State v. Franco

646 So. 2d 1043, 94 La.App. 5 Cir. 265, 1994 La. App. LEXIS 3143, 1994 WL 638048
CourtLouisiana Court of Appeal
DecidedNovember 16, 1994
DocketNo. 94-KA-265
StatusPublished
Cited by2 cases

This text of 646 So. 2d 1043 (State v. Franco) 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. Franco, 646 So. 2d 1043, 94 La.App. 5 Cir. 265, 1994 La. App. LEXIS 3143, 1994 WL 638048 (La. Ct. App. 1994).

Opinions

IzGOTHARD, Judge.

On October 22, 1992, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Luis Franco, with one count of possession of over 400 grams of cocaine, in violation of LSA-R.S. 40:967(F), and one count of possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1. Defendant’s wife and three of their [1045]*1045daughters were made co-defendants as to the possession of cocaine charge.

On November 3, 1992, defendant, through his retained attorney, waived arraignment and entered a plea of guilty to possession of over 400 grams of cocaine. Pursuant to the plea agreement, the charge of possession of a firearm by a convicted felon was dismissed and the cocaine charges were dismissed as to defendant’s wife and daughters. Defendant also agreed to forfeit any cocaine-related assets he received, including approximately $1,100.00 which was seized at the time of his arrest.

|3On February 10, 1993, the trial judge sentenced defendant to the minimum statutorily-required period — fifteen years at hard labor without benefit of probation or parole. The judge further imposed a $250,000.00 fine, which he suspended.

Thereafter, defendant retained a new attorney, who filed a Motion and Order to Withdraw Plea on February 16, 1993. Said motion was denied on February 17, 1993. On February 19, 1993, defendant filed a Motion and Order to Reconsider Denial of Motion to Withdraw Plea, Motion to Reconsider Sentence, Motion for New Trial and Motion for Appeal. A hearing was held on the first three of these motions on June 2, June 22, and July 12, 1993. At the conclusion of the hearing, the trial judge denied defendant’s motions. Defendant thereafter brought this appeal.

FACTS

Because this case involves a guilty plea, there is very little testimony in the record regarding the events that led to defendant’s arrest. The most detailed account in the record is contained in the pre-sentence investigation report issued by the Department of Corrections and entered as Exhibit S-l.

According to defendant, he was asleep at his home on the evening of October 15, 1992, and was awakened about 11:00 p.m. when police officers knocked at his front door and executed a search warrant. The officers handcuffed defendant, his wife and their three daughters, and asked where the drugs were. Defendant told them he had none.

The officers then used police dogs to locate the cocaine, which was concealed under a bathroom sink. The officers also found a gun under defendant’s mattress. Defendant then admitted to the officers that the cocaine Land the gun were his, and that he was holding the cocaine in anticipation of selling it once the market price increased.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in denying defendant’s motion to withdraw his guilty plea.

DISCUSSION

Defendant contends that he entered his guilty plea while suffering the emotional stress of his and his wife’s imprisonment, as well as distress over the prospect of his daughters’ prosecution, and that the State’s offer to dismiss the charges against his family if he pled guilty to the possession of cocaine charge had a coercive effect on him.

A court may, on its own discretion, permit a plea of guilty to be withdrawn at any time prior to sentencing. LSA-C.Cr.P. art. 559. Once a defendant has been sentenced, however, the trial court may not set aside a guilty plea unless the facts surrounding the plea render it constitutionally deficient. State v. Smith, 406 So.2d 1314 (La.1981); State v. Alfonso, 496 So.2d 1218, (La.App. 5th Cir.1986), writ denied, 501 So.2d 206 (La.1987); State v. Kafieh, 590 So.2d 100 (La.App. 5th Cir.1991), writ denied, 625 So.2d 1053 (La.1993).

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court delineated three constitutional rights which are waived by a plea of guilty: the right to a trial by jury, the right to confront one’s accusers, and the privilege against self-incrimination. Due process requires, and the record of the plea must show, that the defendant who enters a guilty plea is informed of these rights by the trial judge and knowingly and voluntarily waives them. Boykin v. Alabama, 395 U.S. at 240, 89 S.Ct. at 1711; State v. 5Galliano, 396 So.2d 1288, 1290 (La.1981); State v. Lewis, 601 So.2d 379, 380 (La.App. 5th Cir.1992).

In the case before us, the transcript shows that the trial judge informed defendant of [1046]*1046the charges against him and the maximum sentence possible. The judge further informed defendant of his rights to trial by jury, to confront his accusers and his privilege against self-incrimination, and explained that by pleading guilty defendant was giving up these rights. The defendant indicated several times throughout the colloquy that he understood his constitutional rights and the consequences of pleading guilty.

The record also contains a waiver of rights form, signed by defendant, his attorney and the trial judge, indicating that defendant understood his constitutional rights and the ramifications of his guilty plea. Later, during the hearing on defendant’s post-conviction motions, defendant again testified that he had understood what he was doing when he pled guilty.

As a general rule, the denial of a motion for withdrawal of a guilty plea will not be overturned on appeal where the record clearly shows that the defendant was fully apprised of his rights and that he entered his plea knowingly and voluntarily. State v. Cook, 591 So.2d 1248 (La.App. 5th Cir.1991).

The record in the case before us clearly shows that defendant was properly informed of his rights and knowingly entered his plea. The question before us then is whether defendant entered his plea voluntarily. We find that he did.

While the defendant testified at the hearing that he pled guilty because he felt it was the only way for him to get his wife out of jail and the charges against his wife and daughters dropped, this assertion, even if true, does not rise to the level of a constitutionally deficient, involuntarily-entered guilty plea. The record |6reveals that defendant knew he was receiving the best possible sentence by pleading guilty to the possession charge. Defendant had a prior conviction of possession with intent to distribute cocaine. Pursuant to LSA-R.S. 15:529.1, he could have been “double-billed” as to this charge, thereby incurring a much greater sentence if convicted. Additionally, defendant was charged with being a convicted felon in possession of a firearm, in violation of LSA-R.S. 14:95.1. A conviction of this charge alone could have resulted in defendant being sentenced to ten years in jail.

Defendant’s plea bargain with the State, in which he received the benefit of having all of the other charges and possible charges dropped, including the charges pending against his wife and daughters, in exchange for pleading guilty to the possession of cocaine charge only, and receiving the minimum sentence allowed by law1, was not involuntarily entered. While defendant may have suffered emotional distress at the time he entered his plea, this alone does not signify a constitutional deficiency.

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Related

State v. Matthews
720 So. 2d 153 (Louisiana Court of Appeal, 1998)
State v. Lassere
683 So. 2d 812 (Louisiana Court of Appeal, 1996)

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Bluebook (online)
646 So. 2d 1043, 94 La.App. 5 Cir. 265, 1994 La. App. LEXIS 3143, 1994 WL 638048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-franco-lactapp-1994.