State Of Louisiana v. Tyrone D. Johnson

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 11th day of December, 2020 are as follows:
PER CURIAM:
2019-K-02004 STATE OF LOUISIANA VS. TYRONE D. JOHNSON (Parish of
Richland)
REVERSED. SEE PER CURIAM.
Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore,
sitting in the vacant seat for District 4 of the Supreme Court. He is now
appearing as an ad hoc for
Justice Jay B. McCallum.
Johnson, C.J., dissents and assign reasons.

* Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in the vacant seat
for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice Jay B. McCallum.
12/11/20
SUPREME COURT OF LOUISIANA
N
o. 2019-K-02004
S
TATE OF LOUISIANA
v
ersus
T
YRONE D. JOHNSON
ON
WRIT OF CERTIORARI TO THE COURT OF APPEAL,
SECOND CIRCUIT, PARISH OF RICHLAND
P
ER CURIAM:*
D
efendant pleaded guilty as charged to distribution of m ethamphetamine,
La.R.S. 14:967(A)(1), and in exchange received a sentence of 23 years imprisonment
at hard labor and the State’s promise not to file a habitual offender bill of information
and seek a sentence of life imprisonment . The court of appeal vacated the plea and
sentence because it found defendant was denied his right to counsel of choice when the
district court refused on Friday to continue the Monday trial date to allow defendant
additional time in which to hire a new attorney. State v. Johnson, 52,965 (La. App. 2
Cir. 9/25/19), 280 So.3d 1245. Under the circumstances herein, and for the reasons that
follow, we find the court of appeal erred. Accordingly, we reinstate the guilty plea and
sentence.
On June 1, 2015, the police captured defendant on video selling 3.6 grams of
methamphetamine to an informant. Defendant was charged with distribution of
methamphetamine. He retained counsel and was released on bond. About a week
before trial, defense counsel filed a motion to withdraw based on disagreements with
his client. The district court held a hearing on the motion on the Friday before the

2

Monday trial date.
In addition to a dispute over unpaid fees, defense counsel and defendant
disagreed about discovery. Counsel was satisfied with discovery. Defendant, however,
wished to know the identity and criminal history of the inf ormant. The State was
willing to provide this information but indicated that it would withdraw its plea offer
and cease plea negotiations once it disclosed the informant’s identity and background,
as was its policy . Counsel had advised defendant to wait to obtain this information
while plea negotiations were ongoing but defendant refused.
Defense counsel and the State had also agreed that, if defendant rejected the plea
offer, the S tate would reveal the identity of the informant before a Prieur hearing
scheduled to occur immediately before trial.1 The State alleged that defendant had sold
drugs to the informant many times over several years, and the State intended to
introduce this “other crimes” evidence at trial, pursuant to La.C.E. art. 404(B).
At the hearing on counsel’s motion to withdraw, the district court informed
defendant that he could fire present counsel and represent himself or obtain new
counsel over the weekend, but the trial would proceed on Monday. The district court
denied counsel’s motion to withdraw, and the court declined to appoint a public
defender because defendant was not indigent. Nonetheless, defendant insisted that he
wanted a “better” attorney. When pressed by the court, however, defendant ultimately
agreed to keep current counsel.
Jury selection began on Monday. During jury selection, the parties informed the
district court that they had reached an agreement. Defendant agreed to plead guilty
unconditionally and receive a sentence not to exceed 23 years imprisonment at hard

1 See generally State v. Prieur, 277 So.2d 126 (La. 1973); see also State v. Taylor, 2016-1124
(La. 12/1/16), 217 So.3d 283.

3

labor, and in exchange the State agreed not to file a habitual offender bill of
information and seek a sentence of life imprisonment . After conducting a colloquy
pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),
the district court accepted defendant’s guilty plea. Defendant did not reserve his right
to seek review of the district court’s denial of counsel’s motion to withdraw.
While awaiting sentencing, defendant obtained new counsel, who then filed a
motion to withdraw the plea. Defendant alleged that he only pleaded guilty to gain time
to hire new counsel, and he argued that the court forced him to plead guilty to avoid a
trial in which his former counsel would represent him. The district court denied the
motion before sentencing defendant to 23 years imprisonment at hard labor.
In an out-of-time appeal granted pursuant to State v. Counterman, 475 So.2d
336 (La. 1985), the court of appeal found that the district court erred in not affording
defendant additional time to hire a new attorney and in not granting defendant’s motion
to withdraw his guilty plea. The court of appeal determined that the district court
deprived defendant of his right to counsel of choice, which the court of appeal deemed
to be a structural error that required reversal. Therefore, the court of appeal vacated
defendant’s conviction and sentence. State v. Johnson, 52,965 (La. App. 2 Cir.
7/25/19), 280 So.3d 1245.
“The general rule is that a guilty plea waives all nonjurisdictional defects in the
proceedings prior to the plea and precludes review thereof either by appeal or by post-
conviction remedy.” State v. McKinney, 406 So.2d 160, 161 (La. 1981), citing State v.
Torres, 282 So.2d 451 (La. 1973) and State v. Foster , 263 La. 956, 269 So.2d 827
(1972). However, a defendant may plead guilty while expressly reserving the right to
seek appellate review of an error the defendant believes “made useless any continued
trial of their defense.” State v. Crosby, 338 So.2d 584, 586–587 (La. 1976). Defendant

4

here pleaded guilty unconditionally and did not expressly reserve his right to seek
appellate review of the denial of counsel’s motion to withdraw. We do not believe
defendant’s subsequent motion to withdraw his plea can transform his unconditional
guilty plea into a guilty plea expressly conditioned on his right to seek appellate review
of a claimed error. Accordingly, appellate review should have been confined to the
question of whether the plea was voluntarily and intelligently entered, or should have
been permitted to be withdrawn as involuntarily and unknowingly made (in addition to
any jurisdictional defects that appear on the face of the pleadings and proceedings). See
State v. Spain, 329 So.2d 178 (La. 1976); State v. Knighten, 320 So.2d 184 (La. 1975);
see also Tollet v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235
(1973) (“[An unconditional] guilty plea represents a break in the chain of events which
has preceded it i n the criminal process. When a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea. He may only
attack the voluntary and intelligent character of the guilty plea . . . .”).
In seeking to withdraw his plea, defendant claimed in essence that he was forced
to plead guilty because he hoped that by doing so he would gain time in which to
obtain new representation. An unconditional guilty plea is a solemn admission of guilt
that should not be entered lightly, and certainly never made as a delaying tactic in the
belief that it can simply be withdrawn later. We also note that defendant apparently
took no steps while he was free on bond before trial to try to replace his attorney.
Regardless, defendant has not shown that the circumstances attendant to the plea
placed undue pressure on him which resulted in an involuntary plea . See generally
Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.d.2d 747 (1970)

5

(“The voluntariness of [a] plea can be determined only by considering all of the
relevant circumstances surrounding it.”). Instead, the district court simply ruled that the
trial would proceed as scheduled on Monday , and the court would not permit
defendant, by a last minute change of counsel when no potential replacement had been
identified, to force a postponement of his trial . The district court did not abuse its
discretion in so ruling.
Citing United States v. Gonzalez -Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165
L.Ed.2d 409 (2006), the court of appeal found there was a structural error here that
resulted from the denial of defendant’s Sixth Amendment right to his retained counsel
of choice. In Gonzalez-Lopez, however, the Government conceded that the trial court
erroneously deprived defendant of his first counsel of choice when it repeatedly
refused to admit defendant’s chosen, out -of-state counsel pro hac vice after said
counsel was found in contempt of court for violating a procedural rule related to cross-
examination. The State has made no such concession here. Nor does it appear that the
district court deprived defendant of his right to counsel of choice when it did not afford
defendant additional time to find a replacement for his original counsel of choice.
The United States Supreme Court in Gonzalez-Lopez recognized that the right to
counsel of choice is not without limitations:
Nothing we have said today casts any doubt or places any qualification
upon our previous holdings that limit the right to counsel of choice and
recognize the authority of trial courts to establish criteria for admitting
lawyers to argue before them. As the dissent too discusses, post, at 2567,
the right to counsel of choice does not extend to defendants who require
counsel to be appointed for them. See Wheat, 486 U.S., at 159, 108 S.Ct.
1692; Caplin & Drysdale, 491 U.S., at 624, 626, 109 S.Ct. 2646. Nor
may a defendant insist on representation by a person who is not a member
of the bar, or demand that a court honor his waiver of conflict -free
representation. See Wheat, 486 U.S., at 159–160, 108 S.Ct. 1692. We
have recognized a trial court’s wide latitud e in balancing the right to
counsel of choice against the needs of fairness, id., at 163–164, 108 S.Ct.
1692, and against the demands of its calendar, Morris v. Slappy, 461 U.S.
1, 11–12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The court has,

6

moreover, an “independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them.” Wheat, supra, at 160,
108 S.Ct. 1692. None of these limitations on the right to choose one’s
counsel is relevant here. This is not a case about a court’s power to
enforce rules or adhere to practices that determine which attorneys may
appear before it, or to make scheduling and other decisions that
effectively exclude a defendant’s first choice of counsel.

Gonzalez-Lopez, 548 U.S. at 151–152, 126 S.Ct. at 2565–2566. Likewise, this court
has found that the right to counsel provided in La. Const. Art. I § 13 has similar
limitations:
An [accused’s] right to choose his counsel only extends so far as to allow
the accused to retain the attorney of his choice, if he can manage to do so,
but that right is not absolute and cannot be manipulated so as to obstruct
orderly procedure in courts and cannot be used to thwart the
administration of justice. State v. Jones, 376 So.2d 125 (La. 1979); State
v. Leggett, [363 So.2d 434 (La. 1977)]; State v. Mackie, [352 So.2d 1297
(La. 1977)].

State v. Reeves, 06-2419, pp. 37–38 (La. 5/5/09), 11 So.3d 1031, 1057.
Thus, a “[d]efendant must exercise his ri ght to counsel of his choice at a
reasonable time, in a reasonable manner and at an appropriate stage of the
proceedings.” State v. Seiss, 428 So.2d 444, 447 (La. 1983). Absent a justifiable basis,
“[t]here is no constitutional right to make a new choice of counsel on the very date the
trial is to begin, with the attendant necessity of a continuance and its disrupting
implications.” State v. Leggett, 363 So.2d 434, 436 (La. 1977) ; see also State v.
Anthony, 347 So.2d 483, 489 (La. 1977) (“The law is well settled that a defendant in a
criminal trial cannot, by a last minute change of counsel, force a postponement of his
trial.”). Moreover, the question of withdrawal of counsel largely rests with the
discretion of the trial court and its ruling will not be disturbed in the absence of a clear
showing of abuse of discretion. See State v. Cousin, 307 So. 2d 326, 328 (La. 1975).
Here, the record does not show that the district court abused its discretion when
it denied counsel’s request to withdraw on the Friday before trial was set to begin on

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Monday. The district court did not deprive defendant of his right to counsel of choice
when it did not permit defendant to force a postponement of his trial by seeking a last
minute change of counsel. Thus, the court of appeal erred in finding that the district
court’s ruling placed undue pressure on defendant which resulted in an involuntary
plea. Accordingly, we reverse the ruling of the court of appeal. We reinstate the district
court’s ruling, which denied defendant’s mot ion to withdraw his guilty plea. We
reinstate defendant’s guilty plea and sentence.
REVERSED

12/11/20
SUPRE
ME COURT OF LOUISIANA
No.
19-K-02004
STA
TE OF LOUISIANA
v.
TYR
ONE D. JOHNSON
ON W
RIT OF CERTIORARI TO THE COURT OF APPEAL,
SECOND CIRCUIT, PARISH OF RICHLAND
JOH
NSON, C.J., dissents with reasons:
The
defendant had a Sixth Amendment right to be represented by the
counsel of his choice at trial. I agree with the court of appeal, which held that, “the
trial court did not inquire as to how much time defendant would need to hire new
counsel and there was no showing that the state would have been prejudiced by a
continuance to provide defendant with a reasonable opportunity to retain another
attorney. Although an important consideration, the efficient administration of the
court's docket should not supersede the protection of defendant's exercise of his
constitutional rights.” State v. Johnson , 52, 965 (La. App. 2 Cir. 9/25/19, 9– 10);
280 So.3d 1245, 1251– 52. Because he was no t represented by counsel of choice,
defendant’s guilty plea was entered in inherently coercive circumstances that
cannot be considered voluntary . See generally Brady v. United States, 397 U.S.
742, 749 (1970). Therefore his plea was entered in violation of the Constitution,
and his conviction by plea should be vacated.