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State v. Johnson

Court of Appeals of Louisiana, Fifth Circuit

January 16, 2019

STATE OF LOUISIANA
v.
KEVIN JOHNSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-2330, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Gail D. Schlosser Matthew R. Clauss

          COUNSEL FOR DEFENDANT/APPELLANT, KEVIN JOHNSON Kevin V. Boshea

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          STEPHEN J. WINDHORST, JUDGE

         Defendant, Kevin Johnson, appeals contesting the voluntariness of his guilty pleas and the denial of his motion to withdraw his guilty pleas. For the reasons that follow, we affirm defendant's convictions and sentences.

         Facts and Procedural History

         On June 4, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin Johnson, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one)[1] and aggravated criminal damage to property in violation of La. R.S. 14:55 (count two). On June 17, 2013, defendant pled not guilty at his arraignment.

         On July 16, 2014, defendant withdrew his not guilty pleas and pled guilty as charged.[2] Defendant was sentenced to thirteen years, four months imprisonment at hard labor to be served without benefit of probation, parole, or suspension of sentence and a $1, 000 fine on count one and ten years imprisonment at hard labor on count two. The court further ordered defendant's sentences to run concurrently with each other and concurrently with the sentences imposed in case numbers, 13-4664, 13-5020, 14-507, and 14-1131. The trial court also recommended defendant for any self-help programs available to him through the Department of Corrections.

         On August 15, 2014, defendant, through his newly retained counsel, filed a motion to withdraw and set aside guilty plea, alleging that his former trial attorneys failed to interview and investigate potential witnesses or defenses available to him that would have proven his innocence to the charges. In support of his motion, defendant attached an affidavit from Selena Collins, an alleged eyewitness to the crimes, in which she recanted her statement identifying defendant as the perpetrator, claiming that she was "in shock" and "pressured" to name defendant. On September 10, 2014, the trial court denied defendant's motion to withdraw his guilty plea on September 10, 2014. On October 9, 2014, defendant filed a motion for reconsideration and request for a contradictory hearing. Defendant's motion was set for hearing and continued without date at the request of his counsel.

         On July 13, 2016, defendant filed an application for post-conviction relief (APCR), claiming ineffective assistance of counsel. Defendant filed a supplemental memorandum to his APCR on October 21, 2016, asserting the alleged ineffectiveness of his trial counsels' performance, which he claimed caused him prejudice by "failing to investigate the facts, interview essential witnesses, available defenses that could have placed the State's theory through an adversarial-test which ultimately would have disproven the State's theory" and by the lack of inspection of evidence. Defendant was subsequently granted this out-of-time appeal under State v. Counterman.[3]

         Because defendant pled guilty, the underlying facts were not fully developed at a trial. A factual basis was not provided at the guilty plea proceeding, therefore, the facts have been gleaned from the bill of information which provided that: on or about May 3, 2013, defendant violated La. R.S. 14:95.1, having possessed a firearm in Jefferson Parish after being previously convicted of the crime of aggravated second degree battery, in violation of La. R.S. 14:34.7, under case number 08-4682, Division "M," of the Jefferson Parish 24th Judicial District Court and that on May 3, 2013, defendant violated La. R.S. 14:55, having committed aggravated criminal damage to a 2003 Chevy Tahoe belonging to Curtis Grimes and driven by Montero Ursin.

         Discussion

         On appeal, defendant asserted three assignments of error: (1) the trial court erred in denying the motion to withdraw guilty pleas; (2) the guilty pleas were not knowingly and voluntary entered into by defendant; and (3) the guilty pleas are legally infirm. In these three related assignments of error, defendant argues his trial counsels' performance was deficient in that they failed to properly investigate this matter. Defendant contends that if they properly investigated, he would have rejected the State's plea offer and proceeded to trial. Defendant claims that his guilty pleas should be invalidated because they were entered without full and correct information, and thus ...


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