State ex rel. Howard v. Clerk of Court, First Judicial District Court 402 So. 2d 89

PER CURIAM.

GRANTED. Just as with other trial irregularities involving fundamental rights, the defendant’s failure to object or to present evidence of the non-existence of the record does not prevent his raising the lack of a record of the constitutionally required judicial determination that his plea was voluntary in an application for a writ of habe-as corpus, La.Code of Crim.Proc. art. 362, or in a motion for a new trial, La.Code of Crim.Proc. art. 851. State v. Nelson, 379 So.2d 1072 (La.). See La.Code of Crim. Proc. art. 841 official revision comment (b). Accordingly, the trial court is ordered to conduct an evidentiary hearing on relator’s motion.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., dissents from the grant, being of the opinion that the ruling of the trial judge was correct.

BLANCHE and WATSON, JJ., dissent.

LEMMON, Justice,

concurring.

At the multiple offender hearing the state introduced evidence, without objection, of two prior convictions based on guilty pleas. If defendant had objected at that time, the burden would have been on the state to prove the guilty pleas were voluntarily entered with knowledge of the consequences. Defendant’s failure to object at that time does not impliedly waive his right forever to assert any constitutional deficiencies in those guilty pleas, but the failure does relegate defendant to post conviction proceedings, at which the burden *90will be on defendant to prove a constitutional deficiency in his pleas. See my concurring opinion in State v. Jackson, 389 So.2d 69 (La.1980).

I differ from my colleagues who voted to grant this writ, however, in that I believe a guilt plea is not necessarily constitutionally deficient merely because the three right articulation procedures outlined in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) was not followed. The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), while rejecting any presumption of a knowledgable and intelligent waiver when the record is silent, did not require any specific articulation of constitutional rights on the record contemporaneous with the plea, although the Court noted that such a practice is highly preferable.1 Therefore, when a guilty plea is subsequently attacked in post conviction proceedings, the trial court may consider all evidence offered at the post conviction hearing in determining whether the plea was intelligently and voluntarily entered at the time with awareness of its consequences. McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).