Judgment rendered September 25, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,965-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TYRONE D. JOHNSON Appellant
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 2015-196
Honorable John C. Hamilton, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
JOHN M. LANCASTER Counsel for Appellee District Attorney
KENNETH D. WHEELER AMANDA M. WILKINS Assistant District Attorneys
Before WILLIAMS, STONE, and THOMPSON, JJ.
THOMPSON, J., dissents. WILLIAMS, C.J.
The defendant, Tyrone Johnson, was charged by bill of information
with one count of Distribution of a Schedule II CDS (methamphetamine), a
violation of La. R.S. 40:967(A)(1). Pursuant to a plea agreement, the
defendant pled guilty as charged with a sentencing cap and the state agreed
not to file an habitual offender bill of information. The district court
subsequently denied defendant’s motion to withdraw his guilty plea and
sentenced him to serve 23 years at hard labor in conformity with the agreed-
upon sentence. Defendant appeals his conviction and sentence. For the
following reasons, we grant the defense motion to withdraw the guilty plea,
vacate defendant’s conviction and sentence, and remand for further
proceedings.
FACTS
The record shows that in August 2015, defendant was charged with
one count of distribution of methamphetamine based on video evidence
allegedly showing defendant making an illegal drug sale to an undercover
agent. The bill of information reflects that the offense occurred on June 1,
2015. After arraignment in September 2015, defendant was represented by
his retained counsel, Albert Ellis, prior to the trial date. Several pretrial
motions were filed, including a motion for a preliminary examination.1
During the week before trial, defendant’s attorney filed a motion to
withdraw as counsel of record. Then, two days before the hearing on the
motion to withdraw as counsel and less than one week before trial, the state
1 The record reflects that no pretrial hearings were conducted on defendant’s behalf. Further, less than two weeks before trial, Attorney Ellis waived the preliminary exam. filed notice of its intent to use other crimes evidence at trial. Notably, the
substantive text of the notice of intent states as follows:
The defendant is presently charged with distribution of methamphetamine. The state shows that [it] is going to use a cooperating civilian witness [CW] in the trial of the defendant. The CW made a purchase of methamphetamine from the defendant on June 1, 2015. The CW will testify that he has been making purchases from the defendant, Tyrone Johnson, for 5-10 years before June 1, 2015. The state intends to offer evidence of the relationship between the CW and defendant pursuant to Louisiana Code of Evidence 404(B) to show the defendant’s identity, mode of operation, as well as his intent, purpose, knowledge of the substance methamphetamine. The state also intends to offer evidence of the relationship between the CW and the defendant to defend against any argument that this was an accident or mistake. (Emphasis added)
On April 29, 2016, at the hearing on the motion to withdraw as
counsel, Attorney Ellis advised the court that he had been negotiating a plea
deal with the district attorney, but that defense counsel’s communications
with defendant had broken down and defendant no longer wanted to be
represented by Attorney Ellis. The state responded that allowing
defendant’s attorney to withdraw at a time so close to trial would require that
a continuance of the trial be granted. Attorney Ellis then outlined the
extensive plea negotiations he had conducted with the state on behalf of
defendant, including a written plea offer that had been delivered to
defendant. Defense counsel also informed the court that he had not been
paid by defendant as agreed. The defense attorney requested that defendant
be given additional time to obtain other counsel if he was discharged. The
defense attorney pleaded with the court, noting that defendant was ill-
equipped to represent himself. The district court refused to allow
defendant’s attorney to withdraw and advised defendant that if he fired
Attorney Ellis then his case was still going to trial the following Monday,
2 whether or not he was represented by another attorney. After an extensive
discussion between defendant and the trial court, defendant responded that
he was “going to keep” Attorney Ellis. The vital colloquy between
defendant and the trial court reads as follows:
MR. JOHNSON: I really need to get better – a better counsel but you keep saying if I – if I fire him you’re going to take me to trial, but he . . .
COURT: You’re going to be representing yourself unless you can get somebody over the weekend.
MR. JOHNSON: No, but . . . he’s not wanting to go to trial with the evidence they’ve got and the evidence I feel like they’ve got ain’t nothing.
COURT: Well, okay. All right. You didn’t answer my question. Would you tell them out there I’ll be with them in just a minute? Just tell them . . . that we’re in the middle of something and I’m going to let them in in just a second. I just want to make sure you understand . . . I’m not going to let Mr. Ellis withdraw. I’m not going to allow him to withdraw from the case, in other words I’m going to make him stay on the case, but you have the absolute right because you’re the one who hired him, you can fire him if you want. If you say today “I want to fire him” I want you to understand – in other words if you don’t fire him I’m going to make Mr. Ellis go through with the trial. But if you want to fire him . . . you can hire your own attorney but you’re probably not going to get an attorney to represent you in a case – jury trial set for Monday, over the weekend. So you probably are going to be representing yourself, which you have the right to do, too. So I want to make sure you understand we’re down to it and I need to go ahead and rule something, I’ve got something else at 9:00.
MR. WHEELER: I know he’s not a public defender, he’s a retained counsel, is there a different standard when somebody wants to – I know usually when they want to fire their public defender you have to question them about their ability to understand the law and the procedure of trial. Is that a different standard than with . . .?
COURT: I’m going to ask him that. No, it’s not a different standard I don’t think[. A]re you on any drug, alcohol or medicine?
MR. JOHNSON: No, sir.
3 COURT: Do you understand what’s going on today?
MR. JOHNSON: Yes, sir.
COURT: You understand you have a trial set for Monday?
COURT: And you understand you’re the first setting on the trial docket now? MR. JOHNSON: Yes, sir.
COURT: All right. Do you want Mr. Ellis to represent you or do you want to fire him today and try to get your own or represent yourself?
MR. JOHNSON: Yes, but either way I go you’re saying I’m going to trial Monday. COURT: That’s right.
MR. JOHNSON: But I would like a better counsel though.
COURT: That’s not the answer I’m looking – that’s fine if you want to get one, I’m saying this thing’s been set for a while, you’ve got until Monday, you know, if you want to fire him right now I’m going to allow you to fire him because you have the right. I’m not going to allow him to withdraw this late. If you want to fire him that’s your right, you fire him but I want to make sure you’re doing so with an understanding that if you’re unable to get another attorney you’re going to still go to trial Monday whether you’ve got one or not. Do you understand that? You have to say yes or no. MR. JOHNSON: Yes, sir.
COURT: So what do you want to do?
MR. JOHNSON: I’m going to keep him.
COURT: Okay. All right. He said he’s going to keep him so I’m not going to allow him to withdraw and so we are set for trial Monday. Are there any other plea negotiations on the table? Do you want to talk one more – one last shot before we – you get out of here?
MR. ELLIS: If Mr. Wheeler will accommodate me, we will.
COURT: So just to put on the record Mr. Johnson said he’s going to keep him so . . . I’m not allowing Mr. Ellis to withdraw so we’re on trial for Monday as the first trial setting . . . . So if you are able to work it out I’ll be here and I’ll take a plea today[.]
4 MR. WHEELER: We’d like the record to reflect the defendant is present, he’s being notified Monday morning, May 2nd, 9:30 a.m., his trial.
COURT: All right. You can step down. Let the record so reflect.
The following Monday, May 2, 2016, the date of trial, defendant
entered a plea of guilty as charged in exchange for a 23-year sentencing cap
and the state’s agreement not to file a multiple offender bill. The district
court advised defendant of his rights under Boykin v. Alabama, 395 U.S.
238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant stated that he
understood and wanted to waive his rights and plead guilty. The district
court accepted the guilty plea, finding that the plea was entered freely and
voluntarily. The court ordered a presentence investigation.
On May 19, 2016, defendant’s newly retained counsel, Willard
Brown, filed a motion to withdraw defendant’s guilty plea on the grounds
that his plea was “not a free and voluntary act, but a necessary act to seek
another attorney.” The state opposed the motion to withdraw the plea,
noting the available video evidence showing defendant distributing
methamphetamine and the significant reduction in sentencing exposure
obtained as a result of the plea agreement negotiated by the prior defense
counsel.
In June 2016, prior to imposing sentence, the trial court heard
argument on the motion to withdraw the guilty plea. Defendant’s attorney
argued that defendant had accepted the guilty plea because the prior defense
counsel had not objected to the admissibility of other crimes evidence. The
state advised the court that the state and defendant’s prior attorney had
planned to have a hearing regarding other crimes evidence prior to the start
5 of trial if there had been no plea agreement. The trial court denied the
motion to withdraw the guilty plea and imposed a sentence of 23 years’
imprisonment in accordance with the plea agreement.
In May 2017, defendant filed a motion for an out-of-time appeal in an
application for post-conviction relief. The trial court denied the motion and
this Court denied defendant’s writ application. State v. Johnson, 51,939 (La.
App. 2 Cir. 10/19/17). The Louisiana Supreme Court granted defendant’s
writ and remanded the matter to the district court for perfection of an out-of-
time appeal and the appointment of counsel. State ex rel. Johnson v. State,
2017-2105 (La. 1/14/19), 260 So.3d 1208. The trial court appointed counsel
and this appeal followed.
DISCUSSION
In two assignments of error, defendant contends the trial court erred in
denying his right to counsel of his choice and in denying his motion to
withdraw the guilty plea. Defendant argues that he should have been
allowed the opportunity to replace his former attorney prior to trial because
the two could not effectively communicate, less than one year had elapsed
since the bill of information was filed and there would have been no
prejudice to the state’s case had the trial court continued the matter.
The Sixth Amendment to the U.S. Constitution, as well as La. Const.
art. I, § 13, guarantee the accused in a criminal proceeding the right to
assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335,
83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Carpenter, 390 So. 2d 1296
(La. 1980); State v. Shumaker, 40,275 (La. App. 2 Cir. 10/28/05), 914 So. 2d
1156. Although the essential aim of the Sixth Amendment is to ensure an
effective advocate for each criminal defendant, the Amendment also 6 encompasses the right to select and be represented by one’s preferred
attorney. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100
L.Ed.2d 140 (1988); State v. Reeves, 2006-2419 (La. 5/5/09), 11 So.3d 1031.
As a general proposition, a person accused in a criminal trial has the right to
counsel of his choice. State v. Leggett, 363 So.2d 434 (La. 1978). The right
to counsel of choice is not absolute and cannot be manipulated so as to
obstruct orderly procedure in courts and cannot be used to thwart the
administration of justice. State v. Cooley, 51,895 (La. App. 2 Cir. 5/23/18),
247 So.3d 1159, writ denied, 2018-1160 (La. 3/6/19), 266 So.3d 899.
The U.S. Supreme Court has found structural error requiring reversal
and a violation of the Sixth Amendment where a criminal defendant has
been denied his right to retained counsel of choice. See United States v.
Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006);
State v. Reeves, supra. Where the right to be assisted by counsel of one’s
choice is wrongly denied, a harmless error analysis, which considers
counsel’s effectiveness or prejudice to the defendant, is unnecessary.
Deprivation of the right is complete when the accused is erroneously
prevented from being represented by the lawyer he wants, regardless of the
quality of representation he received. Gonzalez-Lopez, supra; Reeves,
supra. In order for a trial court’s ruling on a defendant’s right to counsel to
be upset, there must be a showing of clear abuse of discretion. State in the
Interest of N.B., 52,002 (La. App. 2 Cir. 3/16/18), 248 So. 3d 532, writ
denied, 2018-0617 (La. 5/25/18), 243 So. 3d 568; State v. Ventris, 2010-889
(La. App. 5 Cir. 11/15/11), 79 So. 3d 1108.
As amended in 2014, La. C.Cr.P. art. 559(A) provides that, upon
motion of the defendant and after a contradictory hearing, which may be 7 waived by the state in writing, the court may permit a plea of guilty to be
withdrawn at any time before sentence. The discretion to allow the
withdrawal of a guilty plea under La. C.Cr.P. art. 559(A) lies with the trial
court and such discretion cannot be disturbed unless an abuse or arbitrary
exercise of that discretion is shown. State v. McGarr, 52,641 (La. App. 2
Cir. 4/10/19), 268 So. 3d 1189. A defendant has no absolute right to
withdraw a guilty plea. State v. Martin, 48,045 (La. App. 2 Cir. 5/15/13),
115 So.3d 750.
Under La. C.Cr.P. art. 556.1, a valid guilty plea must be a voluntary
choice by the defendant and not the result of force or threats. Article 556.1
also provides that prior to accepting a guilty plea, the court must personally
inform the defendant of the nature of the charge to which the plea is offered,
any mandatory minimum penalty, and the maximum possible penalty.
When the record establishes that an accused was informed of and waived his
right to a trial by jury, to confront his accusers, and against self-
incrimination, the burden shifts to the accused to prove that despite this
record, his guilty plea was involuntary. Boykin v. Alabama, supra; State v.
McGarr, supra; State v. Cooper, 52,408 (La. App. 2 Cir. 11/8/18), 261
So.3d 975.
An express and knowing waiver of the above rights must appear on
the record, and an unequivocal showing of a free and voluntary waiver
cannot be presumed. Boykin, supra; State v. Johnson, 51,430 (La. App. 2
Cir. 7/5/17), 224 So. 3d 505; State v. Kennedy, 42,850 (La. App. 2 Cir.
1/9/08), 974 So. 2d 203. A plea of guilty normally waives all non-
jurisdictional defects in the proceedings prior to the plea, including
insufficiency of the evidence. State v. Crosby, 338 So. 2d 584 (La. 1976); 8 State v. Johnson, supra; State v. Stephan, 38,612 (La. App. 2 Cir. 8/18/04),
880 So.2d 201.
When ruling on a motion to withdraw a guilty plea, the trial court
should look beyond the Boykinization and consider all relevant factors. State
v. Griffin, 535 So. 2d 1143 (La. App. 2 Cir. 1988). In order to properly
exercise its discretion and in order for the appellate court to review the
exercise of that discretion, the trial court should conduct a hearing or inquiry
on defendant’s motion to withdraw a guilty plea. State v. McGarr, supra;
State v. Griffin, supra. Reasons supporting withdrawal of the plea would
ordinarily include factors bearing on whether the guilty plea was voluntarily
and intelligently made, such as breach of a plea bargain, inducement,
misleading advice of counsel, strength of the evidence of actual guilt, or the
like. A mere change of heart or mind by the defendant as to whether he
made a good bargain would not ordinarily support allowing the withdrawal
of a bargained guilty plea. McGarr, supra.
In the present case, defendant asserts in his brief that the trial court
should have emphasized his right to be represented by his chosen counsel
over the desire to proceed to trial. At the hearing on defense counsel’s
motion to withdraw, defendant stated to the trial court that he wanted to hire
a different attorney who would listen to his concerns. Attorney Ellis advised
the trial court that he sought to withdraw because defendant had not
completely paid the agreed-upon fee, communication with defendant had
broken down and he could no longer effectively represent defendant. The
trial court then informed defendant that he could discharge his retained
attorney, but defendant would not be given any additional time to find
alternative counsel before trial. The trial court expressed concern that 9 allowing defendant to replace his retained counsel with another attorney of
his choice would require a continuance of the trial date. However, despite
the trial court’s worry about delay, the record shows that the trial date of
May 2, 2016, was less than one year after defendant’s arraignment in
September 2015. Moreover, the trial court’s expressed interest in the plea
bargaining process and failure to fully ascertain whether this defendant
could represent himself are extremely troubling.
Additionally, the trial court did not inquire as to how much time
defendant would need to hire new counsel and there was no showing that the
state would have been prejudiced by a continuance to provide defendant
with a reasonable opportunity to retain another attorney. Although an
important consideration, the efficient administration of the court’s docket
should not supersede the protection of defendant’s exercise of his
constitutional rights. Based on the particular circumstances of this case, we
must find that the trial court abused its discretion in failing to provide
defendant with a meaningful opportunity to retain another attorney of his
choice. Thus, the trial court violated defendant’s Sixth Amendment right to
counsel of choice and this violation is not subject to harmless error analysis.
Given the inherently coercive situation created by the trial court’s
deprivation of defendant’s right to counsel of choice, we cannot say that
defendant’s guilty plea was voluntarily entered. Consequently, we must
conclude that the trial court abused its discretion in refusing to permit
defendant to withdraw his guilty plea prior to sentencing. Accordingly, we
shall grant the defense motion to withdraw the guilty plea and vacate the
defendant’s conviction and sentence. In reaching this conclusion, we
pretermit discussion of the final assignment of error. 10 CONCLUSION
For the foregoing reasons, the defendant’s motion to withdraw the
guilty plea is hereby granted. Defendant’s conviction and sentence are
hereby vacated and this matter is remanded to the district court for further
MOTION TO WITHDRAW GUILTY PLEA GRANTED;
CONVICTION AND SENTENCE VACATED; REMANDED FOR
FURTHER PROCEEDINGS.