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
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Gail D. Schlosser Matthew R.
COUNSEL FOR DEFENDANT/APPELLANT, KEVIN JOHNSON Kevin V.
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and John J. Molaison, Jr.
STEPHEN J. WINDHORST, JUDGE
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.
and Procedural History
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) 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.
16, 2014, defendant withdrew his not guilty pleas and pled
guilty as charged. 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.
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.
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.
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.
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 ...