State v. Johnson

314 So.3d 806

STATE of Louisiana

v.Tyrone D. JOHNSON

No. 2019-K-02004

Supreme Court of Louisiana.

December 11, 2020

Amanda Michele Wilkins, New Orleans, for Applicant - State.

Peggy J. Sullivan, Monroe, Kevin Vincent Boshea, Baton Rouge, for Respondent - Defendant.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF RICHLAND

PER CURIAM:^*

Defendant pleaded guilty as charged to distribution of methamphetamine, La.R.S. 14:967(A)(1), and in exchange received a sentence of 23 years imprisonment at hard labor and the State's promise not to file a habitual offender bill of information and seek a sentence of life imprisonment. The court of appeal vacated the plea and sentence because it found defendant was denied his right to counsel of choice when the district court refused on Friday to continue the Monday trial date to allow defendant additional time in which to hire a new attorney. State v. Johnson , 52,965 (La. App. 2 Cir. 9/25/19), 280 So.3d 1245. Under the circumstances herein, and for the reasons that follow, we find the court of appeal erred. Accordingly, we reinstate the guilty plea and sentence.

On June 1, 2015, the police captured defendant on video selling 3.6 grams of methamphetamine to an informant. Defendant was charged with distribution of methamphetamine. He retained counsel and was released on bond. About a week before trial, defense counsel filed a motion to withdraw based on disagreements with his client. The district court held a hearing on the motion on the Friday before the Monday trial date.

In addition to a dispute over unpaid fees, defense counsel and defendant disagreed about discovery. Counsel was satisfied with discovery. Defendant, however, wished to know the identity and criminal history of the informant. The State was willing to provide this information but indicated that it would withdraw its plea offer and cease plea negotiations once it disclosed the informant's identity and background, as was its policy. Counsel had advised defendant to wait to obtain this information while plea negotiations were ongoing but defendant refused.

Defense counsel and the State had also agreed that, if defendant rejected the plea offer, the State would reveal the identity of the informant before a Prieur hearing scheduled to occur immediately before trial. ¹

The State alleged that defendant had sold drugs to the informant many times over several years, and the State intended to introduce this "other crimes" evidence at trial, pursuant to La.C.E. art. 404(B).

At the hearing on counsel's motion to withdraw, the district court informed defendant that he could fire present counsel and represent himself or obtain new counsel over the weekend, but the trial would proceed on Monday. The district court denied counsel's motion to withdraw, and the court declined to appoint a public defender because defendant was not indigent. Nonetheless, defendant insisted that he wanted a "better" attorney. When pressed by the court, however, defendant ultimately agreed to keep current counsel.

Jury selection began on Monday. During jury selection, the parties informed the district court that they had reached an agreement. Defendant agreed to plead guilty unconditionally and receive a sentence not to exceed 23 years imprisonment at hard labor, and in exchange the State agreed not to file a habitual offender bill of information and seek a sentence of life imprisonment. After conducting a colloquy pursuant to Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the district court accepted defendant's guilty plea. Defendant did not reserve his right to seek review of the district court's denial of counsel's motion to withdraw.

While awaiting sentencing, defendant obtained new counsel, who then filed a motion to withdraw the plea. Defendant alleged that he only pleaded guilty to gain time to hire new counsel, and he argued that the court forced him to plead guilty to avoid a trial in which his former counsel would represent him. The district court denied the motion before sentencing defendant to 23 years imprisonment at hard labor.

In an out-of-time appeal granted pursuant to State v. Counterman , 475 So.2d 336 (La. 1985), the court of appeal found that the district court erred in not affording defendant additional time to hire a new attorney and in not granting defendant's motion to withdraw his guilty plea. The court of appeal determined that the district court deprived defendant of his right to counsel of choice, which the court of appeal deemed to be a structural error that required reversal. Therefore, the court of appeal vacated defendant's conviction and sentence. State v. Johnson , 52,965 (La. App. 2 Cir. 9/25/19), 280 So.3d 1245.

"The general rule is that a guilty plea waives all nonjurisdictional defects in the proceedings prior to the plea and precludes review thereof either by appeal or by post-conviction remedy." State v. McKinney , 406 So.2d 160, 161 (La. 1981), citing State v. Torres , 281 So.2d 451 (La. 1973) and State v. Foster , 263 La. 956, 269 So.2d 827 (1972). However, a defendant may plead guilty while expressly reserving the right to seek appellate review of an error the defendant believes "made useless any continued trial of their defense." State v. Crosby , 338 So.2d 584, 586–587 (La. 1976). Defendant here pleaded guilty unconditionally and did not expressly reserve his right to seek appellate review of the denial of counsel's motion to withdraw. We do not believe defendant's subsequent motion to withdraw his plea can transform his unconditional guilty plea into a guilty plea expressly conditioned on his right to seek appellate review of a claimed error. Accordingly, appellate review should have been confined to the question of whether the plea was voluntarily and intelligently entered, or should have been permitted to be withdrawn as involuntarily and unknowingly made (in addition to any jurisdictional defects that appear on the face of the pleadings and proceedings). See State v. Spain , 329 So.2d 178 (La. 1976) ; State v. Knighten , 320 So.2d 184 (La. 1975) ; see also Tollett v. Henderson , 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973) ("[An unconditional] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea ....").

In seeking to withdraw his plea, defendant claimed in essence that he was forced to plead guilty because he hoped that by doing so he would gain time in which to obtain new representation. An unconditional guilty plea is a solemn admission of guilt that should not be entered lightly, and certainly never made as a delaying tactic in the belief that it can simply be withdrawn later. We also note that defendant apparently took no steps while he was free on bond before trial to try to replace his attorney. Regardless, defendant has not shown that the circumstances attendant to the plea placed undue pressure on him which resulted in an involuntary plea. See generally Brady v. United States , 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970) ("The voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it."). Instead, the district court simply ruled that the trial would proceed as scheduled on Monday, and the court would not permit defendant, by a last minute change of counsel when no potential replacement had been identified, to force a postponement of his trial. The district court did not abuse its discretion in so ruling.

Citing United States v. Gonzalez-Lopez , 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the court of appeal found there was a structural error here that resulted from the denial of defendant's Sixth Amendment right to his retained counsel of choice. In Gonzalez-Lopez , however, the Government conceded that the trial court erroneously deprived defendant of his first counsel of choice when it repeatedly refused to admit defendant's chosen, out-of-state counsel pro hac vice after said counsel was found in contempt of court for violating a procedural rule related to cross-examination. The State has made no such concession here. Nor does it appear that the district court deprived defendant of his right to counsel of choice when it did not afford defendant additional time to find a replacement for his original counsel of choice.

The United States Supreme Court in Gonzalez-Lopez recognized that the right to counsel of choice is not without limitations:

Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post , at 2567,

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