State v. Calhoun

• Court: Louisiana Supreme Court
• Writing for the Court: KNOLL; TRAYLOR
• Citation: State v. Calhoun, 694 So.2d 909 (La. 1997)
• Decision Date: 20 May 1997
• Parties: 96-0786 La

Page 909

694 So.2d 909

96-0786 La. 5/20/97

STATE of Louisiana v. Robert CALHOUN.

No. 96-K-0786.

Supreme Court of Louisiana.

May 20, 1997.

Edward R. Greenlee, Baton Rouge, for Applicant.

Richard P. Ieyoub, Atty. Gen., Douglas P. Moreau, Dist. Atty., Monisa L. Thompson, Baton Rouge, for Respondent.

[96-0786 La. 2] CALOGERO, Chief Justice.

We granted certiorari in this case to determine whether the lower courts erred in ruling that the defendant could not withdraw a "best interest" guilty plea to one count of Molestation of a Juvenile. Given the totality of the circumstances under which the plea was made, we conclude that the district court judge abused her discretion in denying defendant's motion to withdraw his guilty plea. Accordingly, we reverse and remand to the district court for further proceedings.

FACTS & PROCEDURAL HISTORY

On February 3, 1994, a grand jury returned a two-count bill of indictment against the defendant, Robert Calhoun, charging him with one count each of Sexual Battery, a violation of LSA-RS 14:43.1, and Molestation of a Juvenile, a violation of LSA-RS 14:81.2. ¹ On the first count, Sexual Battery, the indictment alleged that Calhoun, between September 1, 1992 and December 31, 1992, intentionally touched the anus and genitals of T.F.--no allegation was made in the indictment that T.F. is or was at the time a juvenile. On the second count, Molestation of a Juvenile, the indictment alleged that, between July 1, 1992 and April 1, 1993, Calhoun, then 46 years old, committed a lewd and lascivious act upon or in the presence of C.D., then 15 years old, with the intention of arousing and gratifying the sexual desire of the defendant. Initially, Calhoun pled not guilty to both counts. However, following numerous pre-trial motions, Calhoun entered into a counseled plea bargain agreement, whereby he agreed to enter "best [96-0786 La. 3] interest" guilty pleas to the Molestation of a Juvenile charge and to an unrelated charge of Pornography Involving Juveniles ² in exchange for the dismissal of the Sexual Battery charge. After conducting a Boykin hearing ³ on August 3, 1994, the trial judge accepted Calhoun's "best interest" guilty pleas and recognized the dismissal of the Sexual Battery charge.

On August 29, 1994, prior to his sentencing, Calhoun filed, pro se, a "Motion to Withdraw Guilty Pleas" and a "Motion to Terminate Counsel." Both motions were premised on allegations of ineffective assistance of counsel. The motions were considered at a hearing held on September 20, 1994 at which Calhoun represented himself. At the hearing, the Motion to Withdraw Guilty Pleas was enlarged to include the district court judge's failure to inform Calhoun of the sex offender registration requirements, codified at LSA-RS 15:540 et seq., prior to Calhoun's entering of the guilty pleas. The district court judge granted the Motion to Terminate Counsel, but found that Calhoun was not indigent and thus denied Calhoun's request for court-appointed counsel.

The judge next considered the Motion to Withdraw Guilty Pleas. Calhoun, representing himself on the motion, argued that his pleas were not informed ones for two reasons. First, Calhoun contended that he entered into the "best interest" guilty pleas because his then-attorney, Steven Young, advised him that there were no possible defenses to the charges and that the sentences would be less harsh if [96-0786 La. 4] the defendant pled guilty. However, Calhoun later discovered that Young had confessed to the court--on the day before the pleas were entered--that he was unprepared to go to trial, had not interviewed any potential witnesses, and, in his own words, "just blew it!" Calhoun argued that his pleas were thus constitutionally infirm because they were based upon the advice of unprepared, uninformed counsel. In so arguing, Calhoun posed these rhetorical questions to the court: "How can an attorney advise a client that there is no hope for him at trial when the attorney has not even prepared for trial? How can an attorney explain to his client that the client has no defense against the allegations of the State when the attorney has not attempted to see if ... a defense exists?"

Second, Calhoun argued that his pleas were not informed ones because the district court judge failed to notify him of the sex offender registration laws as required by statute. Calhoun quoted to the court the language of LSA-RS 15:543, which states, in pertinent part, that "[t]he court shall provide written notification to any defendant charged with a sex offense of the registration requirements.... Such notice shall be included on any guilty plea forms...." LA.REV.STAT.ANN. § 15:543(A) (West Supp.1997). Calhoun, in his argument to the court, interpreted this language as mandating the court to notify a defendant of the registration requirements prior to the court's accepting a guilty plea. Calhoun learned of the registration requirements only after he had entered his guilty pleas and, then, only after someone had informed his wife of the sex offender registration laws. Calhoun professed that hearing about the registration requirements "frightened" him "tremendously."

After considering defendant's arguments, the district court judge denied the Motion to Withdraw Guilty Pleas, finding that Calhoun's pleas were based upon a [96-0786 La. 5] free, knowing, intelligent, and voluntary waiver of his Boykin rights, ⁴ even though the judge acknowledged that Calhoun had not been informed of the sex offender registration requirements prior to entering the pleas. Thereafter, on October 14, 1994, Calhoun was sentenced to six-years imprisonment at hard labor on the molestation charge. ⁵ At the sentencing hearing, the judge informed Calhoun of the sex offender registration requirements both verbally and in writing.

Calhoun appealed, assigning as errors, inter alia, the trial court's denial of the Motion to Withdraw Guilty Pleas and ineffective assistance of counsel. The First Circuit affirmed. As to the denial of the Motion to Withdraw Guilty Pleas, the court reasoned that "there undoubtedly is no mandate that the court inform the defendant of the [sex offender] registration and notification requirements[,] ... as they are not part of the defendant's sentence." State v. Calhoun, 94-2567, pp. 6-7 (La.App. 1st Cir. 2/23/96), 669 So.2d 1351, 1356. As to Calhoun's claim of ineffective assistance of counsel, the court concluded that because an evidentiary proceeding would be necessary to resolve defendant's allegations, this claim would more properly be addressed by an application for post-conviction relief. Id. at 1357.

From the court of appeal's decision, Calhoun sought review by this Court. We granted certiorari only as to the Molestation of a Juvenile charge and directed the parties to limit argument to the motion to vacate the guilty plea.

LAW

Louisiana Code of Criminal Procedure article 559 gives the district court judge the discretion to permit a withdrawal of a guilty plea at any time prior to [96-0786 La. 6] sentencing. LA.CODE CRIM.PROC.ANN. art. 559(A) (West Supp.1997). However, this discretion cannot be exercised arbitrarily, and abuse of discretion can be corrected on appeal. State v. Compton, 367 So.2d 844, 847 (La.1979).

In the instant case, the district court judge concluded that Calhoun filed the Motion to Withdraw Guilty Pleas "purely on the basis that he [didn't] want to register as a sex offender." (R. at p. 349). The judge then denied the motion, stating that "when the Boykin clearly indicates he understood his rights, he was allowed to speak several times, ask any questions that he so desired, confer with his attorney, this ... court believes and still believes it is a free, knowing and intelligent and voluntary waiver of those rights." (R. at pp. 349-50). We find that the district court judge placed undue emphasis on Calhoun's waiver of his Boykin rights, as other factors also have a bearing on the validity of a plea. E.g., State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982). Further, we find, for the reasons detailed below, that, given the "totality of the circumstances" under which the pleas were made, the district court judge abused her discretion in denying the motion.

Sex Offender Notification Requirements

At the hearing on the motion, the judge explained that she did not advise Calhoun, either in writing or in the guilty plea colloquy, of the provisions of the sex offender registration laws at the guilty plea stage because she did not "believe" in the use of guilty plea forms. She had planned to notify Calhoun of the sex offender registration requirements at the sentencing stage. This decision to delay notification is contrary to the statutory requirements.

LSA-RS 15:543(A), entitled "Offender notification," provides as follows:

The court shall provide written notification to any defendant charged with a sex offense of the registration requirements of R.S. [96-0786 La. 7] 15:542. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant.

LA.REV.STAT.ANN. § 15:543(A) (West Supp.1997) (emphasis added). Thus, LSA-RS 15:543(A) expressly directs the district court to provide written notice to any defendant who is "charged with"--not "convicted of"--a sex offense. The use of the words "charged with" was not accidental. The purposeful use of these words reflects a legislative acknowledgment of the severity of the registration provisions--provisions that essentially place a modern-day scarlet letter upon convicted sex offenders. For that reason, the Legislature enacted detailed notification provisions to ensure that any defendant who might be subjected to these severe registration provisions be fully informed of the possibility early on in the process--ideally, when "charged," but at the very least, prior to the defendant's entering a guilty plea.

We also note that LSA-RS 15:543(A) requires that written...