State v. Ward

324 So.3d 231

STATE of Louisiana, Appellee

v.Joshua J. WARD, Appellant

No. 53,969-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 30, 2021.

LOUISIANA APPELLATE PROJECT, By: Paula Corley Marx Counsel for Appellant

PENNY WISE DOUCIERE, District Attorney, CAROLINE HEMPHILL, AMANDA MICHELE WILKINS, Assistant District Attorneys, Counsel for Appellee

Before GARRETT, STONE, and STEPHENS, JJ.

STONE, J.

This criminal appeal arises from the Fifth Judicial District Court, Franklin Parish, the Honorable Clay Hamilton presiding. On January 8, 2020, the defendant, Joshua J. Ward ("Ward"), pled guilty to possession of methamphetamine (over 2 grams but less than 28 grams), and was sentenced to 10 years of incarceration at hard labor. Under a separate bill of information, Ward was prosecuted for aggravated flight from an officer, and also pled guilty to that charge on the same day; this charge was predicated on the same incident as the one leading to the instant conviction for possession of methamphetamine. The trial court ordered that these sentences run concurrently with one another.

Ward now appeals, and urges three assignments of error. For the reasons stated herein, we affirm his conviction and sentence.

FACTS

On June 15, 2019, officers of the Winnsboro Police Department responded to the scene of a shooting at Westwood Apartments in Winnsboro, Louisiana. As they arrived, officers observed Ward driving away in a vehicle at high speed. The officers attempted to stop Ward but he refused to comply. After traveling at speeds in excess of 100 mph, crossing the center line, and traveling into oncoming traffic on Highway 4, Ward finally stopped the vehicle. Officers searched the vehicle and found a plastic Glock pistol case and four magazines (two of which contained .40 caliber ammunition that matched the spent shell casings at the scene of the shooting). On the driver's side floorboard, officers also found a plastic bag of several multi-colored tablets, which were later determined to be methamphetamine. Ward was charged in separate bills of information with possession of a Schedule II Controlled Dangerous Substance ("CDS"), methamphetamine, attempted second degree murder, and aggravated flight from an officer where human life is endangered.

As previously stated, pursuant to a plea agreement, Ward pled guilty to aggravated flight from an officer and possession of methamphetamine. The state agreed to dismiss the attempted second degree murder charge, as well as another unspecified charge. There was no sentencing agreement, but the parties agreed that Ward would be sentenced by the trial court following the submission of a presentence investigation ("PSI") report.

On March 11, 2020, after reviewing the PSI report, the trial court determined that Ward had previously been convicted of misdemeanor possession of marijuana, and accordingly sentenced Ward to an enhanced sentence of 10 years at hard labor for the possession of methamphetamine conviction. As to the aggravated flight from an officer conviction, Ward was sentenced to 5 years at hard labor. The trial judge ordered that the sentences be served concurrently. Defense counsel made an oral objection to the sentences and subsequently filed a motion to reconsider; neither set forth specific grounds. The trial court denied the motion. Ward now appeals, urging the following assignments of error: (1) the 10-year sentence is in violation of his plea agreement; (2) his sentence is excessive; and (3) his trial counsel was ineffective.

DISCUSSION

Violation of plea agreement

Ward argues that the trial court erred in sentencing him to an enhanced sentence of 10 years, when possession of methamphetamine, to which he pled guilty, only carries a maximum sentence of 5 years. Ward argues that such a sentence enhancement is a violation of the plea agreement. Ward further asserts that he did not plead guilty to an enhanced sentence.

At the plea hearing, the state advised the trial court that Ward would plead guilty to aggravated flight from an officer and to possession of a Schedule II CDS, methamphetamine, and the state would dismiss the attempted second degree murder charge, along with other charges. The state also informed the trial court that a PSI report would be ordered and filed into the record, and that the trial court would "make the ultimate decision on his sentence."

At the plea hearing, the trial court advised Ward that the penalty for possession of methamphetamine, under La. R.S. 40:967(C)(2), was one to five years with or without hard labor, and carried a potential fine of not more than $5,000. However, the trial court did not inform Ward of potential sentencing enhancement under La. R.S. 40:982, which states:

A. Any person convicted of any offense under this Part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B), 967(B), 968(B), or 969(B), and if it is the offender's second or subsequent offense, the court may impose, in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.

B. For purposes of this Section, an offense shall be considered a second or subsequent offense if, prior to the commission of such offense, the offender had at any time been convicted of any violation of this state, the United States, any other state of or any foreign country, relating to the unlawful use, possession, production, manufacturing, distribution, or dispensation of any narcotic drug, marijuana, depressant, stimulant, or hallucinogenic drugs. (Emphasis added).

The state claims that there was no violation of the plea agreement because there was no agreed-upon sentence. Ward agreed to be sentenced by the trial court after a review of the PSI report. The state did not agree to waive any sentencing enhancements, and never promised that Ward would only receive the maximum five-year sentence or that the sentences would run concurrently. The state further argues that La. R.S. 40:982 is mandatory and the trial court was required to impose the enhanced 10-year sentence. The state also argues that La. R.S. 40:982 is treated as a sentencing enhancement provision which must be implemented after conviction, like La. R.S. 15:529.1, and not as a substantive element of the presently charged offense. In support, the state cites State v. Skipper , 04-2137 (La. 6/29/05), 906 So. 2d 399.

A plea agreement is a contract between the state and a criminal defendant. State v. Patterson , 51,559 (La. App. 2 Cir. 9/27/17), 244 So. 3d 733. In State v. Young , 50,072 (La. App. 2 Cir. 8/12/15), 174 So. 3d 719, appeal after remand , 51,175 (La. App. 2 Cir. 2/15/17), 215 So. 3d 906, writ denied , 17-0472 (La. 11/13/17), 230 So. 3d 204, this Court explained the principles governing the validity of plea agreements:

In determining the validity 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. Givens , 1999-3518 (La. 1/17/01), 776 So. 2d 443. The party demanding performance of a contract has the burden of proving its existence.

State v. Louis , 94-0761, p. 7 (La. 11/30/94), 645 So. 2d 1144 at 1149. In the context of plea bargains, a defendant may demand specific performance of the state's promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. Id . at 1149-50 ; see also , State v. Tanner , 425 So. 2d 760, 763 (La. 1983).

Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. Bloom's Inc. v. Performance Fuels, L.L.C. , 44,259 (La. App. 2 Cir. 7/1/09), 16 So. 3d 476, writ denied , 2009-2003 (La. 11/20/09), 25 So. 3d 800. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art. 1993. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. La. C.C. art. 2022.

A plea is constitutionally infirm when the defendant is induced to plead guilty by a plea agreement (or by what the defendant reasonably believes is a plea agreement) and the terms of the agreement are not satisfied. When a plea agreement is breached, the defendant has the option of specific performance or to withdraw the guilty plea. State v. Patterson , supra.

La. C. Cr. P. art. 556.1 provides in pertinent part:

A. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

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E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

Although defense counsel made an oral objection to the sentence at the hearing and filed a motion to reconsider sentence, neither included specific grounds regarding the trial court's application of La. R.S. 40:982. As a result, the defense failed to preserve this issue for appeal. La. C.Cr.P. art. 881.1, in relevant part, states as follows regarding motions to reconsider sentence:

B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

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