State v. Johnson

280 So.3d 1245

STATE of Louisiana, Appellee

v.Tyrone D. JOHNSON, Appellant

No. 52,965-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 25, 2019

Rehearing Denied November 14, 2019

LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Counsel for Appellant

JOHN M. LANCASTER District Attorney, KENNETH D. WHEELER, AMANDA M. WILKINS, Assistant District Attorneys, Counsel for Appellee

Before WILLIAMS, STONE, and THOMPSON, JJ.

WILLIAMS, C.J.

The defendant, Tyrone Johnson, was charged by bill of information with one count of Distribution of a Schedule II CDS (methamphetamine), a violation of La. R.S. 40:967(A)(1). Pursuant to a plea agreement, the defendant pled guilty as charged with a sentencing cap and the state agreed not to file an habitual offender bill of information. The district court subsequently denied defendant's motion to withdraw his guilty plea and sentenced him to serve 23 years at hard labor in conformity with the agreed-upon sentence. Defendant appeals his conviction and sentence. For the following reasons, we grant the defense motion to withdraw the guilty plea, vacate defendant's conviction and sentence, and remand for further proceedings.

FACTS

The record shows that in August 2015, defendant was charged with one count of distribution of methamphetamine based on video evidence allegedly showing defendant making an illegal drug sale to an undercover agent. The bill of information reflects that the offense occurred on June 1, 2015. After arraignment in September 2015, defendant was represented by his retained counsel, Albert Ellis, prior to the trial date. Several pretrial motions were filed, including a motion for a preliminary examination.¹ During the week before trial, defendant's attorney filed a motion to withdraw as counsel of record. Then, two days before the hearing on the motion to withdraw as counsel and less than one week before trial, the state filed notice of its intent to use other crimes evidence at trial. Notably, the substantive text of the notice of intent states as follows:

The defendant is presently charged with distribution of methamphetamine. The state shows that [it] is going to use a cooperating civilian witness [CW] in the trial of the defendant. The CW made a purchase of methamphetamine from the defendant on June 1, 2015. The CW will testify that he has been making purchases from the defendant, Tyrone Johnson, for 5-10 years before June 1, 2015.

The state intends to offer evidence of the relationship between the CW and defendant pursuant to Louisiana Code of Evidence 404(B) to show the defendant's identity, mode of operation, as well as his intent, purpose, knowledge of the substance methamphetamine. The state also intends to offer evidence of the relationship between the CW and the defendant to defend against any argument that this was an accident or mistake. (Emphasis added)

On April 29, 2016, at the hearing on the motion to withdraw as counsel, Attorney Ellis advised the court that he had been negotiating a plea deal with the district attorney, but that defense counsel's communications with defendant had broken down and defendant no longer wanted to be represented by Attorney Ellis. The state responded that allowing defendant's attorney to withdraw at a time so close to trial would require that a continuance of the trial be granted. Attorney Ellis then outlined the extensive plea negotiations he had conducted with the state on behalf of defendant, including a written plea offer that had been delivered to defendant. Defense counsel also informed the court that he had not been paid by defendant as agreed. The defense attorney requested that defendant be given additional time to obtain other counsel if he was discharged. The defense attorney pleaded with the court, noting that defendant was ill-equipped to represent himself. The district court refused to allow defendant's attorney to withdraw and advised defendant that if he fired Attorney Ellis then his case was still going to trial the following Monday, whether or not he was represented by another attorney. After an extensive discussion between defendant and the trial court, defendant responded that he was "going to keep" Attorney Ellis. The vital colloquy between defendant and the trial court reads as follows:

MR. JOHNSON: I really need to get better – a better counsel but you keep saying if I – if I fire him you're going to take me to trial, but he ...

COURT: You're going to be representing yourself unless you can get somebody over the weekend.

MR. JOHNSON: No, but ... he's not wanting to go to trial with the evidence they've got and the evidence I feel like they've got ain't nothing.

COURT: Well, okay. All right. You didn't answer my question. Would you tell them out there I'll be with them in just a minute? Just tell them ... that we're in the middle of something and I'm going to let them in in just a second. I just want to make sure you understand ... I'm not going to let Mr. Ellis withdraw. I'm not going to allow him to withdraw from the case, in other words I'm going to make him stay on the case, but you have the absolute right because you're the one who hired him, you can fire him if you want. If you say today "I want to fire him" I want you to understand – in other words if you don't fire him I'm going to make Mr. Ellis go through with the trial. But if you want to fire him ... you can hire your own attorney but you're probably not going to get an attorney to represent you in a case – jury trial set for Monday, over the weekend. So you probably are going to be representing yourself, which you have the right to do, too. So I want to make sure you understand we're down to it and I need to go ahead and rule something, I've got something else at 9:00.

MR. WHEELER: I know he's not a public defender, he's a retained counsel, is there a different standard when somebody wants to – I know usually when they want to fire their public defender you have to question them about their ability to understand the law and the procedure of trial. Is that a different standard than with ...?

COURT: I'm going to ask him that. No, it's not a different standard I don't think[. A]re you on any drug, alcohol or medicine?

MR. JOHNSON: No, sir.

COURT: Do you understand what's going on today?

MR. JOHNSON: Yes, sir.

COURT: You understand you have a trial set for Monday?

MR. JOHNSON: Yes, sir.

COURT: And you understand you're the first setting on the trial docket now? MR. JOHNSON: Yes, sir.

COURT: All right. Do you want Mr. Ellis to represent you or do you want to fire him today and try to get your own or represent yourself?

MR. JOHNSON: Yes, but either way I go you're saying I'm going to trial Monday. COURT: That's right.

MR. JOHNSON: But I would like a better counsel though.

COURT: That's not the answer I'm looking – that's fine if you want to get one, I'm saying this thing's been set for a while, you've got until Monday, you know, if you want to fire him right now I'm going to allow you to fire him because you have the right. I'm not going to allow him to withdraw this late. If you want to fire him that's your right, you fire him but I want to make sure you're doing so with an understanding that if you're unable to get another attorney you're going to still go to trial Monday whether you've got one or not. Do you understand that? You have to say yes or no.

MR. JOHNSON: Yes, sir.

COURT: So what do you want to do?

MR. JOHNSON: I'm going to keep him.

COURT: Okay. All right. He said he's going to keep him so I'm not going to allow him to withdraw and so we are set for trial Monday. Are there any other plea negotiations on the table? Do you want to talk one more – one last shot before we – you get out of here?

MR. ELLIS: If Mr. Wheeler will accommodate me, we will.

COURT: So just to put on the record Mr. Johnson said he's going to keep him so ... I'm not allowing Mr. Ellis to withdraw so we're on trial for Monday as the first trial setting .... So if you are able to work it out I'll be here and I'll take a plea today[.]

MR. WHEELER: We'd like the record to reflect the defendant is present, he's being notified Monday morning, May 2^nd, 9:30 a.m., his trial.

COURT: All right. You can step down. Let the record so reflect.

The following Monday, May 2, 2016, the date of trial, defendant entered a plea of guilty as charged in exchange for a 23-year sentencing cap and the state's agreement not to file a multiple offender bill. The district court advised defendant of his rights under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant stated that he understood and wanted to waive his rights and plead guilty. The district court accepted the guilty plea, finding that the plea was entered freely and voluntarily. The court ordered a presentence investigation.

On May 19, 2016, defendant's newly retained counsel, Willard Brown, filed a motion to withdraw defendant's guilty plea on the grounds that his plea was "not a free and voluntary act, but a necessary act to seek another attorney." The state opposed the motion to withdraw the plea, noting the available video evidence showing defendant distributing methamphetamine and the significant reduction in sentencing exposure obtained as a result of the plea agreement negotiated by the prior defense counsel.

In June 2016, prior to imposing sentence, the trial court heard argument on the motion to withdraw the guilty plea.

Defendant's attorney argued that defendant had accepted the guilty plea because the prior defense counsel had not objected to the admissibility of other crimes evidence. The state advised the court that the state and defendant's prior attorney had planned to have a hearing regarding other crimes evidence prior to the start of trial if there had been no plea agreement. The trial court denied the motion to withdraw the guilty plea and imposed a sentence of 23 years' imprisonment in accordance with the plea agreement.

In May 2017, defendant filed a motion for an out-of-time...