State v. Patin

• Decision Date: 13 November 2019
• Docket Number: NO. 19-KA-157,19-KA-157
• Citation: 285 So.3d 48
• Parties: STATE of Louisiana v. Hursen A. PATIN
• Court: Court of Appeal of Louisiana — District of US

285 So.3d 48

STATE of Louisiana

v.Hursen A. PATIN

NO. 19-KA-157

Court of Appeal of Louisiana, Fifth Circuit.

November 13, 2019

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Blair C. Constant

COUNSEL FOR DEFENDANT/APPELLANT, HURSEN A. PATIN, Richard A. Spears

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

GRAVOIS, J.

Defendant, Hursen A. Patin, appeals his convictions and sentences resulting from guilty pleas to possession with intent to distribute cocaine, possession with intent to distribute marijuana, and possession of hydrocodone. For the following reasons, we affirm defendant's convictions and habitual offender stipulation, vacate defendant's enhanced sentence on count one and his sentences on counts two and three, and remand the matter to the trial court for resentencing, including clarification of defendant's parole status as of the time of resentencing.

PROCEDURAL HISTORY

On June 1, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Hursen A. Patin, with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one); possession with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two); and possession of hydrocodone in violation of La. R.S. 40:967(C) (count three). Defendant pled not guilty at his arraignment held the following day.

On August 15, 2016, defendant withdrew his pleas of not guilty and pled guilty as charged. After advising defendant of his Boykin¹ rights, the trial court accepted defendant's pleas and sentenced him in accordance with the plea agreement "as to counts 1 and 2, 15 years in the Department of Corrections" and to five years in the Department of Corrections² on count three. Defendant's sentences were ordered to run concurrently with each other and with any and all other sentences, including the sentences on which he was "currently on parole."

Immediately thereafter, the State filed a habitual offender bill of information against defendant alleging that he was a second felony offender under La. R.S. 15:529.1 as to count one. Defendant stipulated to being a second felony offender as to count one. The trial court then resentenced defendant in accordance with the plea agreement to fifteen years in the Department of Corrections on count one to run concurrently with any and all sentences imposed, including the sentences on which he was "currently on parole."

Subsequently, on December 14, 2016, defendant, pro se , filed a "Motion to Request a Psychiatric Evaluation And To Amend, Modify or Reduce Sentence." In this pleading, defendant requested the reversal of his pleas or that the trial court order a psychiatric evaluation to determine whether he had the capacity to understand the nature of the crimes to which he pled guilty, his pleas, the proceedings, and the sentences imposed. He also requested a reduction of his habitual offender sentence due to his mental illnesses and his cooperation with a detective.

On January 3, 2017, the trial court issued an order denying defendant's pro se motion. It found that defendant was not entitled to relief because under La. C.Cr.P. art. 881, he had begun serving his sentences and could not appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea.

On September 14, 2018, defendant, through counsel, filed by facsimile an "Application for Post-Conviction Relief with Incorporated Memorandum and Motion to Correct Illegal Sentence." In his application, defendant claimed that his trial counsel was ineffective because she was aware of defendant's mental deficiencies, but did nothing to make them clear to the trial court. Defendant argued that at the time of the plea in question, he was not on his prescribed medications, and he was not mentally capable of making decisions regarding plea negotiations.

In response, on September 24, 2018, the trial court issued an order dismissing defendant's application for post-conviction relief ("APCR") without prejudice, finding that it contained an issue as to form as defense counsel failed to use a form approved by the Louisiana Supreme Court. The order further noted that defendant's application was premature since he had not exhausted his appellate rights, and thus, his APCR was procedurally barred from review. Finally, the trial court found that because defendant did not allege a valid claim reviewable in accordance with La. C.Cr.P. art. 930.3 or 930.4, he was not entitled to the sought-after relief at that time. However, in its order, the trial court further included that "petitioner may file an application for post-conviction relief requesting an out-of-time appeal per LSA-C.Cr.P. art. 924.1 and 930.8(A), within 30 days of this order."

On October 24, 2018, defendant, again through counsel, timely filed by facsimile a Motion for Extension of time to "re-file in accordance with the Order of the Court." He requested an additional seven days to "re-file." The order granting the extension is blank, and it does not appear that the motion was ruled on.

On November 15, 2018, defense counsel filed by facsimile an Application for Post-Conviction and Motion to Correct Illegal Sentence. Defendant requested that the trial court grant him an out-of-time appeal. On December 3, 2018, the trial court issued an order dismissing defendant's APCR without prejudice and granting his request for an out-of-time appeal, noting that it had "previously granted petitioner extra time for petitioner to file this request." This appeal followed.³

FACTS

Defendant pled guilty, and thus, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided a factual basis for defendant's charges. The State indicated that if it proceeded to trial, it would prove beyond a reasonable doubt that on April 14, 2016, defendant knowingly or intentionally possessed with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one); knowingly or intentionally possessed with intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two); and knowingly or intentionally possessed hydrocodone in violation of La. R.S. 40:967(C) (count three). Defendant admitted during the colloquy that he was guilty of the crimes.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the record is devoid of any evidence that the filing of the habitual offender bill and his resentencing immediately following were part of the plea agreement. The State responds that to the contrary, the record reflects that defendant's stipulation to the habitual offender bill as a second felony offender was part of the negotiated plea agreement, of which the parties and the trial judge were all aware.

A plea bargain is viewed as a contract between the State and one accused of a crime. State v. Mitchell , 08-629 (La. App. 5 Cir. 1/13/09), 7 So.3d 744, 751, writ denied , 09-0254 (La. 10/30/09), 21 So.3d 270. In determining the validity of agreements not to prosecute or of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant's constitutional right to fairness may be broader than his or her rights under contract law. State v. Louis , 94-0761 (La. 11/30/94), 645 So.2d 1144, 1148. The validity of any guilty plea depends on the circumstances of the case. State v. Filer , 00-0073 (La. 6/30/00), 762 So.2d 1080 (per curiam ).

Once a defendant is sentenced, only those pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. Joseph , 14-762 (La. App. 5 Cir. 3/25/15), 169 So.3d 661, 664. 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. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. Under substantive criminal law, there are two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement; or (2) nullification or withdrawal of the plea. Mitchell , supra .

The record reflects that immediately after defendant's original sentences were imposed, the State filed in open court the habitual offender bill of information against him on count one, alleging he was a second felony offender. The State indicated that it had given trial counsel the habitual offender bill to review with her client, and trial counsel stated that she and defendant had reviewed it. At that time, the trial judge then asked defendant if he intended to stipulate to the habitual offender bill, and defendant responded affirmatively. Defendant verbally acknowledged that he was provided a copy of the habitual offender bill and was able to review it with his attorney. Defendant, on that same date, also executed a written waiver of rights form relevant to the habitual offender proceeding. On the habitual offender waiver of rights form, defendant placed his initials next to an advisal that a copy of the habitual offender bill was provided to him and was reviewed by his attorney. During the colloquy and on the habitual offender waiver of rights form, defendant expressed that he was satisfied with the trial court and his attorney's efforts to explain the rights and consequences regarding the habitual offender bill, and he denied during the colloquy having any questions concerning the stipulation.

Accordingly, in conclusion, we find no merit to defendant's arguments that he was unaware of the State's intention to file a habitual offender bill against him on count one and that it was not part of his negotiated plea agreement. Further, the record reflects that defendant was advised of the...