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STATE OF LOUISIANA NO. 02-KA-587
VERSUS FIFTH CIRCUIT
JOSE PEREZ COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 01-6479, DIVISION "O"
HONORABLE ROSS P. LADART, JUDGE PRESIDING

NOVEMBER 26, 2002

MARION F. EDWARDS
JUDGE

Panel composed of Judges Thomas F. Daley,
Marion F. Edwards and Susan M. Chehardy

DALEY, J. DISSENTS WITH REASONS
PAUL D. CONNICK, JR. DISTRICT ATTORNEY
24th Judicial District CHURITA H HANSELL TERRY M. BOUDREAUX LISA B. SCHNEIDER ASSISTANT DISTRICT ATTORNEYS
Gretna Courthouse
Annex Building, 5th Floor
Gretna, Louisiana 70053
COUNSEL FOR APPELLANT

FRANK SLOAN 948 Winona Drive Mandeville, Louisiana 70471 COUNSEL FOR APPELLEE
JUDGMENT VACATED REMANDED
The State of Louisiana appeals from a trial court's ruling that granted defendant, Jose Perez's, Motion To Quash the bill of information. For the following reasons, we vacate the judgment of the trial court and remand this matter to the trial court for a reopening of the Motion to Quash hearing.
The Jefferson Parish District Attorney filed a bill of information charging defendant, Jose Perez ("Perez"), with third offense operating a vehicle while intoxicated ("DWI") on October 12, 2001, following two previous DWI convictions in the Second Parish Court for the Parish of Jefferson.' Specifically, the bill of information alleges that defendant was first convicted of DWI on September 21, 1999 in case number S628049, and again on January 29, 1997 in
case number S614387.2
Perez filed a motion to quash the bill of information on the basis that he was unrepresented in the 1997 DWI guilty plea, that he was not advised of the right to appointed counsel if he was indigent, and that he had not validly waived his right to counsel. After a hearing, the Honorable Ross LaDart granted the motion to quash. The State timely filed the present appeal.
LSA-R.S. 14:98(D).
We note that there is apparently a clerical error in the bill of information, considering that the 1999 DWI conviction is alleged to have occurred before the 1997 conviction.
LAW AND ARGUMENT

In its sole assignment of error, the State contends that the trial judge's failure to advise Perez of the right to appointed counsel if he was indigent is irrelevant, considering that the transcript of the 1997 DWI guilty plea reflects a valid waiver of the right to counsel. Perez responds that his waiver of counsel was invalid because the trial judge failed to inform him that he had the right to appointed counsel if he was indigent. Perez further contends that the State is therefore precluded from using the 1997 guilty plea to enhance a subsequent DWI offense.
When a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the State bears the initial burden of proving the existence of the guilty plea and that an attorney represented the defendant during the plea." If the State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to meet his burden, the State must prove the constitutionality of the plea." However, even after State v. Carlos, the State still has the burden of proving that an unrepresented defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI offense."
Article I, Section 13 of the Louisiana Constitution provides as follows regarding the right to counsel:
When any person has been arrested or detained in connection with the
investigation or commission of any offense, he shall be advised fully
of the reason for his arrest or detention, his right to remain silent, his
right against self incrimination, his right to the assistance of counsel
and, if indigent, his right to court appointed counsel. In a criminal
prosecution, an accused shall be informed of the nature and cause of
* State v. Carlos, 98-1366 (La. 7/7/99), 738 So.2d 556, 559. State v. Carlos extended the burden-shifting principles applicable to multiple offenders, as established in State v. Shelton, 621 So.2d 769, 779-780 (La. 1993), to the recidivist provisions ofthe DWI statute.
Id.
* State v. Boudreaux, 99-1017 (La. App. 5 Cir. 2/16/00), 756 So.2d 505, 508.
the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.
Further, LSA-C.Cr.P. art. 514 requires that "[t]he minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant's right to counsel, including the right to court-appointed counsel, and that he waived such right."
When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial judge should expressly advise him of his right to counsel and to appointed counsel if he is indigent.6 Once informed of the right to counsel, the defendant may intentionally waive that right.' In accepting a waiver of counsel, the trial judge should inform the accused of the nature of the charges, and the penalty range, and the judge should inquire into the accused's age, education and mental condition." Strain, however, did not "establish inflexible criteria or a magic word formula for determining the voluntariness of the waiver." Rather, the determination of the validity of the accused's waiver of counsel rests on the totality of the circumstances in each case.'

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