State v. King

97 So. 3d 1029, 11 La.App. 5 Cir. 985, 2012 WL 1957558, 2012 La. App. LEXIS 774
Procedural entryThis page is a short order in State v. King. Read the opinion of the Court — 11 La.App. 5 Cir. 767
Louisiana Court of Appeal·Decided May 31, 2012·No. No. 11-KA-985·Published

Opinion

MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Brendan King (“King”), appeals his conviction and sentence on a charge of theft of a value of more than $500 in violation of La. R.S. 14:67. For the reasons that follow, we affirm.

King, who is a car mechanic by profession, was restoring a recently purchased car for Joyce LeBlanc (“Ms. LeBlanc”). During the restoration process, Ms. Le-Blanc allowed King to live in her home. Subsequently, Ms. LeBlanc received a call from her bank, notifying her that her account was overdrawn. Upon investigation, Ms. LeBlanc discovered that King had gained access to her checkbook and written several checks to “Cash” totaling $4,390. King forged Ms. LeBlanc’s signature and cashed the checks. King endorsed the checks using his driver’s license for identification.

After Ms. LeBlanc reported the theft, the St. John the Baptist Parish District Attorney’s Office filed a bill of information charging King with theft of $500 or more in violation of La. R.S. 14:67. On November 30, 2009, King pled guilty as charged, and the trial judge sentenced him to imprisonment at hard labor for five years that was suspended and deferred under La.C.Cr.P. art. 893. That article allows suspension and deferral of sentence and probation under certain [«¡circumstances. King was accepted into a drug court program on December 3, 2009.

On August 17, 2011, the trial judge revoked King’s drug court probation for lack of compliance with the conditions of the drug court probation and sentenced him to imprisonment at hard labor for five years, the original sentence imposed and deferred. King filed a timely motion for appeal on August 19, 2011 that was granted.

During the guilty plea colloquy, the trial judge stated that the factual circumstances indicated King stole eleven checks from an individual and named himself as the payee on those checks. When the trial judge [1031]*1031asked King if those facts were correct, King answered affirmatively. The bill of information alleged that the offenses occurred on or between January 8 and February 1, 2009. Additionally, the waiver of rights form indicates that the amount stolen was $4,390.

LAW AND ANALYSIS

In brief to this Court, King asserts the trial court abused its discretion in failing to permit him to withdraw his guilty plea before sentencing. King argues that the trial judge erred by not allowing him to withdraw his guilty plea before imposing the five-year sentence. He asks this Court to vacate his sentence or, alternatively, to conditionally vacate his sentence and remand the matter so the trial court can conduct an evidentiary hearing to determine whether the plea bargain ought to be enforced or whether he ought to be provided with an opportunity to withdraw his guilty plea.

King does not assign any error regarding the revocation of the drug court probation or suggest that he complete the program. His arguments are restricted to |4the issue of whether, after the revocation, he should have been allowed to withdraw his guilty plea.

At the drug court revocation hearing, the prosecutor said there had been some conversation at sidebar at the last court hearing regarding King’s understanding of whether he had pled into the drug court program. The prosecutor produced the transcript of King’s plea and argued that it clearly showed it was a drug court plea.

Defense counsel responded that the issue was whether or not King had the ability and the right to file a motion to withdraw the guilty plea based on the fact that he originally agreed to a one-year drug court program, but that was not what was assigned or imposed upon him. The prosecutor countered that it was a two-year drug court program. The prosecutor noted that, on the conditions of drug court form, Judge Jasmine had crossed out the one-year and put two years.

Alternatively, the prosecutor argued that that issue was moot because King did not even last one year in the program. She additionally asserted that the minutes reflected that he had a thirty-day opt-out period to question anything. She stated that each minute entry indicated King was advised of the opt-out period and that he could have asked any questions, or questioned the time period for the drug court program during those thirty days. The prosecutor noted that King had signed the conditions of drug court form agreeing to the two years after Judge Jasmine crossed out the one year. Finally, the prosecutor asked the trial judge to sentence King to five years in the Department of Corrections since he was “revoked out of the drug court program.”

After hearing arguments of counsel and reviewing the transcript of the Boykin colloquy, the trial judge stated:

IsClearly, in my discussion with him, I’m mentioning Judge Jasmine many times. I’m mentioning drug court many times. I’m mentioning the fact that Judge Jasmine will actually take actions at drug court. And clearly there’s no, “Stop, Your Honor, I don’t think I’m worried about drug court here.”
So really, I’m agreeing with Ms. Din-vaut today, that I’m going to revoke and impose those first five years as originally contemplated in this Boykin. I know he differs in his appreciation of what the Boykin may or may not have contained, but here it is in black and white.
And so I see my way through to now sentencing him to those five years and not permitting him to take his plea away.... But at this point, based on [1032]*1032what I’m hearing today and the argument and the condition of this Record, I am going to impose the original suspended term of five years giving him credit for all time served.

If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief.1 Additionally, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief.2 A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin3 colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.4

Although King did not file a motion to withdraw his guilty plea in the district court, he is not prohibited from challenging a constitutionally infirm guilty plea either by means of appeal or post-conviction relief.5

The record shows that, on November 30, 2009, the prosecutor informed the trial judge that King wanted to plead guilty “pursuant to going into the drug program.” The trial judge then engaged in a colloquy with King where he advised King of his rights and ascertained that King understood them and wanted to waive | (¡them. The trial court explained that probation was the minimum and twelve years of imprisonment was the maximum sentence for the crime to which King was pleading guilty. King indicated his attorney had informed him of the possible sentencing range.

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State v. King, 97 So. 3d 1029, 11 La.App. 5 Cir. 985, 2012 WL 1957558, 2012 La. App. LEXIS 774 (La. Ct. App. 2012).

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