STATE of Louisiana
v.
Mark Joseph BLANCHARD.
Supreme Court of Louisiana.
*702 Richard P. Ieyoub, Attorney General, Earl B. Taylor, District Attorney, Gary C. Tromblay, Houma, Counsel for Applicant.
Allen B. Rozas, Mamou, Counsel for Respondent.
PER CURIAM:[*]
We granted the state's application in the present case to determine whether the court of appeal erred in setting aside as an abuse of discretion a ruling by the trial judge that respondent could not withdraw his "best interest" pleas, see North Carolina v. Alford,
The state initially charged respondent in a single grand jury indictment with two counts of contributing to the delinquency of a minor, La.R.S. 14:92, two counts of indecent behavior with a juvenile, and one count of sexual battery in violation of La. R.S. 14:43.1. The crimes involved two juvenile girls, M.H. and M.B.B., who attended the same high school where respondent worked as an athletic coach, and took place on the same day after respondent allegedly engaged the victims in a game of strip *703 poker at his home. The state obtained a separate grand jury indictment under the same docket number charging respondent with an unrelated sexual battery committed on F.K., another juvenile girl. The state subsequently gave respondent notice that it would use the F.K. incident as other crimes evidence under La.C.E. art. 404(B), see State v. Prieur,
Trial of respondent on two counts of indecent behavior with a juvenile and one count of sexual battery began with jury selection on Monday, December 7, 1998. The court thеn recessed trial until the following Wednesday. On the morning of December 9, 1998, F.K., whose whereabouts had been discovered by the state only hours before trial was set to resume, appeared in court to testify on the state's Prieur notice. After hearing F.K.'s testimony, and entertaining argument on the motion, the court deferred ruling on the admissibility of the other crimes evidenсe until it considered the testimony of M.H. and M.B.B. during trial. The state therefore agreed not to mention the F.K. incident in its opening remarks to the jury. At the close of this hearing conducted out of the jurors' presence, respondent conferred with counsel and subsequently entered his Alford pleas on three counts of indecent behavior with a juvenile, the third count reduсed by the state from an original charge of sexual battery involving M.B.B. The record contains no disposition of the counts charging contributing to the delinquency of a minor.
Respondent subsequently moved to withdraw his pleas, alleging that a variety of factors had combined to undercut the voluntariness of his decision to forego trial. After conducting a hearing аt which respondent, defense counsel and the prosecutor testified, the court denied the motion and sentenced respondent to serve six years imprisonment at hard labor on one count. On the remaining counts, the court sentenced respondent to concurrent seven-year terms of imprisonment, suspended, with consecutive five-year probationary terms. Among the conditions imposed on respondent's probationary terms is the requirement that he register and provide notice of his sex offender status according to law. La.C.Cr.P. art. 895(H); see also La.R.S. 15:542.
On appeal, the Third Circuit reversed upon finding that the trial court abused its discretion in denying respondent's motion to withdraw his pleas. State v. Blanchard, 99-1076 (La.App. 3rd Cir.3/22/00), ___ So.2d ___ (unpub'd). The court of appeal focused on three factors. First, the trial court had failed to mention the sex offender registration and notice provisions of La.R.S. 15:542 and La.C.Cr.P. art. 895(H) during the plea colloquy. Blanchard, 99-1076 at 6, ___ So.2d at ___. Respondent's motion to withdraw the pleas alleged that he first learned of the reporting requirements from the probation officer who interviewed him as part of a presentence investigation ordered by the court. The court of appeal considered this factor critical in light of our decision in State v. Calhoun, 96-0786, p. 9 (La.5/20/97),
La.C.Cr.P. art. 559 provides that a trial judge "may permit a plea of guilty to be withdrawn at any time before sentence." The court possesses broad discretion in this regard but we have repeatedly emphаsized that "this discretion cannot be exercised arbitrarily, and abuse of discretion can be corrected on appeal." Calhoun, 96-0786 at 6,
In the present case, we find no arbitrariness in the trial judge's rejection of those factors deemed by the court of appeal critical to the defendant's motion to withdraw his pleas. With regard to the trial court's failure to address Louisiаna' sex offender registration and notice provisions at the time respondent entered his pleas, we made our observation as to the importance of a similar failing in Calhoun in the context of testimony by the petitioner at the hearing on his pro se motion to withdraw his guilty plea that he had "learned of the registration requirements only after he had entered his guilty рleas and, then, only after someone had informed his wife of the sex offender registration laws." Calhoun, 96-0786 at 4,
In the present case, and despite the allegations in the written motion to withdraw, the testimony of defense counsel and rеspondent at the evidentiary hearing made clear that respondent was well aware of the sex offender notice and registration laws before he entered his pleas and that he had sought a disposition of the case by which he could avoid the reporting requirements altogether. Respondent testified that he would not have entered his pleas if he had known with certainty that he would have to comply with the registration law. Nevertheless, on the basis of defense counsel's explanation that by entering "best interest" pleas he "wasn't really pleading guilty or wasn't really pleading innocent," respondent had "assumed that I no longer would have to report." However, respondent did not attribute thаt assumption to any representations made by the trial court, the prosecutor, or by defense counsel. In fact, defense counsel testified that he informed respondent that he would have to register if he pleaded guilty and it appeared to counsel that respondent, who was a college graduate, had understood the consequences of a proceeding which would end in convictions for sexual offenses. It appears that the decision to enter "best interest" pleas was to accommodate respondent's steadfast claims of innocence and not to shelter *705 him (if at all possible) from the notice and registration requirements of the law. Although it may havе arisen from a misunderstanding with counsel on this point, respondent's unsupported belief, hope, or expectation of avoiding the sex offender notice and registration requirements, of which he was generally aware, did not provide a basis for withdrawal of a guilty plea. See State v. Lockwood,
With regard to the state's notice of its intent to introduce the testimony of F.K. at trial, testimony at the hearing established that despite the state's notice in the week before jury selection began that it would seek to introduce her testimony under La.C.E. art. 404(B), neither defense counsel nor respondent believed that the state could find the witness and that they would have to defend against that charge as well as the crimes involving B.H. and M.B.B. Howevеr, the district attorney's investigator fortuitously located F.K. at the last moment, and she appeared in court to testify, outside the presence of the jury, that respondent had touched her inappropriately on one occasion and made suggestive comments to her on another. In argument on its motion, the state informed the trial court thаt "[t]here was a bathing incident involving one of these girls [B.H. and M.B.B.]" and that the evidence provided by F.K. "would be admissible to show the absence of mistake.... an intent to molest, fondle and touch young girls on the part of this defendant...." Because the crime of indecent behavior with a juvenile requires proof of specific intent, La.R.S. 14:81, and sexual battery requires prоof that the proscribed act was intentional, La.R.S. 14:43.1, the state had articulated a legitimate rationale for introducing F.K.'s testimony to allay any concern jurors might have had that respondent's conduct, even if it had occurred, may have been accidental or inadvertent. See State v. Miller, 98-0301, pp. 11-12 (La.9/9/98),
Nevertheless, although pressed by defense counsel for an immediate ruling, the trial judge deferred his decision because "the only way this thing can be handled is I've got to hear the other evidence before I can determine if this is relevant or not." Although preferable, a pretrial resolution of the issue "is not always required." State v. McDermitt,
Respondent testified at the evidentiary hearing that he "plead guilty because I didn't think trial was in the best of my interest at the time because we were not prepared to rebut Ms. Frances King as part of the evidence in that trial." His *706 testimony in that regard was not entirely accurate. The transcript оf the mid-trial hearing shows that defense counsel crossexamined F.K. effectively on the basis of her prior statement to the police and established that even after respondent allegedly fondled her she had considered babysitting for him and had visited his home on one occasion. Counsel thereby forced F.K. to concede that her subsequent conduct appeared wholly inconsistent with her testimony that respondent's sexual advances had confused and frightened her. Although defense counsel testified at the evidentiary hearing that a pre-trial ruling on F.K.'s testimony "would have helped me a lot," he was not wholly unprepared to meet testimony which, even without an express ruling by the trial court at thаt point, he and respondent could reasonably have anticipated they would have to confront at trial.
In this context, the trial court had a reasonable basis for concluding that the pressure brought to bear on the defense by the state's intent to introduce evidence of the F.K. incident stemmed not from its decision to defer ruling on the state's nоtice but from the state's unanticipated resourcefulness in finding the witness and producing her in open court. Although the prosecutor testified at the evidentiary hearing that it was "absolutely not" his intent to place additional pressure on respondent to reconsider his decision to stand trial by offering him a preview of F.K.'s testimony, any pressure brought to beаr on respondent in that regard was "an inevitableand permissibleattribute of any legitimate system which tolerates and encourages the negotiation of pleas .... [and which] necessarily accept[s] as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to fоrgo his right to plead not guilty." Bordenkircher v. Hayes,
Finally, defense counsel conceded at the evidentiary hearing that the prosecutor had informed him in advance of jury selection that he knew members of both victims' families. According to the prosecutor, at that time, defense counsel professed that any acquaintanceship would not present a problem. However, counsel testified that he did not "connect" with the information until after selection of the jury. His sudden realizаtion caused him "some uneasiness." In particular, defense counsel and the mother of one of the victims sang in the same church choir and he "knew her very well." According to defense counsel, he conveyed that information to respondent, who testified at the evidentiary hearing that on the night before trial he had sensed that counsel had lost confidence and "was not going to be comfortable with attacking the district attorney's prosecution like he had been, like he had acted earlier."
Nevertheless, counsel's failure to "connect" immediately with the information provided by the prosecutor indicates that the relationships were too attenuated to have explained respondent's perception of counsel's eroding zeal for trial. See State v. Kirkpatrick,
In summary, we find no abuse of the trial court's discretion in concluding that the sudden prospect of defending against evidence provided by F.K., coupled with the state's agreement to reduce the charge of sexual battery involving M.B.B., provided thе impetus for respondent's pleas. The court conducted a thorough plea colloquy with respondent during which it fully advised him of the trial rights he was waiving and obtained respondent's assurances that he understood his trial rights, that he was waiving them voluntarily, and that he was satisfied with the representation he had received from defense counsel. Unlike the case in Calhoun, in which the admission by trial counsel that he simply "blew it" with regard to pre-trial preparation played an important part in our determination to set aside the guilty plea, Calhoun, 96-0786 at 10-11,
Accordingly, the decision of the court of appeal is reversed and this case is remanded for consideration of respondent's remaining assignments of error.
JUDGMENT OF THE COURT OF APPEAL REVERSED; CASE REMANDED.
NOTES
Notes
[*] Philip C. Ciaccio, Justice Pro Tempore, sitting for Associate Justice Harry T. Lemmon.