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State v. England

Court of Appeals of Louisiana, Fifth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
TERRY ENGLAND

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-5033, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Joshua K. Vanderhooft

          COUNSEL FOR DEFENDANT/APPELLANT, TERRY ENGLAND Terry England Katherine M. Franks

          Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.

          SUSAN M. CHEHARDY CHIEF JUDGE.

         In this appeal appointed counsel for defendant challenges the trial court's acceptance of defendant's guilty pleas without further inquiry following defendant's initial reservation to pleading guilty to the charges filed against him. Further, defendant has filed a pro se supplemental brief arguing the ineffectiveness of his trial counsel resulting in his being forced to plead guilty. For the following reasons, we affirm defendant's convictions and sentences, and remand the matter for correction of the Uniform Commitment Orders.

         Factual Background and Procedural History

         In this case, defendant's convictions resulted from guilty pleas so the facts surrounding the offenses were gleaned from the bill of information. Here, the record reflects that, on or about July 19, 2017, defendant knowingly or intentionally possessed heroin with the intent to distribute in violation of La. R.S. 40:966(A), and knowingly or intentionally possessed fentanyl with the intent to distribute in violation of La. R.S. 40:967(A).

         On August 29, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Terry England, with one count of possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (count 1), and one count of possession with the intent to distribute fentanyl in violation of La. R.S. 40:967(A) (count 2). At his arraignment held on September 1, 2017, defendant pled not guilty.

         Omnibus motions, which included motions to suppress evidence and a confession, were filed by defendant. The trial court heard and denied the motions to suppress on November 9, 2017.[1]

         On December 5, 2017, defendant withdrew his not guilty pleas and, after executing a waiver of constitutional rights form, which was signed by defendant, defense counsel, and the trial judge, entered pleas of guilty as charged on both counts. After the trial court accepted the pleas, defendant was sentenced in accordance with the plea agreement. Specifically, the trial court sentenced defendant to fifteen years imprisonment at hard labor on count 1, with the first ten years to be served without benefit of probation, parole, or suspension of sentence. As to count 2, defendant was sentenced to ten years imprisonment at hard labor. The trial court also ordered the sentences to run concurrently with each other with defendant receiving credit for time served. The trial court assessed fees for defendant to pay to the Indigent Defender Board, the Jefferson Parish Sheriff's Office, and the Jefferson Parish Sheriff's Office crime lab. Additionally, the trial court recommended defendant for participation in any and all self-help programs available to him during his incarceration.

         On May 3, 2018, defendant filed an application for post-conviction relief, asserting ineffective assistance of his trial counsel. On May 7, 2018, the trial court dismissed defendant's application without prejudice and granted him an out-of-time appeal. This appeal follows.

         Law and Argument

         On appeal, defendant assigns one counseled assignment of error and one pro se assignment of error. In his counseled assignment of error, defendant argues the trial court erred in accepting his guilty pleas without further inquiry after he professed his innocence during the plea colloquy. Additionally, defendant argues the record does not demonstrate that his guilty pleas were knowingly and voluntary entered based on assertions he made "in his application for post-conviction relief and in subsequent correspondence that his guilty plea was not a voluntary one." Defendant contends the trial court should have inquired further into the voluntariness of his pleas and, at the very least, asked defendant whether his "decision to plead guilty was in recognition that it was in his best interest to do so considering the evidence against him" in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).[2] Defendant does not move to have this Court set aside his guilty pleas; instead, defendant requests that the matter be remanded for "further inquiry."

         The State argues that although defendant initially denied possession of the narcotics during the plea colloquy, defendant subsequently acknowledged his guilt and voluntarily continued with the guilty plea proceeding. Moreover, the State argues that since defendant acknowledged to the court that he had, in fact, committed the crimes to which he was pleading guilty, there was no need for the trial court to inquire further as to the voluntariness of defendant's guilty pleas. We agree.

         Under both state and federal jurisprudence, it is well settled that an unqualified plea of guilty waives all non-jurisdictional defects in the proceedings leading up to the guilty plea. State v. Crosby, 338 So.2d 584, 588 (La. 1976); State v. Gumms, 17-566 (La.App. 5 Cir. 3/14/18), 243 So.3d 725, 730. Moreover, such a plea waives any right a defendant had to question the merits of the State's case and the factual basis underlying the conviction. State v. Hayes, 15-141 (La.App. 5 Cir. 8/25/15), 173 So.3d 1222, 1224, writ denied, 15-1789 (La. 9/23/16), 200 So.3d 364. A guilty plea is not considered valid unless it is freely and voluntarily made. State v. Payton, 04-1024 (La.App. 5 Cir. 1/11/05), 894 So.2d 362, 365. Under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Shelton, 09-713 (La.App. 5 Cir. 3/9/10), 39 So.3d 601, 602, writ denied, 10-839 (La. 11/5/10), 50 So.3d 812. The defendant's waiver of these rights must be expressly and knowingly made. State v. Williams, 384 So.2d 779, 780 (La. 1980). Moreover, this waiver must be on the record, and the record must unequivocally show that the defendant's waiver was free and voluntary. State v. Ursin, 98-435 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248, 1249. The Louisiana Supreme Court has consistently stated that the knowing and intelligent nature of a defendant's waiver of rights "'depends upon the circumstances of each case.'" State v. Flier, 00-0073 (La. 6/30/00), 762 So.2d 1080 (per curiam), quoting State v. Strain, 585 So.2d 540, 544 n. 7 (La. 1991).

         Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

         Here, the record reveals that at the commencement of the guilty plea colloquy, trial counsel advised the court that defendant wished to withdraw his pleas of not guilty and plead guilty as charged in the bill of information. Trial counsel further advised that he had reviewed the waiver of rights form with defendant, and that defendant had initialed and signed the form.

         On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights. Defendant advised that he was forty-five years old and had completed the tenth grade in school. Further, defendant expressed his understanding that he was pleading guilty to possession with intent to distribute heroin and to possession with intent to distribute fentanyl, and he was advised of the statutory definitions of those offenses.

         Following a discussion during the colloquy regarding the minimum and maximum penalties for the charged offenses, defendant was asked by the trial judge to explain what occurred on July 19, 2017 that was causing him to plead guilty to possession with intent to distribute heroin and possession with intent to distribute fentanyl. At this juncture, defendant claimed that a "certain person … hid some stuff in [his] truck …" and attested that he "didn't have these drugs." In response to these assertions, the trial judge stated that if "[defendant] can't admit to a factual basis …," she could not accept his guilty pleas and the matter would proceed to trial:

BY THE COURT:
Q. I am asking you what happened. I read to you the statute. You have to knowingly, intentionally possess with the intent to distribute heroin. Did you knowingly and intentionally possess heroin with the intent to distribute it?
A. No, ma'am.
THE COURT: Then we have to go to trial.
THE WITNESS: Yes, ma'am.
THE COURT: I cannot accept the plea.

         After reminding the trial court that defendant had previously given a videotaped statement confessing to his involvement in selling the drugs, [3] and that defendant was acting "against [his] advice, the facts and law," defense counsel requested a recess to consult with defendant, his client. Following a brief interruption in the proceedings, defendant and his counsel returned to the courtroom at which time the following exchange took place:

MR. REGAN: Your Honor, I'm back here in the Court's presence with Mr. Terry England. I've had a chance to answer some additional questions from Mr. England at this point and the defendant wishes to plead guilty, take responsibility for the drugs that were in the car and take responsibility for the fact that he confessed to it on video tape when he was taken down to Maple Street, and would like the Court please [sic] to take his guilty plea pursuant to the plea agreement.
BY THE COURT:
Q. Mr. England, remember you are still ...

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