
    STATE of Louisiana, Appellee, v. Robert A. STEWART, Appellant.
    No. 29241-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 1997.
    Order Vacating Sentence on Rehearing May 7, 1997.
    Writ Denied Nov. 14, 1997.
    Whitmeyer and Glassell by Stephen A. Glassell, Shreveport, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, W. Stanley Loekard and Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before NORRIS, CARAWAY and PEATROSS, JJ.
   liCARAWAY, Judge.

The issue in this case is whether the State proved a predicate offense which occurred in the State of Maryland sufficiently to adjudicate the defendant, Robert A. Stewart, a fourth felony offender. We find the State met its burden of proof under La.R.S. 15:529.1(D)(l)(b) and State v. Martin, 427 So.2d 1182 (La.1983). We therefore affirm the adjudication and sentence proceedings.

A jury convicted Stewart of possession of cocaine in March 1993. The State later billed him as a habitual offender; the District Court adjudicated him a fourth felony offender and sentenced him to 20 years at hard labor. On appeal, however, this court held that the District Court improperly considered two of the predicate offenses, in that the State failed to prove that the guilty pleas giving rise to those convictions were made with representation of counsel. State v. Stewart, 27,049 (La.App. 2d Cir. 5/10/95), 656 So.2d 677, writ denied 95-1764 (La.12/8/95), 664 So.2d 420. On remand, the District Court held another habitual offender hearing, again found Stewart to be a fourth felony offender and sentenced him to 20 years at hard labor. Stewart again appeals, urging the record is still inadequate to prove he was represented by counsel when he pled guilty to robbery on October 31, 1980 in Prince George’s County, Maryland.

At the instant hearing, the State introduced court minutes showing that on October 6, 1980, Mr. Autry N. Noblitt made an appearance as public defender in Stewart’s behalf. Later on October 31, when defendant’s guilty plea was entered, the minutes are silent regarding the presence of Mr. Noblitt or other counsel. The minutes, which likewise make no mention of defendant’s waiver of his Boykin rights, do reflect that following the court’s setting of the sentencing date for December 9,1980, “all parties and attorneys” were notified by the clerk.

|2The State called Mr. Noblitt to testify. He stated that he was public defender for Prince George’s County from 1972 until his retirement in 1990, and normally handled 90 to 100 eases per year. He reviewed the minutes in his testimony, but he had no independent recollection of Stewart or his case. However, he stated that based on his habit and court procedures he would have been there when the defendant pled guilty. In fact, he was fairly certain the guilty plea could not have happened without his presence. He concluded that in his estimation, he was present for Stewart’s guilty plea. The defendant presented no evidence at the hearing.

As noted, the District Court found that based on the testimony and evidence adduced, counsel was present for Stewart’s October 31, 1980 guilty plea; the court adjudicated him a fourth felony offender. It later sentenced him to 20 years at hard labor, the minimum allowed under the Habitual Offender Law, and denied Stewart’s motions for reconsideration.

In State v. Holden, 375 So.2d 1372 (La. 1979), the court addressed the use of a prior guilty plea and federal conviction in the setting of a habitual offender hearing. The federal conviction was proven by a certified copy of the indictment and minute entry indicating the defendant’s plea. The minute entry was silent regarding whether the defendant made his plea with his Boykin rights having been adequately reviewed and waived. Additionally, the defendant took the stand in the enhancement proceeding and testified that “he did not recall any lawyer or other person informing him of the consequences of his guilty plea.” Nevertheless, based upon the presumption of regularity that attaches to a judgment of conviction, the proof offered by the state was ruled adequate to enhance the defendant’s sentence absent a specific showing by the defendant that his Boykin rights were violated at the time the plea was entered. In other words, the essential waiver of these ^constitutional rights, though unproven on the face of the minute entry offered by the state, was presumed in Holden to have occurred because of the presumption of regularity of the conviction. Cf. Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992).

The ruling in Holden was later amplified in State v. Martin, 427 So.2d 1182 (La.1983) where, like the present case, the state’s offer of a minute entry of the guilty plea failed to reflect the presence of defense counsel in the court at the time the plea was accepted. The court stated that Holden

“did not state that the existence of a minute entry reference to counsel’s presence in the certified copy of the prior conviction was an essential element of the state’s proof in a multiple offender hearing. However, if the opinion may be so interpreted, we hereby clarify the holding of Holden to require a defendant to object at the multiple offender hearing to the failure of the record of the predicate felony to reflect the presence of counsel or to raise the issue in the post conviction application, at which he will have the opportunity (and the burden) to prove such an allegation.”

The “silent” minute entries were enough in Holden and Martin to support the enhanced sentences in the absence of proof by the defendant that his constitutional rights had in fact been infringed. In this case, other minute entries, both before and after the time of the guilty plea, reflect that counsel had been appointed for the defendant and that notice was given to counsel of the sentencing hearing which occurred after the entry of the plea. Mr. Noblitt’s testimony further revealed his understanding of the minute entries of the defendant’s prior conviction which appeared to him to reflect continuous representation of counsel. Only on one occasion during his long tenure as a public defender had a criminal defendant to whom he had been appointed as counsel ever waived the right to counsel and all other criminal defendants who had pled guilty had done so in his presence before |4the court. We are therefore convinced that the state adequately met its initial burden in this case with the minute entries, the testimony of the attorney, and most significantly, the presumption of regularity which prior convictions should be given.

Decree

For the reasons expressed above, we affirm defendant’s conviction and sentence as a fourth felony offender.

AFFIRMED.

PEATROSS, J., concurs with written reasons.

NORRIS, J., dissents with written reasons.

11 PEATROSS, Judge,

concurring.

While I respectfully disagree with the writer’s opinion as to the applicability of State v. Martin, 427 So.2d 1182 (La.1983), I do agree that the state met its burden of proof under LSA-R.S. 15:529.1 and, in addition, State v. Shelton, 621 So.2d 769 (La. 1993). In Shelton, the Supreme Court of Louisiana specifically revised the “scheme of allocating burdens of proof in habitual offender proceedings.” The Court stated, “If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken.”

Although the public defender, Autry N. Noblitt, had no independent recollection of defendant, Stewart, the testimony of Noblitt is sufficient to prove that the defendant was represented by Noblitt at his prior guilty-plea hearing. Noblitt testified that when he was appointed to represent a defendant, he would appear for that defendant and he would not send another attorney in his place. Noblitt also testified that he was able to tell the court that he was the attorney of record in this case and that he was present at all proceedings in the case, including the guilty plea and sentencing. Noblitt stated,

My knowledge of the system and from these docket entries which simply confirms what I know, that it couldn’t have been otherwise. We handle cases as a private attorney handles cases. No one else is involved with it. It’s not as though you know some other public defender or anybody else or they will do it without you. You were the personal attorney of record and it went that way.

When asked -if in his mind he was present at the guilty plea and sentencing of defendant, he responded, “That’s correct.”

During Noblitt’s testimóny, the following exchange occurred between defendant’s attorney and Noblitt:

Q. Okay. Basically what you are testifying to is based on these documents that, and your position was that you were always present at the time of a guilty plea if a ease was assigned to you?
IzA. That’s correct.
Q. And you were always present at the time of sentencing?
A That’s correct.

11 NORRIS, Judge,

dissenting.

I respectfully dissent. In our prior opinion in this case, we found the State’s evidence of the predicate guilty plea (robbery, Prince George County, October 31,1980) insufficient for purposes of sentence enhancement under the habitual offender statute and the Supreme Court’s recent pronouncement in State v. Shelton, 92-3070 (La.7/1/93), 621 So.2d 769. The minute entry in question makes no mention that Stewart was represented by counsel or waived his Boykin rights. Shelton established a procedure for proving prior felony convictions in an habitual offender proceeding that gives proper significance to the presumption of regularity which attaches to judgments of conviction that have become final:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. * * * If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects the colloquy between judge and defendant wherein the defendant was informed of and specifically waived 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 that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. * * * We note that this new procedure will not only give appropriate significance to the presumption of regularity which attaches to judgments of conviction which have become final, but will also provide an advantage to defendants who were previously under [State v. Lewis, 367 So.2d 1155 (La.1979) ] unable to introduce any extra-record evidence and whose guilty pleas were heretofore under [State v. Tucker, 405 So.2d 506 (La.1981) ] found constitutionally valid by mere proof of a minute entry and a guilty plea form.
621 So.2d at 779-780 (footnotes omitted).

|2Thus, Shelton makes it abundantly clear that in order to take advantage of the presumption of regularity, the State must prove beyond a reasonable doubt, La.R.S. 15:529.1 D(l)(b), the existence of a prior guilty plea and that the defendant was represented by counsel when it was taken.

Here, the minute entry does not show defendant was represented by counsel when the guilty plea at issue was taken. In our previous opinion we properly reversed the habitual offender conviction and remanded the ease.

On remand, the State introduced the same documentary evidence as before but additionally called Autry Noblitt to testify. Noblitt testified he was the public defender for Prince George County from 1972 until his retirement in 1990, and normally handled 90 to 100 cases per year. He had absolutely no independent recollection of Stewart or his case. However, he stated that based on habit and court procedures he would have been there when defendant pled guilty. He therefore felt that he had been present for defendant’s guilty plea.

The trial court concluded Noblitt’s testimony was sufficient proof of representation of counsel; this court’s judgment, fortified by the resurrection of State v. Martin, 427 So.2d 1182 (La.1983), stamps its approval.

What did the State introduce on remand that constitutes proof beyond a reasonable doubt? There is no writing contemporaneous with the October 31, 1980 plea in Prince George’s County, Maryland, to show that the defendant was represented by counsel when he pled. Admittedly, the showing could be made by testimony reconstructing the plea; however, Mr. Noblitt testified only that he believed, on the strength of normal habit, that he was probably there when Stewart pled guilty. While this is some evidence of what happened, and perhaps might establish the presence of counsel by a preponderance of the evidence, the burden of proof is beyond a reasonable doubt. Ordinarily, a witness’s inability to state, firmly and certainly, that something happened, is insufficient to prove that fact | gbeyond a reasonable doubt. See State v. Chism, 22,881 (La.App. 2d Cir. 12/4/91), 591 So.2d 383. While one may wonder why the guilty plea colloquy was not introduced, and what it would have revealed, I commend the State’s efforts to fill out the “silent” minute entry, and Mr. Noblitt’s honesty in testifying. However, I am constrained to find that the instant showing does not meet the requisite burden of proof. In fact, the record in this proceeding will show that this same defendant did, on another occasion, in the same court, purport to waive presence of counsel and plead guilty. See Exhibit S-8 (guilty plea of February 23, 1989).

I therefore cannot subscribe to the judgment’s casual analysis which, in effect, assumes what it seeks to prove; it utilizes the presumption of regularity to supplement Mr. Noblitt’s testimony, when that testimony was offered to establish the presumption. I would therefore set aside the adjudication, vacate the sentence, and remand the ease for further proceedings.

Before MARVIN, NORRIS, HIGHTOWER, CARAWAY and PEATROSS, JJ.

ON REHEARING

| iNORRIS, Judge,

on rehearing.

The issue in this case is whether the State proved a predicate offense sufficiently to adjudicate the defendant, Robert A. Stewart, a fourth felony offender. We find the State did not meet its burden of proof under La. R.S. 15:529.1D(l)(b) and State v. Shelton, 621 So.2d 769 (La.1993). We therefore set aside the adjudication, vacate the sentence and remand for resentencing.

■ A jury convicted Stewart of possession of cocaine in March 1993. The State later billed him as a recidivist; the District Court adjudicated him a fourth felony offender and sentenced him to 20 years at hard labor. On appeal, however, this court held that the District Court improperly considered two of th'e predicate offenses, in that the State failed to prove that the guilty pleas giving rise to those conviction's were made with representation of counsel. State v. Stewart, 27,049 (La.App. 2d Cir. 5/10/95), 656 So.2d 677, writ denied 95-1764 (La. 12/8/95), 664 So.2d 420.

On remand, the District Court held another recidivist hearing, again found Stewart to be a fourth felony offender, and sentenced him to 20 years at hard labor. Stewart again appeals, urging the record is still inadequate to prove he was represented by counsel when he pled guilty to robbery on October 31,1980 in Prince George’s County, Maryland.

At the instant hearing, the State introduced the same documents it had offered at the prior one: court minutes showing that on October 6,1980, a Mr. Autry Noblitt made an appearance as public defender in Stewart’s behalf, but not showing that he was present when Stewart actually pled guilty on October 31. The State also called Mr. Noblitt to testify. He stated that he was public defender for Prince George’s County from 1972 until his retirement in 1990, and normally handled 90 to 100 cases per year. He had no independent recollection of Stewart Lor his ease. However, he stated that based on his habit and court procedure, he would have been present when a defendant pled guilty. In fact, he was fairly certain the guilty plea could not have been taken unless he was present. He concluded that in his estimation, he was present for Stewart’s guilty plea. Supp., 15.

As noted, the District Court found that based on the testimony and evidence adduced, counsel was present for Stewart’s October 31, 1980 guilty plea; the court adjudicated him a fourth felony offender. It later sentenced him to 20 years at hard labor, the minimum allowed under R.S. 15:529.1A(l)(c)(i), and denied defense motions for reconsideration.

In the case of State v. Shelton, supra, the Supreme Court clarified the law regarding the burden of proof of predicate offenses in recidivist proceedings where the defendant challenges, in the trial court, the sufficiency of that proof:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularly in the taking of the plea. * * * If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein defendant was informed of and specifically waived 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 that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. * * * We note that this new ^procedure will not only give appropriate significance to the presumption of regularity which attaches to judgments of conviction which have become final, but will also provide an advantage to defendants who were previously under [State v. Lewis, 367 So.2d 1155 (La.1979) ] unable to introduce any extra-record evidence and whose guilty pleas were heretofore under [State v. Tucker, 405 So.2d 506 (La.1981) ] found constitutionally valid by mere proof of a minute entry and a guilty plea form. 621 So.2d at 779-780 (emphasis added, footnotes omitted).

Additionally, the State is required to prove any issue of fact beyond a reasonable doubt. La.R.S. 15:529.1D(l)(b).

Here the State did not offer any writing contemporaneous with the plea — court minutes or a transcript — showing that Stewart both gave the plea and was represented by counsel. State v. Shelton indicates that such a showing can be made from other sources, e.g., a signed rights waiver form, as in State v. Denomes, 95-1201 (La.App. 1st Cir. 5/10/96), 674 So.2d 465, or a defense motion contemporaneous with the plea, as in State v. Morris, 94-0553 (La.App. 4th Cir. 11/17/94), 645 So.2d 1295. The showing could even be made, as was attempted here, by the testimony of counsel.

What did Mr. Noblitt establish? With no independent recollection, he testified that because of normal habit, he was probably pres-' ent when Stewart- offéred the October 31, 1980 guilty plea. With deference to his normal practice, we would note that on at least one other occasion, this same defendant, in the same court, purported to waive counsel and plead guilty. See Exhibit S-8 (guilty plea of February 23, 1989). Mr. Noblitt’s testimony is some evidence of what occurred, and perhaps might establish the presence of counsel by a preponderance of the evidence. However, the State’s burden is beyond a reasonable doubt. Ordinarily, a witness’s inability to state, firmly and certainly, that something happened, is insufficient to prove that fact beyond a reasonable doubt. See State v. Chism, 22,881 (La.App. 2d Cir. 12/4/91), 591 So.2d 383.

|4In short, we are constrained to find that the evidence presented did not prove, beyond a reasonable doubt, the presence of counsel at the predicate guilty plea. Without this showing, the presumption of regularity conferred by State v. Shelton, supra, does not attach. State v. Stewart, at p. 6, 656 So.2d at 677; State v. Fleury, 545 So.2d 1208 (La.App. 4th Cir.1989).

We therefore conclude that the District Court erred in considering Stewart’s October 1980 conviction for robbery as a predicate for the habitual offender adjudication. The adjudication is set aside, the sentence vacated, and the case remanded for resentencing as a third felony offender.

Adjudication Set Aside, Sentence Vacated, Case Remanded.

CARAWAY, J., dissents with written reasons.

PEATROSS, J., dissents from the majority opinion on rehearing for the reasons set forth in his concurrence to the original opinion.

11 CARAWAY, Judge,

dissenting.

I respectfully dissent from the majority opinion for the reasons set forth in my original opinion. The argument of the majority was forcefully voiced by the dissent in State v. Martin, 427 So.2d 1182 (La.1983) (see Chief Justice Calogero’s dissent). I remain convinced, however, that the majority opinion from our Supreme Court in Martin, which has not been overruled, may still be followed in this case where this defendant made no showing that he was unrepresented by counsel. Again, by further postconviction relief proceedings, defendant may make a collateral attack on the presumption of regularity of the prior judgment of conviction, but the burden of proof is on the defendant. The two competing concerns, collateral attacks on judgments and the defendant’s right to counsel, were weighed in Martin, and the balance struck would now be overruled by the majority opinion. 
      
      . Holden and Martin are two cases which specifically deal with minute entries such as the ones at issue. Though certain language in State v. Shelton, 621 So.2d 769 (La.1993) might be read to require that the minute entry reflect the presence of counsel, the decision did not address that fact setting, did not overrule Martin, and expressly affirmed the holding in Holden.
      
     
      
      . 656 So.2d 677 (La.App. 2d Cir. 1995).
     
      
      . In the earlier case of State v. Martin, 427 So.2d 1182 (La. 1983), the. court held that when the predicate conviction is based on a guilty plea, the guilty plea is proved only by a minute entry which is silent as to whether counsel was present, and the defendant does not object at the trial of the multiple offender hearing, then a presumption of regularity attaches to that silent minute entry; the defendant cannot challenge it for the first time on appeal. However, we conclude that 
        State v. Shelton clarified the law, superseded State v. Martin, and regulates the instant case.
     