State v. Foster

• Decision Date: 12 July 2017
• Docket Number: NO. 2017-KA-0290.,2017-KA-0290.
• Parties: STATE of Louisiana v. Darren FOSTER
• Court: Court of Appeal of Louisiana — District of US

224 So.3d 440

STATE of Louisiana
v.
Darren FOSTER

NO. 2017-KA-0290.

Court of Appeal of Louisiana, Fourth Circuit.

JULY 12, 2017

Leon A. Cannizzaro, Jr., ORLEANS PARISH DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Christopher J. Ponoroff, ASSISTANT DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, CITY OF NEW ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470–8583, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Daniel L. Dysart )

Judge Daniel L. Dysart

Darren Foster appeals a judgment of the trial court granting the State's Motion to Correct an Illegal Sentence. For the reasons that follow, we reverse the ruling of the trial court and remand for further proceedings.

BACKGROUND:

Darren Foster was charged by bill of information on December 23, 2013, with one count of possession with intent to distribute marijuana, a violation of La. R.S. 40:966 A(2). He initially entered a plea of not guilty. Foster failed to appear three times for various stages of his prosecution, with the trial court forfeiting his bond and issuing warrants for his arrest each time. On April 16, 2015, the State offered Foster a plea of fifteen years in the custody of the Department of Corrections, which he declined. A trial date was set, but Foster again failed to appear and a bond forfeiture was granted and a warrant was issued.

Foster was arrested on the warrant on May 11, 2016. On May 19, 2016, the State filed an additional bill of information

224 So.3d 441

charging Foster with one count of bail jumping on a felony case, a violation of La. R.S. 14:110.1 C. Following an arraignment on the new charge, and a plea of not guilty, the trial court granted Foster's motion to leave the jurisdiction. On July 8, 2016, new plea negotiations transpired, and a trial date of August 23, 2016 was set.

On that date, the State placed in the record the following plea offer: "The State is offering fifteen years to Mr. Foster as to both cases. That will be concurrent as a no bill." Two years was offered on the bail jumping charge. Foster answered in the affirmative when asked if he understood the plea agreement. However, when asked if he accepted it, he replied: "Pretty much .... Yes, I was hoping I can stay out a little longer." He then asked the court "[i]s there any way I can be considered for some type of probation?" The State interjected that it had no objection to the court recommending any and all programs for the defendant. Court was reset for August 29, 2016.

On August 29, the trial court first advised Foster as to his Boykin¹ rights. Foster, through counsel, withdrew his plea of not guilty as to both counts, and entered a plea of guilty to possession with intent to distribute marijuana and to bail jumping. The court then questioned Foster as to whether his pleas were entered knowledgeably, and advised him as follows:

Do you understand the sentencing range with respect to the possession with intent to distribute marijuana is five to thirty years, and that your sentence will be fifty [sic] years to the Department of Public Safety and Corrections, to be served via Home Incarceration, pursuant to Code of Criminal Procedure, Article 894.2 ?

.....

And do you understand that your sentence will be two years Department Safety and Corrections, with credit for time served, to be served via Home Incarceration, pursuant to Code of Procedure, Article 894.2 ?

Foster responded in the affirmative. After he was again informed of all of the consequences of pleading guilty, Foster, his counsel and the judge signed the Felony Waiver of Constitutional Rights Plea of Guilty Form. The completed form reads in part:

I understand that my sentence in this case will be 15 years DOC with home incarceration pursuant to Criminal Code Art. 894.2, must provide current address, must continue working, must provide pay check stubs and, work schedule, at monthly court dates, must drug test at monthly court dates, must pay a supervision fee, must have an ankle monitor, court costs $337, ....can leave the house to go to work and church, must provide address and name of church.

Foster's plea was accepted as having been entered knowingly, intelligently and voluntarily. He waived all delays and the trial court imposed the sentence, additionally stating:

So, Mr. Foster, the court as [sic] opposed to sending you to the Department of Public Safety and Corrections Facility, based on the information that has been provided at the various hearings, in terms of your working, in terms of your work record, in terms of your life, you haven't gotten any new arrests since the charges, the Court deems that it is—let me get the right language.

So, pursuant to Code of Criminal Procedure 894.2(A)(3), the Court determines

224 So.3d 442

that Home Incarceration is more suitable than imprisonment, or supervised probation, without home incarceration, and that would serve the best interest of justice. So, at this time, the Court orders Home Incarceration in lieu of a term of imprisonment.

On September 1, 2016, the State filed the subject Motion and Order to Correct Illegal Sentence pursuant to La. Code Crim. Proc. art. 882. Despite being present during the sentencing hearing and not objecting to the sentence imposed, the State argued that Foster was not eligible to be sentenced pursuant to La. Code Crim. Proc. art. 894.2,...