State ex rel. Clark v. Marullo, Nos. 59667

• Court: Louisiana Supreme Court
• Writing for the Court: DIXON
• Citation: 352 So.2d 223
• Parties: STATE of Louisiana ex rel. Albert CLARK v. Hon. Frank A. MARULLO, Judge Criminal District Court, Section "D", Orleans Parish. and (59913 (on appeal)).
• Decision Date: 14 November 1977
• Docket Number: Nos. 59667

Page 223

352 So.2d 223 STATE of Louisiana ex rel. Albert CLARK
v.
Hon. Frank A. MARULLO, Judge Criminal District Court,
Section "D", Orleans Parish. Nos. 59667 and (59913 (on appeal)). Supreme Court of Louisiana. Nov. 14, 1977.

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John M. Lawrence, New Orleans, for relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for respondent.

DIXON, Justice.

On February 13, 1975 defendant Albert Clark was charged by bill of information with armed robbery in violation of R.S. 14:64. On March 10, 1975 defendant pleaded guilty and was sentenced to five years at hard labor. Soon thereafter the defendant learned that, contrary to a pre-plea agreement, the State intended to charge him as a

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multiple offender. On March 12, 1975, upon motion of the defendant, the trial court allowed the guilty plea to be withdrawn and set aside the sentence. The defendant was later brought to trial and on May 6, 1975 the jury returned a verdict of guilty of armed robbery. Defendant was thereafter sentenced as a multiple offender to serve thirty-three years at hard labor. On March 15, 1977, while his appeal from the second conviction was pending, defendant filed in the district court a motion to correct an illegal sentence based on the trial court's lack of authority to set aside his original guilty plea and the sentence. The trial court denied the motion. This court granted defendant's application for certiorari (captioned by defendant as a "motion for remand") and ordered it consolidated with his appeal.

ON THE WRIT (No. 59667)

Defendant contends through this writ that his trial and conviction are invalid because of the constitutional protection against twice being placed in jeopardy. The basis of the argument is that the trial court did not have jurisdiction to allow the defendant to withdraw his guilty plea after sentencing and therefore the first conviction and sentence remain in effect.

This is not the first case presenting the issue to this court. In State v. DeManuel, 321 So.2d 506 (La.1975), the defendant pleaded guilty to armed robbery and was sentenced to serve seven years at hard labor. The district attorney later informed the defendant that he would be charged as a multiple offender, so the defendant filed in the district court a motion to withdraw his guilty plea. After a hearing, the trial judge granted the motion and the plea and sentence were set aside. After further negotiation with the district attorney, the defendant pleaded guilty a second time and was sentenced to fourteen years imprisonment. The defendant filed a motion to withdraw his second plea within a month. After another hearing, this motion was denied. On appeal this court held that because C.Cr.P. 559 permits the withdrawal of a guilty plea only before sentencing, the ruling of the trial judge permitting the withdrawal of the first plea was invalid. ¹ We stated that the proper procedure for obtaining review of an illegal sentence is through appeal or writs of certiorari or habeas corpus. See also State ex rel. Hebert v. Henderson, 290 So.2d 832 (La.1974); State v. Ballard, 282 So.2d 448 (La.1973); State v. Willis, 279 So.2d 192 (La.1973).

The curious situation created by the strict enforcement of C.Cr.P. 559 is that while a trial judge does not have jurisdiction to allow the withdrawal of a guilty plea through ordinary procedures, he does have that authority if the same request be made through application for habeas corpus as a post-conviction remedy.

The writ of habeas corpus, the primary instrument for safeguarding individual liberty against unlawful state action, is designed to provide a speedy and efficient medium for judicial inquiry. Carafas

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v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Because of its essential function, arbitrary and unnecessary requirements of form and pleading should not be allowed to obstruct its effectiveness. See Harris v. Nelson, supra; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686 (1948).

C.Cr.P. 2 provides that the provisions of the code are ". . . intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay." In light of this provision, it would not be reasonable to hold that a motion may not be heard and relief granted merely because it is not labeled "habeas corpus."

The trial court properly exercised its post-conviction jurisdiction when it granted the defendant the relief requested in his motion. ² State v. DeManuel, supra, is overruled to the extent that it is inconsistent with this decision. We hold that the trial court may properly vacate a plea of guilty and set aside the sentence thereunder when it determines that the facts surrounding the guilty plea render it constitutionally deficient.

There is no merit in the writ application.

ON THE APPEAL (No. 59913)

The facts are as follows. On February 7, 1975 two men entered a New Orleans laundry and demanded money. While one of the two, later identified as Victor Armstrong, held a gun on the employees, the other gathered a bundle of clothing and took money from the pockets of the laundry employees. After the men left, one of the employees ran out of the shop, shouting that he had been robbed. Armstrong, who was then approximately seventy-five feet from the store, turned and shot at the employee. The owner of the laundry, who had witnessed the robbery while standing a short distance from the door, got into his car and gave chase. During the chase, the man later identified as the defendant, ran into the owner's car. Still later in the chase, Armstrong fired a shot at the owner's car the pellet going through the windshield before coming to rest on the seat. When the defendant was arrested soon after the robbery he was in possession of the pistol used in the robbery and in the shooting.

Defendant relies upon arguments on fourteen assignments of error for reversal of his conviction.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying a motion to suppress identification made soon after the robbery. At the hearing on the motion, Frank Roan, Sr., the owner of the laundry, testified that he saw the two men as they left the laundry, and that he began to chase them in his car. He also testified that one of the men ran into his car during the chase. After the defendant was arrested he was placed in the back seat of a police car. Roan was taken to the car by the police and there identified the defendant as one of the two men. At trial no reference to this identification was introduced. Roan testified, however, that the defendant "looked like" the robber.

Defendant contends that the identification after the arrest was unconstitutionally suggestive and that there was no basis for a valid in-court identification.

While one-on-one confrontations between the suspect and the victim are not favored, identifications made in this manner are permissible when justified by all of

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the circumstances. State v. Frank, 344 So.2d 1039 (La.1977); State v. Lee, 340 So.2d 1339 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976). In Frank, we stated that such identifications are ". . . permissible when the police apprehend a suspect within a relatively short time after the crime and bring him to the scene for an on-the-spot identification. This immediate confrontation assures the reliability of the identification as the perpetrator's appearance is fresh in the witness's mind, lessens the possibility that the perpetrator will change his clothes or appearance, and insures the early release of innocent subjects." 344 So.2d at 1041. In the present case, the identification was made immediately after the arrest. Prior to the identification, the witness had seen the defendant twice once as he was leaving the laundry and a second time when he ran into the car.

Even assuming that it was error for...