State v. Boudreaux

616 So. 2d 733, 1993 WL 64452
CourtLouisiana Court of Appeal
DecidedApril 28, 1993
Docket92 KA 0491
StatusPublished
Cited by3 cases

This text of 616 So. 2d 733 (State v. Boudreaux) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Boudreaux, 616 So. 2d 733, 1993 WL 64452 (La. Ct. App. 1993).

Opinion

616 So.2d 733 (1993)

STATE of Louisiana
v.
Larry BOUDREAUX.

No. 92 KA 0491.

Court of Appeal of Louisiana, First Circuit.

March 5, 1993.
Rehearing Not Considered, Not Timely Filed April 28, 1993.

*735 Donald D. Candell, Gonzales, Anthony Falterman, Dist. Atty., Donaldsonville, for The State.

Lennie Perez, Baton Rouge, for defendant Larry Boudreaux.

Before CARTER, LeBLANC and PITCHER, JJ.

PITCHER, Judge.

Shortly after being arrested for three counts of drug racketeering, violations of LSA 15:1353, Larry Boudreaux filed a motion for bond reduction. A few days later, the state charged Boudreaux by bill of information with one count of possession of cocaine with intent to distribute, a violation of LSA 40:967(A). The charged offense was based on the state's claim that, on January 12, 1989, defendant knowingly and intentionally possessed four grams of cocaine at his place of business, the Watering Hole Lounge in Ascension Parish, with the specific intent to distribute the substance to Larry Rowland. On the day after the bill was filed, defendant pled guilty as charged pursuant to a plea agreement; and the trial court ordered a presentence investigation report. Subsequently, the court sentenced defendant to serve a term of seven years at hard labor with credit for time served.

Defendant appealed his conviction, urging ten assignments of error, including the argument the court erred when it refused to hold a hearing on defendant's motion to withdraw guilty plea. Finding merit in this assignment, we vacated the sentence and remanded for an evidentiary hearing on the motion. State v. Boudreaux, 577 So.2d 1228, (La.App. 1st Cir.1991) (unpublished). On remand, a hearing was held; and the court again denied the motion. Defendant then filed a motion to correct the findings of fact upon which the court's ruling on the motion to withdraw guilty plea was based. The court denied this motion. Defendant also filed an additional motion to withdraw guilty plea on the ground of ineffective assistance of counsel. The court also denied this motion, whereupon defendant filed a motion to reconsider the court's denial of this motion to withdraw guilty plea. The court denied the motion to reconsider and sentenced defendant to the same period of imprisonment as before. Defendant has appealed, urging five assignments of error.

DENIAL OF MOTION TO WITHDRAW GUILTY PLEA

In four related assignments of error, defendant contests the court's denial of his motion to withdraw guilty plea and denial of related pleadings which were filed upon remand. In the first assignment, he argues the trial court erred when it denied the motion to withdraw guilty plea. Defendant claims the plea should be set aside because the state failed to comply with its agreement to recommend to the judge that *736 defendant receive probation and because the plea was involuntary as a result of improper threats made by the prosecutor.

On the day prior to his original sentencing, defendant filed a motion to withdraw guilty plea, in which he asserted specific allegations of intimidation, threats, and misleading statements made by the district attorney's office during the plea negotiations. He maintained he agreed to plead guilty and cooperate only because of this intimidation and a promise by the prosecutor to recommend to the court that defendant receive a suspended sentence with probation.

As we indicated in the original appeal, a trial court may permit the withdrawal of a guilty plea at any time before sentencing. La.C.Cr.P. art. 559(A). The court's decision is discretionary, subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Hebert, 506 So.2d 863, 865 (La.App. 1st Cir.1987). Even after sentencing, if a trial judge finds "either that a plea of guilty was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and that the plea, therefore, is constitutionally infirm, the Trial Court retains the authority to vacate the sentence and set aside the plea...." State v. Lewis, 421 So.2d 224, 226 (La.1982).

A defendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated. It is not unreasonable for a trial judge to deny a defendant the luxury of gambling on his sentence, then withdrawing his plea if and when he discovers, before imposition, the sentence is not to his liking. State v. Banks, 457 So.2d 1264, 1266 (La.App. 1st Cir.1984) (citing State v. Deakle, 372 So.2d 1221 (La.1979)). However, if a plea rests in any significant degree on an agreement or promise by the prosecutor so that it can be viewed as part of the inducement or consideration for the plea, such promise must be fulfilled, or the defendant given an opportunity to withdraw the plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); State v. Bosworth, 415 So.2d 912, 927 (La.1982) (on rehearing); State v. Atley, 470 So.2d 621, 622 (La.App. 1st Cir.1985). The state's agreement to recommend probation is enforceable even if the trial court indicates the prosecutor's recommendation would not have influenced the sentence. Bosworth, 415 So.2d at 927. A defendant seeking to withdraw his guilty plea on the ground the state failed to recommend probation as agreed must establish that (1) prior to the plea, he in fact believed the district attorney would recommend probation; (2) his belief was reasonable under the overall circumstances; and (3) his belief played a substantial role in inducing him to plead guilty. State v. Bosworth, 451 So.2d 1070, 1073 (La.1984).

A guilty plea must be entered knowingly and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See also State v. White, 517 So.2d 461, 462 (La.App. 1st Cir.1987), writ denied, 521 So.2d 1184 (La.1988). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the United States Supreme Court established the following standard for the voluntariness of a guilty plea:

"[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)."

397 U.S. at 755, 90 S.Ct. at 1472 (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957) (en banc), rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)). See also Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984).

At the hearing held on remand, defendant testified that, after his arrest, law enforcement officers approached him several times while he was incarcerated, trying to get his cooperation. They told him *737

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616 So. 2d 733, 1993 WL 64452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boudreaux-lactapp-1993.