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
M. LANCASTER District Attorney KENNETH D. WHEELER AMANDA M.
WILKINS Assistant District Attorneys Counsel for Appellee
WILLIAMS, STONE, and THOMPSON, JJ.
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.
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.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)
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 ...