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State v. Joseph

Court of Appeal of Louisiana, Fifth Circuit

March 25, 2015

STATE OF LOUISIANA
v.
BENNIE J. JOSEPH

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 09-4004, DIVISION " A" . HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, TERRY M. BOUDREAUX, GAIL D. SCHLOSSER, SHANNON K. SWAIM, ASSISTANT DISTRICT ATTORNEYS, Parish of Jefferson, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

MARY E. ROPER, ATTORNEY AT LAW, Louisiana Appellate Project, Baton Rouge, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg.

OPINION

Page 662

[14-762 La.App. 5 Cir. 2] ROBERT A. CHAISSON, J.

In 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 [14-762 La.App. 5 Cir. 3] plea 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

Page 663

explained 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, [14-762 La.App. 5 Cir. 4] with 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 ...


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