FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 518-652,
SECTION "B" Honorable Tracey Flemings-Davillier,
A. Cannizzaro, Jr. ORLEANS PARISH DISTRICT ATTORNEY Donna
Andrieu ASSISTANT DISTRICT ATTORNEY Christopher J. Ponoroff
ASSISTANT DISTRICT ATTORNEY J. Taylor Gray ASSISTANT DISTRICT
ATTORNEY CITY OF NEW ORLEANS COUNSEL FOR APPELLEE/STATE OF
Christopher A. Aberle LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Daniel L. Dysart
L. Dysart Judge.
Foster appeals a judgment of the trial court granting the
State's Motion to Correct an Illegal Sentence. For the
reasons that follow, we reverse the ruling of the trial court
and remand for further proceedings.
Foster was charged by bill of information on December 23,
2013, with one count of possession with intent to distribute
marijuana, a violation of La. R.S. 40:966 A(2). He initially
entered a plea of not guilty. Foster failed to appear three
times for various stages of his prosecution, with the trial
court forfeiting his bond and issuing warrants for his arrest
each time. On April 16, 2015, the State offered Foster a plea
of fifteen years in the custody of the Department of
Corrections, which he declined. A trial date was set, but
Foster again failed to appear and a bond forfeiture was
granted and a warrant was issued.
was arrested on the warrant on May 11, 2016. On May 19, 2016,
the State filed an additional bill of information charging
Foster with one count of bail jumping on a felony case, a
violation of La. R.S. 14:110.1 C. Following an arraignment on
the new charge, and a plea of not guilty, the trial court
granted Foster's motion to leave the jurisdiction. On
July 8, 2016, new plea negotiations transpired, and a trial
date of August 23, 2016 was set.
date, the State placed in the record the following plea
offer: "The State is offering fifteen years to Mr.
Foster as to both cases. That will be concurrent as a no
bill." Two years was offered on the bail jumping charge.
Foster answered in the affirmative when asked if he
understood the plea agreement. However, when asked if he
accepted it, he replied: "Pretty much …. Yes, I
was hoping I can stay out a little longer." He then
asked the court "[i]s there any way I can be considered
for some type of probation?" The State interjected that
it had no objection to the court recommending any and all
programs for the defendant. Court was reset for August 29,
August 29, the trial court first advised Foster as to his
Boykin rights. Foster, through counsel,
withdrew his plea of not guilty as to both counts, and
entered a plea of guilty to possession with intent to
distribute marijuana and to bail jumping. The court then
questioned Foster as to whether his pleas were entered
knowledgeably, and advised him as follows:
Do you understand the sentencing range with respect to the
possession with intent to distribute marijuana is five to
thirty years, and that your sentence will be fifty [sic]
years to the Department of Public Safety and Corrections, to
be served via Home Incarceration, pursuant to Code of
Criminal Procedure, Article 894.2? …..
And do you understand that your sentence will be two years
Department Safety and Corrections, with credit for time
served, to be served via Home Incarceration, pursuant to Code
of Procedure, Article 894.2?
responded in the affirmative. After he was again informed of
all of the consequences of pleading guilty, Foster, his
counsel and the judge signed the Felony Waiver of