SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT,
PARISH OF EAST BATON ROUGE
Relator fails to show that he received ineffective assistance
of counsel under the standard of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
has now fully litigated his application for post-conviction
relief in state court. Similar to federal habeas relief,
see 28 U.S.C. § 2244, Louisiana post-conviction
procedure envisions the filing of a second or successive
application only under the narrow circumstances provided in
La.C.Cr.P. art. 930.4 and within the limitations period as
set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in
2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the
procedural bars against successive filings mandatory.
Relator's claims have now been fully litigated in state
collateral proceedings in accord with La.C.Cr.P. art. 930.6,
and this denial is final. Hereafter, unless he can show that
one of the narrow exceptions authorizing the filing of a
successive application applies, relator has exhausted his
right to state collateral review. The district court is
ordered to record a minute entry consistent with this per
JOHNSON, C.J. would grant the writ and assigns reasons.
post-conviction matter, defendant asserts that his
counsel's ineffective assistance during plea negotiations
rendered his plea unknowing or involuntary. Given the facts
presented in defendant's writ application, I would grant
the writ and remand the matter to the district court to
conduct a full evidentiary hearing.
was charged with a variety of offenses, primarily involving
issuing worthless checks. Without defendant present,
defendant's former attorney met with the prosecutor and
the presiding judge and reached an agreement whereby the
prosecutor would recommend a total sentence on all charges of
two years at hard labor, with each sentence running
concurrently; the prosecutor agreed not to file a habitual
offender bill; and the judge would accept the guilty pleas
and explain the penalties for each offense, not exclude the
prosecutor's recommended sentence as a possibility, and
tell the defendant that he would consider, but not be bound
by the sentence recommendation. Defendant subsequently pled
guilty to most of the charges. However his former attorney
mistakenly believed and wrongly advised the judge that
defendant had only one prior felony conviction. The judge
advised defendant of his maximum exposure if he pled and was
sentenced consecutively on all charges, and although he did
not promise to give the two-year sentence the state agreed to
recommend, he stated that it was unlikely defendant would get
that sentence. At the sentencing the state did not recommend
the two-year sentence as previously agreed, and the judge
sentenced defendant to serve 50 years at hard labor.
bargain is a contract between the state and one accused of a
crime. State v. Nall, 379 So.2d 731, 733
(La. 1980). A contract is formed by the consent of the
parties established through offer and acceptance. The offer
and acceptance may be verbal unless the law prescribes a
requirement of writing. Once there is an offer and
acceptance, the agreement is subject to specific performance.
The party demanding performance of a contract has the burden
of proving its existence. Moreover, the obligation may be
dependent upon an uncertain event. A lawful cause is also
necessary to the existence of a contract. The cause is the
reason why a party obligates himself. State v.
Louis, 94-0761 (La. 11/30/94), 645 So.2d 1144, 1149
(internal citations removed). This court has recently
As a general matter, in determining the validity of
agreements not to prosecute or of plea agreements, the courts
generally refer to analogous rules of contract law, although
a defendant's constitutional right to fairness may be
broader than his or her rights under the law of contract.
State in Interest of E.C., 13-2483, p. 4 (La.
6/13/14), 141 So.3d 785, 787 (per curiam); State v.
Cardon, 06-2305, p. 1 (La. 1/12/07), 946 So.2d 171,
171-72 (per curiam); State v. Givens, 99-3518, p. 14
(La. 1/17/01), 776 So.2d 443, 455; State v. Louis,
94-0761 (La. 11/30/94), 645 So.2d 1144, 1148-49; State v.
Lewis, 539 So.2d 1199, 1204-05 (La. 1989); State v.
Nall, 379 So.2d 731, 734 (La. 1980). See also United
States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993)
("Plea bargains rest on contractual principles, and each
party should receive the benefit of its bargain. Yet, the
analysis of the plea agreement must be conducted at a more
stringent level than in a commercial contract because the
rights involved are generally fundamental and
State v. Karey, 16-0377 (La. 6/29/17), 232 So.3d
1186, 1190, reh'g denied, 16-0377 (La. 9/6/17),
224 So.3d 959. The disposition of criminal charges by
agreement between the prosecutor and the accused has been
characterized as "an essential component of the
administration of justice." State v. Jones, 398
So.2d 1049, 1052 (La. 1981) (citing Santobello v. New
York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d
427, 432 (1971)). The plea bargaining process presupposes
fairness in agreements between an accused and a prosecutor.
Karey, 232 So.3d at 1190. The United States Supreme
Court has made clear that "when a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled." Santobello 404 U.S. at 262. Thus,
when a district attorney or assistant district attorney makes
a good faith bargain with a person accused of a crime and the
defendant, in reliance on that bargain, relinquishes a
fundamental right, the state cannot repudiate the bargain.
Karey, 232 So.3d at 1190. When a defendant enters
into such a plea agreement with the government, the
government takes on certain obligations. If those obligations
are not met, the defendant is entitled to seek a remedy,
which might in some cases be rescission of the agreement and
in others specific performance (i.e., requiring the
government to fully comply with the agreement). Id.
guilty plea is a serious and sobering occasion inasmuch as it
constitutes a waiver of the fundamental rights to a jury
trial…." Santobello, 404 U.S. at 264
(Douglas, J., concurring); Duncan v. Louisiana, 391
U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Defendant, relying
on the state's agreement, relinquished his fundamental
right of trial by jury. This court has consistently permitted
a constitutionally infirm guilty plea to be withdrawn after
sentencing by way of appeal or post conviction relief.
See State v. Dixon, 449 So.2d 463, 464 (La. 1984);
State v. Hayes, 423 So.2d 1111 (La.1982). Based on
what has been presented to this court, it appears defendant
pled guilty in reliance on his understanding that the state
agreed to recommend a two year sentence. The defendant's
guilty plea under these circumstances should not be allowed
to stand, and defendant should be allowed to withdraw his
district court dismissed defendant's petition without a
hearing. Given the great disparity between the apparent plea
agreement and the sentence imposed, and considering the
factual issues still in dispute regarding the alleged
ineffectiveness of defendant's attorney, I would grant
defendant's writ application and remand this case to the
district court with an order to conduct a full evidentiary
hearing on these issues.
Hughes, J., would grant the writ in part.
Crichton, J., additionally concurs ...