FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #45

FROM: CLERK OF SUPREME COURT OF LOUISIANA 

The Opinions handed down on the 22nd 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 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 the State. Because the State rested 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. 

Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, appointed as 

Justice pro tempore, sitting for 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. Clark.

10/22/19

SUPREME COURT OF LOUISIANA

No. 2019-K-0028

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 correctly found 

that the State failed to carry its burden of proving a prior out-of-state guilty plea 

was knowing, 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 274 

(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 

correctly rejected this predicate guilty plea and adjudicated defendant as a third, 

rather than as a fourth, felony offender.

After defendant 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 as 

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. 238, 89 

S.Ct. 1709, 23 L.Ed.2d 274 (1969). The district court sentenced defendant to serve 
2

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 additional 

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, 16-1166, 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 pleading 
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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) (citations 

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 privilege against compulsory self-incrimination 

guaranteed by the Fifth Amendment and applicable to the States by 

reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 

12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. 

Louisiana, 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 waiver 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, we 
4

considered in State v. Shelton, 621 So.2d 769 (La. 1993), what sort of evidence 

suffices 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 introduction 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 

through 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 postconviction 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 State 

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

defendant’s prior guilty plea and his representation by counsel or waiver of 

counsel, the burden shifts to the defendant “to produce some affirmative evidence

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, or 

with other affirmative evidence.” 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 Boykin 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 because 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 evidence 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 the State. Because the State rested 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
10/22/19

SUPREME COURT OF LOUISIANA

No. 2019-K-0028

STATE OF LOUISIANA

VERSUS

DESMOND C. PARKER

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

FOURTH CIRCUIT, PARISH OF ORLEANS

WEIMER, J., dissenting.

In State v. Balsano, 09-0735 (La. 6/19/09), 11 So.3d 475, this court, in the

course of examining the validity of out-of-state guilty pleas used for habitual offender

prosecutions, announced the return of this state’s jurisprudence “to its original

substantive aspect,” explaining that, henceforth, “for all non-Louisiana guilty pleas,

used to enhance sentence following a subsequent conviction, a defendant does not

satisfy his burden of proof on collateral attack merely by presenting contemporaneous

recordsrevealing a violation of Jackson’s1three-rightrule.” Balsano, 09-0735 at 14,

11 So.3d at 482. Rather, a defendant must show “that his guilty plea was not

voluntary as a constitutional matter, i.e., that it did not represent a knowing and

voluntary choice among available alternatives.” Id., 09-0735 at 14, 11 So.3d at 482.

Through its decision today, the majority substantively retreats from this rule,

effectively overruling Balsano’s requirement that a defendant show more than a

technical violation of the three-right prophylactic rule derived from Boykin v.

Alabama, 395 U.S. 238 (1969), and demonstrate that the guilty plea did not reflect

1 State ex rel. Jackson v. Henderson, 255 So.2d 85, 90 (La. 1971), wherein the court adopted the

three-right rule of Boykin v. Alabama, 395 U.S. 238, 243 (1969) (waiver of the right to trial

encompasses waiver of the privilege against self-incrimination, the right to trial by jury, and the right

to confront one’s accusers).
a knowing and voluntary waiver of trial. The majority opinion findsthat defendant’s

affirmative burden of proof was satisfied by a showing of precisely the type of

technical violation of Boykin’s three-right prophylactic rule that Balsano found

insufficient. State v. Parker, 19-0028, slip op. at 5 (La. __/__/19). (“[T]he 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 waived his right to a jury trial.”). In the process, the majority relieves

defendant of his affirmative burden of showing that the guilty plea did not otherwise

reflect a knowing and voluntary waiver of trial and adopts a rigid “three articulated

rights, three articulated waivers” rule not previously required in the jurisprudence.

As the dissenting appellate court opinion of Judge Lobrano recounts, during

the habitual offender hearing in this case, the state proved the existence of

defendant’s prior guilty plea and that defendant wasrepresented by counsel. Through

the testimony of Officer George Jackson, the state introduced into evidence the “pen

pack” representing defendant’s guilty plea in Alabama. Included in the “pen pack”

is a plea form, which is signed by defendant, his attorney, and the judge. The signed

plea form, which was apparently divided during photocopying into two letter size

pages from an original single page, is certified on each page by the court that

reproduced it. As this court’s majority recognizes, the plea form contains

advisements as to all three Boykin rights and indicates that both the judge and

defendant’s attorney explained those rights to defendant.

2 This is hardly a silent

2

 The plea form explains that defendant has the right to a jury trial. In a jury trial, he has the right

to testify, but cannot be compelled to give evidence against himself, and no one can even comment

on his silence if he chooses to remain silent. Defendant also has the right to subpoena witnesses to

testify at trial, examine those witnesses, and to cross-examine the state’s witnesses. The form

explains that defendant has the presumption of innocence at trial and the state has the burden of

proof beyond a reasonable doubt. Finally, the form advises defendant that he should only plead

guilty if he is in fact guilty and he does not wish to have a jury trial.

2
record fromwhich defendant’s voluntary and knowing waiver of hisrights could only

be presumed in violation of Boykin and State ex rel. Jackson v. Henderson, 255

So.2d 85, 90 (La. 1971).

Once the state introduced evidence establishing the existence of the prior guilty

plea and that defendant was represented by counsel, it was incumbent on defendant

to offer “affirmative evidence showing an infringement of his rights or a procedural

irregularity in the taking of the plea.” State v. Shelton, 621 So.2d 769, 779 (La.

1993). Defendant failed to produce any affirmative evidence demonstrating that the

contemporaneousstatements of defendant and his counsel in the guilty plea form did

not reliably establish the knowing and voluntary guilty plea as a waiver of the

enumerated trial rights both he and counsel acknowledged by signing the form.

The plea form explains all three Boykin rights and does so in the context of a

jury trial. In light of the plea form, the majority’s conclusion that the Case Action

Summary signed by the Alabama trial judge, which indicates only that defendant

waives a jury trial, without specifically mentioning a waiver of the other two Boykin

rights, is affirmative evidence of “an infringement of defendant’s rights or a

procedural irregularity in the taking of the plea,” represents an overly strict reading

that is not reflective of the evidence of the entirety of the circumstances of

defendant’s guilty plea. It is axiomatic that when a defendant, after being advised

of his Boykin rights and affirmatively stating that he understandsthose rights, pleads

guilty, he is in fact waiving all three rights. By pleading guilty, he is admitting guilt

and incriminating himself, he will not be tried by a jury, and there will be no accusers

to confront because there will be no trial. To insist, as the majority does, on an

articulated waiver of each of the three Boykin rights is a step not previously required

by the jurisprudence.

3
Accordingly, I respectfully dissent from the majority opinion in this matter. I

would find on thisrecord the Boykin rights were waived and remand the matter to the

district court for resentencing.

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10/22/19

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 separately to reiterate the 

importance of complying with the requirements 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., would 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 denied) (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 warrants the 
adjudication of defendant as a third, rather than fourth, felony offender.