Lewis v. State Through Dept. of Public Safety and Corrections
| Decision Date | 22 May 1992 |
| Docket Number | No. CA,CA |
| Citation | 602 So.2d 68 |
| Parties | Ernest LEWIS v. STATE of Louisiana, Through the DEPARTMENT of PUBLIC SAFETY and CORRECTIONS. 91 0799. 602 So.2d 68 |
| Court | Court of Appeal of Louisiana — District of US |
Michael R. Connelly, Baton Rouge, for plaintiff-appellant Ernest Lewis.
April Snellgrove, Joseph Erwin Kopsa, Asst. Atty. Gen., Division of Risk Litigation, Baton Rouge, for defendant-appellee State of La. through Dept. of Public Safety and Corrections.
Before SHORTESS, LANIER and CRAIN, JJ.
This action is a civil suit for damages alleging breach of a plea bargain in a criminal case. The trial court held a plea bargain in a criminal case is not a conventional obligation for purposes of the civil law and dismissed the suit. This devolutive appeal followed.
The district attorney for the Nineteenth Judicial District Court for the Parish of East Baton Rouge (19th JDC) charged in a bill of information that the plaintiff, Ernest Lewis, "on or about the Seventh (7th) day of July, 1983, committed the offense(s) of FELONY THEFT violating Louisiana Revised Statutes 14:67, in that he committed theft of property from Honore's Grocery with a value of greater than $100 but less than $500.00 ..." Lewis was arrested for this offense on August 25, 1983. 1 Lewis apparently was incarcerated in the East Baton Rouge Parish Jail (Jail) after his arrest.
On or before September 7, 1983, Lewis was indicted by the Grand Jury for the United States District Court for the Middle District of Louisiana for (1) receipt of a firearm by a convicted felon, (2) possession of a firearm by a convicted felon, and (3) making a false statement in connection with the acquisition of firearms. This three count indictment provided as follows:
COUNT I
On or about August 23, 1983, in the Middle District of Louisiana, ERNEST LEWIS, having been convicted on November 20, 1964, in the Criminal District Court for the Parish of Orleans, Louisiana, of forgery, a crime punishable by imprisonment for a term exceeding one year, did knowingly receive a firearm, that is, a Raven Arms, Model MP25, .25 caliber pistol, Serial No. 782427, which had been shipped and transported in interstate commerce; all in violation of Title 18, United States Code, Sections 922(h)(1) and 924(a).
COUNT II
On or about August 24, 1983, in the Middle District of Louisiana, ERNEST LEWIS, defendant herein, having been convicted on November 20, 1964, in the Criminal District Court for the Parish of Orleans, Louisiana, of forgery, a felony, did knowingly possess in commerce and affecting commerce, a firearm, that is, a Raven Arms, Model MP 25, .25 caliber pistol, Serial Number 782427, which firearm had previously moved in interstate commerce; all in violation of Title 18, United States Code, Section 1202(a)(1) (Appendix).
COUNT III
On or about August 23, 1983, in the Middle District of Louisiana, ERNEST LEWIS, in connection with his acquisition of a firearm, that is, a Raven Arms, Model MP25, .25 caliber pistol, Serial Number 782427, from the Outdoorsman, 9517 Cortana Place, Baton Rouge, Louisiana, a licensed dealer of firearms, did knowingly make a false and fictitious statement to said dealer, which statement was likely to deceive said dealer with respect to a fact material to the lawfulness of said acquisition of the firearm by ERNEST LEWIS under the provisions of Chapter 44, Title 18, United States Code, in that ERNEST LEWIS of a crime punishable by imprisonment for a term exceeding one year, whereas in truth and fact, as ERNEST LEWIS then and there well knew, he had been convicted on November 20, 1964, in the Criminal District Court for the Parish of Orleans, Louisiana, of forgery, in violation of La.R.S. 14:72; all in violation of Title 18, United States Code, Sections 922(a)(6) and 924(a).
The United States Marshal placed a detainer on Lewis while he was in the Jail.
Apparently Lewis filed a motion to dismiss the federal indictments on the ground that he had been pardoned for his prior felony convictions. 2 On October 14, 1983, a federal magistrate recommended that the motion be denied with the following rationale:
This matter is before the Court on defendant's motion to dismiss.
Defendant submits that the three (3) count indictment which charges him with violations of 18 U.S.C. Secs. 922(a)(6), 922(h)(1) and 18 U.S.C.App. Sec. 1202(a)(1) should be set aside because defendant received full pardon and restitution of citizenship from John J. McKeithen, former Governor of the State of Louisiana on November 2, 1971.
Defendant's motion to dismiss should be denied for the following reasons.
The pardon upon which defendant relies covers only a two count forgery conviction from the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, and does not account for any other possible convictions.
The pardon does not expressly authorize defendant to receive, possess, or transport in commerce a firearm. Therefore, defendant does not fall within the exemption provisions of 18 U.S.C.App. 1203(2) and 18 U.S.C.App. Sec. 1202 may apply if all other elements are proven. See United States v. Castellana, 433 F.Supp. 1309 (M.D.Fla.1977).
18 U.S.C. Secs. 922(a)(6), 922(h)(1), which are included in Title IV, contain no exemptions for anyone who has been pardoned.
The federal district court judge apparently adopted this recommendation because Lewis was subsequently arraigned and plead guilty to all three counts.
On December 16, 1983, Lewis was sentenced by the federal district court to 5 years imprisonment on Count I of the federal indictment. On Count III, imposition of sentence was suspended and he was placed on probation for a period of 5 years to commence upon his release from federal custody on Count I. Count II was dismissed on the government's motion. Apparently after these proceedings, Lewis was returned to state custody in the Jail.
On December 22, 1983, Lewis was arraigned on the state felony theft charge before Judge L.J. Hymel in the 19th JDC. The transcript of these proceedings reveals, in pertinent part, the following:
Q I've indicated to your attorney, Mr. Shaheen, that should you plead guilty to this offense, I would sentence you to serve two years with the Department of Corrections. That two years to run concurrent with any and all other times you might be serving on other charges at this time. You understand that that will be the penalty you will receive if I accept your plea?
A Yes, sir.
Q Other than that commitment, I understand the District Attorney's Office has indicated that there may be some other criminal charges arising out of this incident, but they have indicated that they will not bill you on these other charges. Is that correct, Ms. Abide?
MS. ABIDE: Yes, sir.
Q You understand that also, sir?
A Yes, sir.
. . . . .
Q Based on sentence negotiations with counsel for the defendant as stated by the Court during the Boykin examination, it is the sentence of the Court that the defendant serve two years in the custody of the Secretary of the Louisiana Department of Corrections with credit for time served. Said time to run concurrent with any and all other times the defendant is presently serving.
The parties filed the affidavit of Judge Hymel into evidence herein as Joint Exhibit 1. In this affidavit, Judge Hymel stated the following concerning his intent in sentencing Lewis:
Pursuant to the Boykin, he sentenced the said Ernest Lewis to serve two (2) years with the Department of Corrections of the State of Louisiana, that two (2) years to run concurrent with any and all other times Lewis may be serving on other charges. In addition the District Attorney's Office indicated that the said Ernest Lewis would not be billed on any other charges arising out of this particular incident. He further deposed that when he sentenced the defendant to two (2) years concurrent with any other sentences he may have been serving his intention was that the two (2) years would be served concurrent with the federal sentence which had just been pronounced, said sentence consisting of five (5) years in prison and an additional five (5) years on probation for a violation of federal firearms charges.
In a second affidavit denominated Joint Exhibit 3, the assistant district attorney who represented the State of Louisiana in the plea bargain stated the following:
It was her understanding that the defendant was to serve two (2) years with the Department of Corrections of the State of Louisiana, said sentence to be served concurrently with a federal sentence the defendant had recently received on firearms charges. It was her further agreement that the defendant would not be billed with any other charges arising out of the same incident.
In a third affidavit denominated Joint Exhibit 2, the assistant public defender who represented Lewis in the plea bargain stated the following:
It was his understanding and as such it was his communication to Ernest Lewis that, if he pled guilty he would receive the sentence of two (2) years with the Louisiana Department of Corrections, said sentence to run concurrently with a federal sentence which had been imposed just prior to the plea bargain. In addition, the plea bargain encompassed an agreement by the District Attorney of East Baton Rouge Parish not to prosecute the defendant further on other charges which may have arisen out of this incident.
He went on to depose that said plea agreement was intended to facilitate the petitioner serving five (5) years for his federal plea and the sentence in the Nineteenth Judicial District Court would be served concurrently with that sentence.
After these proceedings, Lewis was returned to state custody.
On February 29, 1984, the United States Marshal's Service placed a detainer on Lewis, who was serving his state time in the Hunt Correctional Center.
By letter dated March 14, 1984, Robert K. Sibille, chief probation...
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