State v. KingState v. King
Defendant, Marlon A. King, appeals the denial of his Motion to Withdraw a Guilty Plea. We affirm.
Defendant was charged with armed robbery, a violation of
As part of the plea agreement, the State agreed to file a multiple Bill of Information only alleging the defendant to be a second felony offender, and the trial court agreed that the defendant‘s sentence, as a multiple offender, would be the same 49½ years at hard labor. On June 22, 1999, the State filed a multiple offender Bill of Information alleging the defendant to be a second felony offender. The defendant made an oral Motion to Withdraw his Guilty Plea, alleging that he did not understand he was to be multiple billed. However, after some discussion, the defendant admitted
On appeal, King argues two Assignments of Error: 1) The trial court erred by failing to suppress the defendant‘s statements and physical evidence obtained in violation of his constitutional rights, and 2) alternatively, the trial court erred by failing to grant the defendant‘s request to withdraw his guilty plea.
ASSIGNMENT OF ERROR NUMBER ONE
The defendant, who pled guilty to the charge of armed robbery, alleges that the trial court erred by denying his motions to suppress the evidence and statements. A guilty plea normally waives all nonjurisdictional defects in the proceedings prior to entry of the guilty plea, and precludes review of such defects either by appeal or post conviction relief. State v. Davis, 97-850 (La.App. 5 Cir. 2/11/98), 708 So.2d 1121. A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, 338 So.2d 584 (La. 1976); State v. Davis, supra. Under Crosby, defendant may reserve his right to appeal an adverse prior ruling of the trial court. In this case, defendant failed to reserve the right to appeal under Crosby in the guilty plea proceedings. Accordingly, this issue was not properly preserved for appeal and we decline to consider it. State v. Davis, 708 So.2d at 1122; State ex rel. K.H., 98-632 (La.App. 5 Cir. 12/16/98), 725 So.2d 583, 585.
ASSIGNMENT OF ERROR NUMBER TWO
The defendant argues that the trial court erred in failing to grant his Motion to Withdraw his Plea of Guilty. Defendant pled guilty to the charges against him on June 21, 1999. As a term of the plea agreement, the State agreed not to file a multiple offender Bill of Information alleging the defendant to be a triple or quadruple offender. The trial court agreed that it would sentence the defendant to 49½ years at hard labor, and, should the defendant be found a second felony offender, the trial court would reinstate the same 49½ year sentence. On June 22, 1999, the defendant stipulated to being a second felony offender, and the trial court vacated the defendant‘s original 49½ year sentence and sentenced the defendant to 49½ years’ imprisonment as a second felony offender. The following day, the defendant filed a pro se Motion to Withdraw his Guilty Plea, alleging that he did not understand, at the time of the plea, that he would be sentenced as a habitual offender.
Because a plea of guilty waives an accused‘s fundamental right to a jury trial, right to confront his accusers, and his privilege against self-incrimination, due process requires, as a prerequisite to its
The defendant, in the instant case, attempted to withdraw his guilty plea subsequent to sentencing. This court has held that, once the defendant has been sentenced, in order for a guilty plea to be withdrawn, it must be found to be constitutionally infirm. State v. Gross, 95-621 (La. App. 5 Cir. 3/13/96), 673 So.2d 1058, 1059. The transcript of the plea colloquy in the instant case reveals that the defendant was informed of all three basic rights. Therefore, it does not appear as if the plea was constitutionally infirm.
The defendant argues that the plea was not voluntary because he was unaware that he would be billed as a multiple offender. The transcript of the plea colloquy and of the defendant‘s stipulation to the multiple offender Bill of Information, however, reveal that the defendant was very specifically told that he would be sentenced as a multiple offender, receiving the same sentence as that imposed upon his conviction for the offense, and the defendant indicated that he understood his sentence.
The Court:
Have you been advised by your counsel that in the event I accept your plea of guilty, that you will be sentenced as follows? I will sentence you to forty-nine and a half years at hard labor without benefit of parole, probation or suspension of sentence and order that you be given credit for any time you have already served in jail. Also, the district attorney has agreed to multiple bill you only as a second offender. And as a second offender, as a second offender the potential range of sentences if you are found to be a second offender and convicted of Armed Robbery goes from forty-nine and a half years to one hundred and ninety-eight years. I will agree to sentence you only, if you are found to be a second offender, only to the minimum of the forty-nine and a half year sentence. I will not increase your sentence. Do you understand that? Do you understand? Because it could go all the way up to one hundred and ninety-eight.
The Defendant:
Right.
The Court:
And I‘m only going to give you the forty-nine and a half.
. . . .
Forty-nine and a half years without benefit of parole, probation or suspension of sentence. Under the law the crime of Armed Robbery, by law, any sentence that is given has to be without parole, probation or suspension of sentence. That is, it‘s written in the statute. It cannot be changed. So I can give you, to start off, five to ninety-nine. I‘m only going to give you forty-nine and a half. They‘re going to multiple bill you. Once they multiple bill you, if they show, if you‘ve been proved, if you‘ve been convicted, of another crime before, you can be found a double, a triple, depending on how many times. They have agreed only to double bill you. Only to say you‘ve been convicted of one other crime, regardless of how many you have. If that is true, under the law, the sentence can change. The sentence goes from a minimum of forty-nine and a half to a maximum of one hundred and ninety-eight. So I could give you one hundred and ninety-eight years. I‘ve told you what I‘m going to do is give you forty-nine and a half.
The Court:
Do you understand that?
The Defendant:
(No response).
The Court:
Do you understand that? The Defendant:
Yes, sir.
(Emphasis added.)
Despite this colloquy, on June 22, 1999, the defendant nonetheless alleged that he did not understand that he would be billed as a second offender. The record reflects that the trial court again explained that issue extensively.
The Defendant:
Excuse me. That‘s the whole plea. I didn‘t know nothing about no bill. I was understood that the plea was just the plea. I didn‘t know I was going to get billed. If I‘d a known I was going to get billed I told him I would like to go to trial.
The Court:
Well, I‘m not going to sit here an [sic] argue with you, but I sat down here and took a long [time] explaining to you that they‘re going to file a multiple bill and their attempt is to show that you committed a crime or pled guilty to a crime at a previous date. They were going to file it. I would hear it. If I found it I would still only give you the same amount of time. I told you. I went over and over it for a long time telling you that. So, if you said you weren‘t explained, well, the record will reflect differently, I think.
Mr. Bankston (Defense Counsel):
Your Honor, I think the difficulty is that Mr. King does not realize that he is not going to get any additional time as a result of the multiple bill.
The Court:
Well, if they triple bill you—they agreed not to triple bill you—if they triple billed you and you were found to be a three-time with a crime of violence, the penalty on the multiple bill for a three-time convicted felon with a crime of violence, the automatic, the only penalty, is life. It‘s not zero to life. It‘s life. That‘s what it is. And the district attorney, by plea bargain, agreed not to do that. Now, I can tell you, but I can‘t understand it for you. And I‘m not going to sit here and debate with you. The only thing right now, you entered a plea yesterday. We‘ve got a multiple bill filed today. You can plead guilty or not guilty to it. That‘s up to you.
. . . .
Subsequent to this colloquy, after discussion with his attorney, the defendant stipulated to being a second felony offender.
In a similar case, where the defendant alleged that he was unaware, at the time of his guilty plea, that he would be double billed, this court upheld the trial court‘s denial of the defendant‘s Motion to Withdraw Guilty Plea. State v. Ngo, 99-277 (La.App. 5 Cir. 6/30/99), 738 So.2d 718. In the instant case, the record reflects that the defendant was made aware of the fact that he would be billed as a second felony offender. Moreover, the defendant did not receive a greater sentence as a result of being adjudicated a second felony offender. Accordingly, the trial court did not err in its denial of the defendant‘s Motion to Withdraw his Guilty Plea. State v. Ngo, 738 So.2d at 720.
The defendant argued in his Motion to Withdraw the Guilty Plea that the 49½-year sentence imposed upon him as a second felony offender was more severe than the 49½-year sentence originally given him. The defendant reasoned that the sentence was more severe because of the way diminution of his sentence or “good time” would be calculated. However, under
The record was reviewed for errors patent, according to
AFFIRMED.