Opinion
NO. 2013-KA-0795
01-15-2014
STATE OF LOUISIANA v. MAURICE A. LAUGAND
Leon A. Cannizzaro, Jr. District Attorney J. Bryant Clark, Jr. Assistant District Attorney COUNSEL FOR APPELLANT, STATE OF LOUISIANA
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 513-238, SECTION "L"
Honorable Franz Zibilich, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard, Judge Joy Cossich Lobrano)
LOBRANO, J., DISSENTS WITH REASONS
Leon A. Cannizzaro, Jr.
District Attorney
J. Bryant Clark, Jr.
Assistant District Attorney
COUNSEL FOR APPELLANT, STATE OF LOUISIANA
AFFIRMED
The State appeals the trial court's decision to grant the Motion To Quash of defendant, Maurice A. Laugand. The motion sought to quash the multiple bill of information the State filed against Mr. Laugand based on its contention that Mr. Laugand had breached the terms of a plea agreement reached between the parties. Finding no error in the judgment of the trial court, we affirm the judgment.
STATEMENT OF CASE/PROCEEDINGS BELOW
The State of Louisiana charged Mr. Laugand with one count of a felon in possession of a firearm and one count of possession with the intent to distribute marijuana, violations of La. R.S. 14:95.1 and La. R.S. 40:966(A)(2). Mr. Laugand initially entered a plea of not guilty. However, he later withdrew that plea and entered into a negotiated plea agreement with the State wherein he agreed to plead guilty to both charges. The plea agreement was made pursuant to La. C.Cr.P. art. 890.1. As part of the plea agreement, Mr. Laugand was to be sentenced to eight years in the Department of Corrections, with credit for time served and the sentence to run concurrently with any other sentence. The State also agreed not to multiple bill Mr. Laugand.
La. C.Cr.P. art. 890.1 provides in part for the waiver of minimum mandatory sentences where the defendant pleads guilty pursuant to a negotiated plea agreement with the prosecution and the court.
Subsequent thereto, the trial court conducted a plea colloquy in open court relative to the plea agreement. The court reviewed the "waiver of rights-plea of guilty" form executed by Mr. Laugand. Mr. Laugand averred that he understood his rights; was aware of the maximum sentence he could receive; and accepted the eight-year sentence assessed under the plea agreement. After recording Mr. Laugand's guilty plea, the trial court advised:
Sir, I'm not going to sentence you today. But I'm going to tell you that your sentence is going to be eight years in the Department of Corrections; that you are going to be given credit for time served; that I'm going to recommend that you be allowed to participate in any and all programs for which you are eligible by the Department of Corrections.
I'm going to order you back here on December 27th at 8:00 in the morning, 8:15 in the morning. If you're not here I'm ripping this up. This is a contract between you and me right now. If you are not here I'm ripping it up and this eight years is going to look like a picnic.
The Court added:
The Court is setting a bond in the amount of twenty-five hundred dollars which you need to make by 8:30 Monday morning. Again, if you don't come here with that bond I'm just putting you in jail. And if you don't come here at all, again, it's all bets off. Don't make a fool out of me.
On December 27, 2012, the date of the scheduled sentencing, Mr. Laugand failed to timely appear in court at 8:15 a.m. Instead, several hours later, he turned himself in to his bondsman and was brought to jail at 1:00 p.m. When Mr. Laugand failed to appear, the court forfeited the defendant's bond. The matter was then reset for sentencing on January 18, 2013.
At the January 18, 2013 sentencing date, the trial court basically abided by the plea agreement. It sentenced Mr. Laugand to eight years in the Department of Corrections as a "no bill," allowed him to have credit for time served, and provided that the sentence would run concurrently with any other sentence he might be serving. However, it found him in direct contempt for his failure to be in court by 8:15 a.m. The court then sentenced him to a week for the contempt citation. The one week was to run consecutively with the other sentences imposed.
The State objected to the sentence. It alleged that Mr. Laugand had violated the plea agreement by his failure to show up at 8:15 a.m. at his initial sentencing; and as a result, had breached the agreement. Accordingly, the State declared that the sentence imposed by the trial court was illegally lenient and announced its intent to file a multiple offender bill of information against Mr. Laugand. After the State filed the multiple bill of information, Mr. Laugand filed a motion to quash.
A hearing on the motion to quash was held on March 7, 2013. Mr. Laugand argued in his motion to quash that he had an "iron-clad" plea agreement with the State. He asserted that on the initial sentencing date, he turned himself in to the bondsman; the bondsman took him to the Sheriff's department; and he was "locked up" around 1:00 p.m. He characterized his tardiness as a "good faith mistake," and as such, claimed that he did not violate the "iron clad" plea agreement. The State re-urged its argument that Mr. Laugand's failure to appear in court on the initial sentencing date amounted to a material breach of the plea agreement.
The trial court reiterated its position that Mr. Laugand's failure to turn himself in on a timely basis was not sufficient to vitiate the plea agreement. It reasoned that the contempt citation and the one week added to his sentence amounted to sufficient punishment for his tardiness. Therefore, the court granted the motion to quash. This appeal followed. STATEMENT OF FACT
Our review of the record shows no response by the defendant/appellee to the State's appeal. 3 The Stewart defendant's scheduled sentencing date was March 19, 2001; he did not appear in court until January 7, 2002. The Roche defendant was scheduled for sentencing on February 19, 2008; he presented himself for sentencing on August 7, 2008.
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The underlying facts of this case have not been developed since they are not essential for determination of the current appeal. DISCUSSION
In its sole assignment of error, the State contends that because the defendant violated the provisions of the plea agreement, the trial court abused its discretion in granting the defendant's motion to quash the multiple bill of information. The State acknowledges that the defendant turned himself in to the bondsman, who in turn took him to the Sheriff's department on the date of sentencing. Notwithstanding, the State maintains that the plea agreement was breached when Mr. Laugand failed to timely appear in court for sentencing at 8:15 a.m., as previously instructed by the trial court. Therefore, it argues that the plea agreement should have been rescinded.
In support of its argument, the State cites two Fifth Circuit cases, State v. Stewart, 03-976 (La. App. 5 Cir. 12/30/03), 862 So. 2d 1271, and State v. Roche, 09-684 (La. App. 5 Cir. 3/23/10), 39 So. 3d 706. Both cases found that the State did not breach the defendants' plea agreements where the State filed multiple offender bills of information and defendants received enhanced sentences after they failed to appear in court on their respective scheduled sentencing dates. Each had entered a plea of guilty in exchange for a lesser sentence and a promise that the State would not file a habitual offender bill of information against them. At the plea colloquy, both defendants were specifically and expressly instructed that if they failed to appear for sentencing, they would not be sentenced in accordance with the plea agreement, but rather they would face a possible maximum sentence. In the Stewart case, the prosecutor specifically informed the defendant that it reserved the right to file a multiple bill in the event the defendant failed to show on the scheduled sentencing date. Similarly, in State v. Roche, the trial court told the defendant that his sentence could increase to 65 years and that the State could multiple bill him in the event he did not appear for sentencing. The State also clarified that its agreement not to file a multiple bill against defendant was conditioned on the defendant's appearance at sentencing.
However, we find that the facts of the present case more closely align with the facts in another Fifth Circuit case, State v. Ebright, 2004-972 (La. App. 5 Cir. 1/11/05), 894 So.2d 359. In Ebright, the defendant pled guilty to distribution of cocaine charges. Her plea agreement called for her to receive 2 years at hard labor at the Department of Corrections. At the plea colloquy, the trial court warned the defendant that if she did not appear at sentencing, "her sentence would grow." The defendant did not show at her scheduled May 2, 2003 sentencing date. She eventually appeared in court on August 29, 2003. She apologized to the court and explained that "she got scared." The trial court rejected the defendant's request to treat her non-appearance as a contempt matter; and instead, it imposed a sentence that included 12 years at hard labor. The defendant maintained on appeal that the 12-year sentence was excessive. The Ebright court determined that based on its review of the record, the 12 year sentence imposed after the defendant had been promised a two year sentence as an inducement to a guilty plea was constitutionally infirm. Therefore, the sentence was vacated and remanded to the trial court for imposition of the sentence agreed upon or to allow the defendant to withdraw her guilty plea. Ebright p. 4, 894 So.2d at 361. In distinguishing between Ebright and State v. Stewart, infra, the decision explained that:
In Stewart, the defendant was expressly informed, as part of the plea agreement, that his sentences would be imposed consecutively rather than concurrently, and that he would be multiple billed, if he did not appear timely for sentencing. In that case, the court found that the plea was not rendered constitutionally infirm by imposition of the greater sentence because the defendant had been clearly informed of the two possible sentences when he entered his plea. No such clear and express advice was given to the Defendant in this case.
Id., fn. 3, 894 So.2d at 362.
Likewise, in the present matter, Mr. Laugand was not expressly informed of the enhanced sentence he could receive and the possibility that the State could multiple bill him if he did not appear timely for sentencing. The trial court indicated that it would rip up the plea agreement and gave a general warning that "all bets off" if he did not appear at all. Neither the trial court nor the State expressly warned Mr. Laugand that he could be multiple billed. In fact, the State said nothing relative to the consequences Mr. Laugand might face if he failed to show up at his sentencing.
Established jurisprudence has long abided by the principle that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to have been a part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see also State v. Armstead, 599 So.2d 425 (La. App. 4 Cir. 1992). Additionally, our courts have customarily relied on contract law principles when interpreting plea agreements, reasoning that a plea bargain is contract between the state and one accused of a crime. State v. Lewis, 539 So. 2d 1199, 1204 (La. 1989) (citing State v. Nall, 379 So. 2d 731, 733 (La. 1980)).
In the instant case, the trial court made a factual finding that the State had made an agreement with Mr. Laugand for his sentence to run for 8 years, not the statutory minimum of 10 years. Contrary to the State's assertions, the trial court never determined that Mr. Laugand broke his plea agreement. The trial court instead found that Mr. Laugand's turning himself in to his bondsman later on the day of sentencing served as mitigating factor. The trial court concluded that his failure to timely appear in court did not amount to a material breach of his plea agreement sufficient to vitiate his plea agreement/contract with the State; and as such, considered the one week added to his sentence for his contempt citation sufficient punishment.
Based upon our review of the record, this Court also finds that because Mr. Laugand was not expressly warned of the possible enhanced sentence he could face or that the State could multiple bill him if he failed to timely appear at sentencing, that his failure to appear at 8:15 a.m. did not negate the plea agreement. State v. Ebright, infra. Hence, the State remains bound by the sentencing terms reached in the plea agreement- which included the State's promise that it would not file a multiple bill of information against Mr. Laugand in exchange for his guilty plea. Accordingly, we find no error in the trial court's judgment granting the defendant's Motion To Quash and enforcing the plea agreement.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED