STATE of Louisiana v. Daryl P. GALLIANO
No. 80-K-2615
Supreme Court of Louisiana
April 6, 1981
396 So. 2d 1288
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns and Madeline M. Slaughter, Asst. Dist. Attys., for plaintiff-relator. Ralph S. Whalen, Jr., New Orleans, for defendant-respondent.
The controversy which forms the basis of this case arose during the acceptance of the plea of guilt on the crime against nature charge. The trial judge informed Galliano of the maximum potential penalty but also informed him that there was no minimum sentence which had to be imposed on the charge and that the sentence was subject to suspension. However, the crime with which he was charged was allegedly committed on October 4, 1979, approximately one month after an amendment to the penalty provision of the crime against nature statute.2 This amendment created a minimum mandatory penalty of three years jail time, to be without benefit of suspension of sentence, probation or parole. Although adverting to the new amendment during the plea colloquy, the judge misstated its content.
At the hearing on the motion to vacate the sentence and withdraw the plea, the judge admitted the mistake in the law cited, determined that he misled Galliano at the time he accepted the guilty plea, and granted the motion.
Notwithstanding the language of article 559, this Court has stated that a constitutionally infirm guilty plea may be withdrawn after sentence is imposed in the same manner that any illegal sentence may be attacked, namely, appeal, or writs of certiorari or habeas corpus.3
The vehicle by which Galliano sought to attack his guilty plea was a pleading entitled “Motion to Vacate Sentence and Withdraw Plea“. It alleged, in substance, that the plea was entered at a time when he understood that his sentence could be suspended. Regardless of the motion‘s caption or style, it requested relief within the lower court‘s habeas corpus power. In such a case, this Court can construe the pleading to do substantial justice and treat it as a
The remaining problem springs from Galliano‘s contention at the hearing on his motion that the guilty plea was constitutionally infirm when entered because the mistake as to the minimum sentence prevented him from making a voluntary and intelligent plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
Because a plea of guilty waives an accused‘s fundamental right to a jury trial, right to confront his accusers and privilege against self incrimination, due process requires as a prerequisite to its validity that the plea be a voluntary and intelligent relinquishment of known rights. McCarthy v. United States, supra. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. LaFleur, 391 So.2d 445 (La. 1980).
Since the plea colloquy is but an objective method of ascertaining and preserving an accused‘s state of mind, however, judicial inquiry need not focus solely upon the clarity of the words used. For this reason, a court, when called upon to do so through a recognized procedural vehicle, has the power, notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent. See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
The state in brief argues the applicability of state and federal cases in which failure of trial judges to properly or fully inform defendants of particular facts at the time of their pleas were held not to render the underlying pleas of guilty involuntary or unintelligent. State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Langendorfer, 389 So.2d 1271 (La.1980); Turner v. United States, 320 F.Supp. 1204 (E.D.La. 1970). In MacDonald, this Court hinted that the failure of a trial court to inform a defendant of a minimum sentence does not require the reversal of a plea if the plea contains a record waiver of constitutional rights. In Langendorfer, this Court allowed the use of an out of state guilty plea to multiple bill a defendant even though the predicate plea colloquy contained a misstatement of law as to the maximum penalty. And in Turner, the district court determined that a guilty plea was not involuntary merely because the defendant was not informed that he could have received a more lenient sentence than the maximum permitted by law.
Regardless of the results of these particular cases, they do not require us to reverse the lower court in the case at bar. In fact, the courts were actively engaging in the subjective analysis of which we now speak. In Turner, the judge ruled that the guilty plea was voluntary and intelligent after considering the objective evidence in the record as well as later testimony taken at an evidentiary hearing on the voluntariness issue. In MacDonald and Langendorfer, this Court likewise looked beyond the record waiver of constitutional rights in order to determine voluntariness and intelligence from the totality of the record before it. In MacDonald this included a review of a plea bargain arrangement and in Langendorfer this included a review of testimony taken at the multiple offender hearing.
In the case at bar, the transcript of the plea colloquy contains an unambiguous explanation by the judge to Galliano concerning the privilege against self incrimination, the right to a jury trial, and the right to confront his accusers, and the effect of a guilty plea upon them. Galliano responded affirmatively to each question concerning his awareness and understanding of these rights. Thus, the record contains objective evidence of a voluntary and intelligent waiver of known constitutional rights.
On the other hand, the colloquy also contains statements in support of Galliano‘s claim on the motion to withdraw the plea.
At the hearing on the motion to withdraw the plea, the judge who had accepted the plea made a determination that he misled Galliano when taking the plea. Since he was in the best position to determine the initial voluntariness and intelligence of the plea and the effect of the mistake upon Galliano, we decline to upset his determination. See State v. Muller, 351 So.2d 143 (La.1977).
In light of the facts presented in this case, the writ issued to review the ruling of the lower court was improvidently granted and is hereby recalled.
GARRISON, J., ad hoc, dissented.