Opinion
NO. 2016 KW 1471
02-21-2017
STATE OF LOUISIANA v. DENNIS JOHNSON
In Re: Dennis Johnson, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 557,057. BEFORE: WELCH, CRAIN AND HOLDRIDGE, JJ.
WRIT GRANTED IN PART AND DENIED IN PART. The district court's ruling dismissing relator's postconviction application is vacated and the district court is directed to conduct an evidentiary hearing at which relator will be afforded the opportunity to present his claim of ineffective assistance of counsel with supporting evidence. See State ex rel. Shannon v. State, 2015-0792 (La. 6/17/16), 194 So.3d 1105. The record before us demonstrates that relator was offered a fifteen-year sentence as a second-felony habitual offender in exchange for his guilty plea on August 25, 2015, but through counsel that plea offer was rejected. Six days later, on August 31, 2015, relator pled guilty to a less advantageous plea offer of twenty-years as a second-felony habitual offender. In the writ application, relator alleged that his attorney advised him to reject the initial plea offer. See Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (when a defendant demonstrates that his attorney's advice to reject a plea offer is deficient under the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prove prejudice, the defendant must show there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted the terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed.) We believe that the only way relator can offer support for the allegations raised in the writ application is through an evidentiary hearing where he can present testimony concerning the circumstances in which the plea offer was rejected. See La. Code Crim. P. art. 930(A). See State v. Miller, 2015-1031 (La. App. 1st Cir. 12/23/15), 185 So.3d 811, 815, writ denied, 2016-0152 (La. 1/23/17), ___ So.3d ___, 2017 WL 462554. (As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for postconviction relief in the district court rather than on appeal. This is because postconviction relief provides the opportunity for a full evidentiary hearing under La. Code Crim. P. art. 930.). We further believe that our decision is in accordance with the guidelines set forth by the United States Supreme Court in Lafler and Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). In accordance with our decision, the district court is ordered to appoint counsel to represent relator at the evidentiary hearing. See La. Code Crim. P. art. 930.7(C). In all other respects, the writ application is denied.
JEW
GH
Crain, J., dissenting. Counsel, in open court and in the presence of relator, rejected a 15-year plea offer. Relator has not alleged any facts to support his conclusory allegation that counsel's performance was deficient when she advised him to reject the offer (which contrary to relator's assertions included adjudication as a second-felony habitual offender). "It is not sufficient that an inmate simply express regret in not accepting the plea bargain." State v. Jenkins, 14-1148 (La. App. 4 Cir. 5/6/15), 172 So. 3d 27, 39. Neither does relator argue or suggest that but for counsel's alleged ineffective assistance, he would have accepted the 15-year plea offer. Therefore, relator's application for post-conviction relief does not state a claim that would entitle him to relief. See Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
The courts cannot bear the burden of an evidentiary hearing every time a plea offer is rejected, so that counsel can explain his rationale. Here, counsel did not fail to present a plea offer to the defendant. Contrast Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Nor does relator allege that counsel advised him to reject the plea offer based upon an erroneous legal principle. Contrast Lafler, 132 S.Ct. at 163. By ordering an evidentiary hearing, the majority extends both Frye and Lafler beyond their respective fact situations, which I would not do. The 15-year plea offer expired the same day relator rejected it. Later, facing the possibility of a fourth offense habitual offender bill of information, relator accepted a harsher plea agreement and was sentenced as a second-felony habitual offender to twenty years imprisonment. The later plea was voluntarily and intelligently made following a textbook Boykin exchange between relator, his attorney, and the trial court, during which relator voiced no complaint regarding the earlier rejected plea offer. I would deny the writ application in its entirety. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT