State v. Honeycutt

• Decision Date: 28 February 2007
• Docket Number: No. 41,601-KA.,41,601-KA.
• Parties: STATE of Louisiana, Appellee v. Jimmerra HONEYCUTT, Appellant.
• Court: Court of Appeal of Louisiana — District of US

953 So.2d 914

STATE of Louisiana, Appellee v. Jimmerra HONEYCUTT, Appellant.

No. 41,601-KA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 2007.

Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.

J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and GASKINS, JJ.

STEWART, J.

Pursuant to a plea agreement, the defendant, Jimmerra Honeycutt, pled guilty to attempted armed robbery. The trial court sentenced him to 30 years at hard labor and ordered that the sentence be served consecutively to any other sentence being served. The defendant now appeals. For the reasons that follow, we affirm the defendant's conviction and sentence.

FACTS

On the night of August 28, 2004, two employees of the Exxon gas station were in the business office counting money when fellow employee, Candy Maxie, called and asked one of them to bring a drink to her in the parking lot. A few minutes after the employee returned inside the store and locked the door behind her, Jimmerra Honeycutt and Demarcus Jones entered the store using a key provided to them by Candy Maxie. Maxie had told defendant and Jones that this would be a good time to rob the store because it had more money than usual and because a pregnant girl was working that night. The robbers first ordered the male employee sitting at the front counter computer to get on the floor while Honeycutt held a firearm to his head. Next, the robbers went to the business office and, at gunpoint, ordered the female employee, who was eight months pregnant, to put all the money and checks in a bag. The robbers left with $2,199 in cash and $449.90 in checks. The cash was never recovered.

Defendants Maxie and Jones were each charged with one count of armed robbery and one count of conspiracy to commit armed robbery. Honeycutt pled guilty to the amended charge of attempted armed robbery in exchange for the state dismissing the conspiracy charge and charges against him in another case, a 30-year cap on the sentence, and the trial court ordering a pre-sentence investigation. The trial court originally sentenced defendant to 40 years, but later amended the sentence to 30 years at hard labor pursuant to the sentencing cap in the plea agreement. After re-sentencing the defendant to 30 years, the defendant made an oral motion to withdraw his guilty plea on the ground that he was not properly Boykinized. Denying this motion, the trial court granted defense counsel's motion to withdraw due to the defendant filing a bar complaint against him alleging ineffective assistance of counsel. The appellant is now represented by the La. Appellate Advocacy Project.

DISCUSSION

Guilty Plea

The defendant argues that his conviction should be vacated because his guilty plea was not freely, intelligently, and voluntarily made in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and La. C. Cr. P. art. 556.1(A)(3). Specifically, the defendant argues that the trial court failed to properly inform him of his right to trial by jury or that he properly waived that right. The state argues that the record was supplemented to show that the defendant was informed of his right to a jury trial during his arraignment and that, therefore, he was aware of this right at the time he pleaded guilty. The state further argues that defendant understood and waived this right to a jury trial by pleading guilty with the knowledge of this right to a jury trial.

Review of the record reveals that the trial court did not specifically inform the defendant of his right to a jury trial at the time of his guilty plea. Rather, the trial court asked defendant if he knew he had a right to a trial:

THE COURT: You understand you have a right to continue with your not guilty plea and have a trial, is that correct?

MR. HONEYCUTT: Yes, sir.

Later in the hearing, the trial court asked defense counsel if he believed the defendant understood his rights and voluntarily waived them. Defense counsel answered in the affirmative. At no time during the guilty plea proceeding does the trial court mention the right to a "trial by jury."

Even so, the Louisiana Supreme Court has ruled that courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of rights occurred. State v. Lawson, 410 So.2d 1101, 1103 (La.1982). In State v. Worsham, 32,670 (La.App. 2d Cir.02/01/00), 754 So.2d 1107, 1108, this court found that the defendant's guilty plea was valid, in spite of the fact that the trial court did not inform defendant of his right to a jury trial at the time he pleaded guilty, because the record showed that the trial court informed defendant of his right to a jury trial at the arraignment. The record in this case shows that the defendant was informed of his right to a trial by jury at the arraignment. While the better practice is to inform a defendant of his right to a trial by jury at the time he pleads guilty, the record supports a finding that defendant was aware of his right to a trial by jury and that his guilty plea was made with the knowledge that he was waiving his right to a trial by jury when he pleaded guilty. Thus, the conviction will not be vacated on the grounds that the guilty plea lacked a proper waiver of the right to a trial by jury, because the record shows the trial court informed defendant of this right at arraignment. This assignment is therefore without merit.

Withdrawal of Guilty Plea

At the re-sentencing hearing, the defendant made an oral motion to withdraw his guilty plea, and the trial court denied the motion. The defendant argues that the trial court erred in denying his motion to withdraw his guilty plea for the following reasons: (1) the original sentence of 40 years breached the plea agreement, which rendered the plea involuntary; (2) the guilty plea was unknowingly and unintelligently made because the trial court informed him that the sentencing range for attempted armed robbery was zero to 48 ½ years, when it was actually 5-49 ½ years; and, (3) the trial court did improperly Boykinize him by telling him that he had a "right to remain silent during this proceeding" instead of informing him that he had the right to remain silent at a jury trial.

A defendant has no absolute right to withdraw a guilty plea. State v. Wynne, 40,921 (La.App. 2d Cir.04/12/06), 926 So.2d 789, 793, citing State v. Hoover, 34,952 (La.App. 2d Cir.04/05/01), 785 So.2d 184. According to La. C. Cr. P. art. 559(A), "The court may permit a plea of guilty to be withdrawn at any time before sentencing." The language of this article clearly provides that the withdrawal of a guilty plea is discretionary with the trial court and, thus, subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Moore, 32,707 (La.App. 2d Cir.10/27/99), 743 So.2d 877, 880, writ denied, 2001-0650 (La.11/02/01), 800 So.2d 872, citing State v. Swafford, 30,651 (La. App. 2d Cir.06/24/98), 715 So.2d 104; State v. Bates, 29,252 (La.App. 2d Cir.01/22/97), 711 So.2d 281. The trial court may allow a defendant to withdraw a guilty plea if it finds that the plea was not freely and voluntarily made or if the Boykin colloquy is constitutionally inadequate. State v. Wynne, supra, citing State v. Hoover, supra. For the reasons discussed below, the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea.

It is well settled that a plea agreement is considered a contract between the state and the criminal defendant. State v. Wynne, 926 So.2d at 795, citing State v. Peyrefitte, 2004-0742 (La.10/15/04), 885 So.2d 530; State v. Adams, 2004-77 (La.App. 3d Cir.09/29/04), 884 So.2d 694, writs denied, 2004-2709, 2004-2880 (La.02/25/05), 894 So.2d 1131-32; State v. Roberts, 2001-3030 (La.App. 1st Cir.06/21/02), 822 So.2d 156, writ denied, 2002-2054 (La.03/14/03), 839 So.2d 31. A guilty plea is constitutionally infirm when the terms of the plea agreement are not honored. State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868, 870-871, citing State v. Dixon, 449 So.2d 463 (La.1984); State v. Gasca, 575 So.2d 913 (La.App. 2d Cir.1991), writ denied, 580 So.2d 674 (La.1991); State v. Taylor, 535 So.2d 1229 (La.App. 3d Cir.1988). In State v. Terrebonne, 2001-2632 (La.App. 1st Cir.06/21/02), 822 So.2d 149, 152, the first circuit noted that contract principles apply to plea agreements:

This court extensively reviewed the nature of plea agreements recently in the case of State v. Canada, 01-2674 (La. App. 1st Cir.5/10/02), 838 So.2d 784. The Canada court cited State v. Lewis, 539 So.2d 1199, 1204 (La.1989) to explain that contract principles apply to plea bargains. Canada, 01-2674 at pp. 3-4, 838 So.2d 786-88. The Canada court also cited Lewis v. State, Department of Public Safety and Corrections, 602 So.2d 68, 74 (La.App. 1 Cir.1992) to explain that, "[u]nder the substantive criminal law, there are only two alternative remedies available for a breach of a plea agreement: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea." (Citations omitted.) Canada, 01-2674 at p. 5, 838 So.2d at 788.

Thus, in State v. Terrebonne, supra, the first circuit vacated a sentence and remanded for re-sentencing in accordance with a plea agreement after the trial court imposed a sentence more onerous than the one contained within the terms of the plea agreement.

In the present case, the plea agreement contained a sentencing cap of 30 years, but the trial court imposed a sentence of 40 years. The defendant filed a motion for reconsideration of sentence, and the state conceded that the sentence should be amended in accordance with the plea agreement. Consequently, the trial court re-sentenced the defendant to 30 years. Because the defendant was given specific performance of the plea agreement, his guilty...