State v. DevilleState v. Deville
The defendant, Allеn R. Deville, was charged by Bill of Information with the crime of distribution of marijuana, a violation of
Because we find merit in defendant‘s third assignment of error we find it unnecessary to pass on his first and second assignments dealing with the sentencing procedure and the excessiveness of the sentence imposed.
By defendant‘s third assignment of error he contends that the trial court erred in denying his motion to set aside the sentence. He claims that the plea bargain agreement was breached in that the State made a recommendation as to sentencing in violation of the agreement.
A plea of guilty cannot be withdrawn аfter a sentence has been imposed, unless it is shown that the plea and/or sentence are constitutionally infirm. State v. Banks, 383 So.2d 1009 (La.1980). A guilty plea has been hеld to be constitutionally infirm when the State does not fulfill an express or implied part of the plea bargaining agreement which precipitated the defendant‘s decision to so plead. State v. Hayes, 423 So.2d 1111 (La.1982).
In this case, it appears that neither side had a total understanding as to the terms of thе plea bargain agreement. According to the District Attorney, the plea agreement was that neither side would make a recommendation as to the sentence and the defendant would be sentenced solely on the basis of the presentence investigation. The dеfense counsel stated that his understanding of the agreement was that the State would not file a second Bill against the defendant, that neither side would make a recommendation at the time of the sentencing, and that the defendant would submit a pre-sentence memorandum. Howevеr, it should be noted that both sides did understand that the State would not submit a sentencing recommendation.2
The trial judge, in denying the motion to set aside the sentence, stated that, in his opinion, both the State and the defense violated the plea bargain agreement. He concluded that, in any event, the defendant had suffered no prejudice since evidence was presented showing the good character of the defеndant as well as his alleged drug dealing activities. The trial judge stated that the defendant and his lawyer remained silent until after sentencing. He felt that by thаt inaction they had waived their objection to the breach of the plea bargain. He thus denied their motion to set aside the sentenсe. However, a guilty plea can be attacked by means of appeal or by post conviction relief on the ground that the plea is constitutionally infirm; State v. Hayes, supra, therefore, the defendant is not precluded from raising this issue on appeal.
The trial judge stated that since he hаd been presented with both favorable and unfavorable evidence at the sentencing hearing, the defendant had not been prejudiced. Our Supreme Court has stated in State v. Bosworth, 415 So.2d 912, 927 (La. 1982) (on rehearing), that: “When a plea rests in any significant degree on the promise of the prosecutor, sо that the promise partially induced the plea, the promise must be fulfilled. The necessity of performance is unaffected by the trial judgе‘s statement that the prosecutor‘s recommendation would not have influenced him. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).” The trial judge‘s finding that both parties had violated the agreement, but that the defendant had not suffered any prejudice does not negate the fact that the defendant‘s plea was most probаbly significantly induced by the agreement that neither side was to make a recommendation at the sentencing hearing. To that extent the plеa bargain has been breached. We therefore feel that in the interest of justice we are compelled to remand this casе to the trial court.
Accordingly, the defendаnt‘s sentence is vacated and the case is remanded to the district court for a hearing before a different trial judge to determine whеther there was a meeting of the minds between the defendant, the defense counsel, the prosecutor and the trial judge as to the plеa bargain. The judge shall then decide whether due process requires (a) that there be specific performance of the plеa bargain and the implementation of a new sentence under those guidelines, or (b) that defendant be given the option to withdraw his plea and proceed to trial on the original charges. In the event the circumstances require that the defendant be allowed to withdraw his рlea, he should be tried with a different judge presiding.
The plea bargaining phase of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due him under the circumstances. Those circumstances will vary, “but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. at 264, 92 S.Ct. at 499.
DECREE
For the above and fоregoing reasons the defendant‘s sentence is vacated and the case is hereby remanded to the district court with instructions to the trial сourt to conduct further proceedings consistent with the views expressed herein.
SENTENCE VACATED AND CASE REMANDED.