State v. Mangano

• Decision Date: 26 February 1985
• Docket Number: No. 84,84
• Parties: STATE of Louisiana v. Daniel MANGANO. KA 0814.
• Court: Court of Appeal of Louisiana — District of US

Page 1032

464 So.2d 1032

STATE of Louisiana v. Daniel MANGANO.

No. 84 KA 0814.

Court of Appeal of Louisiana,

First Circuit.

Feb. 26, 1985.

J. Kevin McNary and Richard A. Swartz, Asst. Dist. Attys., Covington, for State.

Wendell E. Tanner, Slidell, for defendant.

Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

JOHN S. COVINGTON, Judge.

Defendant, Daniel Mangano, was charged by bill of information with two offenses: count one, cultivation of marijuana, a violation of LSA-R.S. 40:966(A); count two, possession of cocaine, a violation of LSA-R.S. 40:967(C). Pursuant to a plea bargain agreement, count one was nolle prosequied when defendant entered a plea of guilty to count two, which the trial court accepted after a Boykin hearing. The plea bargain agreement provided that only if a pre-sentence investigation report showed that defendant's record was "clean" ¹ would the trial court suspend sentence. If that condition were met, the trial judge informed the defendant prior to accepting his plea, defendant would receive a sentence of five years imprisonment at hard labor, suspended; plus three years of probation, a three thousand dollar fine, and court costs.

The pre-sentence investigation report showed that defendant had, among other criminal activity minor in nature, been arrested thirteen years before in Florida for breaking and entering a motor vehicle with the intent to commit larceny, a felony. He entered a plea of nolo contendere to the charge, and was sentenced to one year at hard labor in the county jail. Having received this information, the trial judge informed defendant at the sentencing hearing that because his record was not "clean", the plea bargain agreement for a suspended sentence could not be carried through.

Defendant attempted to withdraw his plea of guilty, but the trial court refused to allow him to do so. Defendant was then sentenced to two years imprisonment at hard labor in the custody of the Department of Corrections, with credit for time served. Defendant appeals his conviction and sentence, asserting two assignments of error.

We affirm.

ASSIGNMENT OF ERROR NO. ONE

Defendant argues that the trial court erred in refusing to allow withdrawal of his guilty plea once he discovered that the plea bargain agreement would not be carried out. Although defendant fails to explicitly assert any genuine mistaken belief as to his lack of a prior felony conviction, this seems to be the basis of his first assignment of error.

LSA-C.Cr.P. art. 559 provides, in pertinent part, that: "The court may permit a plea of guilty to be withdrawn at any time before the sentence." Under this article, a defendant has no absolute right to withdraw a previously entered plea of guilty. Discretion to permit withdrawal of a guilty plea is vested in the trial judge. However, that discretion cannot be arbitrarily exercised and abuse of discretion can be corrected on appeal. State v. Jenkins, 419 So.2d 463 (La.1982); State v. Johnson, 406 So.2d 569 (La.1981).

This court has previously held that a defendant's mistake of fact as to the existence of a prior conviction is not sufficient to render a plea of guilty involuntarily made and constitutionally infirm. State v. Taylor, 441 So.2d 1306 (La.App. 1st Cir.1983). In Taylor, the defendant argued that at the time his guilty plea was entered, all parties involved were under the false impression that defendant had no prior felony conviction. Prior to sentencing, when that false impression was corrected, defendant filed a motion to withdraw his guilty plea which was denied by the trial court. On appeal, this court stated:

"Even if defendant was genuinely mistaken in his belief that his prior conviction was less than a felony or had indeed forgotten that conviction entirely, the evidence in the record shows that defendant, at the time the guilty plea was entered, made a knowing and intelligent waiver of rights; and such a mistake of fact is not sufficient to render defendant's guilty plea constitutionally infirm. We find no abuse of discretion on the part of the trial judge in denying defendant's motion to withdraw guilty plea." (p. 1308)

Defendant attempts to distinguish Taylor to avoid its application to his case. He argues first that in Taylor the trial judge at the Boykin hearing asked the defendant directly if he had ever been convicted of anything or pled guilty before, but that the trial judge in his case failed to do...