State v. ThompsonState v. Thompson
Sylvia E. Taylor, Reserve, for defendant-appellant.
MELVIN A. SHORTESS, Justice Ad Hoc*.
Aubrey Thompson (defendant) was charged in a bill of information with attempting to commit first-degree murder on Pamela Kirkland (
On February 13, 1981, Judge Malik addressed a letter1 to Crum, with a copy to Faucheux, wherein he withdrew any prior commitment. On February 17 defendant withdrew his not guilty pleas and pled guilty in open court, after a Boykin examination. The court then ordered a pre-sentence investigation. On March 6, 1981, defendant was sentenced to serve twenty years at hard labor on the attempted first-degree murder charge and twenty years at hard labor on the armed robbery charge. Both sentences were without benefit of parole, probation, or suspension, and were to run consecutively. Defense counsel immediately objected to the sentence and moved to withdraw the defendant‘s guilty pleas, as per the Boykin commitment; but Judge Malik denied the motion.
ARGUMENT NO. 1 (Assignments of error 1 through 9)
Defendant argues that the trial judge erred in refusing to allow him to withdraw his pleas of guilty after sentence was imposed. He submits that the sentence was in violation of a plea bargain agreement and that the trial judge indicated that he would give him the opportunity to withdraw his pleas if he did not acquiesce in the agreed-upon sentence.
On January 26, the trial began, but a mistrial was declared the next day. The next minute entry is on February 17, when defendant entered guilty pleas. Any plea bargaining occurred on or before February 13, the date of Judge Malik‘s letter which stated that he had been under the impression that the victim had been shot only one time.2 Judge Malik stated that a pre-sentence investigation would have to be made. He had also stated that:
... defendant must plea (sic) with the knowledge that I have not made up my mind regarding his sentence.
“Q You admit to the knowledge that the Court in imposing sentence upon your plea of guilty is not bound by any recommendations or statements made to or by anyone to the Court, and that you are not to assume or rely upon any statements or representation by your attorney or of the State, that the consequences of your plea of guilty, that there is no appeal of the sentencing that I impose; do you realize that?
A. Yes.
THE COURT: The Court is going to order a pre-sentence investigation and as soon as the report is received the Court will then contact Mr. Faucheux as to whether or not the pre-sentencing investigation in any way would alter the plea-bargaining arrangements with the State. If it, in fact, reveals something unknown to us at this time, the Court would allow the defendant to withdraw his plea. Until then, he is remanded to the custody of the Sheriff of St. John the Baptist, until the Court receives the pre-sentencing investigation.”
In addition to the oral Boykin colloquy, defendant also executed and signed a written plea and waiver on February 17, 19813. The defendant acknowledged both in open court and by the Plea And Waiver form that he executed, that the trial judge was not bound by the State‘s recommendation or any statements made by his counsel. He also acknowledged that no promise had been made with regard to the sentence. He was cautioned that no commitment to any sentence would be made until completion of the pre-sentence report. But Judge Malik also indicated that if the pre-sentence investigation revealed anything that would alter the plea bargaining arrangements, the court would allow defendant to withdraw his pleas.
In State v. Baudoin, 334 So.2d 186 (La. 1976), defendants entered pleas with the understanding that they would receive sentences of six months’ imprisonment or be allowed to withdraw their pleas if the sentences were heavier than anticipated. The trial court sentenced defendants to six years’ imprisonment and refused to allow them to withdraw their pleas. We found that the evidence was insufficient to show a consummated plea bargain, but also found that:
... the record does establish a discussion from which the defense attorney could have reasonably inferred an agreement with the District Attorney, and the evidence is conclusive that defense counsel reasonably believed that a plea bargain existed and that he so advised his clients both orally and in writing; (4) the defendants, relying in good faith upon their attorney‘s representations, pleaded guilty. Id., 334 So.2d at 188.
It is well settled that a defendant may not withdraw his plea solely because the sentence he received is greater than anticipated. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Deakle, 372 So.2d 1221 (La.1979). During the Boykin colloquy, the trial judge committed himself to:
... contact Mr. Faucheux as to whether or not the pre-sentence investigation in any way would alter the plea bargaining arrangements with the State.
(emphasis added)
The pre-sentence investigation apparently revealed nothing unknown about the crimes because the preliminary examination established those details completely. While the record does not reveal what took place during
It is my understanding that if the sentencing is different than what Mr. Thompson Boykined for by his plea bargaining, that he would be allowed to remove his plea of guilty, and on his behalf we request at this time that he be allowed to do that in accordance with the previous statement that the Court made.
Subsequently, on April 22, 1981, defendant filed a formal motion styled, “Motion to Receive Boykinization and Remove Former Plea of Guilty,” which was denied by the trial judge without a hearing. Unfortunately, the record as it now stands is insufficient to determine whether a plea bargain that included the sentence was ever reached or whether there was a reasonable basis for defendant to believe that he would be allowed to withdraw his plea if a sentence in excess of twenty years was imposed. In view of the confusion surrounding this sentencing and plea, we feel that an evidentiary hearing on defendant‘s motion to withdraw his guilty plea should have been held.
For the reasons assigned, this case is remanded to the district court with instructions to hold an evidentiary hearing5 on defendant‘s motion to withdraw his guilty plea.
REMANDED with instructions.
LEMMON, J., concurs and assigns reasons.
“ATTACHMENT 1”
STATE OF LOUISIANA PARISHES OF ST. CHARLES AND ST. JOHN THE BAPTIST
ST. CHARLES PARISH HANNVILLE. LA 70057
ST. JOHN THE BAPTIST EDGARD. LA. 70049
February 13, 1981
Mr. John Crum
District Attorney‘s Office
Edgard, Louisiana 70049
RE: State v. Aubrey Thompson
Dear John:
I thought it best to advise your office that at the time I showed interest in allowing the defendant to plead
Judge Malik
CC: Robert Faucheux
“ATTACHMENT 2”
29TH JUDICIAL DISTRICT COURT STATE OF LOUISIANA
STATE OF LOUISIANA VS. No. 136.80
PLEA AND WAIVER
Comes now the defendant in the above cause, entering this his plea of guilty to the charges pending herein against him, and states:
1. That he has received a copy of the charges pending herein, has read and discussed the same and the consequences of his plea of guilty herein with his attorney and does understand the nature of the charges against him and the consequences of a conviction thereon.
2. That he in fact committed the crime(s) with which he is charged herein and admits that no promises, representations or threats have been made to or against him by anyone to induce his plea of guilty to be made herein.
3. That he, by entering a plea of guilty herein, does hereby waive and give up (a) his right to a jury trial to determine his guilt, (b) his right to be confronted with witnesses under oath, (c) his right against self-incrimination, (d) his right to compel witnesses to be present and testify in his behalf and (e) any and all objections to the proceedings against him.
4. That he acknowledges the concurrence by his attorney with this plea of guilty to the charges herein, the advice given by his attorney and the competency of his attorney to represent him herein.
5. That he admits to the knowledge that the Court, in imposing and pronouncing sentence upon his plea of guilty herein, is not bound by any recommendations or statements made to or by anyone to the Court and that he is not to assume or rely upon any statement or representation by his attorney, the prosecuting attorney or even the Court as to the consequences of his plea of guilty herein made prior to actual imposition and pronouncement of sentence.
LEMMON, Justice, concurring.
I agree that the present record is insufficient to determine whether a plea bargain including a maximum sentence was ever reached or whether defendant had any reasonable basis to believe he would be allowed to withdraw his plea if the trial judge decided to impose a sentence in excess of 20 years. However, if the evidence at the evidentiary hearing supports defendant‘s contention, then the sentencing judge should have the option to limit the sentence in accordance with the bargain or to allow defendant to withdraw his plea.