State v. TerryState v. Terry
CALOGERO, Justice.
The issue presented in this case is whether a guilty plea conviction, once set aside by the trial court, can be reinstated by the sua sponte action of the trial court, after the defendant has been returned to the court‘s jurisdiction by the state, been re-arraigned on the original charge, and, without a protest by the state, been allowed to enter a plea of not guilty to the reinstated charge.
The circumstances giving rise to this rather unusual situation are as follows. On February 10, 1977, defendant Terry withdrew his former plea of not guilty and entered a plea of guilty to a charge of armed robbery, a violation of
Defendant‘s latest post-conviction petition was filed in the district court on October 17, 1983, and was allotted to Judge Clarence E. McManus. The application for relief was grounded upon claims that defendant‘s 1977 plea was not an intelligent one, for the reason that he was not fully advised with respect to his privilege against self-incrimination.1 Thus, he contended that he had not knowingly waived his constitutional rights upon entering his plea. He asked that the plea and conviction be set aside and that he be allowed to plead anew. As required by law (
On November 17, 1983, the trial judge ruled on defendant‘s petition, without an answer from the state, granting defendant the relief requested and vacating his guilty plea conviction and sentence. In his written reasons for judgment, the trial judge found that there had been no specific in court advisement, by the trial judge who accepted the plea, with respect to the privilege against self-incrimination and, in the absence of his attorney‘s signature on the guilty plea form, the record failed to show that the defendant had been so advised out of court either. Relying on State v. Halsell, 403 So.2d 688 (La.1981) and State v. Williams, 400 So.2d 868 (La.1981), the trial court found the record insufficient to support a valid waiver of rights upon entry of the guilty plea. Accordingly, the trial court set aside the 1977 guilty plea conviction and sentence, appointed the Indigent Defender Board as Counsel and ordered defendant returned from Angola for re-arraignment. This order, too, bears the inscription “PLEASE SERVE: Mr. John Mamoulides, District Attorney, Parish of Jefferson.”
The state took no action to block or oppose the relief ordered by the trial court. Rather, apparently acquiescing in the order, the state filed two petitions for “Writs of Habeas Corpus Ad Prosequendum”2
Just four days later, however, on January 13, 1984, Judge McManus, apparently of his own accord,4 upset his November 17th ruling (in which he had vacated defendant‘s guilty plea conviction and sentence), stating:
IT IS ORDERED that the order of this Court of November 17, 1983, be and the same is hereby vacated, and that defendant, Junius Terry, be brought before this court on the 1st day of February, 1984, for a hearing to determine whether he should be granted a new trial.
On February 21, 1984, an evidentiary hearing was held before Judge McManus.5 At the conclusion of the hearing, the trial court deferred ruling and took the matter under advisement. The following month, on March 14, 1984, Judge McManus issued a third order in this case, this time denying defendant‘s application for post-conviction relief. In pertinent part, this order states:
After a careful examination of the entire record and the testimony heard at the evidentiary hearing, the Court finds that defendant was properly advised by the court and that the record reflects a knowing and voluntary waiver of his privilege against self-incrimination.
It is from this ruling that defendant is now before us, his writ application having been granted on June 1, 1984. State v. Terry, 450 So.2d 962 (La.1984).
Defendant argues that the trial court erred on January 13th when, apparently acting sua sponte, it reversed the earlier November 17th ruling in which the court had ordered defendant‘s guilty plea conviction and sentence set aside. Defendant argues that once the conviction was vacated, it could not be revived.
The state, on the other hand, contends that because the November 17th ruling was not issued in conformity with the Code of Criminal Procedure articles governing post-conviction actions (particularly
The rules on post-conviction relief are set out in
If an application [for post-conviction relief] alleges a claim which, if established, would entitle the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, to file an answer within a specific period not in excess of thirty days.
If the court orders an answer filed, the court need not order production of the petitioner except as provided in Article 930.
In the instant case, the trial court, as provided in
This Court has consistently held that “a trial court‘s vacation of a conviction, even if beyond its authority, effectively and conclusively invalidates the verdict thus invalidated.” State v. Neames, 377 So.2d 1018 (La.1979); State v. Reed, 315 So.2d 703 (La.1975); State v. Oglesby, 164 La. 329, 113 So. 865 (1927). Furthermore, these articles of the Code of Criminal Procedure on post-conviction relief merely implement the Constitutionally authorized right, of a court, to issue the writ of habeas corpus.
Accordingly, the November 17, 1983 judgment, vacating defendant‘s guilty plea conviction and sentence was valid, although subject to appellate review. The remedy of the state, if aggrieved, was to seek writs from that judgment. The state no doubt received notice of the judgment and did not seek writs.6 Instead, in apparent acquiescence in the judgment, the state secured defendant‘s return from Angola and, represented by an assistant district attorney, made no objection at defendant‘s arraignment, on January 9, 1984. At that time defendant entered a plea of not guilty and bail was set. Over this 2 month period (from November 17, 1983 when judgment was rendered awarding defendant his post-conviction relief, until the January 9, 1984 arraignment) the state never once complained of the trial court‘s earlier action granting defendant the post conviction relief he had prayed for.
The trial court clearly had jurisdiction over the person of defendant and the subject matter of his application.
Decree
For the foregoing reasons the trial court judgment of January 13, 1984 and its March 14, 1984 judgment as well, are reversed and set aside; the trial court judgment of November 17, 1983, vacating defendant‘s guilty plea conviction and ordering him arraigned anew, and tried should he plead not guilty, is reinstated; the case is remanded to the district court for further proceedings.
JUDGMENTS OF JANUARY 13, 1984 AND MARCH 14, 1984 REVERSED; JUDGMENT OF NOVEMBER 17, 1983 REINSTATED; REMANDED.
LEMMON, J., dissents and assigns reasons.
The statutory scheme for applications for post-conviction relief in Louisiana is contained in
“If an application alleges a claim which, if established, would entitle the petitioner to relief, the court shall order the custodian, through the district attorney in the parish in which the defendant was convicted, to file an answer within a specified period not in excess of thirty days.”
Thus, the overall scheme does not require an answer in response to a mere filing of the application, which may be (and frequently is) dismissed on the pleadings. An answer is required, however, when the application is not denied outright, and the obvious purpose is to afford the state an opportunity to be heard pursuant to the order to file an answer. Nevertheless, the district attorney need not file an answer until the court issues the required order.
In the present case, the district attorney asserts that his office was never ordered to answer, as required by Article 927, and the record contains no contrary evidence. Therefore, the district attorney clearly would have been entitled to have the trial court set aside the ex parte order granting postconviction relief if he had applied immediately upon learning of the rendition of that order.1
Thus, the key issue here is whether the district attorney‘s failure to take immediate steps to seek review constitutes a “waiver” of the district attorney‘s right to contest the legality of the order granting postconviction relief and precludes the trial judge from acting on his own motion to vacate the illegally granted order.2
Someone in the district attorney learned at some point of the trial judge‘s order vacating the conviction and scheduled an arraignment. Because of the volume of cases handled by that office, it is understandable that the validity of every order is not researched. The district attorney‘s initial actions in apparent compliance with the trial court‘s order should not preclude the trial court from acting on its own to vacate the illegally issued order, unless the defendant shows that he suffered some prejudice from the state‘s delay in raising a prompt complaint, especially since the state was not provided the legislatively-required opportunity to respond to defendant‘s application. Since no prejudice to the defendant has been even suggested, I would affirm the judgments of the trial court.
Notes
I especially disagree with the implication in this opinion and in State v. Neames, 377 So.2d 1018 (La.1979), that postconviction relief, once granted, may not be set aside by the trial court. There is no authority whatsoever for such a proposition, and basic notions of criminal procedure are contrary to such a concept.