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State v. Gallagher

Court of Appeals of Louisiana, Fourth Circuit

June 26, 2019

STATE OF LOUISIANA
v.
ANTONIO GALLAGHER

          Application for Writs Directed to Criminal District Court Orleans Parish No. 519-719 C\W 528-784, SECTION "G" Honorable Dennis J. Waldron, Judge.

          JENKINS, J., DISSENTS WITH REASONS Laura Bixby Orleans Public Defenders COUNSEL FOR DEFENDANT/RELATOR, ANTONIO GALLAGHER

          Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney Parish of Orleans COUNSEL FOR RESPONDENT, STATE OF LOUISIANA

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Terri F. Love Judge.

         Relator, Antonio Gallagher, seeks review of the trial court's March 22, 2019 finding that his guilty plea bargain was knowingly, intelligently, and freely entered. Specifically, Mr. Gallagher contends that the trial court erred by 1) refusing to take testimony or evidence regarding events that occurred after his plea; 2) by not finding that his plea was induced by a broken promise, and 3) by not finding that the memorandum of understanding was invalid under contract law. Mr. Gallagher's contentions have merit.

         Upon review, we find that the trial court did not follow this Court's previous instructions on remand for determining whether Mr. Gallagher's plea bargain was constitutionally infirm. Therefore, we grant the writ, vacate the trial court's judgment, and remand the matter for further proceedings consistent with this opinion.

         Factual Background and Procedural History

         Mr. Gallagher was charged by bill of information with possession with intent to distribute cocaine, a violation of La. R.S. 40:967(B)(1). Mr. Gallagher entered a plea of guilty as charged and received a combination of a suspended sentence and probation. Mr. Gallagher also executed a Memorandum of Understanding ("MOU") signed by himself, defense counsel and the district attorney concerning the terms of his plea. Mr. Gallagher was released pursuant to the MOU to effectuate the terms outlined therein.

         Mr. Gallagher subsequently filed a Motion to Withdraw Guilty Plea. Defense counsel and the State presented argument regarding Mr. Gallagher's motion to withdraw guilty plea and motion to set evidentiary hearing. Because defense counsel expressed the intent to call Mr. Gallagher's prior counsel, who was also the law clerk to the Honorable Laurie White in Section "A", Judge White recused herself and ordered the case be reassigned to another section of court for the purpose of the motion to withdraw the guilty plea only.

         The matter was re-allotted to Section "G." The Honorable Judge Byron Williams heard argument and reviewed memoranda as to Mr. Gallagher's motion to withdraw the guilty plea. However, no testimony was presented. The court denied Mr. Gallagher's motion to withdraw the guilty plea without conducting an evidentiary hearing. Mr. Gallagher objected and noticed his intention to seek writs.

         In State v. Gallagher, 18-0183 (La.App. 4 Cir. 6/7/18), 249 So.3d 915, writ denied, 18-1003 (La. 10/8/2018), 253 So.3d 799, this Court granted Mr. Gallagher's writ, vacated the trial court's denial of his motion to withdraw guilty plea, and remanded the matter to the trial court to conduct "an evidentiary hearing regarding the validity, terms, and parties' compliance with the MOU and then to determine whether defendant has established his guilty plea was constitutionally infirm." Id., 18-0183, p. 15, 249 So.3d at 924.

         Pursuant to this Court's order, an evidentiary hearing was conducted in Section "G" with the Honorable Denis Waldron sitting ad hoc.

         Testimony

         Lindsay Jeffrey, Mr. Gallagher's attorney when the guilty plea and MOU were negotiated and executed, testified that prior to becoming Judge White's Law Clerk she worked as an Orleans Public Defender and represented Mr. Gallagher. As part of her defense, a MOU was entered into between Mr. Gallagher and the State. Attorney Jeffrey explained that the terms of the MOU offered Mr. Gallagher a probated sentence if he would cooperate with the FBI and the State of Louisiana. The cooperation required that Mr. Gallagher become an informant and conduct drug buys to assist law enforcement agents find and convict other drug dealers. At the time the MOU was executed, Mr. Gallagher had been in jail for several months. Attorney Jeffery recalled Mr. Gallagher expressing concern because he had no money, clothes, or financial resources in the presence of the FBI. Attorney Jeffery stated the FBI agent was aware that Mr. Gallagher would need financial assistance to perform his role as a drug buyer. Attorney Jeffery had no contact with Mr. Gallagher after he was released from jail. To her knowledge, Mr. Gallagher did not have a phone.

         At the meeting with the FBI agents, Mr. Gallagher provided the names of several targets for conducting controlled narcotic purchases. Attorney Jeffery could not recall specific ...


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