and voluntary, and made with an articulated waiver of constitutional rights.
In the instant case, the record is void of any indication that Defendant knowingly and voluntarily waived each of his Boykin rights . The Alabama Judicial Information System Case Action Summary submitted to the trial court contains entries signed by the Alabama Circuit Judge of the Tenth Judicial Circuit of Alabama. One of the entries states that Defendant waives a jury trial. There is no other reference to Defendant waiving rights and nowhere does he sign or initial any statement of waiver or waiver form. The State cannot overcome the lack of an articulated waiver of Defendant ’ s constitutional rights without a transcript.

Parker
, 16

- 1 166 , p. 16 , 259 So.3d at 1122 (footnote omitted)

. The dissenting member of the panel would find the State ’ s proof of the
predicate guilty plea sufficient for recidivist sentence enhancement because a plea

form indicated that defendant was advised of his Boykin rights and that by pleading3 guilty he waived them:
Contained in the Alabama pen pack is a plea form signed by Defendant, his attorney, and the court, on July 25, 2005. The plea form was apparently on legal

- sized paper in its original state, but was copied on letter

- sized paper. It advises Defendant of all his rights and that by pleading guilty, he waived those rights. Defendant was represented by counsel during all of his court appearances. The entire pen pack is certified by its legal custodian, the Director of Central Records for the State of Alabama Department of Corrections. In addition, the Director ’ s signature is notarized.
I find that the Alabama pen pack more than satisfies the requirements of Louisiana law proving that Defendant was advised of his rights and knowingly and intelligently entered the guilty plea. My finding is supported by many cases from this court.

. . . The district court erred by failing to so.

Parker
, 16

- 1166 , p. 4 , 259 So.3d at 1124 ( Lobrano, J., dissenting in part ) (cita tions
omitted)

.
In Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),
the United States Supreme Court noted that three federal constitutional rights are
waived when a plea of guilty is entered in a state criminal trial:
First, is the p rivilege against compulsory self

- incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan , 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisian a , 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one ’ s accusers. Pointer v. Texas , 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
Boykin , 395 U.S. at 243, 89 S.Ct. at 1712. In addition, the Court held: “ We cannot
presume a wai ver of these three important federal rights from a silent record. ” Id.
Thus, regarding Boykin , this Court has found : “ As we read Boykin , in taking a plea
of guilty, an express and knowing waiver of at least these three federal
constitutional rights must be made, which waiver cannot be presumed. ” State ex

rel. Jackson v. Henderson
, 260 La. 90, 103, 255 So.2d 85, 90 (1971).

Given that the waiver of the three Boykin rights cannot be presumed, we4 considered i n State v. Shelton
, 621 So.2d 769 (La. 1993) , w hat s ort of evidence

suffice s to show that a valid waiver accompanied a prior guilty plea that the State

seeks to use in subsequent habitual offender proceedings. We noted that certainly a
transcript of a perfect plea colloquy is sufficient : Certainly, the intr oduction of a transcript of the plea colloquy between the judge and the defendant which indicates that the plea was voluntary and which includes an articulated waiver of the three Boykin rights would be sufficient to meet the State ’ s burden of proving thro ugh a contemporaneous record a guilty plea was taken in compliance with Boykin , and, indeed, is the method of proof preferred by this court. In Jackson , this court noted that by having a transcript made of the plea colloquy, “the trial court wisely avoided the expense and uncertain testimony of a later evidentiary hearing on the post

conviction remedy.” 255 So.2d at 90. Not only does the use of a “perfect” transcript avoid the future uncertainty and expense of an evidentiary hearing, but it also provides a reviewing court with the best evidence of whether the guilty plea was taken in compliance with Boykin

.
Shelton
, 621 So.2d at 775. However, we declined to require the State to present a
perfect transcript in every instance. Instead, we held in Shelton that
, once the S tate

carries its initial burden at a habitual offender hearing of proving the existence of a

defendant ’ s prior g uilty plea and his representation by counsel or waiver of
counsel, the burden shifts to the defendant “to produce some affirmative e vidence
showing an infringement of his rights or a procedural irregularity in the taking of
the plea.” Shelton , 621 So.2d at 779. 1 Defendant “can attempt to meet his burden
of production with a transcript, with testimony regarding the taking of the plea, o r with other affirmative evide nce .” Shelton, 621 So.2d at 779 n. 24 (emphasis added).

“ The state ’ s own documentary evidence introduced to prove the fact of
conviction may also satisfy the defendant ’ s burden of production if it affirmatively

1 This aspect of Shelton was incorporated in La. R.S. 15:529.1(D)(1)(b) by 1993 La. Acts 896, which provides that a defendant who has alleged a constitutional deficiency in one or more of his prior convictions “shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by [his] response [to the state ’ s habitual offender bill.].”5 reveals a Boyki n defect in the proceedings. ” State v. Clesi , 07

- 0564 , p. 1 (La.
11/2/07), 967 So.2d 488 , 489 (per curiam), citing State v. Townsend , 04

- 0005, p. 1
(La. 4/23/04), 874 So.2d 152, 153 (“We assume for present purposes that the court
of appeal correctly found that the documentary evidence introduced by the state at
the habitual offender hearing to carry its initial burden under [ Shelton ] also carried

the defendant ’ s burden to make an ‘ affirmative showing ’ of a procedural defect in
his guilty plea in Texas becau se the documents omitted any mention of advice with
respect to the privilege against self

- incrimination.”). In the present case, the State’s
documentary evidence showed that defendant was informed of his three Boykin
rights. It did not show , however, that he specifically waived his three Boykin rights
but rather only that he waived his right to a jury trial

. Cf. Shelton , 621 So.2d at 777
(“ The form listed several rights, including the right to trial by jury, the privilege
against self

- incrimination, and the right to confront accusers. After each right listed
were the defendant's initials, indicating a waiver of those rights. ” Emphasis
added).

We find the lack of an individually articulated waiver of each of the three
Boykin rights in the documentary evidenc e produced by the State constitutes
affirmative evidence showing an infringement of defendant’s rights or a procedural
irregularity in the taking of the plea, which is sufficient to shift the burden of
proving the constitutionality of the plea to t he State . Because the State reste d on
this documentary evidence and produced nothing else, the district court correctly
rejected the prior out

- of

- state guilty plea and adjudicated defendant as a third,
rather than a fourth, felony offender. Accordingly, we affirm the ruling of the court
of appeal that found defendant was correctly adjudicated a third

- felony offender.

AFFIRMED

### 1 0/2 2 /1 9

SUPREM E CO URT O F LO UISIANA

No . 2 0 1 9 -K-0 0 2 8

STATE OF LOUI SI A NA

VERSUS

DESMOND C. PARKER

O N W RIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

W EI MER, J

. , d i ss en t i n g

.
In Sta te v . B a ls a no , 0 9 -0 7 3 5 (La. 6 / 1 9 / 0 9 ), 1 1 So .3 d 47 5 , t h i s co u rt , i n t h e

co u rs e o f ex am i n i n g t h e v al i d i t y o f o u t -o f-s t at e g u i l t y p l eas us ed fo r hab i t u al o ffen d er

p ro s ecu ti o n s , an n o u nced t h e ret u rn o f t h i s s tat e’ s ju ri s p ru den ce “ to i t s o ri g i n al

s u b s t an t i ve as p ect ,” ex p lai n i n g t h at , h en cefo rt h , “ fo r al l n o n-Lo u is i an a gu i l t y p l eas ,

u s ed t o en h an c e s e n ten ce fo l l o wi n g a su b s eq u en t co n v i ct i o n , a defen d an t d o es n ot

s at i s fy h i s b u rd en o f p ro o f o n co l l at eral at t ack m e r e l y b y p res en t i n g co n t em p o ran eo u s

reco rd s rev eal i n g a v i o l at i o n o f J a ck s o n’s 1 t h ree-ri g ht ru l e.” Ba l s a no , 0 9 -0 73 5 at 1 4,

1 1 So .3 d at 48 2

. Rat h er, a d efen d an t m u s t s h o w “ t hat h i s g u i l t y p l ea was n ot

v o l u n t ar y as a co n s t i t u ti o n al m at t er, i .e. , t h at i t d i d n o t rep res en t a k n o wi n g an d

v o l u n t ary ch o i ce am o n g av ai l ab l e al t ern at i ves .” I d

. , 0 9 -0 7 3 5 at 1 4 , 1 1 So

. 3 d at 4 8 2.

Th ro u g h i t s d eci s i o n t o d ay , t h e m ajo ri t y s ub s t an t i v el y ret reat s fro m

t h i s ru l e,

effect i v el y o v erru l i n g Ba l s a no ’ s req u i rem en t t hat a d efen d an t s h o w m o re t h an a

t e ch n ical v i ol at i o n o f t h e t h ree-ri gh t p ro ph y l act i c ru l e d eri ved fro m Bo y k i n v.

Al a ba m a , 3 9 5 U.S. 2 3 8 (1 96 9 ), an d d em o n s t rat e t h at t h e g u i l t y p l ea d i d n ot refl ect

1 State ex rel. Jackson v. Henderson , 255 So.2d 85, 90 (L a

. 1971), wherein the c ourt adopted the three-rig ht rule of Boykin v. Alabam a , 395 U.S. 238, 2 43 (1969) (waiver of the rig ht to trial encompasses waiver of the privileg e ag ainst self-incrimination, the r ig ht to trial by jury , a nd the rig ht to confront one’s accusers).a kn o wi ng an d v ol u n t ary wai v er o f t ri al

. Th e m ajo ri t y o p i n i o n fi n d s t h at d efen d an t ’ s

affi rm at i v e bu rd en o f p ro o f was s at i s fi ed b y a sh o w i n g o f p reci s el y t h e t yp e o f

t e ch n ical v i o l at i o n o f Bo y k i n ’ s t h ree-ri g h t p ro p h y l act i c ru l e t h at Ba l s a no fo u n d

i n s u ffi ci en t

. Sta te v . Pa rk er , 1 9 -0 0 2 8 , s l i p o p

. at 5 (La.

_ _ /_

_ /1 9 ). (“ [T] he St at e’ s

d o cu m en t ary ev i d en ce s h o wed t h at d efen d an t was i nfo rm ed o f h i s t h ree Bo y k i n

ri gh t s. It d i d n o t s ho w, h o wev er, th at h e sp eci fi cal l y wai v ed h i s th ree Bo y k i n ri g ht s ,
b u t rat her o n l y wai v ed h i s ri g h t t o a ju ry t ri al .”). In t h e p ro ces s, t h e m ajo ri t y rel i ev es

d efen d an t o f h is affi rm at i v e b u rd en o f s h o wi n g t h at t h e g u i l t y p l ea d id no t o t h erwi s e

refl ect a k n o wi n g an d v o l u nt ary wai v er o f t ri al an d ad o pt s a ri g id “ t h ree art i cu l at ed

ri gh t s, t h ree art icu l at ed wai v ers ” ru l e n o t p rev i o us l y req ui red i n t h e ju ri s pru d en ce.

As t h e d i s s en t in g ap pel l a t e co u rt op i n i o n o f J u d g e Lo b ran o reco u n t s , d u ri n g

t h e h ab i t u al o ffen d er h eari n g i n t h i s cas e, th e s t at e p ro v ed t h e ex i s t en ce o f

d efen d an t ’ s p ri o r g u i l t y p l ea an d t h at d efen d an t was rep res en t ed b y co u n s el

. Th ro u g h

t h e t es ti m o n y o f Offi cer G eo rg e J ack s on , t h e s t at e i nt ro d uced i n to ev i d en ce t h e “ p en

p ack ” rep res en t i n g d efen d an t ’ s g u il t y p l ea i n Al ab am a. In cl ud ed i n t h e “ pen p ack ”

i s a p l ea fo rm , w h ich i s s i g n ed b y d efen d an t , h i s at t o rn ey , an d t h e ju d g e. Th e s i g n ed

p l ea fo rm , wh ich w a s a p paren t l y d iv i d ed d u ri n g p h o to co p y i n g i nt o t wo l et t er s i ze

p ag es fro m an o ri g i n al s i n g le p ag e, i s cert i fi ed on e a ch p ag e b y t h e co u rt t h at

rep ro d u ced i t

. As t h i s co u rt ’ s m ajo ri t y r e c o g n izes , t he p lea fo rm co n t ai n s

ad v is em en t s as t o al l t h ree Bo y k i n ri g h t s an d i n d i cat es t h at b o t h t h e ju d g e an d

d efen d an t ’ s at t o rn ey ex pl ai n ed t h o s e ri gh t s t o d efen d an t

. 2 Th i s i s h a r d l y a s i l en t

2 The plea form ex plains that defendant has the rig h t to a jury trial. I n a jury trial, he has the rig ht to testify , but cannot be compelled to g ive e vidence a g ainst himself, and no o ne can even comment
on his silence if he chooses to remain silent. Defendant also has the rig h t to subpoena witnesses to testify at trial, ex amine those witnesses, a nd to cross-ex amine the state’s witnesses. The form

ex p lains that defendant has the presumption of innocence at trial and the state has the b u r d en of p roof bey ond a reasonable doubt. F inally , the form advises defendant that he should o n l y p l ea d g uilty if he is in fact g

uilty and he does not wish to have a jury trial.

2reco rd fro m wh i ch defen dan t ’ s v o l u n t ary an d k n owi n g wai v er o f h i s ri g h t s co u l d o n l y

b e p res um ed i n v i o l a t i o n o f Bo y k i n an d Sta te ex rel

. J a ck s o n v . Henders o n , 2 5 5

So .2 d 8 5 , 9 0 (La. 1 9 7 1 ).

On ce t h e sta

te i n t ro d u ced ev i d en ce es t ab l i s h i n g t h e ex i s t en ce of t h e pri o r g ui l t y

p l ea an d t h at d efen d an t w as rep res en t ed b y co u n s el , i t was i n cu m b en t o n d efen d an t

t o o ffer “ affi rm at i v e ev i d en ce s h o wi n g an i n fri ng em en t o f h i s ri g h t s o r a p ro ced u ral

i rreg ul ari t y i n t h e t ak i n g o f t h e p l ea.” Sta te v. Shel to n , 6 2 1 So .2 d 76 9 , 7 7 9 (La.

1 9 9 3 ). Defen d an t fai l ed t o p ro d u ce an y affi rm at i v e ev id en ce d em o ns t rat in g t h at t h e

co n tem p o ran eo u s s tat em en t s o f d efen d an t an d h i s co u n s el i n t h e g u il t y p l ea fo rm d id

n o t rel i ab l y es t ab l i s h t h e k n o wi n g an d v ol u n t ary g u i l t y p l e a a s a w a iv er o f t h e

en u m erat ed t ri al ri g h t s b o t h h e an d co u n s el ack n o wl ed g ed b y s i g n i ng t h e fo rm

.
Th e pl ea fo rm ex p l ai n s al l t h ree Bo y k in ri g h t s an d d oes so i n t h e co n t ex t o f a ju ry t ri al

. I n l ig h t o f th e p l ea fo rm , t h e m ajo ri t y ’ s co n cl u si o n t hat t h e Cas e Act i o n

Su m m ary s i g n ed b y t h e Al ab am a t ri al ju d g e, w h i c h in d i cat es o n l y t hat d efen d an t

wai v es a ju ry t ri al , wi t h o u t sp eci fi cal l y m en t i o n i n g a wai v er o f t h e ot h er t wo Bo y k i n

ri gh t s, i s affi rm at i v e ev i d en ce o f “ an in fri n g em en t o f d efen d an t ’ s ri g h t s o r a

p ro ced ural i rreg u l ari t y

i n t h e t ak i n g o f t h e p lea,” rep res en t s an ov erl y s t ri ct read i n g

t h at i s n o t refl ect i v e o f t h e ev i d en ce o f t h e en t i re t y o f t h e ci rcu m s t an ces o f

d efen d an t ’ s gu i l t y pl e a

. I t is ax i o m at i c t h at wh en a defen d an t , aft er b ei n g ad v i s ed

o f h i s Bo y k

i n ri gh t s an d affi rm at i vel y s t at in g t h at h e u n d ers t an d s t ho s e ri g h t s , p l ead s

g u i l t y , h e i s i n fact wai v in g al l th ree ri g h t s

. By pl ead i n g g u i l t y , h e i s ad m i t t i n g g u i l t

an d i n cri m i n at i n g h i m sel f, h e wi l l n o t b e t ri ed b y a ju ry , an d th ere wi l l b e n o accu s ers

t o co n fro n t becau s e th ere wi l l b e n o t r i a l

. To i n s i s t , as t h e m ajo ri t y d oes , o n an

art i cu l at ed wai v er o f each o f t h e t h ree Bo y k i n ri g h t s is a s t ep n o t p rev i o u s l y req u i red

b y t h e ju ri s p ru d en ce.

3Acco rd i ng l y , I res p ect fu l l y d is s en t fro m t h e m ajo ri ty op i ni o n i n t h is m at t er. I

wo u l d fi n d o n th is reco rd t he Bo y k i n ri g h t s were wai ved an d rem an d t h e m at t er t o t h e

d i s t ri ct co u rt fo r res en t en ci ng

.

410/22/19

SUPREME COURT OF LOUISIANA

No. 2019

- K

- 0028

STATE OF LOUISIANA

vs.

DESMOND PARKER

ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL , PARISH OF ORLEANS

CRICHTON, J., additionally concurs and assigns reasons:
I agree with the per curiam in this matter finding no error in the trial court ’s
rejection of the defendant’s predicate out

- of

- state plea for purposes of the
application of the habitual offender statute

. I write se parately to reiterate the
importance of complying with the requiremen ts for a guilty plea colloquy set forth

in Boykin v. Alabama , 395 U.S. 238 (1969). The record in a guilty plea must reflect
that the defendant fully understands the nature of the charge(s), the allegations
against him, the right to counsel, the right to a trial by jury or by the court, and the
right to confront and cross

- examine witnesses at trial. As I have stated before,
“scrupulously adhering to these procedures in the district courts prevents the
extensive expenditure of appellate resources later. . . .” State v. Johnson, 18

- 1661
(La. 11/5/18), 255 So.3d 1006 (Crichton, J., w ould grant and docket and assigns
reasons); citing State ex. Rel. Calvin Hayes v. State , 15

- KH

- 1789 (La. 9/23/16), 200
So.3d 364 (writ denied) (Crichton, J., additionally concurring). See also State v.

Trahan , 16

- 2083 (La. 4/16/18), 241 So.3d 286 (writ den ied) (Crichton, J.,
additionally concurring); and State v. Peters , 18

- KK

- 1417 (La. 9/28/18), 253 So. 3d
785, 2018 WL 4701717 (writ denied) (Crichton, J., would grant and assigning
reasons). The trial court’s failure to comply with Boykin in this case warr ants theadjudication of defendant as a third, rathe r than fourth, felony offender.