State v. Franklin
| Citation | 147 So.3d 231 |
| Decision Date | 11 June 2014 |
| Docket Number | No. 2013–KA–1489.,2013–KA–1489. |
| Parties | STATE of Louisiana v. Herman FRANKLIN. |
| Court | Court of Appeal of Louisiana (US) |
STATE of Louisiana
v.
Herman FRANKLIN.
No. 2013–KA–1489.
Court of Appeal of Louisiana, Fourth Circuit.
June 11, 2014.
Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
Kevin Vincent Boshea, Metairie, LA, for Defendant/Appellee.
(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO ).
Opinion
PAUL A. BONIN, Judge.
The district attorney appeals the trial judge's decision to quash the bill of information charging Herman Franklin with public payroll fraud. While employed as an officer with the New Orleans Police Department, Mr. Franklin also performed private duty work for Walgreens. Following his initial arrest but prior to the institution of the instant formal charges, Mr. Franklin was accepted into the former district attorney's pre-trial diversion program and successfully completed that program under the supervision of the succeeding, now-current district attorney.
Despite the resultant “dismissal” of the charges, the successor district attorney later resuscitated the investigation of Mr. Franklin and, after concluding that his payroll transgressions were more extensive than initially discovered, instituted the instant prosecution. Mr. Franklin subsequently moved to quash this bill of information, claiming that the district attorney was precluded from instituting these formal charges by principles of contract law as such action contravened their prior agreement that he would not be prosecuted.1 At the conclusion of an evidentiary hearing, the trial judge, finding that the district attorney was “hiding the ball” and that “[a] deal is a deal,” sustained the motion and quashed the bill of information.
We review the trial judge's ruling under an abuse-of-discretion standard and decline to disturb his finding that a binding agreement existed between Mr. Franklin and the former district attorney. That agreement provided that, if Mr. Franklin successfully completed the district attorney's pre-trial diversion program, no prosecution for public payroll fraud would be instituted. After Mr. Franklin fulfilled that condition, the current district attorney breached their agreement by instituting the instant prosecution, entitling Mr. Franklin to seek judicial enforcement by quashal of the bill of information.
Accordingly, we hold that the trial judge did not abuse his discretion and affirm his decision to sustain Mr. Franklin's motion to quash and dismiss the underlying charges. We explain our decision in greater detail below.
I
In this Part we set forth the facts pertinent to our review of the trial judge's ruling on Mr. Franklin's motion to quash.2
As previously stated, Mr. Franklin was employed as an officer with the NOPD. Apparently stemming from an anonymous complaint filed with the Public Integrity Bureau, the police initiated an internal investigation into Mr. Franklin's private duty work with Walgreens. Sergeant Daniel Wharton prepared and submitted a report documenting the results of this investigation to the district attorney's office in February of 2008. The report indicated that public payroll fraud occurred from August 1st through September 25th of 2007 and identified several specific time periods, varying in length from hours to minutes, in which Mr. Franklin's work
overlapped in the payroll records of Walgreens and the NOPD. During the district attorney's subsequent screening procedures regarding this case, an internal memorandum was drafted finding that the NOPD's payroll procedures at that time were “extremely flawed and did not accurately reflect the specific hours worked.” The memorandum continued: “[S]upervisors ... submit hours worked only as a recognition that the officer worked that particular day and do not reflect the actual hours of work.”
At that point, the District Attorney for Orleans Parish, Eddie Jordan, chose not to pursue formal charges for public payroll fraud and instead allowed Mr. Franklin to enter into his pre-trial diversion program. On February 6, 2009, after Leon Cannizzaro, Jr. had succeeded Mr. Jordan, the district attorney's office issued a letter to Mr. Franklin which, without reservation, read: “Congratulations. You have successfully completed the Diversionary Program of the District Attorney's Office. The Office will now dismiss the case.” The letter specifically referenced La. R.S. 14:138, but did not contain any limiting language or conditions as to when the offenses covered by this agreement occurred.3
Eight months later, on November 10, 2009, the district attorney ordered Lieutenant James Wiloem to investigate further into this matter. After examining Mr. Franklin's 2007 payroll records, Lieutenant Wiloem identified several additional overlaps—none of which involved different employers or occurred after those incidences previously documented by Sergeant Wharton. On April 15, 2010, the district attorney, relying on this new investigation, filed a bill of information formally charging Mr. Franklin with committing public payroll fraud between January 1st and September 12th of 2007.
At an evidentiary hearing, Mr. Franklin's counsel argued, “[T]here has to be some sort of rule of law that says when I ... complete a Diversionary Program that involves a specific allegation, and in this instance payroll fraud, and we complete it successfully, which we clearly did, then that ends the matter.” Defense counsel also informed the trial judge that Mr. Franklin had paid $575,000 in fees and restitution to the district attorney's office in order to successfully complete the diversionary program. The assistant district attorney, responding to defense counsel's argument “as being one of contract law that [we should be barred] from prosecuting him for these other crimes because he entered into Diversion,” contended, “[Mr. Franklin] entered into Diversion with regards to specific allegations for specific dates as a result of Sergeant Wharton's report. The State has subsequently learned that the Defendant engaged in other criminal conduct ... that is the subject of this prosecution.” At the conclusion of this hearing, the trial judge granted Mr. Franklin's motion to quash, finding that the district attorney was “hiding the ball” and that “[a] deal is a deal.”
II
In this Part we discuss the parameters of the district attorney's prosecutorial discretion, which is vast but which has limits in the context of this and similar case.
The district attorney has authority over every criminal prosecution instituted by the State of Louisiana in his district. See La. Const. art. 5, § 26 (B), but see La.C.Cr.P. art. 61 (noting that the district attorney's decision-making is “[s]ubject to the supervision of the attorney general, as provided in Article 62 ...”).4 The bounds of this discretion extend to determinations of “whom, when, and how [the district attorney ] shall prosecute. ” La.C.Cr.P. art. 61 (emphasis added). See also Bd. of Comm'rs of Orleans Levee Dist. v. Connick, 94–3161, p. 14 (La.3/9/95), 654 So.2d 1073, 1080 (“The constitutional role of the district attorney is incipient to the criminal process; [the] decision to file charges in a court of criminal jurisdiction is the event which incites a trial court's exercise of that jurisdiction.”). This authority also includes the “ ‘broad discretionary power’ not to institute a prosecution,” which can be exercised in numerous constitutionally-permissible ways. See State v. Hayes, 10–1538, p. 6 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 13 (emphasis added), quoting Briede v. Orleans Parish Dist. Attorney's Office, 04–1773, p. 5 (La.App. 4 Cir. 6/22/05), 907 So.2d 790, 793.
The district attorney can choose not to obtain any concessions or conditions in return from a defendant by, for example, never instituting formal charges, dismissing an already-commenced prosecution by entering a nolle prosequi, or allowing the time limitations for the commencement of trial to expire. See La.C.Cr.P. arts. 382, 691, 578. The district attorney may also reach agreements with criminal defendants in which further prosecution or trial for a particular offense is forgone in exchange for the fulfillment of certain conditions by that defendant. These agreements are usually categorized as plea bargains or agreements not to prosecute. Plea bargains are agreements wherein defendants traditionally waive their right to plead not guilty to certain charges in exchange for possible or certain leniency in sentencing or other considerations. See Corbitt v. New Jersey, 439 U.S. 212, 223–224, 99 S.Ct. 492, 58 L.Ed.2d 466. See also La.C.Cr.P. art. 552. An agreement not to prosecute is generally formed when the district attorney offers to refrain from instituting prosecution for certain charges upon a defendant's successful completion of a pre-trial diversion program. See State v. Cardon, 06–2305, p. 1 (La.1/12/07), 946 So.2d 171, 171–172 (per curiam); State v. Louis, 94–0761, pp. 10–11...
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