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Trotter v. Warden, La. State Penitentiary

United States District Court, W.D. Louisiana, Shreveport Division

January 26, 2015

EDWARD RAY TROTTER
v.
WARDEN, LOUISIANA STATE PENITENTIARY

Edward Ray Trotter, Plaintiff, Pro se, Angola, LA.

For Warden Louisiana State Penitentiary, also known as, Burl N Cain, Defendant: Suzanne M Owen, LEAD ATTORNEY, D A's Office (1st J D C), Shreveport, LA.

Mark L. Hornsby, United States Magistrate Judge. JUDGE STAGG.

REPORT AND RECOMMENDATION

Mark L. Hornsby, United States Magistrate Judge.

Introduction

Edward Ray Trotter (" Petitioner") was convicted by a Caddo Parish jury of distribution of cocaine. He was then charged with being a third-felony multiple offender, which would enhance the sentence he could receive for the cocaine conviction. He was found to be a third-felony multiple offender and sentenced to life imprisonment.

This court vacated the conviction and ordered a new trial based on a Batson claim. Trotter v. Warden, 718 F.Supp.2d 746 (W.D. La. 2010). Petitioner then entered into a plea bargain with the State and agreed to plead guilty to one count of possession of cocaine and being a second-felony multiple offender. The trial judge imposed an agreed sentence of 30 years. The Department of Corrections (DOC) later determined that Petitioner was not eligible for parole because his criminal history included four felony convictions. Petitioner filed an application for post-conviction relief in which he argued that (1) his guilty plea was not knowingly and intelligently made because an agreement that he would be eligible for parole was not fulfilled and (2) defense counsel rendered ineffective assistance when he persuaded Petitioner to plead guilty by telling him he would be eligible for parole. The state courts denied relief, and Petitioner now seeks federal habeas review of those claims. For the reasons that follow, it is recommended that the petition be denied.

State Court Proceedings

Several Louisiana criminal statutes, such as the one for armed robbery, provide that the sentence must be without benefit of parole. Other statutes, such as the one regarding burglary, prescribe a sentence but do not preclude the possibility of parole. If an offender's sentence does not preclude parole, eligibility is determined by the DOC pursuant to a complex statutory system including La. R.S. 15:574.4. That statute sets forth when a prisoner is eligible for parole depending on the nature of his offense, the length of his sentence, his criminal history, and other factors.

Generally, a prisoner is eligible for parole after his first felony after he serves one-third of his sentence. After a second felony conviction, a person is eligible after serving 50% of the sentence. " A person convicted of a third or subsequent felony offense shall not be eligible for parole." La. R.S. 15:574.4(A)(1)(a). Accordingly, one might be sentenced for burglary, which does not itself preclude parole, yet still be ineligible for parole because the burglary was a third or subsequent felony offense. A similar situation arose in this case.

Petitioner, represented by attorney Loyd Thomas, appeared in court before Judge Craig Marcotte and Assistant D.A. Dhu Thompson, a few days before a scheduled jury trial. The prosecutor stated that he had tendered an offer to allow Petitioner to plead guilty as charged to one count of possession of Schedule II drugs, crack cocaine, of more than 28 grams but less than 200 grams, for a sentence recommendation of 30 years hard labor, with credit for time served. Petitioner was also charged with a multiple offender bill that would enhance his sentence based on being a fourth-felony offender (which would require a life sentence). The prosecutor stated that he offered to allow Petitioner to plead to being a mere second-felony offender for the same sentence of 30 years hard labor, credit for time served, no further enhancements, and all other charges would be dismissed. Defense counsel stated that this was also his understanding. No other terms were described. Tr. 1097.

Petitioner was sworn and examined by the court. The judge reviewed his Boykin rights and the sentence he faced. The Louisiana statute for possession of cocaine, between 28 and 200 grams, provides for a sentence of " not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars." La. R.S. 40:967(F)(1)(a). The transcript of the guilty plea indicates that the judge advised Petitioner of this potential sentence but (apparently) mistakenly said that it would be " without benefit of probation, parole, or suspension of sentence." Tr. 1099.

Petitioner stated that he wanted to plead guilty because, " I'm guilty, sir." The prosecutor read a factual basis, and Petitioner agreed the facts were correct. The judge asked Petitioner if he had a chance to discuss with his attorney the nature of the charges " as well as what could happen to you." Petitioner said that he did. The judge then asked Petitioner if he had " any questions" for his attorney. There apparently was at least one question, as the transcript suggests that Petitioner and counsel conferred. The court asked if Petitioner's questions had been answered by his attorney, and Petitioner said that they had been. The court accepted the guilty plea and then turned to the second-felony multiple offender enhancement.

The court advised that the multiple offender enhancement meant that Petitioner would face a potential sentence of between 15 and 60 years, although the court understood there was an agreement that Petitioner would plead in exchange for a sentence of 30 years. The judge carefully reviewed Petitioner's Boykin rights, heard a factual basis to which Petitioner agreed, and again offered Petitioner the chance to discuss the matter with his attorney. Petitioner and his attorney then held a discussion off the record, after which Petitioner told the judge that his questions had been answered. The judge asked if Petitioner had any more questions, to which he replied, " No, sir." The court asked if the attorney had discussed with Petitioner the nature of the case and the circumstances as well as the multiple offender bill. Petitioner said that his attorney had " done his job" and that Petitioner was satisfied because counsel had been truthful with him. Tr. 1101-1106.

It appears that the enhanced sentence that Petitioner faced would have been under La. R.S. 15:529.1(A)(1), which would prescribe a sentence of imprisonment of not less than one-half the longest term and not more than twice the longest term prescribed for the underlying cocaine conviction. The statute states in La. R.S. 15:529.1(G) that sentences imposed under " this Section shall be at hard labor without benefit of probation or suspension of sentence." It thus appears that the multiple offender statute would not call for the preclusion of parole. The judge stated, however, that Petitioner was sentenced to 30 years hard labor, credit for time served, and " [s]aid 30 years are without benefit of probation, parole, or suspension of sentence." Petitioner was asked if he had any questions about the sentence, and he said he did not. Tr. 1107.

Things might have ended there, but the judge went on to state that it was his " understanding, under the habitual offender law, it's 30 years is without probation or suspension; however, you are eligible for parole at some point in time under the provisions of that; alright." The judge then ...


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