State v. Bosworth

• Court: Louisiana Supreme Court
• Writing for the Court: KLEES; GUIDRY; SWIFT; LEMMON; LEMMON; LEMMON; DIXON; CALOGERO; DIXON; CALOGERO; MARCUS; DENNIS
• Citation: State v. Bosworth, 415 So.2d 912 (La. 1981)
• Decision Date: 28 September 1981
• Docket Number: No. 80-KA-1619,80-KA-1619
• Parties: STATE of Louisiana v. Gerald A. BOSWORTH.

Page 912

415 So.2d 912

STATE of Louisiana v. Gerald A. BOSWORTH.

No. 80-KA-1619.

Supreme Court of Louisiana.

Sept. 28, 1981.

On Rehearing June 11, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.

Robert Glass, and John Wilson Reed, of Glass & Reed, New Orleans, Tom Collins, New Orleans, of Louisiana State Bar Ass'n, for defendant-appellant.

KLEES, Justice Ad Hoc. ^*

Defendant Gerald Bosworth was indicted by the grand jury of Terrebonne Parish on January 12, 1977, with two counts of contributing to the delinquency of a juvenile, in violation of R.S. 14:92 A(9). On August 24, 1977, after an initial plea of not guilty, the defendant pled guilty to one count and the prosecution subsequently dismissed the other. On the date set for sentencing, the defense filed a motion for production of the presentence investigation report which was denied after oral argument. Application was made for supervisory writs and on June 19, 1978, this Court ordered disclosure of the report. ¹

After a sentencing hearing, the defendant was sentenced to one year imprisonment at hard labor. The defendant appealed, arguing that the offense was a misdemeanor and not a felony. On June 25, 1979, this Court set aside the sentence and remanded the case for resentencing. ²

On remand, the defendant filed a motion to withdraw his guilty plea and a supplemental motion to withdraw his guilty plea. An evidentiary hearing was conducted and both motions were denied. Contemporaneously, the defendant filed a motion to recuse the trial judge. The motion to recuse was heard and denied; writs to this Court were also denied. ³ After denying a renewed motion for probation, the trial court sentenced defendant to imprisonment for one year in the parish prison. ⁴ Defendant appealed to this Court. After the appeals record was lodged with this Court defendant filed with the trial court a petition for a writ of habeas corpus on the grounds that his plea of guilty had not been knowingly and voluntarily entered. Pursuant to an interim order by this Court dated September 12, 1980, an evidentiary hearing on the petition for a writ of habeas corpus was conducted by the trial court, at the conclusion of which the trial judge denied relief. Defendant then filed a second notice of appeal and a supplemental specification of error. The appeals are now before this Court on consolidated specifications of error.

ASSIGNMENTS OF ERROR NOS. 1, 2, and 3

By these assignments of error the defendant urges that the trial court erred in denying his motions to withdraw the guilty plea on the grounds: (1) the state breached a plea bargain agreement; (2) there was an improper "Boykin ization" of the defendant which made his guilty plea constitutionally unknowing; and (3) the defendant's attorney at the time of the guilty plea operated under a conflict of interest which was not disclosed to the defendant.

The Plea Bargain Agreement

The defendant maintains that his guilty plea was the product of a negotiated plea bargain between his former lawyer and the state. He alleges that the state obligated itself first, to dismiss an additional charge against him and second, to recommend a suspended sentence to the trial judge. He contends that the presentence investigation report reveals that the state failed to comply with the latterpart of the agreement.

The state asserts that neither the District Attorney not any member of his staff agreed to recommend a suspended sentence to the trial judge.

The motion to withdraw the guilty plea based on the "breached plea bargain agreement" was filed on April 18, 1980. After an evidentiary hearing, the trial judge denied the motion.

During cross examination by the state at a January 18, 1980 hearing, the defendant testified that he believed that he was going to get a suspended sentence based on representations made to him by his attorney. He stated that he had answered in the negative when asked whether he had been promised anything during his "Boykin ization" merely because that was his understanding of how the district attorney operates on plea bargaining. The defendant's former attorney, Edward James Gaidry, testified for the state at the hearing. On cross-examination by the defense, he testified that both he and defendant were hopeful that he would receive a suspended sentence based on conversations that he had with both the district attorney and the trial court and on information which he would later supply to the court. When asked by defense counsel whether the district attorney had represented to him that he would recommend probation to the trial judge, Mr. Gaidry responded, "As set forth in my letter, I said to the best of my knowledge, 'it's my understanding that Mr. Rhodes would recommended a suspended sentence'."

However, the defense points out, it is well established that whenever a guilty plea rests in any significant degree on an agreement or promise by the prosecutor, so that it can be viewed as part of the inducement or consideration, such promise must be fulfilled or the defendant given an opportunity to withdraw the plea. Santobello v. New York, 404 U.S. 257, at 264, 92 S.Ct. 495, at 499, 30 L.Ed.2d 427, State v. Neitte, 363 So.2d 425 (La.1978).

In Santobello, supra, the prosecution following defendant's negotiated plea, recommended a greater sentence than agreed upon in the plea bargain. The Supreme Court of the United States reasoned that the defendant was entitled to relief in "[t]he interest of justice and appropriate recognition of the duties of the prosecutor in relation to promises made in the negotiation of pleas of guilty." 404 U.S. at 264, 92 S.Ct. at 499.

The state's failure to comply with a material representation or promise which induced defendant's guilty plea results in a denial of due process. State v. Neitte, supra. In Neitte, the District Attorney admitted that he had entered into a plea bargaining agreement with defendant. After he did not fulfill his part agreement, he argued that it was merely "conditional, unconfirmed". On appeal, this Court held that the defendant had entered a guilty plea based upon the District Attorney's promise or representation to him. Finding that the uncontroverted agreement had been breached, the case was remanded to allow the defendant to reinstate his guilty plea. Neitte, supra, 363 So.2d at 426-27.

Here, the state argues that no agreement ever existed and the defendant was merely "mistaken or hopeful" of a suspended sentence and that, therefore, the trial court's ruling should be affirmed. It cites the case State v. Lockwood, 399 So.2d 190 (La.1981) as authority for its position. In State v. Lockwood, supra, the defendant never contended that a plea bargain was entered into or that a promise had been made. Moreover, this Court found nothing in the record or defendant's brief, to establish that defense counsel should have reasonably inferred that he would receive a suspended sentence. Defendant's argument was only that he should be allowed to plead anew because he believe that he would receive a suspended sentence when he entered his guilty plea. Based on those facts this Court held that "a misunderstanding does not have the same implication that a breached plea bargain had," and the trial judge had not abused its discretion.

Here, this court finds nothing in the record to establish that defendant should have reasonably inferred that he would receive a suspended sentence and we can find no error in the trial court's determination that there was no such plea bargain.

ASSIGNMENT OF ERROR NO. 2

Defendant urges that the trial court was in error in failing to set aside his plea of guilty on the grounds that the record of the plea proceeding did not affirmatively and independently establish that he had made a knowing and voluntary waiver of his privilege against self-incrimination. ⁵

The defense argues that the failure of the trial judge to aver to the privilege against self-incrimination in his plea colloquy with the defendant renders the plea fatally defective regardless of whether the offense is considered a felony or a misdemeanor. During the colloquy between defendant and the trial court the only statement which could be interpreted as a reference to the privilege against self-incrimination as follows:

BY THE COURT: Do you understand that you have a right to present your side of the case, if you desire?

BY MR. BOSWORTH: Yes, sir.

As stated above, at the time of the instant offense, R.S. 14:92 had been construed as defining a relative felony punishable by up to two years' imprisonment and a fine of not more than $1,000.00. State v. Elias, 357 So.2d 275 (La.1978); State v. Seals, 343 So.2d 717 (La.1977). However, this court, in an earlier appeal by the defendant herein, overruled Elias and Seals, and held that the offense of contributing to the delinquency of a minor must be given misdemeanor status. State v. Bosworth, supra 373 So.2d at 155. ⁶

The state urges that since the offense has been classified as a misdemeanor, defendant need not have been "Boykin ized" at the time he pleaded guilty. It also argues that, while the trial judge did not specifically use the words "privilege against self-incrimination" his question to the defendant was more than adequate to determine if defendant, who was an attorney engaged in the active practice of law, fully understood his rights.

In his oral reasons in denying the motion to withdraw, the trial judge concentrated on the issue of whether "Boykin ization" was required in misdemeanor cases and whether the defendant's plea was knowing and voluntary. He concluded that the guilty plea was voluntary and entered by defendant with a full understanding of his rights, and that Boykin ization was not required when a defendant pleads guilty to a misdemeanor. State v. Dunn, 390 So.2d 525 (La.1980).

Under the limited facts...