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State v. Johnson

Court of Appeals of Louisiana, Second Circuit

September 25, 2019


          Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 2015-196 Honorable John C. Hamilton, Judge.

          LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant

          JOHN M. LANCASTER District Attorney KENNETH D. WHEELER AMANDA M. WILKINS Assistant District Attorneys Counsel for Appellee

          Before WILLIAMS, STONE, and THOMPSON, JJ.

          WILLIAMS, C.J.

         The defendant, Tyrone Johnson, was charged by bill of information with one count of Distribution of a Schedule II CDS (methamphetamine), a violation of La. R.S. 40:967(A)(1). Pursuant to a plea agreement, the defendant pled guilty as charged with a sentencing cap and the state agreed not to file an habitual offender bill of information. The district court subsequently denied defendant's motion to withdraw his guilty plea and sentenced him to serve 23 years at hard labor in conformity with the agreed-upon sentence. Defendant appeals his conviction and sentence. For the following reasons, we grant the defense motion to withdraw the guilty plea, vacate defendant's conviction and sentence, and remand for further proceedings.


         The record shows that in August 2015, defendant was charged with one count of distribution of methamphetamine based on video evidence allegedly showing defendant making an illegal drug sale to an undercover agent. The bill of information reflects that the offense occurred on June 1, 2015. After arraignment in September 2015, defendant was represented by his retained counsel, Albert Ellis, prior to the trial date. Several pretrial motions were filed, including a motion for a preliminary examination.[1]During the week before trial, defendant's attorney filed a motion to withdraw as counsel of record. Then, two days before the hearing on the motion to withdraw as counsel and less than one week before trial, the state filed notice of its intent to use other crimes evidence at trial. Notably, the substantive text of the notice of intent states as follows:

The defendant is presently charged with distribution of methamphetamine. The state shows that [it] is going to use a cooperating civilian witness [CW] in the trial of the defendant. The CW made a purchase of methamphetamine from the defendant on June 1, 2015. The CW will testify that he has been making purchases from the defendant, Tyrone Johnson, for 5-10 years before June 1, 2015.
The state intends to offer evidence of the relationship between the CW and defendant pursuant to Louisiana Code of Evidence 404(B) to show the defendant's identity, mode of operation, as well as his intent, purpose, knowledge of the substance methamphetamine. The state also intends to offer evidence of the relationship between the CW and the defendant to defend against any argument that this was an accident or mistake. (Emphasis added)

         On April 29, 2016, at the hearing on the motion to withdraw as counsel, Attorney Ellis advised the court that he had been negotiating a plea deal with the district attorney, but that defense counsel's communications with defendant had broken down and defendant no longer wanted to be represented by Attorney Ellis. The state responded that allowing defendant's attorney to withdraw at a time so close to trial would require that a continuance of the trial be granted. Attorney Ellis then outlined the extensive plea negotiations he had conducted with the state on behalf of defendant, including a written plea offer that had been delivered to defendant. Defense counsel also informed the court that he had not been paid by defendant as agreed. The defense attorney requested that defendant be given additional time to obtain other counsel if he was discharged. The defense attorney pleaded with the court, noting that defendant was ill-equipped to represent himself. The district court refused to allow defendant's attorney to withdraw and advised defendant that if he fired Attorney Ellis then his case was still going to trial the following Monday, whether or not he was represented by another attorney. After an extensive discussion between defendant and the trial court, defendant responded that he was "going to keep" Attorney Ellis. The vital colloquy between defendant and the trial court reads as follows:

MR. JOHNSON: I really need to get better – a better counsel but you keep saying if I – if I fire him you're going to take me to trial, but he . . .
COURT: You're going to be representing yourself unless you can get somebody over the weekend.
MR. JOHNSON: No, but . . . he's not wanting to go to trial with the evidence they've got and the evidence I feel like they've got ain't nothing.
COURT: Well, okay. All right. You didn't answer my question. Would you tell them out there I'll be with them in just a minute? Just tell them . . . that we're in the middle of something and I'm going to let them in in just a second. I just want to make sure you understand . . . I'm not going to let Mr. Ellis withdraw. I'm not going to allow him to withdraw from the case, in other words I'm going to make him stay on the case, but you have the absolute right because you're the one who hired him, you can fire him if you want. If you say today "I want to fire him" I want you to understand – in other words if you don't fire him I'm going to make Mr. Ellis go through with the trial. But if you want to fire him . . . you can hire your own attorney but you're probably not going to get an attorney to represent you in a case – jury trial set for Monday, over the weekend. So you probably are going to be representing yourself, which you have the right to do, too. So I want to make sure you understand we're down to it and I need to go ahead and rule something, I've got something else at 9:00.
MR. WHEELER: I know he's not a public defender, he's a retained counsel, is there a different standard when somebody wants to – I know usually when they want to fire their public defender you have to question them about their ability to understand the law and the ...

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