
    STATE of Louisiana, Appellee, v. David Edward McKINNEY, Appellant.
    No. 32,895-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 1, 2000.
    
      Lavalle B. Salomon, Monroe, Counsel for Appellant.
    Richard Ieyoub, Attorney General, William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Douciere, Assistant District Attorneys, Counsel for Appel-lee.
    Before NORRIS, PEATROSS and KOSTELKA, JJ.
   JjKOSTELKA, J.

David McKinney (“McKinney”) pled guilty to DWI, third offense, La. R.S. 14:98, reserving his right to appeal the denial of a motion to quash the bill of information attacking the constitutionality of predicate pleas. Finding no error in the trial court denial of the motion to quash, we affirm.

Facts

Previous to the present offense of conviction, McKinney had two DWI convictions which formed the basis of the state’s third offender bill. Those convictions also arose out of the Fifth Judicial District, Franklin Parish, on February 11, 1997 (No. 97-68 M), and February 20,1991 (No. 27,251).

McKinney initially entered a not guilty plea to the present offense and subsequently filed a motion to quash the bill of information challenging the validity of the two prior guilty pleas and the state’s use of them for enhanced prosecution. In the motion to quash, McKinney specifically argued that the previous pleas were constitutionally infirm due to ineffective representation by appointed counsel or inadequate waiver of his right to counsel. After a hearing, the trial court denied McKinney’s motion.

Thereafter, McKinney entered a plea of guilty to DWI, third offense, reserving his right to appeal the denial of his motion to quash. The trial court sentenced him to five years at hard labor with four years of the sentence suspended. McKinney was placed on supervised probation for five years, commencing after his release from incarceration, and ordered to pay a $2,000.00 fine and court costs. This appeal ensued.

| {.Discussion

On appeal, McKinney first contends that the prior DWI offenses cannot be used for enhancement purposes, because at both proceedings, appointed counsels’ performance was ineffective. He also contends that the inadequate performance of counsel and the procedure utilized for the appointment of counsel effectively caused McKinney’s pleas to have been uncoun-seled and invalid for use as predicate offenses due to the lack of a knowing and intelligent waiver of counsel.

An indigent defendant in Louisiana has the constitutional right to appointed counsel in any misdemeanor case punishable by a term of imprisonment. La. Const. Art. I, § 13; State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843. The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). The constitutional standard for effectiveness of counsel is the same in guilty plea cases as in cases which have gone to trial. Id.

The guidelines for evaluating claims of ineffective assistance of counsel were set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Wry, supra.

Before a court may accept an un-counseled plea to a misdemeanor offense, it must expressly advise the accused of his right to counsel and to appointed counsel if he is indigent, and determine on the record, whether the waiver is made knowingly and intelligently under the circumstances. Stevison, supra.

Testimony at Motion to Quash

The testimony of James M. Miller, court-appointed counsel for McKinney’s 1997 plea, shows that in the case of both guilty pleas, it was court [¡¡custom to appoint an attorney to represent misdemean- or defendants who were scheduled for court appearances. Although he understood that other counsel would be appointed in case of trial, Miller testified that he appeared as counsel or as an indigent defender for McKinney on the day of his guilty plea. For misdemeanor cases, one attorney was appointed to represent each defendant who was scheduled to appear before the court on a given day. The appointed attorney would call each of the defendants into a back room where he would converse with the group en masse. Generally, the attorney would inform the defendants of the potential penalties each faced for the charged offense or an enhanced penalty for a future violation. The defendants were also explained their Boy-kin rights. Thereafter, the attorney would address each defendant individually to determine whether or not they desired to plead guilty. If the offender sought to plead guilty to second or third offense DWI, the attorney evaluated the validity of the prior pleas. When the defendant claimed to have a defense that appeared valid, the attorney sought to obtain the district attorney’s file for further investigation. In the case of an incompetent defendant, the attorney would postpone arraignment for that day. Miller indicated that if any issues came up during the en masse conference, it was his policy to follow up on the information given. After the conference, the attorney accompanied the defendants back into court for the taking of guilty pleas. The court would then re-advise the defendants of their Boy-kin rights prior to taking guilty pleas. Miller had no independent recollection of McKinney’s February 11, 1997 guilty plea.

The record shows that at McKinney’s 1991 guilty plea, seven other defendants pled guilty; nine other defendants pled guilty at McKinney’s 1997 plea.

| ¿Procedure

We cannot conclude, as McKinney argues, that the procedure utilized for appointment of counsel in both of his guilty pleas effectively rendered the pleas un-counseled. Clearly, the appointment process was for the purpose of affording McKinney representation in accord with Constitutional mandate. Although we may agree that the method of appointment, i.e., one counsel for numerous defendants, may not qualify as the perfect appointment procedure, we cannot find the process inherently flawed. The obligation of the court to see that indigent misdemeanor defendants who desire counsel are represented is fulfilled even by this procedure. As we will discuss hereinafter, we find that the appropriate focus for inquiry to be the actions of counsel after appointment rather than the procedure utilized for appointment.

Necessity of Waiver of Counsel

We also reject McKinney’s argument that because counsels’ deficient performance ostensibly caused him to enter into an uncounseled guilty plea, the predicate pleas should be invalidated due to a lack of a valid waiver of counsel. Even though the attorneys knew that their representation of the client would be limited, and that separate counsel would be appointed for trial, it is clear that the lawyers were also aware that part of their job as indigent defenders extended to the representation of these misdemeanor defendants. In keeping with that understanding, counsel performed acts of representation including information of Boykin rights, investigation of predicate offenses and the individual determination of whether defendants desired to plead guilty. Counsel also accompanied the defendants to court for the taking of the guilty pleas.

While we do not laud the apparent complacency which accompanies the client interview process in this case, we are not prepared to classify the totality of J¿counsels’ actions as a constructive denial of counsel or a mere formality of appointment. Counsel clearly understood his appointment as an obligation to represent McKinney. He performed acts in furtherance of that duty including the information of rights and accompaniment to court with the defendant for the guilty plea. Considering the uncomplicated and self-explanatory nature of the crime of DWI, we find these acts, albeit minimal, sufficient to qualify as representation for the purposes of McKinney’s guilty pleas. Accordingly, we reject McKinney’s classification of his pleas as uncounseled. And, with legal representation, it was unnecessary for McKinney to waive counsel.

Ineffective Assistance of Counsel

Because we find that McKinney was represented at the time of his guilty pleas, the relevant inquiry becomes the effectiveness of counsels’ performance under Strickland, supra. When a defendant enters a counseled plea of guilty, this court will review the quality of counsel’s representation in deciding whether the plea should be set aside. State v. Beatty, 891 So.2d 828 (La.1980).

Even so, however, McKinney’s claim fails under the second prong of the Strickland, supra, inquiry which requires a demonstration of prejudice. McKinney has nowhere alleged or shown any facts which demonstrate with reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, i.e., any defense or fact which was not raised or discovered by counsel and which would have otherwise caused McKinney to plead not guilty and decide to go to trial. In this case, McKinney can | fionly make out a claim of ineffective assistance by pointing to specific errors made by counsel. U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2089, 80 L.Ed.2d 667 (1984). He has failed to do so. Without a showing of prejudice, McKinney cannot demonstrate that his representation at either plea was constitutionally • ineffective.

Error Patent

We note that the trial court failed to adequately advise McKinney of the prescriptive period for filing post-conviction relief as required by La. C.Cr.P. art. 930.8. Although this apparent oversight is not grounds for reversal under La.C.Cr.P. art. 921, the required notice is designed to apprise the defendant in advance about the statutory limitation. Accordingly, the district court is hereby directed to send appropriate notice in accordance with the newly amended provisions of La.C.Cr.P. art. 930.8 (Acts 1999, Regular Sess., No. 1262) within thirty days of the rendition of this opinion, and then file, in the record, proof that McKinney received such notice. State v. Morvan, 31,511 (La.App.2d Cir.12/09/98), 725 So.2d 515, writ denied, 99-0186 (La.05/28/99), 743 So.2d 659.

Conclusion

Considering the foregoing, we find no error in the trial court’s denial of McKinney’s motion to quash the 1991 and 1997 predicate DWI offenses. We, accordingly, affirm his conviction for DWI, third offense. The trial court is directed to send appropriate notice to McKinney of post-conviction relief time delays within thirty days of the rendition of this opinion, and then file, in the record, proof that McKinney received such notice.

AFFIRMED.

NORRIS, C.J., dissents with written reasons.

hNORRIS, Chief Judge,

dissenting.

For the reasons expressed below, I respectfully dissent from the majority opinion and would reverse.

It is well established that an uncoun-seled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent waiver of counsel. State v. Deroche, 96-1376 (La.11/8/96), 682 So.2d 1251, 1252 (un-counseled misdemeanor convictions may not serve as the predicate for enhancement of a subsequent DWI offense); State v. Pugh, 588 So.2d 702 (La.1991) (same); State v. Gable, 614 So.2d 808, 809 (La.App. 2d Cir.1993); State v. Deshotel, 98 0730 (La.App. 1st Cir. 2/23/99), 730 So.2d 994, 996. In the absence of a valid waiver, before a court may accept an uncounseled plea to a misdemeanor offense, it must expressly advise the accused of his right to counsel and to appointed counsel if he is indigent, and determine, “on the record that the waiver is made knowingly and intelligently under the circumstances.” State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843; Deroche, supra, at 1252; State v. Strain, 585 So.2d 540, 543 (La.1991).

When a defendant enters an uncoun-seled guilty plea to DWI, the trial court must advise him specifically of the “dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice [to forgo the assistance of counsel] is made with open eyes.” State v. Burford, 32,099 (La.App.2d Cir. 6/16/99), 738 So.2d 1158; State v. Graham, 513 So.2d 419 (La.App. 2d Cir.1987). While it is true that the Supreme Court reasoned in Strain that determining a defendant’s understanding of his waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than in a felony trial, the critical issue on review nevertheless is whether the record reflects that the accused understood the waiver. State v. Inzina, 31,439 (La.App.2d Cir. 12/9/98), 728 So.2d 458, 464; State v. Marcoux, 96 0453 (La.App. 1st Cir.3/27/97), 691 So.2d 775, writ denied, 97-1079 (La.1997), 695 So.2d 984.

Factors bearing on determining an accused’s capacity to understand a waiver of counsel include, but are not limited to the age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity, and seriousness of the charge. State v. Stevison, supra; State v. Marcoux, supra. Most importantly, although the Louisiana Supreme Court has eschewed any particular formula which must be followed by the trial court, “in order to establish a valid waiver of the right to counsel at trial, there must be sufficient inquiry (preferably by an interchange with the accused that elicits more than ‘yes’ and ‘no’ responses) to establish on the record a knowing and intelligent waiver under the overall circumstances.” State v. Strain, supra; State v. Stevison, supra; State v. Bell, 381 So.2d 393 (La.1980).

The 1997 Plea

Although the court minutes indicate that McKinney was represented by James M. Miller at his February 11, 1997 plea to DWI, second offense, Miller did not, in fact, act as his attorney, but rather as an arm or friend of the court who was enlisted by the court simply to advise all the indigent defendants present that day of their Boykin rights prior to pleading guilty. The majority’s conclusion otherwise simply does not comport with the record. Miller testified that at the time of McKinney’s arrest, he was employed by the Indigent Defender Board of the 5 th Judicial District and was appointed to represent McKinney at jail-call on December 3, 1996. He testified that McKinney bonded out before jail-call, thereby terminating his appointment. Miller clearly testified that it was his understanding that he had no further obligation to represent McKinney and that his appointment was “null and void”; his records confirm that he took no further action on McKinney’s behalf. The majority opinion simply disregards this Istestimony.

Although the court minutes and transcript indicate that he was physically present, Miller had no recollection of representing McKinney in any capacity at his February 11, 1997 arraignment. Miller did describe in detail the common practice utilized in the 5111 Judicial District to process misdemeanor DWI offenders. On arraignment days, at the behest of the court, the IDB attorney assigned to that courtroom would sound the courtroom for misdemeanor DWI and possession of marijuana defendants and gather them in a side room. Once all the defendants had gathered into this room, the IDB attorney, in this instance, Miller, would speak to them en masse, explaining to them, as a group, their Boykin rights, the penalties for the offenses with which they were charged, and their exposure to enhanced penalties for future convictions. After this, the attorney would read the arraignment list to determine which defendants desired to plea guilty; those who did were returned to the courtroom for the entry of their pleas. Miller testified that it was uncommon to discuss the merits of each individual case or, in the case of a second or third offender, to have the record of prior Boy-kin pleas available for scrutiny. Miller did not, as the majority claims, testify that the “attorney evaluated the validity of prior pleas.” In fact, the specifics of any case, or possible defenses, would be discussed only if a defendant brought them up, which seldom happened. Following this practice, Miller testified that he and the other IDB attorneys typically did not file any discovery or any other motions; in McKinney’s case, none were filed. Miller further testified that at this short group meeting, which could include as many as 25 defendants at one time, other individuals, such as attorneys and deputy sheriffs, sometimes were present in the room.

In sum, Miller testified that he believed, in accordance with what he perceived to be the instructions of the district court, and in conformity with the practice of the other 5 th District IDB attorneys, that his sole obligation to |4McKinney and the other misdemeanor defendants was to advise them of their Boykin rights prior to the court’s on-the-record recitation of the same rights. He was, according to his understanding, not appointed to counsel or otherwise represent them before the court as an attorney, and he acted accordingly. As such, the majority’s statement that “it is clear that the lawyers were also aware that part of their job as indigent defenders extended to the representation of these misdemeanor defendants” likewise lacks factual basis in the record.

The transcript of the guilty plea and court minutes indicate that Miller was present with McKinney and nine other defendants who had chosen to plead guilty to a variety of offenses, including DWI first and second offense, as well as possession of marijuana. The court advised this group of their Boykin rights for a second time, the penalties on the charges they faced, and the increased penalties that could result if the defendants were subsequently charged with DWI or possession of marijuana. The court then briefly addressed each defendant, including McKinney, in turn:

Court: This is Mr. McKinney? Mr. McKinney, did you hear and understand your rights and the enhanced penalties that I read to you?
Mr. McKinney: Yes, sir.
Court: Understanding your rights and the enhanced penalties, do you still wish to waive your rights and plead guilty to DWI, second offense, today?
Mr. McKinney: Yes, sir.

Thus, from the record, it appears that, both the court and McKinney were misled as to Miller’s role in the proceeding. Miller did nothing more than introduce each defendant to the court when called, which comports with his later testimony that he did not perceive his role to be an advocate for each defendant. As such, I would conclude that McKinney was not represented by counsel at his February 11, 1997 plea.

In addition, although he appeared without appointed counsel, at no time did |5the court advise McKinney, or elicit a waiver of his right to counsel at arraignment and sentencing, although the trial court properly advised the defendants of their right to an attorney at trial. Moreover, the district court made no attempt to determine McKinney’s literacy, competency, understanding, and volition to enter an un-counseled guilty plea other than eliciting “Yes, sir” and “No, sir” responses to all questions. From this limited colloquy, it is impossible to ascertain McKinney’s ability to defend himself, his literacy, competency, understanding, and volition. State v. Stevison, supra; State v. Bell, supra; City of Monroe v. Wyrick, 393 So.2d 1273 (La. 1981); see also State v. Lambert, 97-64 (La.App. 3d Cir. 9/30/98), 720 So.2d 724.

In State v. Deroche, supra, the Louisiana Supreme Court rejected an analogous guilty plea wherein the trial court canvassed an uncounseled defendant with regard to his trial rights but did not elicit an explicit waiver of counsel for the guilty plea. Similarly, in State v. Strain, 585 So.2d 540 (La.1991), the court rejected a defendant’s uncounseled plea where the trial court accepted the plea without any recorded inquiry into his capacity to make a knowing and voluntary waiver of his right to counsel. Under these .circumstances, the record does not support a finding of either an implicit or explicit waiver of the Sixth Amendment right to counsel. State v. Gable, supra. In fact, at oral argument, counsel for the state admitted that no waiver was sought.

On these facts, the February, 1997 plea was an uncounseled plea unaccompanied by a waiver of counsel on the record; it cannot, therefore, be used as a predicate offense for the purpose of enhancing the penalties of the instant case. The district judge merely canvassed McKinney with regard to some of the trial rights he was waiving, but failed to mention a waiver of right to counsel at his plea or otherwise inquire into his capacity to waive his right to the assistance of counsel in making the decision whether to go to trial, “[t]he principal function of a | Jawyer for an accused who desires to plead guilty.” Strain, 585 So.2d at 543. Thus, the record does not establish a valid waiver of counsel and the guilty plea may not serve as predicate for enhancement of a subsequent DWI offense. State v. Pugh, 588 So.2d 702 (La.1991); State v. Wiggins, 399 So.2d 206 (La.1981); State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980).

The 1991 Plea

The minutes and transcript of the guilty plea entered on February 20,1991 indicate that McKinney was purportedly represented by Mr. Donnie L. Ellerman, another IDB attorney. Although Ellerman was not called to testify at the hearing on the motion to quash, the State stipulated that the same procedure described by Miller would apply as in McKinney’s 1997 plea. This alone is sufficient to reject the 1991 as a predicate offense.

Additionally, the court transcript from the 1991 proceeding, like that of the 1997 plea, indicates although the court advised the defendants, en masse, of their Boykin rights, the court did not elicit a waiver of counsel for the purposes of the guilty plea, or even mention that McKinney had a right to counsel. In addition, similar to the 1997 plea, the court made no inquiry into McKinney’s capacity to enter an un-counseled guilty plea, and only a brief “Yes” and “No” exchange with the court:

Court: Mr. McKinney, would you please step up to the microphone. Mr. McKinney, did you understand your rights that I explained to you?
Mr. McKinney: Yes, sir.
Court: Did you understand the enhanced penalties?
Mr. McKinney: Yes, sir.
Court: Understanding the enhanced penalties and your rights, do you still desire to plead guilty to the charge of DWI first offense?
Mr. McKinney: Yes sir.

Accordingly, for the same reasons that I would reject the 1997 plea for the |7purposes of enhancement, I would reject the 1991 plea.

Ineffective Assistance of Counsel Claim

Even if a waiver of counsel could be concocted from these events, the “representation” provided by Miller and Eller-man fell far short of that which is constitutionally required, for neither attorney made any effort or attempt to represent McKinney’s interests, or even consult with the file or McKinney individually before the proceedings. Accordingly, I have grave doubts as to the efficacy of these pleas, for despite the formal appointment of counsel, the total absence of any assistance to the client is arguably a constructive denial of counsel, which is legally presumed to result in prejudice. Tucker v. Day, 969 F.2d 155, 158 (5th Cir.1992)(citing Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940))(“The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment”); United States v. Cronic, 466 U.S. 648, 654 n. 11, 104 S.Ct. 2039 2044 n. 11, 80 L.Ed.2d 657 (1984)(“[A]lthough counsel is present, the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided”); see also, State v. Green, 31,839 (La.App.2d Cir. 9/22/99), 752 So.2d 986. In fact, the United States Supreme Court, in parsing the text of the Sixth Amendment, has observed that “If no actual ‘Assistance’ ‘for’ the accused’s ‘defense’ is provided, then the constitutional guarantee has been violated.” Cronic, 466 U.S. at 654, 104 S.Ct. at 2044 (footnote omitted). The majority opinion simply disregards this well-established jurisprudence.

Moreover, the manner in which these attorneys “counseled” these defendants— en masse, in a non-confidential surrounding — gravely undermines the Constitutional guarantee of counsel. Miller testified that he did not further investigate the efficacy of a prior conviction or even inquire into a defendant’s case unless the defendant brought it up himself in front of the group. Incredulously, however, the majority finds no problem with this constructive | «denial of one of our most basic rights. As such, I would reverse the conviction for DWI, third offense, and find McKinney guilty of DWI, first offense, and remand for resentencing. 
      
      . McKinney reserved his right to appeal the denial of his motion to quash pursuant to State v. Crosby, 338 So.2d 584 (La.1976).
     
      
      . This court denied McKinney's writ application which sought review of the denial of the motion to quash in No. 32,143 (La.App.2d Cir.12/10/98). The Louisiana Supreme Court denied an application for supervisory writs as well in No. 99-0105 (La.03/12/99).
     
      
      . The parlies stipulated that the same procedure described by Miller would be appropriate to describe that utilized by the court and McKinney's attorney in the 1991 plea. Accordingly, the discussions herein apply to both proceedings.
     
      
      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
     
      
      . We distinguish this case from our unpublished State v. Green, (La.App.2d Cir.09/22/99), wherein we found a constructive denial of counsel. Not only did Green involve a resentencing proceeding, but counsel there clearly stated on the record that he did not know why he was there and did nothing to represent the defendant. Unlike the present case, there was no evidence in Green that counsel was even aware of the type of proceedings or had at any time met with the defendant regarding the resentencing. There, counsel could be viewed as nothing more than a mere spectator.
     
      
      . See generally, State v. Strain, 585 So.2d 540 (La.1991).
     