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.
COUNSEL FOR DEFENDANT/APPELLANT, TERRY ENGLAND Terry England
Katherine M. Franks
composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and
John J. Molaison, Jr.
M. CHEHARDY CHIEF JUDGE.
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.
Background and Procedural History
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).
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.
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,
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.
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.
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). Defendant does
not move to have this Court set aside his guilty pleas;
instead, defendant requests that the matter be remanded for
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.
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).
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.
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
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
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.
reminding the trial court that defendant had previously given
a videotaped statement confessing to his involvement in
selling the drugs,  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 ...