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
A. Cannizzaro, Jr. District Attorney Scott G. Vincent
Assistant District Attorney Parish of Orleans COUNSEL FOR
RESPONDENT, STATE OF LOUISIANA
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins
F. Love Judge.
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.
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.
Background and Procedural History
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.
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
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.
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.
to this Court's order, an evidentiary hearing was
conducted in Section "G" with the Honorable Denis
Waldron sitting ad hoc.
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.
meeting with the FBI agents, Mr. Gallagher provided the names
of several targets for conducting controlled narcotic
purchases. Attorney Jeffery could not recall specific ...