State v. Stewart

862 So. 2d 1271, 2003 WL 23025629
Louisiana Court of Appeal·Decided December 30, 2003·No. 03-KA-976·Published·Cited by 20 cases

Opinion

862 So.2d 1271 (2003)

STATE of Louisiana
v.
Vincent T. STEWART.

No. 03-KA-976.

Court of Appeal of Louisiana, Fifth Circuit.

December 30, 2003.
Rehearing Denied January 21, 2004.

*1273 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.

Prentice L. White, Appellate Counsel, Baton Rouge, LA, for Defendant-Appellant.

Vincent T. Stewart, In Proper Person.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.

EDWARD A. DUFRESNE, JR., Chief Judge.

On June 10, 1999, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of possession with intent to distribute cocaine, in violation of LSA-R.S. 40:967(A). At the arraignment, defendant pled not guilty. On February 15, 2001, the state amended the bill of information to reflect that defendant would be charged with two counts of simple possession of cocaine, in violation of LSA-R.S. 40:967(C). On that same date, defendant withdrew his pleas of not guilty and, after being advised of his rights, pled guilty to the amended charges.

As part of the plea agreement, defendant was to be sentenced to five years imprisonment at hard labor on each count, to run concurrently, and the state waived its right to multiple bill defendant. At this *1274 time, defendant requested that he be given a continuance on sentencing to get his affairs in order. The trial judge agreed to defer sentencing and specifically informed defendant that the promised sentence was contingent upon him appearing for the sentencing hearing on March 19, 2001. In response to questions by the trial judge, defendant indicated that he understood the consequences of failing to appear. On March 19, 2001, defendant failed to appear for sentencing. At the request of the state, the trial court ordered that an attachment be issued for defendant.

On March 23, 2001, the state filed a multiple offender bill of information charging defendant as a second felony offender. On January 7, 2002, defendant appeared in court. The trial judge informed defendant that since he did not appear as required, he would not sentence him in accord with the original plea agreement. The trial court subsequently sentenced defendant to imprisonment at hard labor for five years on each count, with the sentences to run consecutively. On that same date, defendant orally objected to the excessiveness of the sentences and denied the allegations of the multiple bill of information. On January 17, 2002, at the commencement of the habitual offender hearing, defense counsel objected to the state's right to bring the multiple offender proceedings since the plea agreement stated that defendant would not be multiple billed. The trial court ruled against defendant, finding that the state could bring the multiple offender proceedings.

Following this ruling, defendant reserved his right to raise this issue on appeal, and thereafter admitted the allegations of the multiple bill. The trial court vacated the sentence on count one and sentenced defendant to imprisonment at hard labor for seven years, to run consecutively with the five year sentence on count two. The trial court also ordered the sentences to run concurrently with any sentence defendant would have to serve for violating his parole. Defendant thereafter appealed, asserting that the trial court erred in not sentencing him according to the original plea agreement, and further that the sentence imposed was excessive.

In his initial appeal, this court found that there was no ruling on a motion to withdraw guilty plea which had been filed by defendant on March 1, 2001. In determining that a ruling on defendant's assignments of error would be premature, this court, stated, in part, as follows:

On appeal, the Defendant raises issues involving the validity of the guilty plea. We cannot address these issues on the record before us. Rather, we find that the issue should be handled in an evidentiary hearing on the Defendant's motion to withdraw guilty plea. At that hearing, the intent of all parties can be explored, a determination can be made as to whether the guilty pleas were entered based on a misunderstanding of the agreement, and a record can be made from which we can review the Defendant's claims if necessary. We reserve to the Defendant, the right to appeal in the event of an adverse ruling and to re-assert the assignments of error raised herein.
Accordingly, for the foregoing reasons, we dismiss the appeal, deferring consideration of the Defendant's assignments of error asserted herein, and remand the case to the trial court for an evidentiary hearing and ruling on the outstanding motion to withdraw guilty plea, reserving to the Defendant the right to re-lodge his appeal.
State v. Stewart, 02-593 (La.App. 5 Cir. 12/11/02), 836 So.2d [268], 271.

On January 21, 2003, a hearing was held on defendant's motion to withdraw guilty *1275 plea as mandated by this court. At that hearing, defense counsel stated in pertinent part:

Judge, while it's our understanding that we have the right to have an evidentiary hearing in this matter, Mr. Stewart understands that he would have the right to take the stand and testify in his own behalf. Other than that, I don't see any other potential witnesses which we could call for the hearing; however, I would like to make an argument on his behalf at his direction.

Defense counsel and the prosecutor thereafter presented arguments to the court. After considering these arguments, the court denied defendant's motion to withdraw guilty plea, noting that defendant clearly understood the consequences of his failure to appear for sentencing. Defendant now appeals.

VALIDITY OF GUILTY PLEA

On appeal, defendant asserts that the trial court erred in failing to conduct an evidentiary hearing prior to denying the motion to withdraw the guilty plea, that the trial court violated the terms of his plea agreement with the state, and further that he is entitled to specific performance of the plea agreement. We first note that defense counsel failed to brief the issue regarding the trial judge's failure to conduct an evidentiary hearing. Pursuant to Uniform Rules— Courts of Appeal, Rule 2-12.4, this issue can be deemed abandoned.

Moreover, even if defendant had properly preserved this issue, there is no merit to his argument. The record reflects that defendant understood he had the right to an evidentiary hearing, that he had the right to take the stand and testify, but that he instead chose to have his counsel make an argument on his behalf. Defendant was clearly given the opportunity to put on evidence but chose not to do so. As such, defendant waived the opportunity for an evidentiary hearing.

Defendant also argues that the trial court committed reversible error by denying his motion to withdraw guilty plea

LSA-C.Cr.P. art. 559(A) gives the district court judge the discretion to permit a withdrawal of a guilty plea at any time prior to sentencing. Once a defendant has been sentenced, a guilty plea may not be withdrawn unless the plea is found to be constitutionally infirm. State v. Bell, 00-1084 (La.App. 5 Cir. 2/28/01), 781 So.2d 843, 847, writ denied, 01-776 (La.4/26/02), 813 So.2d 1098. Generally, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the rec

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State v. Stewart, 862 So. 2d 1271, 2003 WL 23025629 (La. Ct. App. 2003).

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