State v. Fisher
| Decision Date | 24 June 2020 |
| Docket Number | NO. 19-KA-488,19-KA-488 |
| Citation | 299 So.3d 1238 |
| Parties | STATE of Louisiana v. Jontreal A. FISHER |
| Court | Court of Appeal of Louisiana — District of US |
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
In this appeal, defendant, Jontreal A. Fisher, appeals his convictions and sentences for possession with a firearm by a convicted felon, possession of heroin weighing less than two grams, and possession with intent to distribute cocaine weighing less than twenty-eight grams. For the following reasons, we affirm defendant's convictions and defendant's sentences on counts one and two. We vacate defendant's sentence on count three and remand for resentencing.
On August 20, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jontreal Fisher, with possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count one), possession of heroin weighing less than two grams, in violation of La. R.S. 40:966(C) (count two), and possession with intent to distribute cocaine weighing less than twenty-eight grams, in violation of La. R.S. 40:967(A) (count three). At his arraignment on August 22, 2018, defendant pled not guilty. Thereafter, on April 22, 2019, the matter came before the court for a pre-trial conference,1 at which time defendant withdrew his former not guilty pleas and entered a plea of guilty as charged to all counts. Later, on that same date, after defendant waived sentencing delays, the trial court sentenced defendant in conformity with the plea agreement to serve twenty years imprisonment at hard labor for without benefit of parole, probation, or suspension of sentence on count one, four years imprisonment at hard labor on count two, and twenty years imprisonment at hard labor on count three.2 The trial court ordered the sentences to run concurrently and for defendant to pay various fines and fees.
One week after sentencing, on April 29, 2019, defendant filed a pro se pleading entitled, "Ineffective of Counsel for Failures [sic] to Investigate Insanity Defense," which the trial court denied on May 2, 2019. Defendant filed a timely pro se motion to appeal on May 10, 2019, which was granted. The instant appeal followed.3
Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the bill of information that on or about July 19, 2018, defendant violated La. R.S. 14:95.1, in that he did have in his possession a firearm, to wit: a Stoeger Cougar 8000 semi-automatic handgun, SN: T6429-10A005508, having previously been convicted of possession of cocaine, in violation of La. R.S. 967(C), under case number 2008-CR-173 on April 29, 2009, in the 40th Judicial District Court in St. John the Baptist Parish. The State also alleged that on or about July 19, 2018, defendant violated La. R.S. 40:966(C), in that he did knowingly or intentionally possess a controlled dangerous substance, heroin weighing less than two grams. The State further alleged that on or about July 19, 2018, defendant violated La. R.S. 40:967(A), in that he did knowingly or intentionally possess with the intent to distribute a controlled dangerous substance, cocaine weighing less than twenty-eight grams. All of these offenses occurred while defendant was in Jefferson Parish.
Defendant alleges that the trial court committed reversible error when it accepted defendant's guilty plea and waiver of constitutional rights form despite having been informed by defendant of the ineffective assistance of his trial counsel, who had not conducted any investigation into the specific facts of defendant's case prior to advising him to sign a plea agreement with the State.
Defendant avers that prior to entering his guilty pleas, he advised the trial court that his counsel had failed to conduct any investigation into the facts surrounding his arrest before counsel approached him about pleading guilty and signing the plea agreement. Specifically, defendant claims that he had never met with defense counsel about his case before being advised that he needed to enter a guilty plea because defense counsel would not be able to lodge a credible defense against the offenses for which defendant was charged. Defendant also claims that after having advised the trial court of this, the trial court did not inquire of defense counsel the validity of defendant's contention, but rather, directed defendant to decide whether he wanted to enter a guilty plea or proceed to trial. Defendant contends that, because the trial court was not sensitive to his concerns, he elected to enter guilty pleas without an honest assessment of the validity of the State's case against him by his legal counsel. Defendant concludes that because he received ineffective assistance of counsel, the trial court erred in accepting his guilty pleas, and he is entitled to withdraw them.
In response, the State claims that defendant availed himself of a highly favorable plea agreement, the terms of which he was presented with at a pre-trial conference on the morning of trial. Further, the State argues that the trial court fulfilled its responsibilities in regard to acceptance of defendant's guilty pleas. Also, the State contends that the record of the proceedings reflects neither deficient performance nor prejudice in regard to the performance of defense counsel.4
Defendant contends the trial court committed reversible error in accepting his guilty pleas. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id .
A plea of guilty by its nature admits factual guilt and relieves the State of the necessity to prove it by a contested trial. Therefore, a defendant cannot challenge the sufficiency of the evidence after he pleads guilty. State v. Smith , 07-815 (La. App. 5 Cir. 3/11/08), 982 So.2d 821, 824 n.3, writ denied , 08-927 (La. 11/14/08), 996 So.2d 1088. A validly entered guilty plea, or plea of nolo contendere , waives any right a defendant might have had to question the merits of the State's case and the factual basis underlying the conviction. State v. Bourgeois , 406 So.2d 55 (La. 1981) ; State v. Lemon , 05-567 (La. App. 5 Cir. 2/14/06), 923 So.2d 794, 779.
Louisiana Code of Criminal Procedure art. 556.1 sets forth the duties of the trial court with respect to guilty pleas involving felonies. It states, in pertinent part:
In the instant case, the record shows that at the pre-trial hearing on April 22, 2019, the State represented that it was prepared to enter into a negotiated plea agreement with defendant for a "no bill on all counts." Thereafter, the trial court, the State, and defense counsel engaged...
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