Opinion
2022 KA 1362
06-20-2023
STATE OF LOUISIANA v. BRAD CHRISTOPHER PHILLIPS
Hobart O. Pardue, Jr. Springfield, Louisiana and Ashton DeVan Pardue Clayton, Louisiana Attorneys for Appellant Brad Christopher Phillips Scott M. Perrilloux District Attorney Brett Sommer Le' Anne H. Malnar Assistant District Attorneys Amite, Louisiana Attorneys for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-first Judicial District Court In and for the Parish of Tangipahoa State of Louisiana No. 1701894 The Honorable William Dykes, Judge Presiding
Hobart O. Pardue, Jr. Springfield, Louisiana and Ashton DeVan Pardue Clayton, Louisiana Attorneys for Appellant Brad Christopher Phillips
Scott M. Perrilloux District Attorney Brett Sommer Le' Anne H. Malnar Assistant District Attorneys Amite, Louisiana Attorneys for Appellee State of Louisiana
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
HOLDRIDGE, J.
The defendant, Brad Christopher Phillips, was charged by bill of information with twenty counts of pornography involving juveniles (under the age of thirteen years), violations of La. R.S. 14:81.1(A)(1) & (E)(5)(a). He initially entered a plea of not guilty on each count. At a Boykin hearing, the defendant withdrew his former pleas and pled no contest to the charges. He was sentenced to ten years imprisonment at hard labor on each count, to be served concurrently. He now appeals, assigning error to the trial court's denial of his motion to withdraw his no contest pleas. For the following reasons, we affirm the convictions and sentences but remand for correction of the minutes and commitment order.
"Boykin" refers to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
The minutes and commitment order indicate that the defendant's no contest pleas and sentences were applicable to only ten counts. However, based on the transcripts for the no contest pleas and subsequent sentencing, the defendant pled no contest to all twenty counts and was sentenced on all counts. Where there is a conflict between the transcript and the minutes, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Consequently, we affirm the defendant's convictions and sentences, and remand this matter solely for the trial court to correct the minute entry and uniform commitment order to show that the defendant pled no contest to, and was sentenced on, all twenty counts.
STATEMENT OF FACTS
As the defendant entered pleas of no contest prior to a trial in this matter, the facts of the offenses were not developed. The offenses occurred on or about May 4, 2017. The instant case arose when the Internet Crimes Against Children (ICAC) Task Force was investigating a separate case in which child pornographic images were shared with an undercover officer. The ICAC Task Force discovered that the perpetrator in that case, Michael Stanley Clark, also had online communications with the defendant, including exchanges of images containing child pornography and text messages discussing, in a sexual manner, what appeared to be a prepubescent juvenile. The task force learned that the defendant was affiliated with a bar in Independence, Louisiana, where they contacted the defendant and advised him of his Miranda rights. The defendant consented to the search of a Dropbox account from which approximately five hundred images and videos indicative of child pornography were recovered amongst thousands of videos and images depicting various individuals that ranged from infants to "age difficult." The defendant confessed to downloading the child pornography, using the Dropbox, and posing as a female online to obtain inappropriate images.
At the Boykin hearing, the trial court noted that the State previously introduced all discovery to establish a factual basis, and defense counsel agreed to the existence of a factual basis. The facts stated herein are based on the bill of information and testimony presented at a hearing on the motion to suppress evidence filed by the defendant.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
ASSIGNMENTS OF ERROR
Herein, the defendant raises two assignments of error and presents a combined argument challenging the trial court's denial of his motion to withdraw his no contest pleas. He notes that his trial counsel was in a near fatal car accident and was, consequently, unable to file a motion to quash or seek writs on the denial of the motion to suppress. He argues that this case should be remanded for an evidentiary hearing on his motion to withdraw his pleas.
Assignment of error number two directly challenges the trial court's denial of the defendant's motion to withdraw his no contest pleas. However, the wording of assignment of error number one consists of references to the case being set for trial on three separate dates, defense counsel's car accident "at or about the time" notice to seek supervisory writs on the denial of the motion to suppress would have been filed, and to the no contest pleas being "theoretically" made pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). These issues, except to the extent that they were simply stated in support of the defendant's challenge of the ruling on the motion to withdraw his pleas, were not developed in the combined argument presented in the defendant's brief on appeal. Listing of the assignment of error does not constitute briefing of the assignment. Assignments of error not briefed on appeal are considered abandoned. Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(B) (4); see also State v. Laue, 2020-0225 (La.App. 1st Cir. 12/30/20), 326 So.3d 267, 282, writ denied. 2021-01329 (La. 11/17/21), 327 So.3d 993, cert, denied. ___U.S. ___, 142 S.Ct. 2659, 212 L.Ed.2d 612 (2022).
A guilty plea is a conviction and, therefore, should be afforded a great measure of finality. State v. Young, 2020-0049 (La.App. 1st Cir, 11/6/20), 315 So.3d 904, 910, writ denied, 2020-01402 (La. 2/9/21), 310 So.3d 177. A plea of guilty waives a criminal defendant's fundamental right to a jury trial, right to confront his accusers, and his privilege against self-incrimination. Thus, due process requires, as a prerequisite to its validity, that the plea be a voluntary and intelligent relinquishment of known rights. There must be an affirmative showing in the record that the defendant was informed of the constitutional privilege against self-incrimination, the right to trial by jury, and the right to confront his accusers and that he knowingly and intelligently waived them. State v. Joseph, 2012-0085 (La.App. 1st Cir. 2/15/13), 2013 WL 596149, *1 (unpublished); Boykin, 395 U.S. at 243, 89 S.Ct. at 1712.
As noted, in this case the defendant pled no contest to the charges. A plea of no contest is equivalent to an admission of guilt and is treated as a guilty plea. State v. Oliver, 2020-0190 (La.App. 1st Cir. 2/24/21), 321 So.3d 1033, 1037 n.5.
Upon motion of the defendant and after a contradictory hearing, the trial court may permit a plea of guilty to be withdrawn at any time before sentence. La. Code Crim. P. art 559(A). A trial court can properly vacate a guilty plea after sentence, as well, if it determines that the facts surrounding a guilty plea rendered it constitutionally deficient. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Under Article 559, the defendant has no absolute right to withdraw a previously entered plea of guilty. The court's decision is discretionary, subject to reversal only if that discretion is abused or arbitrarily exercised. Young , 315 So.3d at 907. Generally, the denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and the plea was entered voluntarily. State v. Cheatham, 2016-1648 (La.App. 1st Cir. 6/2/17), 222 So.3d 757, 759.
Herein, the defendant's trial counsel, Jake Lemmon, represented the defendant at the three-day hearing on his motion to suppress and at the subsequent Boykin hearing on June 2, 2021, when the defendant pled no contest. After the defendant's no contest pleas were accepted, Lemmon advised he would not be present for the sentencing. The trial court agreed that another attorney could be present in Lemmon's absence, noting that the defendant would be sentenced according to the sentencing agreement made by the parties prior to the pleas.
The record reflects that Lemmon requested a return date for seeking writs when the trial court denied the motion to suppress on the third day of the hearing, on February 5, 2019. Lemmon was not present for several court dates thereafter. On December 14, 2020, Lemmon appeared in court, indicated that he had been in an accident, and was granted a continuance. As noted above, Lemmon was subsequently present at the Boykin hearing on June 2, 2021.
On August 4, 2021, at a hearing called for sentencing, Hobart Pardue, the defendant's counsel at the time, was allowed to make and argue the oral motion to withdraw the no contest pleas. In support of his motion, Pardue argued the pleas could not have been intelligently entered, noting that the transcript of the motion to suppress hearing showed that "computers and such" had been tested in this case, but the record did not reflect that any results or lab reports had been included in the record or handed over to the defense. Thus, Pardue argued that the defendant was entitled to withdraw his pleas based on the lack of results of purported testing. Challenging the defendant's possession of the evidence that led to the charges, Pardue further noted that no evidence was found on the defendant's telephone or computer but that the evidence was instead found "in a cloud somewhere" and accessed from a Dropbox. In response, the State noted that any documents within the State's possession intended for use at trial "evidently" had been given to the defense in discovery, adding that discovery was satisfied. The State also noted that the lengthy hearing on the motion to suppress involved testimony by federal officers and the defendant himself, adding that the defendant's confession was made part of the evidence. The State contended the defendant's pleas were knowingly, intelligently, and willingly entered in exchange for a plea agreement for the minimum sentence often years. In denying the motion to withdraw, the trial court noted that everything discussed by Pardue occurred prior to Lemmon's car accident and that Lemmon proceeded with the no contest pleas. The trial court concluded that Pardue had not stated any grounds to show that the pleas were not voluntarily, knowingly, and intelligently made.
Prior to the oral motion to withdraw, Pardue filed a motion to compel production of evidence, in part requesting "any and all test results" and any computers, software, and "any other evidence which may or will be used in the prosecution of this case." In arguing his motion to withdraw, Pardue requested a hearing on his motion for documents, adding, "once we [sic] some of that, there could be other things that need to be produced that have not been produced, as we go along." The record reflects that long before the defendant's no contest pleas, counsel representing the defendant at the time filed routine discovery motions, requesting, in part, "any results or reports" from any "tests or experiments" made in connection with this case. On December 5, 2017, Lemmon noted in open court that he received a voluminous amount of discovery.
As to the merits of the motion, we agree with the trial court in that the defendant would have been aware of the lack of any test results prior to pleading no contest and still proceeded with the no contest pleas. We further note that the defendant was afforded the opportunity to argue the merits of his motion to withdraw prior to the sentencing. After hearing arguments by defense counsel and the State, the trial court denied the motion. The defendant did not request a full evidentiary hearing on the motion to withdraw or object to the lack of an evidentiary hearing. Thus, the defendant has not properly preserved that issue for appeal. See La. Code Crim. P. art. 841; State v. Faggard, 2015-585 (La.App. 5th Cir. 1/13/16), 184 So.3d 837, 847, writ denied, 2016-0338 (La. 2/10/17), 215 So.3d 701.
Further, the cases upon which the defendant relies on appeal are distinguishable from the instant case. Specifically, in State v. Griffin, 535 So.2d 1143 (La.App. 2d Cir. 1988), the defendant pled guilty to second degree murder pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Against advice of counsel, he made an oral motion to withdraw his guilty plea, which the trial court immediately denied without conducting any inquiry into the reasons for the request. The appellate court set aside the sentence and remanded the case to the trial court for a hearing on the defendant's motion. The appellate court considered the defendant's youthful age, limited formal education, the fact that his attorneys were not supportive of his withdrawal of the plea, and the fact that the defendant did not admit guilt when entering the Alford plea. Noting that it was unable to evaluate the exercise of discretion by the trial court, the appellate court stated, "the trial court should have made some inquiry into the reasons for defendant's request, rather than denying the request without affording opportunity for further explanation by the defendant." There was nothing in the record therein to indicate why the defendant desired to withdraw his guilty plea. Griffin , 535 So.2d at 1146.
In this case, the defendant was represented by counsel who orally moved to withdraw his pleas and, as stated, argued the merits of the motion. After hearing arguments by defense counsel and the State, the trial court denied the motion with stated reasons addressing defense counsel's arguments on the motion. Thus, considering the August 4, 2021 hearing and the hearing on the motion to suppress, both of which were contradictory, we find that the issue now raised on appeal was properly addressed below.
The defendant also cites State v. Lewis, 421 So.2d 224, 226 (La. 1982), as support for his argument that the trial court erred in denying his motion to withdraw his pleas. However, in Lewis the defendant claimed that his guilty plea was involuntary because he had been misled by his defense attorney as to the possibility of probation. Apparently, his defense attorney alleged that he had misunderstood the trial court and, in turn, "inadvertently misled" the defendant. Id. In the instant case, the defendant does not allege that his pleas were involuntary due to an inadequate Boykin colloquy, a misunderstanding of the plea agreement, or a breach thereof.
It is within the discretion of the trial court to permit such withdrawal. The legal basis to permit a defendant to withdraw a guilty plea is upon evidence that his plea bargain was constitutionally infirm, creating a legal defect that nullifies the agreement between the parties. See La. Code Crim. P. art. 559; Young , 315 So.3d at 907-08. At the Boykin hearing in this case, the trial court questioned the defendant regarding his date of birth and level of education. The defendant indicated that he had a high school education. The trial court informed the defendant of the charges in this case and the statutory elements of the offenses by reading the corresponding statutes. The defendant confirmed that he understood the nature of the charges and the applicable sentencing range. The trial court informed the defendant of his Boykin rights (right to trial by jury, right against compulsory self-incrimination, and right of confrontation), his right to an appeal, and that by pleading no contest, he would be waiving his rights. The defendant indicated that he understood those rights and further indicated that he understood that he was waiving those rights by pleading no contest. The defendant agreed that he wished to plead no contest and denied that he had been threatened or promised any leniency. The defendant further indicated that he was satisfied with the representation that he had been provided by counsel.
The defendant was later sentenced in accordance with the sentencing agreement set forth in the record at the time of the pleas, to the minimum sentence allowed by statute, ten years imprisonment on each of the twenty counts, to be served concurrently. The record reflects a knowing and voluntary waiver of the defendant's rights and the trial court's compliance with the constitutional requirements for the taking of voluntary no contest pleas. We cannot say that the trial court abused its discretion in refusing to allow the defendant to withdraw his no contest pleas. For the foregoing reasons, we affirm the defendant's convictions and sentences. We remand for the limited purpose of correcting the minutes and the commitment order to reflect that the defendant pled no contest to, and was sentenced on, all twenty counts.
Cf State v. Jones, 2021-1358 (La.App. 1st Cir. 3/4/22), 2022 WL 632175 (unpublished) (Therein, this court vacated the trial court's ruling on a motion to withdraw guilty plea and remanded the case to the trial court for an evidentiary hearing, as there was no record for review concerning the defendant's claim that the original district attorney had induced his guilty plea by what the defendant believed was a plea bargain which the new assistant district attorney did not keep. Contrary to Jones , in which the defendant appeared prejudiced by the lack of an evidentiary hearing on his claim, the instant case involves a confession and a minimum sentence for multiple counts.).
CONVICTIONS AND SENTENCES AFFIRMED; REMAND FOR CORRECTION OF MINUTE ENTRY AND COMMITMENT ORDER.