STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2022 KA 1305 STATE OF LOUISIANA

VERSUS STACY RAYMUND CLARK Judgment Rendered: 

### SEP 2 1202

On Appeal from the 22nd Judicial District Court In and forthe Parish ofSt. Tammany

State of Louisiana Trial Court No. 4260-F-2021 

### Honorable Ellen M.Creel, Judge Presiding

Warren L. Montgomery 

### District Attorney Matthew Caplan J. Bryant Clark, Jr. Assistant District Attorneys Covington, Louisiana
Bertha M. Hillman Covington, Louisiana Attorneys for Appellee State of Louisiana



### Attorney for Defendant/Appellant Stacy Raymund Clark

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.PENZATO, J. The defendant, 

### Stacy Raymund Clark, 

### was initially charged by bill of information with driving while intoxicated (DWI), fourth or subsequent offense, a 

### violation ofLa. R.S. 14:98(A)and La. R.S. 14:98.4.1 He pled not guilty and filed a 

### motion to quash, challenging the predicate DWI convictions listed in the bill of 

### information. Atahearing,thetrial courttookthe matter underadvisementand later granted in part and denied in part the defendant' s motion to quash.' 

### Subsequently, the State amended the bill of information to DWI, third offense, a violation of La. R.S. 14: 98.3. 

### The defendant pled guilty to the amended charge under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162 ( 1970) and under 

### State v. Crosby, 338 So.2d 584 ( La. 1976), reserving the right to appeal the trial court' s partial denial ofhis motion to quash. The trial court sentenced the defendant 

### to eighteen months imprisonment at hard labor, ordering that twelve months ofthe sentence be served without the benefit of probation, parole, or suspension of
sentence. 

### The defendant now appeals, assigning error to the trial court's partial denial of his motion to quash. 

### Forthe following reasons, we affirm the conviction
and sentence. STATEMENT OF FACTS 

### As the defendant entered a qualified guilty plea and stipulated to a factual 

### basis provided by open file discovery and pretrial conferences, the facts of the offense were not developed. 

### According to the probable cause affidavit, on July 19, 

### 2021, Officer Brian Ledkins conducted a traffic stop at approximately 9:51 p.m., 

### afterobserving a blackChevroletTahoe swerving andtraveling inthe opposing lane oftravel. Officer Ledkins furtherobserved thatthevehicle had no license plate light,


### 1 The bill ofinformation setsforth the defendant's predicate guiltypleasto DWI in Wyoming in 2008, 2009, and 2011. 2 The motion to quashwas granted asto the 2008 predicate conviction. IN

### and the left brake light was not functioning. The driver, identified as the defendant,

provided his driver' s license as requested. 

### As the defendant searched for his vehicle registration and proofofinsurance, Officer Ledkins immediately observed his slurred speech and the smell of an odor 

### consistentwith an alcoholic beverage emitting from the defendant's person. When 

### the defendant stepped out of his vehicle, Officer Ledkins observed the defendant 

### sway and lose his balance multiple times. The defendant participated in a 

### Standardized Field Sobriety Test, performed poorly, and was placed under arrest. The defendant was transported to the Covington Police Department where chemical 

### testing showed that he had a BAC of0. 172. ASSIGNMENT OF ERROR In the sole assignment of error, the defendant argues the 2011 DWI predicate 

### conviction should have also been quashed, as the documents submitted by the State in support ofthe conviction fail to meet the requirements ofBoykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 1712, 23 L.Ed.2d 274 ( 1969).3 He specifically 

### contends that the documents fail to show that he was represented by counsel in the 2011 plea or that he waived his right to counsel. In State v. Carlos, 98- 1366 ( La. 7! 7! 99), 738 So.2d 556, the Louisiana 

### Supreme Court eased the State' s burden of proving a prior DWI guilty plea as a predicate offense for enhancement purposes. 

### Specifically, the court held that the burden - shifting principles of State v. Shelton, 621 So.2d 769 ( La. 1993), are 

### applicableto multiple - offense DWI cases. Underthis burden - shifting scheme, when 

### a defendant challenges the constitutionality ofa conviction being used to enhance a 

### 3 As the defendant notes, in Boykin,the United States Supreme Court stated thatto showaguilty plea was voluntarily made, the prosecution is required to " spread on the record the prerequisites of a valid waiver." The Court specifically found that several constitutional rights are involved in awaiverthattakes place when a plea ofguilty is entered, including: ( 1) the privilege against selfincrimination, (2) the right to trial byjury, and (3) the right to confront one' s accusers. Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712.

3present DWI offense, the State has the initial burden ofproving the existence ofthe



### priorguiltyplea andthatthe defendantwas represented bycounsel atthetime ofthe
plea. Carlos, 738 So.2d at 559; State v. Bush, 2020-0259 ( La. App. lst Cir. 12/30/20), 318 So.3d 151, 155. If the State meets its initial burden, the burden shifts to the defendant to produce affirmative evidence of an infringement of his rights or a procedural 

### irregularity in the taking ofthe plea. The defendant can attempt to meet his burden with a transcript, with testimony regarding the taking of the plea, or with other
affirmative evidence. 

### The State' s documentary evidence introduced to prove the 

### fact of conviction may also satisfy the defendant' s burden of production if it affirmatively reveals a Boykin defect in the proceedings. Bush, 318 So.3d at 155. Ifthe defendant' s burden is met, then the burden reverts to the State to prove 

### the constitutionality ofthe plea. Bush, 318 So.3d at 155-56. The State will meet its 

### burden ofproof ifit introduces a " perfect" transcript ofthe taking ofthe guilty plea that reflects a colloquy between the judge and the defendant wherein the defendant was informed ofand specifically waived his Boykin rights, namely, his right to trial by jury, his privilege against self-incrimination, and his right to confront his

accusers. 

### If the State introduces anything less than a " perfect" transcript, for example, 

### a guilty plea form, a minute entry, an " imperfect" transcript, or any 

### combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of 

### proving thatthe defendant' spriorguiltypleawas informed andvoluntary,and made with an articulated waiver of the three Boykin rights. The purpose of the Shelton 

### rule is to sharply demarcate the differences between direct review of a conviction 

### resulting from a guilty plea, in which the appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction

Clused in a subsequent recidivist proceeding, as to which a presumption of regularity



### attaches to promote the interests offinality. Bush, 318 So.3d at 156. 

### Aguilty plea is aconviction and,therefore, shouldbe afforded agreatmeasure of finality. 

### A presumption of regularity attaches to prior convictions in multiple offender DWI cases, and the burden is on the defendant to showthe prior guilty plea 

### is constitutionally deficient. Bush, 318 So.3d at 155. However, an uncounseled 

### DWI conviction may not be used to enhance punishment of a subsequent offense absent a knowing and intelligent waiver ofcounsel. Id. A motion to quash is the proper vehicle to attack the constitutionality of prior convictions used to enhance a DWI charge. 

### When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court' s discretion. However, a trial court' s legal findings are subject to a de novo standard of review. Id.at 156. 

### In his motion to quash, the defendant generally argues that the State failed to provide sufficient evidence to show that the prior pleas from the State ofWyoming were constitutionally valid under Boykin and Louisiana law. In support ofthe 2011 

### guilty plea in the Wyoming Ninth Judicial District Court, Docket NumberCR2011- 0410, the State introduced the probable cause affidavit and the bill of information for the predicate DWI offense. The State also introduced a pre- printed Memorandum Order" which, in part, 

### indicates the defendant pled guilty on November 14, 2011, 

### was represented by counsel and was satisfied with that representation, waived advisements under WRCrP 5 and 11 per WRCrP I I (c) in the presence and with advice of counsel, and that the defendant was alert and aware of 

### his constitutional rights and knowingly and voluntarily waived those rights. The State further presented the judgment and sentence form and an order ofprobation.

R

### While the formswere signed bythe defendant andthejudge,on each form,the line

provided forthe signature ofthe defendant' s attorney is blank.' 

### At the hearing on the motion to quash, the defendant challenged the 2011 predicate guilty plea, noting that the State's documentary evidence did not contain 

### an attorney signature or acknowledgment that the defendant was represented by counsel at that time. On that basis, the defendant argued that he successfully used 

### the State' s evidence to show aBoykin defect,the lack ofcounsel, shiftingthe burden to the State to introduce a perfecttranscript to prove the constitutionality ofthe plea. 

### Priortotakingthe matter underadvisement,the trial courtquestioned the lackofan attorney' s signature on the attorney signature lines. However, the trial court noted 

### that the memorandum order indicated that the defendant was represented by and satisfied with counsel, and waived his rights in the presence of and with the advice
of counsel. 

### In later denying the motion to quash the 2011 predicate conviction, the trial court found that the State met its initial burden, reiterating that the State' s evidence indicated that the defendant had counsel present at the time ofthe guilty plea. 

### The court noted that there was no other affirmative evidence indicating that the defendant was not represented or that his rights were infringed. 

### Initially, we note that pre-printed forms such as the one introduced by the State herein have been found adequate to meet the State' s initial burden under Shelton and Carlos. See Bush, 318 So.3d at 157; State v. Dean, 2000-0199 ( La. App. 4th Cir. 3/ 14/01), 789 So.2d 602, 607, writ denied, 2001- 1177 ( La. 3/ 15/02), 811 So.2d 897. 

### Based on our review ofthe evidence in its entirety, we agree with

4 Forthe sake ofcomparison,we note thatthe State' s evidence submitted to prove the defendant' s 2008 plea, quashed by the court, does not include any document indicating thatthe defendant was represented by counsel at the time ofthe plea. Further, in thejudgment and sentence order as to the 2008 plea, in addition to the attorney signature line being blank,the word "out" is encircled on the first line, stating, in part, "defendant being personally present, with(out) counsel[.]" As to the 2009 DWI plea, uncontested on appeal,the defendant' s attorney signed thejudgment and sentence form and the order ofprobation.

0

### the trial court' s finding thatthe State met its initial burden ofproving the existence



### ofthe 2011 guilty plea andthatthe defendantwas represented bycounsel atthetime of the plea. 

### Specifically,the " Memorandum Order," 

### bearing the same docket number and case information as the affidavit, bill of information,judgment and sentence form, and the order of probation, indicates the plea was entered and accepted, and that judgment and sentence were entered on the same date as the order, November 14, 2011. The " Memorandum Order" further states the pertinent findings of the 

### Wyoming court by way of handwritten checkmarks corresponding to eight of thirteen pre -

typed statements. 

### As previously referenced, among those checked 

### includes the line stating that the defendant was represented by counsel and was satisfied with that representation. 

### Notably, the checkmark line is blank next to the line stating the defendant " 

### is not represented by an attorney and has knowingly and voluntarily waived that right." Further,thejudgment and sentence form, in pertinent part, indicates, 

### by way of pre - typed lines with 

### corresponding handwritten 

### checkmarks, that the defendant was unable to pay his public defender and that the public defenderwas discharged "upon entry ofthisjudgment and sentence[.]" This indicates that the public defender was appointed to represent the defendant at the 

### time ofhis 2011 plea and was discharged after performing his or her duties. The 

### absence ofa signature by the defendant's attorney does not negate the fact that the Memorandum Order" andjudgmentand sentence form specifically indicatethatthe defendant was represented by counsel atthe time ofhis plea. As the State in this case met its initial burden, the burden shifted to the 

### defendantto show thatthe guilty plea was notvoluntary as a constitutional matter, 

### meaning that it did not represent a knowing and voluntary choice among available
alternatives. 

### The defendant did not present any evidence in this regard and there is nothing in the forms presented by the State, in meeting its initial burden, to
II

### affirmatively show such defect. Asthe defendant failed to meet his burden ofproof,

the burden never shifted back to the State to prove the constitutionality ofthe plea. Thus, we find no error or abuse of discretion in the trial court' s denial of the defendant' s motion to quash the 2011 predicate guilty plea. The sole assignment of
error is without merit. CONVICTION AND SENTENCE AFFIRMED.

E:?