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.
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

*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.
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


                                          2
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

                                           3
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 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 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.].”

                                               4
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

                                           5
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

records revealing a violation of Jackson’s1 three-right rule.” 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 finds that 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 was represented 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 from which defendant’s voluntary and knowing waiver of his rights 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

contemporaneous statements 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 understands those 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 this record the Boykin rights were waived and remand the matter to the

district court for resentencing.




                                         4
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.
