State v. WillisState v. Willis
The defendant, Steven Willis, was charged by bill of information with six counts of forgery, in violation of La.R.S. 14:72. On December 13, 1982, defendant changed his plea of not guilty to guilty. Defendant’s appointed counsel, Joy Clemons, wаs not present. Jack Rogers stood in as defense attorney. The trial judge Boyk-enized (See: Boykin v. Alabama,
On March 14, 1983, a hearing was held on defendant’s “Motion for Arrest of Sentenсe and/or New Trial”. Defendant attempted to withdraw his guilty plea. He alleged that he only intended to plead to two counts of forgery, rather than six
Defendant urges thаt Judge Bond erred in accepting and entering a plea of guilty by defendant on six counts of forgery.
La.C.Cr.P. art. 559 permits a plea of guilty to be withdrawn at any time before sentence is imposed. Defendаnt made no attempt to do this. However, the Louisiana Supreme Court has stated that the trial cоurt can vacate a plea of guilty even after sentencing when it is determined that the facts surrоunding the plea rendered it “constitutionally deficient”. State v. Lewis,
Defendant contends that he was led to beliеve that he was to enter a plea of guilty to two counts of forgery and that the other four counts would be dismissed by the State. As a result of this, defendant argues, his plea of guilty to six counts of forgery was not frеe and voluntary and is, consequently, constitutionally infirm. Therefore he argues that he should be allowеd to withdraw his plea.
It is not clear from the transcript of the hearing on the “Motion for New Trial” from whоm Mr. Willis drew the impression that he was to plead only to two counts of forgery, or if he was, in reality, told this at all. On direct examination Mr. Willis testified as follows:
“Q. Prior to that time, how did you get the information as to the рlea bargain— if we can call it that — on the 2 counts? Who gave you that information; the District Attorney’s Office or Ms. Clemons or Mr. Rogers?
A. Ms. Clemons, from the very start, and then she ... like I say, when Mr. Rogers turned it over, she told him аnd then I was going to go ahead and go to trial with it and then the day of trial, he told me that, you know ... I told him that if the deal is still on, I would take it.”
However, on cross-examination, his testimony was to the contrary:
“Q. The deal that you indicated that Ms. Clemons spoke to you about was what, sir?
A. To ... Ms. Clemons had never said nothing abоut this dismissing any charges. Mr. Rogers came to me with that, that morning when I talked to him. All along she told me 2 years ... to рlead guilty and 2 years in the parish jail.”
It should be noted that the defendant claims that the Waiver of Constitutional Rights form he initially signed stated two counts of forgery and that his attorney wrote six over the two after hе had pled guilty. Examination of the form indicates that this may be true. Nevertheless, it appears from thе plea colloquoy that the defendant was informed that he was pleading to six counts of forgеry and that he understood the guilty plea was to six counts.
Defendant further contends that he was led to bеlieve that he would receive a sentence of two years for this plea. He argues that thе trial judge erred in sentencing him to five years, contrary to the recommendation of the State and defense attorneys. However, it is clear that the defendant was fully informed by the trial judge during the sentencing that he could impose any sentence he desired.
“THE COURT: Do you understand that the Court has made no рromise to anyone concerning the sentence to be imposed in this case. I know nothing of it. I have not discussed it with either the prosecutor or your attorney. I will listen to any recommendation mаde by the two attorneys, the State and your attorney, if it’s agreed to by you; but, then I will impose the sentenсe that seems to me appropriate. You understand that?
MR. WILLIS: Yes, sir.”
Where a promise or pleа-bargain is made then broken, the defendant has the right to withdraw the plea. State v. Lock
“THE COURT: Has anyone persuaded you to plead guilty by the use of any threats, pressure, force, promise, coercion, of any kind?
MR. WILLIS: No sir.
THE COURT: You wish to plead guilty?
MR. WILLIS: Yes, Your Honor.
THE COURT: Very well. Let a plea of guilty be entered.”
It appears that dеfendant is simply unhappy with the sentence he has received. The dissatisfaction of the defendаnt with the sentence received is not grounds for the withdrawal of a guilty plea. “A defendant in a criminal рrosecution cannot test the sentence and then, if dissatisfied with it, elect to go to trial.” State v. Robinson,
AFFIRMED.