Opinion
21-KH-688
01-19-2022
STATE OF LOUISIANA v. DUVELL LONDON, SR. IN RE DUVELL LONDON, SR.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE EMILE R. ST. PIERRE, DIVISION "C", NUMBER 19, 16
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
WRIT DENIED
Relator, Duvell London, Sr., seeks this court's supervisory review of the trial court's August 20, 2021 ruling which denied his application for post-conviction relief ("APCR"). Upon review, for the following reasons, we deny the writ application.
On the cover page of relator's writ application, he indicates that he is seeking review of the trial court's June 1, 2021 ruling; however, this statement appears to be in error as relator includes the trial court's August 20, 2021 ruling in his application.
First, relator failed to include any notice of intent or evidence of a return date set by the trial judge as required by Uniform Rules-Courts of Appeal, Rules 4-2, 4-3, and 4-5(11). Relator also failed to include a copy of the APCR he submitted to the trial court in violation of URCA Rule 4.5(C)(8). In any event, however, in the interest of justice and judicial efficiency, after reviewing the official record, we find there is an insufficient basis upon which to disturb the ruling of the trial court.
On October 29, 2019, relator pled guilty to manslaughter and the trial court sentenced him to fifteen years' imprisonment at hard labor with credit for time served. Relator did not file a motion for an appeal. On June 15, 2021, relator filed an APCR. In it, relator claimed that counsel rendered ineffective assistance by misleading him about terms of the plea bargain. Specifically, relator maintained that counsel informed him that he would receive a five-year sentence in exchange for his guilty plea to manslaughter. According to relator, his phone conversation with counsel was recorded by his relatives who would testify that counsel informed relator that his sentence would be a five-year term rather than the fifteen-year sentence imposed by the trial court. On June 16, 2021, the trial court ordered the State to file its objections. The State filed its opposition on August 13, 2021, arguing that relator's claim that counsel advised him that the trial court would sentence him to a five-year term was not supported by the guilty plea transcript or the waiver of rights form signed by relator. On August 20, 2021, the trial court denied relief, first noting that relator's APCR was "nearly identical" to a pro se motion filed by relator on similar grounds which was denied on June 1, 2021. The trial court further stated, as it found in its previous denial of relief, that "the transcript is devoid of any evidence the State or Defendant's counsel tendered promises the Defendant would receive a five (5) year sentence."
As an initial matter, under La. C.Cr.P. art. 881.2(A)(2), a "defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea." This prohibition encompasses sentences imposed pursuant to plea agreements setting forth specific sentences as well as plea agreements with sentencing caps. See State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La. 11/14/03), 858 So.2d 417. A trial judge has the discretion to allow a guilty plea to be withdrawn at any time before sentencing. La. C.Cr.P. art. 559(A). See also State v. Gross, 95-621 (La.App. 5 Cir. 3/13/96), 673 So.2d 1058, 1059. Once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. Gross, 673 So.2d at 1059-60.
According to the trial court's ruling, relator's guilty plea transcript "clearly establishes that, while the Defendant received the benefit of a refusal of charges by the State in exchange for a plea to La. R.S. 14:31 - Manslaughter, there was no agreed upon sentence." In addition, the trial court pointed out that "the Boykin form signed by the Defendant, specifically states that the Court had the discretion to sentence the Defendant to fifteen (15) years." The State's opposition brief also indicates that the "actual plea agreement itself, signed by the Defendant, expressly states, 'Judge will impose sentence not to exceed 15 years DOC.'" Thus, relator's agreement was based on a dismissal of two charges and a fifteen-year sentencing cap.
The State's opposition brief indicates that the State dismissed relator's charges of possession of cocaine and driving while intoxicated, second offense in exchange for relator's guilty plea.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. State v. Karim, 19-133 (La.App. 5 Cir. 9/9/20), 302 So.3d 1200, 1204, writ denied, 20-1185 (La. 1/12/21), 308 So.3d 713; State v. Francois, 13-616 (La.App. 5 Cir. 1/31/14), 134 So.3d 42, 58, writ denied, 14-431 (La. 9/26/14), 149 So.3d 261. Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a conviction must be reversed if the defendant proves: (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. Karim, supra. When a defendant claims that counsel's ineffective assistance rendered a guilty plea invalid, the Strickland analysis under the first deficiency prong remains the same, whereas under the second prejudice prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.; State v. Stiller, 16-659 (La.App. 5 Cir. 7/26/17), 225 So.3d 1154, 1157 (citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)). To prevail, the accused must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Rivas, 17-615 (La.App. 5 Cir. 7/31/18), 251 So.3d 1228, 1233 (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Any inquiry into the effectiveness of counsel must be specific to the facts of the case and must take into consideration the counsel's perspective at the time. Id. Furthermore, "[g]eneral statements and conclusory allegations will not suffice to prove a claim of ineffective assistance of counsel." State v. Fisher, 19-488 (La.App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247 (citing State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, 579).
In the instant case, relator's conclusory allegation, standing alone, does not support a claim that counsel rendered ineffective assistance with respect to the plea agreement. See La. C.Cr.P. art. 930.2. Relator fails to show "that there is a reasonable probability that, but for counsel's omissions, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, supra.
Accordingly, this writ application is denied.
JGG
SMC
MOLAISON, J., CONCURS WITH REASONS
I agree with the panel's assessment that the relator's writ application is deficient in several respects, as outlined in the majority's disposition, and should therefore be denied. However, I would deny relief solely on the showing made and pretermit reviewing the merits of any assigned errors.
JJM