State v. Joseph

169 So. 3d 661, 14 La.App. 5 Cir. 762, 2015 La. App. LEXIS 565, 2015 WL 1402822
CourtLouisiana Court of Appeal
DecidedMarch 25, 2015
DocketNo. 14-KA-762
StatusPublished
Cited by6 cases

This text of 169 So. 3d 661 (State v. Joseph) 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. Joseph, 169 So. 3d 661, 14 La.App. 5 Cir. 762, 2015 La. App. LEXIS 565, 2015 WL 1402822 (La. Ct. App. 2015).

Opinion

ROBERT A. CHAISSON, Judge.

|2In this appeal, defendant, Bennie Joseph, challenges the trial court’s denial of his motion to withdraw his guilty plea to possession of cocaine. For the reasons which follow, we find no error in the trial court’s ruling and accordingly affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On July 28, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967(A). At the arraignment, defendant pled not guilty. On July 10, 2013, the parties appeared for trial, at which time the State entered into Lplea negotiations with defendant. Pursuant to the discussions between the parties, the State agreed to amend the charge to possession of cocaine and to “only double bill” defendant even though the State believed he was a fourth felony offender. The State also agreed that defendant would receive sentences of thirty months on the underlying conviction and on the multiple bill, after the original sentence was vacated. After the State expressed the terms of the plea agreement on the record, defendant indicated that he wished to withdraw his plea of not guilty and plead guilty to the reduced charge of possession of cocaine, - a violation of LSA-R.S. 40:967(C)(2).

The trial judge thereafter conducted a very thorough colloquy with defendant. He first confirmed that defendant’s attorney had reviewed the waiver of rights form with him. Defendant specifically told the judge that his attorney had reviewed the form with him, that he had placed his initials next to each of the provisions on the form, and that he had signed the form acknowledging that his rights had been [663]*663explained to him and that he wished to waive those rights.

The trial judge thereafter personally advised defendant of his rights and the consequences of his guilty plea. In particular, the trial judge advised defendant of his right to a trial by jury or by judge alone, his right to confront his accusers and to call witnesses, and his privilege against self-incrimination. The trial judge then verified that defendant was forty years old, had obtained a G.E.D., and understood that he was pleading guilty to possession of cocaine. The trial court explained the possible sentencing range to defendant and further advised him that pleading guilty to a felony charge exposed him to greater penalties as a habitual offender in the event that he would plead guilty or be found guilty of a subsequent felony in the future. The trial court continued by informing defendant that upon acceptance of his plea, he would be sentenced to thirty months in the Department of Corrections, |4with credit for time served, and would also be ordered to pay a public defender fee. The trial court specified that the State planned to double bill him and to ask for a sentence of thirty months on the multiple bill.

During the colloquy, defendant assured the trial judge that he had not been forced, coerced, intimidated, or promised anything in order to get him to plead guilty. Throughout the guilty plea proceedings, defendant indicated that he understood his rights, that he wished to waive his rights, and that he understood the consequences of his guilty plea, including the sentence that would be imposed. After his detailed exchange with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, freely, and voluntarily made.

On July 12, 2013, defendant appeared for sentencing. At the beginning of the proceedings, defendant made an oral motion to withdraw his guilty plea alleging that his guilty plea was not knowingly and intelligently made because his counsel provided erroneous advice about the length of time he would actually serve in prison. Specifically, his counsel advised him that a plea with a thirty month sentence “would result in him doing 40 percent of that sentence under the good time statutes.” Counsel explained to defendant that he would “essentially have to do twelve months,” and that since he had already served about five and a half months, he would only need to serve an additional six and a half months. In arguing his motion, defense counsel advised the trial court that he did not realize until that morning that defendant did not qualify for good time diminution of sentence because of the multiple offender bill and that had defendant known he had to serve thirty months, he never would have agreed to plead guilty.

After listening to arguments of counsel, the trial court determined that defendant’s guilty plea was knowingly and intelligently entered and accordingly denied his motion to withdraw the plea. In so ruling, the trial judge noted that he |Radvised defendant that his sentence would be thirty months, that he “went through great lengths to insure that he was aware of the sentence, that he understood the sentence,” and that he does not calculate time to be served because computation of time is a function of the Department of Corrections. Further, the court stated: “The fact that he may be under a misbelief as to how his time would be calculated does not affect his plea.” Following this denial, the trial court sentenced defendant, in accordance with the plea agreement, to thirty months in the Department of Corrections.

On August 7, 2013, defendant reurged his motion to withdraw his guilty plea and proffered his testimony, as well as the testimony of his father, Bennie Joseph, Jr., [664]*664and his life partner, Sefonia Henderson. They all testified that their understanding of the plea agreement was that defendant would only have to serve about seven more months in jail with “good time” credits. In addition, defendant testified that his attorney never told him that he was going to serve thirty months flat time, and had he known that, he never would have entered into the plea agreement. The trial judge thereafter denied defendant’s motion to withdraw his guilty plea. In so ruling, the trial court noted that he conducted a lengthy colloquy with defendant and that he, at no time, indicated to defendant that his sentence was going to be seven and a half months. In addition, the trial court recognized that the plea offer made to defendant was “very good,” especially in light of the fact that defendant was looking at a much longer sentence if he was billed as a quadruple offender.

After a hearing on November 19, 2013, the trial court found defendant to be a multiple offender and vacated his original sentence. In accordance with the plea agreement, the trial court sentenced defendant, as a second felony offender, to | fithirty months with credit for time served. Defendant now appeals.1 In his sole assigned error, defendant contends that the trial court erred in denying his motion to withdraw his guilty plea. For the reasons that follow, we find no merit to defendant’s argument that his guilty plea was not knowingly and intelligently made because it was based on erroneous advice by his attorney as to the actual amount of time that he would serve in prison.

LAW AND ANALYSIS

Pursuant to LSA-C.Cr.P. art. 559(A), the trial court may permit a defendant to withdraw his guilty plea at any time before he is sentenced. Once a defendant is sentenced, only those pleas that are constitutionally infirm may be withdrawn by appeal or by post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin2

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Cite This Page — Counsel Stack

Bluebook (online)
169 So. 3d 661, 14 La.App. 5 Cir. 762, 2015 La. App. LEXIS 565, 2015 WL 1402822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-joseph-lactapp-2015.