Opinion
NUMBER 2015 KA 1299
03-03-2016
STATE OF LOUISIANA v. JITTERENCE BROWN
Ricky L. Babin District Attorney Amy K. Colby Assistant District Attorney Donaldsonville, LA Donald D. Candell Assistant District Attorney Gonzales, LA Counsel for Appellee State of Louisiana Frederick Kroenke Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Jitterrence Brown Jitterrence Brown Harrisonburg, LA In Proper Person Defendant/Appellant
NOT DESIGNATED FOR PUBLICATION
Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
Docket Number 32,840
Honorable Jason Verdigets, Judge Presiding Ricky L. Babin
District Attorney
Amy K. Colby
Assistant District Attorney
Donaldsonville, LA
Donald D. Candell
Assistant District Attorney
Gonzales, LA Counsel for Appellee
State of Louisiana Frederick Kroenke
Louisiana Appellate Project
Baton Rouge, LA Counsel for Defendant/Appellant
Jitterrence Brown Jitterrence Brown
Harrisonburg, LA In Proper Person
Defendant/Appellant BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ GUIDRY, J.
The defendant, Jitterrence Brown, was originally charged by bill of information with two counts of attempted second degree murder, in violation of La. R.S. 14:27 and 14:30.1. He pled not guilty on each count. The defendant later withdrew his former pleas of not guilty and entered guilty pleas to two counts of attempted manslaughter, in violation of La. R.S. 14:27 and 14:31 (counts one and two), and one count of obstruction of justice, a violation of La. R.S. 14:130.1 (count three). Pursuant to a plea agreement, the trial court sentenced the defendant to fifteen years at hard labor for each of the attempted manslaughter convictions, and to a five-year suspended sentence with five years of supervised probation for the obstruction of justice conviction. The trial court ordered the defendant's sentences for attempted manslaughter to run concurrently with each other, but consecutive to the suspended sentence and probation for obstruction of justice. The defendant filed a pro se motion to reconsider sentence, which the trial court denied. The defendant now appeals, alleging one counseled assignment of error and several pro se assignments of error. For the following reasons, we affirm the defendant's convictions and sentences.
The bill of information was amended to charge these offenses.
FACTS
Because the defendant pled guilty, the facts of his offenses were not developed at a trial.
The original bill of information indicates that the defendant was charged with the attempted second degree murders of Monique Delmore and Edgar Westbrook, with these offenses allegedly occurring on or about May 27, 2014. The bill of information was amended by handwritten notation to charge two counts of attempted manslaughter and one count of obstruction of justice. At the time of the defendant's guilty pleas, the trial court recited the factual basis for the defendant's attempted manslaughter convictions as:
On or about May 27th, 2014, [Jitterrence] Brown did commit the offense of attempted manslaughter two counts for running towards the victim[s] and shooting both of them.
No specific date or facts were provided in the bill of information or at the time of sentencing for the obstruction of justice offense.
PLEAS AND SENTENCING
In his only counseled assignment of error, the defendant argues that the trial court erred in failing to inform the defendant of the nature of the obstruction of justice charge, or of that offense's sentencing exposure. Accordingly, he asks that this matter be remanded to the trial court so that he may be so advised.
The defendant also argues four pro se assignments of error related to his convictions and sentences. In his first pro se assignment of error, the defendant reiterates the counseled argument, but with respect to all of the charges against him. In his second pro se assignment of error, the defendant argues that he was not informed about the obstruction of justice charge (i.e., the existence of this charge, not simply the nature of it). In his third pro se assignment of error, the defendant argues that his total sentence of twenty years is excessive. Lastly, in an unnumbered assignment of error, the defendant contends that his sentences should have been imposed concurrently, rather than consecutively.
In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must have informed the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge also must have ascertained that the accused understands what the plea connotes and its consequences. See Boykin v. Alabama, 395 U.S. 238, 243-45, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274 (1969), Boykin only requires that a defendant be informed of the three rights enumerated above. Courts have been unwilling to extend the scope of Boykin to include advising the defendant of any other rights he may have. State v. Brockwell, 00-2547, p. 3 (La. App. 1st Cir. 6/22/01), 797 So. 2d 735, 736.
Louisiana Code of Criminal Procedure article 556.1, in pertinent part, provides:
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:Article 556.1 does not provide an independent basis for upsetting a guilty plea. Violations of Article 556.1 that do not rise to the level of Boykin violations are not exempt from the broad scope of La. C. Cr. P. art. 921. See State v. Guzman, 99-1528, p. 10 (La. 5/16/00), 769 So. 2d 1158, 1163-64.
(1) The nature of the charge to which the plea is offered, the mandatory penalty provided by law, if any, and the maximum possible penalty provided by law.
. . .
E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.
The defendant was represented by counsel at the time of his pleas. Prior to accepting the pleas, the trial court inquired about the defendant's age (twenty-six years old), his education level (high school), whether he was under the influence of any alcohol or drugs (no), whether he had any other mental or physical impairment (no), and his ability to read, write, and understand English (yes). The trial court also informed the defendant of his Boykin rights and informed him that his pleas could be used to enhance future felony convictions. Additionally, the trial court informed the defendant regarding the agreed-upon sentences and ascertained that the defendant understood all possible legal consequences of pleading guilty. The defendant further stated that he was satisfied with his attorney's representation and that his attorney had explained to him the entirety of the plea agreement. That agreement included the suspended and probated sentence for obstruction of justice.
We note that the written plea agreement was somewhat inartfully crafted, perhaps because it - like the bill of information - was amended by handwritten notations. Having been initially drafted for pleas to two counts of attempted second degree murder, and without the obstruction of justice charge included, the original agreement appears to propose concurrent sentences of twenty years at hard labor for each of the attempted second degree murder offenses, with release and five years of probation after fifteen years of imprisonment. The amended written agreement replaced the references to attempted second degree murder with attempted manslaughter, but it did not change the proposed sentences for these two offenses. Thus, as written, the amended plea agreement states that the defendant should have been sentenced to concurrent terms of twenty years for each attempted manslaughter offense, but released after serving fifteen years. However, the amended plea agreement ties the defendant's five years of probation to his obstruction of justice conviction, removing its connection to a release on the attempted manslaughter convictions.
Prior to the defendant's pleas, his attorney articulated the plea agreement to the trial court as: two concurrent, fifteen-year sentences for each attempted manslaughter conviction, and a consecutive, suspended, five-year sentence for the obstruction of justice conviction. The state confirmed the structure of this agreement. The trial court imposed the defendant's sentences in conformity with this recited agreement, ordering that the defendant be placed on supervised probation for five years upon his release.
We point out the discrepancy between the written plea agreement and the recited plea agreement simply as a matter of caution. While he does not explicitly argue otherwise, we note simply that the defendant ultimately received exactly the result he bargained for - fifteen years imprisonment at hard labor, followed by five years of a suspended sentence and probation.
Taking the record as a whole, we find that the defendant knowingly and voluntarily entered his guilty pleas to each count, even though the trial court did not expressly explain to the defendant the nature of the obstruction of justice charge, or its sentencing exposure. When a defendant is represented by counsel, the trial court accepting his guilty plea may presume that counsel has explained the nature of the charge in sufficient detail that the defendant has notice of what his plea asks him to admit. The ultimate inquiry under Boykin is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. State v. Juniors, 03-2425, pp. 60-61 (La. 6/29/05), 915 So. 2d 291, 334-35, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Although the defendant may not have been informed by the trial court regarding the nature of this charge, he was clearly informed of its existence and entered a plea agreement containing this offense. It is unnecessary under these circumstances to remand to the trial court for defendant to be informed of the nature or sentencing exposure of any of his charges. The defendant's counseled and first and second pro se assignments of error are without merit.
Additionally, as detailed above, the colloquy between the defendant and the trial court indicates his voluntary and intelligent choice to plead guilty. A defendant cannot 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. La. C. Cr. P. art. 881.2(A)(2). While the defendant argues that the combined term of his sentences is excessive and that his sentences should have been imposed concurrently rather than consecutively, he does not contend that he received sentences other than those he bargained for in the plea agreement. Thus, the guilty pleas and their resultant sentences are all valid.
These assignments of error are without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In a final, unnumbered, pro se assignment of error, the defendant argues that his trial counsel was ineffective for failing to file any pretrial motions and refusing "to hold" a preliminary examination.
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192, p. 24 (La. 9/6/00), 776 So. 2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). However, where the claim is raised as an assignment of error on direct review and where the record on appeal is adequate to resolve the matter, the claims should be addressed in the interest of judicial economy. State v. Calhoun, 96-0786, p. 9 (La. 5/20/97), 694 So. 2d 909, 914.
The deficiencies alleged by the defendant in his pro se brief address matters of trial preparation and strategy. The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. State v. Allen, 94-1941, p. 8 (La. App. 1st Cir. 11/9/95), 664 So. 2d 1264, 1271, writ denied, 95-2946 (La. 3/15/96), 669 So. 2d 433.
The defendant would have to satisfy the requirements of La. C. Cr. P. art. 924, et seq., to receive such a hearing. --------
This assignment of error is not subject to appellate review.
CONVICTIONS AND SENTENCES AFFIRMED.