93-2146 La.App. 4 Cir. 6/30/94, State v. King

• Decision Date: 30 June 1994
• Citation: 639 So.2d 1231
• Parties: 93-2146 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1231

639 So.2d 1231

93-2146 La.App. 4 Cir. 6/30/94

STATE of Louisiana v. William A. KING, III.

No. 93-KA-2146.

Court of Appeal of Louisiana, Fourth Circuit.

June 30, 1994.

Charles M. Stevenson, Covington, for appellant.

John F. Rowley, Dist. Atty., Glenn E. Diaz, Walker H. Drake, Jr., Asst. Dist. Attys., Chalmette, for appellee.

Before BARRY, BYRNES and PLOTKIN, JJ.

[93-2146 La.App. 4 Cir. 1] BYRNES, Judge.

William A. King appeals his guilty plea and sentence for simple burglary of an inhabited dwelling. We affirm.

The defendant, William A. King, III, was charged by with the simple burglary of an inhabited dwelling, as well as one count of receiving stolen goods, two counts of receiving stolen things valued over $500, one count of accessory after the fact, one count of accessory after the fact to simple burglary, and one count of simple burglary of an inhabited dwelling. The bill of information filed against the defendant alleged that on January 10, 1993, the defendant committed simple burglary of the residence at 17 Joann Court Violet, Louisiana, which was inhabited by Salvador Charles. During the Boykin hearing on July 13, 1993, the defendant admitted to committing the burglary. At his arraignment on April 26, 1993, the defendant entered a plea of not guilty. On the morning of trial, July 13, 1993, the defendant withdrew his not guilty plea and entered a plea of guilty of simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. The defendant waived all delays and [93-2146 La.App. 4 Cir. 2] was sentenced to serve five years at hard labor without benefit of parole or probation, with credit for time served. ¹

On August 13, 1993 defendant filed motions to withdraw his guilty plea and to reconsider sentence. On September 13, 1993, the trial court denied both motions without conducting an evidentiary hearing. Thereafter, the trial court granted the defendant's appeal.

In his first assignment of error the defendant argues that trial court erred in denying his motion to withdraw his guilty plea. The defendant did not seek to withdraw his guilty plea until after the trial court imposed sentence. Defendant's motion was filed on August 13, 1993, one month after his sentencing hearing.

LSA-C.Cr.P. art. 559 provides in pertinent part that "[t]he court may permit a plea of guilty to be withdrawn at any time before sentence." However, the Louisiana Supreme Court in State v. Lewis, 421 So.2d 224 (La.1982), concluded that a trial court may permit the withdrawal of a guilty plea after sentencing when the trial court finds that the guilty plea was not entered freely and voluntarily or that the Boykin colloquy was inadequate and therefore that the plea is constitutionally infirm. The withdrawal of a guilty plea is within the discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981).

[93-2146 La.App. 4 Cir. 3] For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 255 So.2d 85 (La.1971). However, the entry of a knowing and intelligent plea of guilty involves more than an understanding and a waiver of the basic triad of rights. In determining whether the defendant's plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but may also look at other factors which may have a bearing on the decision. State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982); State v. Galliano, 396 So.2d 1288 (La.1981).

In addition to the basic three rights enunciated in Boykin, supra, in order to make a knowing and intelligent decision to plead guilty the defendant must be apprised of the possible range of sentences for the offense to which he pleads guilty. State ex rel. Curry v. Guillory, 441 So.2d 204 (La.1983).

Defendant argues that the colloquy between himself and the trial judge reveals that the guilty plea was not entered freely and voluntarily. Defendant contends that he was confused and ultimately pled guilty because of the banter between himself and the trial judge. However, the hearing transcript reveals that the defendant was not confused. It was apparent that while he admitted to the crime, he did not want to "pay the price." When the trial judge suggested that if defendant did not want to plea guilty, he could go to trial on the charge. The defendant replied "I don't want no jury."

Defendant further contends that the stipulation by counsel as to the factual basis of the case was not sufficient for the trial court to conclude that [93-2146 La.App. 4 Cir. 4] there were a factual basis for acceptance of the guilty plea. The trial judge conducted the preliminary hearing and heard the facts of the case. Knowing the facts of the case, the trial judge was within his discretion in determining that there was a factual basis for the acceptance of the plea.

A review of the Boykin and sentencing transcript reveals that the trial court advised the defendant of his right to a jury trial, his right to confront his accusers, his right to remain silent, the substance of the charge against him, and the range of sentences for the offense of simple burglary of an inhabited dwelling. In addition, the defendant responded in the negative when asked by the trial court if he was coerced or had been promised anything to plead guilty. Defendant acknowledged that his plea was voluntary and admitted to committing the burglary. The state and defense counsel stipulated that the pleadings, police report and evidence on file would be the factual basis of the state's case. Further, the trial court noted that he conducted the preliminary hearing and therefore knew the facts of the case. The trial court then concluded that there was a factual basis to accept the plea.

The trial court's examination of the defendant was thorough. The defendant was advised of all of his rights and acknowledged that he understood those rights. Defendant admitted that the plea was made voluntarily and without any threats, coercion or promises. There is no basis in the record to conclude that the trial court abused its discretion in refusing to allow the defendant to withdraw his guilty plea.

In his second assignment of error, the defendant argues that the trial court erred in denying his motion to reconsider sentence. Defendant alleged in his motion to reconsider that: (1) the sentence was excessive; (2) the [93-2146 La.App. 4 Cir. 5] sentence was not particularized for the defendant as there was no presentence investigation; (3) the court did not order or consider the sentencing guidelines; (4) the court did not take into account any aggravating or mitigating circumstances; (5) the court did not state the considerations taken into account in sentencing; and (6) there was no factual basis given for the sentence imposed.

In sentencing the defendant, the trial court stated:

Mr. King, in reviewing your record and in reviewing the sentencing guidelines as provided by the State of Louisiana through the Louisiana Legislature, Court finds the type of crime that you've engaged in are ones that we don't tolerate--at least this Court doesn't tolerate--and Court feels that there's no other punishment other than incarceration for these types of crimes. Therefore, the Court, in matter 156-801, is going to sentence you to serve five years at hard labor, without benefit or parole or probation. That means you do day for day for five years.

In referring to "these types of crimes," the trial court may have been referring to the charges that were being dismissed upon the defendant's plea of guilty to simple burglary of an inhabited dwelling in the present case. The minute entry from the sentencing hearing indicates that, in addition to the charge to which he pled guilty, the defendant had been charged with one count of receiving stolen goods, two counts of receiving stolen things valued over $500, one count of accessory after the fact, one count of accessory after the fact to simple burglary, and one count of simple burglary of an inhabited dwelling. However, the trial judge could also have meant burglaries in general. The transcript is not clear.

The defendant was sentenced on July 13, 1993, well after the effective date of the new sentencing guidelines enacted by the Louisiana Legislature. [93-2146 La.App. 4 Cir. 6] Under the guidelines, the sentencing range for defendant's conviction for simple burglary of an inhabited dwelling is twenty-four to forty-eight months. The defendant falls within the 3(G) grid classification as the record is devoid of any information on whether the defendant had any prior convictions. Thus, defendant's sentence of five years is a deviation from the range mandated by the guidelines.

The Louisiana Supreme Court stated in State v. Smith, 629 So.2d 333, 337 (La.1993) ² that:

Although a trial court retains the discretion to deviate from the Guidelines, even grossly, where the record supports such a deviation, the court must specify for the record the mitigating or aggravating circumstances which justify the departure. La.Admin.Code tit. 22...