State v. Crosby, 57513

CourtSupreme Court of Louisiana
Citation338 So.2d 584
Docket NumberNo. 57513,57513
PartiesSTATE of Louisiana, Appellee, v. Irvin Joe CROSBY and Jimmy Andrew Mamon, Appellants.
Decision Date13 September 1976

Page 584

338 So.2d 584
STATE of Louisiana, Appellee,
Irvin Joe CROSBY and Jimmy Andrew Mamon, Appellants.
No. 57513.
Supreme Court of Louisiana.
Sept. 13, 1976.
Rehearing Denied Oct. 15, 1976.
Dissenting Opinion Nov. 3, 1976.

Page 586

Paul H. Kidd, Kidd, Katz & Strickler, Monroe, for Jimmy Andrew Mamon, defendant-appellant.

Joseph A. Reeves, Jr., Emmons, Henry & Reeves, Jonesboro, for Irvin Joe Crosby, defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whitten, Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendants pleaded guilty, conditioned upon appellate review of their complaints of prejudicial pre-plea rulings which (they allege) impaired their ability to present an adequate defense. The guilty plea was accepted by the trial court with that reservation of appellate review, the court thus approving the plea bargain to that effect between the prosecutor and the defense counsel.

The chief issue of these appeals is whether, under these circumstances, the defendants may have appellate review of their assignments of error, insofar as based upon pre-plea rulings by the trial court, and a reversal of their convictions if prejudicial error is shown.


A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. State v. Torres, 281 So.2d 451 (La.1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972).

Here, however, the accused expressly did not waive their right to appellate review of non-jurisdictional trial error which (they contend) made useless any continued trial of their defense. Their plea of guilty was entered upon the express plea bargain that they did not lose their right to appellate review of such error.

If we are not able to afford the accused their bargained-for appellate review, we must set aside the guilty pleas. The plea could not therefor be characterized as voluntary, because of the non-performance of the plea bargain (or the impossibility of the state to perform it) by virtue of which the plea was obtained. State v. Baudoin, 334 So.2d 186 (La.1976); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

In State v. Torres, 281 So.2d 451 (La.1973), we held that, despite the allegation

Page 587

of such a plea bargain, we would not on direct appeal review the pre-plea errors urged as a basis for reversal. However, we expressly noted, 281 So.2d 454, 456, that the accused was entitled to post-conviction review and relief if the plea was involuntary by reason of his mistaken belief that he was entitled to appellate review of the voluntariness of his confession, the principal error there alleged. Further, distinguishably from the present case's express plea bargain, in Torres we found that the appeal-record did not demonstrate that the plea bargain was conditioned on the accused's right to obtain appellate review of the constitutional invalidity of (what the state there stipulated to be) the principal evidence against him.


We are therefore for the first time faced with an instance where, on an appeal from a conviction through an accused's plea of guilty, the plea of guilty is shown by the record to have been expressly conditioned (and so accepted by the trial court) upon the accused's right to obtain appellate review of pre-plea rulings urged as reversibly erroneous.


If we rigidly apply the judicially-created doctrine that a plea of guilty waives all but jurisdictional defects in the prosecution, then (as noted earlier) we must order the plea vacated as involuntary and remand for a new trial, without considering whether in fact prejudicial error had actually occurred. However appropriate a resolution this might be under some circumstances, in the present situation (unless required by law) the vacation of the plea and the remand for a new trial represents a wasteful use of judicial and legal resources and an inefficient method to review the contentions of the accused that their conviction is based upon constitutional deprivation and improper state conduct:

If we follow this rigid approach of refusing to review the assignments of error (and consequently vacating the guilty pleas), then for us to afford review the state must retry the defendants, in order for them to preserve once again their contentions of error and present them to us once again, if convicted, for our consideration of them on their merits. This, despite the accused's admission of their factual guilt and their satisfaction with the sentence imposed (providing that their contentions of illegal evidence or improper state action are reviewed on appeal and found not to possess reversible merit). This, despite the circumstance that the prosecutor concurred in the plea bargain by which the defendants reserved their right to appellate review of their assignments of error, and despite the acceptance by the trial court of the pleas of guilty based upon this reservation.

Of course, if not permitted by law to review the assignments of error, we have no alternative but to follow such an inefficient and hypertechnical procedure, thus forcing the state, the defendants, the jurors, and the witnesses to undergo the delay and expense of a new trial in order finally to present to us for review the assignments of error now ripe for our present decision: Offering defendants who admit their factual guilt an opportunity to escape an unfavorable verdict, and likewise opening up the possibility (if there is merit in the defendants' assignments of error) of a subsequent reversal and yet a third trial on the charges now before us.

Undoubtedly, legal issues aside, the most practical and fair disposition indicates, under the present circumstances, that we should review the assignments of error now, if empowered to do so, and either reverse the convictions and remand for immediate re-trial or else affirm the convictions and terminate the legal proceedings if no reversible error is presented to us.


The ultimate issue remains: Are we empowered to review the pre-plea rulings, properly reserved at the time and at the plea of guilty; or must we set aside the

Page 588

pleas and remand for new trial, upon our finding that we have no discretion that permits us to review the assignments of error?

For the reasons more fully articulated below, we have determined that we are not barred from reviewing the assignments of error specifically reserved at the time of the plea of guilty, where the trial court accepted the plea of guilty so conditioned (which the court had discretion to refuse, if proffered upon such reservation).


The narrow issue before us is whether, on an appeal from a conviction and sentence founded upon a plea of guilty, this court may consider an assignment of error properly reserved for review at the time of (a) the trial court ruling, (b) the plea of guilty, and (c) the appeal.

We find no statutory or constitutional bar to our doing so. In criminal proceedings, final judgments are appealable, La.C.Cr.P. art. 912 A, and the defendant has a statutory right to appeal a judgment which imposes a sentence upon him, La.C.Cr.P. art. 912 C. A sentence may be based either upon a verdict or a plea of guilty. La.C.Cr.P. art. 872(3). Unless waived by the appellant, an error properly reserved by an assignment of error 'shall be considered on appeal.' La.C.Cr.P. art. 920.


Nevertheless, by judicially-created principle, a defendant normally waives any non-jurisdictional error by his plea of guilty. Under both state and federal jurisprudence, an Unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal or by post-conviction remedy.

See: State v. Torres, 281 So.2d 451 (La.1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972); State ex rel. Jackson v. Henderson, 263 La. 797, 269 So.2d 248 (1972); State v. Coats, 260 La. 64, 255 So.2d 75 (1971); State v. Valentine, 259 La. 1019, 254 So.2d 450 (1971); State v. Bergeron, 152 La. 38, 92 So. 726 (1922). 1 See also: Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (grand jury venire); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970) (initially coerced confession, but voluntary plea a month later); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (same issue as in Parker); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (fear of death penalty did not invalidate voluntary plea). But cf., Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).

However, even an un qualified plea of guilty does not preclude review of what are regarded as 'jurisdictional' defects--those which, even conceding the accused's factual guilt, do not permit his conviction of the offense charged. These include, for example: the lack of jurisdiction of the sentencing court, La.C.Cr.P. art. 362(1); the conviction represents double jeopardy, La.C.Cr.P. art. 362(2), State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); the prosecution, when instituted, had prescribed, La.C.Cr.P. art. 362(7), see also State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); the state lacked constitutional or legal power to try the accused for the offense charged, Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973); the statute under which the prosecution is brought is unconstitutional, State v. Bergeron, 152 La. 38, 92 So. 726 (1922); the charge brought by the indictment does not constitute a crime, State v. Watson,41 La.Ann. 598, 7 So. 125 (1889); certain types of patent error preventing conviction for the offense, La.C.Cr.P. art. 920(2), see indicative listing at State v. Guillot, 200 La. 935, 9 So.2d 235, 239 (1942).

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