29,252 La.App. 2 Cir. 1/22/97, State v. Bates

• Decision Date: 22 January 1997
• Citation: 711 So.2d 281
• Parties: 29,252 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 281

711 So.2d 281

29,252 La.App. 2 Cir. 1/22/97

STATE of Louisiana, Appellee, v. Gerald Owens BATES, Appellant.

No. 29252-KA.

Court of Appeal of Louisiana Second Circuit.

Jan. 22, 1997.

Paul Henry Kidd, Monroe, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Marcus R. Clark, Jimmy D. White, Assistant District Attorneys, for Appellee.

Before BROWN, STEWART and GASKINS, JJ.

[29,252 La.App. 2 Cir. 1] STEWART, Judge.

Defendant, Gerald Owens Bates ("Bates"), pled guilty to the amended charges of count one, possession of cocaine with intent to distribute, a violation of R.S. 40:967; and count two, conspiracy to distribute cocaine, a violation of R.S. 40:979 and R.S. 40:967. On count one, the trial court sentenced Bates to eighteen years at hard labor with all but the first nine years suspended. The trial court fined Bates $2,000, subject to payment during the term of his probation. On count two, Bates received seven and one half years at hard labor to run concurrent with count one. On Bates' good time or parole discharge, he was sentenced to five years supervised probation. Bates was given credit for all time served since his arrest. From his appeal, he asserts two assignments of error. For the following reasons, we affirm the conviction and sentence.

FACTS

On August 30, 1994, West Monroe police officers stopped a van for a routine traffic violation. The driver, Michael Thomas, presented a California I.D. card. The officer noted that the driver was acting extremely nervous. As the officer moved toward the van to speak with the passenger, he observed the passenger, later identified as Bates, place two suspected marijuana cigarettes in a cassette tape case and place the tape case between the seats. Bates was ordered out of the van, and at that time, Bates and the driver admitted to having marijuana for personal use in the van. The driver consented to a search of the vehicle. While the officers searched the van they noticed an irregularity in the screws on the side door panel. The officers removed the panel and a brick-shaped object wrapped in duct tape was found. At that point, Bates attempted to flee the scene, but was apprehended a short distance away. Ultimately, two bricks of suspected cocaine, with a total weight of five pounds, were found in the van.

[29,252 La.App. 2 Cir. 2] Bates confessed that he was to be paid $1000.00 for helping to drive the cocaine to West Monroe. He cooperated with the police by providing information regarding the driver of the van, Michael Lee Thomas a.k.a. Tim Boyle, and his brother, Richard Lloyd Collins a.k.a. Terry Quinton Boyle ("Boyle brothers").

The State of Louisiana indicted Bates and the Boyle brothers for possession of cocaine more than 400 grams, and conspiracy to distribute cocaine. Federal prosecutors ultimately filed cases against the Boyle brothers for conspiracy to possess with intent to distribute cocaine. The federal government did not indict Bates. Subject to a plea agreement, Bates pleaded guilty to amended charges of possession of cocaine, and conspiracy to distribute cocaine. The plea was in exchange for his complete cooperation with both the state and federal governments in their cases against the Boyle brothers. The State deferred Bates' sentencing until the conclusion of the Boyle brothers' federal cases.

DISCUSSION

Assignment # 1: The trial court erred in failing to permit the defendant to withdraw his guilty plea.

Bates argues that the trial court erred in failing to allow the defendant to withdraw his guilty plea after the state allegedly violated a plea agreement. The alleged violation was that the Assistant U.S. Attorney failed to provide a letter to the court regarding Bates' cooperation in a federal case involving the Boyle brothers. Additionally, Bates argues that he only pled guilty to the charges of the bill of information for purposes of cooperation with the federal case against the Boyle brothers. It was not Bates' intention to be sentenced on those particular charges. Conversely, the state contends it complied with the terms of the plea agreement.

La.C.Cr.P. art. 559(A) provides that the court may permit a plea of guilty to be withdrawn anytime before sentencing. The clear language of the article [29,252 La.App. 2 Cir. 3] provides that the withdrawal of a guilty plea is discretionary with the trial court. It is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981); State v. Hall, 26,006 (La.App.2d Cir. 5/4/94), 637 So.2d 645, writ denied, 94-1373 (La.9/30/94), 642 So.2d 868; State v. Scott, 600 So.2d 756, 758 (La.App. 2d Cir.1992); State v. Jones, 610 So.2d 1014, 1015 (La.App. 1st Cir.1992). A defendant has no absolute right to withdraw a guilty plea. Scott, supra; State v. Essex, 618 So.2d 574 (La.App. 2d Cir.1993). Again, withdrawal of a guilty plea after sentence is discretionary with the trial court, subject to reversal only if that discretion is abused or arbitrarily exercised.

A guilty plea is invalid when a plea agreement induces the defendant to plead guilty or when the defendant reasonably believes is a plea agreement and the terms of the bargain are not satisfied. State v. Holmes, 475 So.2d 1057 (La.1985); State v. Jones, 546 So.2d 1343 (La.App. 3d Cir.1989).

Where a defendant's misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there are no grounds for withdrawal of the plea. Without fraud, intimidation or incompetence of counsel, a guilty plea is not made less voluntary or less informed by the considered advice of counsel (cites therein omitted). State v. Hall, 26,006 (La.App.2d Cir. 5/4/94), 637 So.2d 645.

On August 2, 1995, pursuant to a plea agreement, Bates pled guilty to an amended bill of information charging him with possession of cocaine with intent to distribute and conspiracy to distribute cocaine. The plea agreement was outlined in a letter to defense counsel dated August 2, 1995, which was filed into the record. During the plea hearing and for the record, the state explained the terms of the plea agreement:

[29,252 La.App. 2 Cir. 4] So that the plea is fully explained on the record and we would state and the defense wants to put everything on the record, the agreement is that the state will allow the defendant to plead to the amended bill of information which as to count 1, possession of cocaine with intent to distribute, gives an exposure of five to thirty years at hard labor and a fine up to fifty thousand dollars ($50,000). In count 2, conspiracy to distribute cocaine, the exposure of two and a half to fifteen with the fine of up to twenty-five thousand dollars ($25,000). The state is recommending that those sentences be run concurrent. We're making no other recommendation as to sentence other than of course the Court can't go over the maximum sentence. Also as part of the expressed agreement ... as part of the plea agreement is that the defendant agrees to truthfully testify at all trials, retrial, all hearings and all grand juries whether they be state or federal, on all co-conspirators including but not limited to the two individuals that he was arrested with. One being--See if I can get their names real quick.

Defense Attorney:

A Timothy Boyle and Terry Boyle.

Prosecutor:

Timothy and Terry Boyle. Also they have aliases of Michael Thomas and Richard Collins. Also the defendant acknowledges that he has been truthful with the FBI when he was interviewed by Agent Tanza and truthful with Metro Narcotics when he was interviewed by them as to everyone's participation in this conspiracy. Also the defendant agrees to cooperate fully in all hearings or trials or preparations for these ... for the trials or hearings with state or federal investigators, Assistant D.A.'s (sic) or Assistance (sic) U.S. Attorney. Also the state reserves the right to set the plea aside if the defendant fails to one hundred percent comply with the above. That is testify or cooperate in preparation for federal or state hearings or trials. There is no agreement in sentence other than they will run concurrent. The state and the defense will ask the court to continue the sentencing until the co-defendant and the co-conspirators' cases or case is completed and that the defendant has testified or it has been acknowledged that the defendant's testimony is no longer needed. The state will advise, along with the defense, will advise the Court as to the defendant's cooperation against the co-conspirators for whatever consideration this Court feels it warrants. I have talked to the U.S. Attorney's office and they have agreed that if the defendant complies with the above then he would be unindicted coconspirator and that if he fails to comply with the above, he will be an indicted co-conspirator. That is the full extent of the agreement as I know it and there are no other agreements implied or expressed.

The Court: Is that what you understand the agreement to be, Mr. Kidd?

Defense Attorney: I was just asking him. Do you understand that?

Defendant: I understand.

[29,252 La.App. 2 Cir. 5] Defense Attorney: He understands.

Court: And is that what you want to do Mr. Bates?

Defendant: Yes, sir.

Court:

Do you want to enter into the agreement as described by Mr. Clark and enter a guilty plea in consideration?

Defendant: Yes, sir.

Court:

All right. Swear Mr. Bates. At that point, the court went through a Boykin colloquy advising defendant of all of his rights prior to accepting the guilty plea.

The point of contention appears to have arisen at the defendant's sentencing hearing held on June 24, 1996. The defendant through counsel moved to withdraw his guilty plea based on an alleged breach of the plea agreement.

Defense counsel stated, ... I have not read this letter that Mr. Clark wrote me on August the 2nd. Nevertheless, one of the considerations was we didn't know ... the...