State of Louisiana v. Dwayne Griffin

STATE OF LOUISIANA * NO. 2019-KA-0519

VERSUS *
COURT OF APPEAL
DWAYNE GRIFFIN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 538-540, SECTION “L”
Honorable Franz Zibilich, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Tiffany G. Chase)

Leon Cannizzaro
District Attorney
Donna Andrieu
Chief of Appeals
Irena Zajickova
Assistant District Attorney
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE

Sherry Watters
LOUISIANA APPELLATE PROJECT
P. O. Box 58769
New Orleans, LA 70158

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
SEPTEMBER 18, 2019

This appeal stems from the trial court’s denial of a motion to quash the bill

of information filed by Defendant, Dwayne Griffin. Since there are no grounds to

quash the bill of information, the trial court’s ruling is affirmed.

FACTS AND PROCEDURAL HISTORY

In the instant case, Defendant was charged with one count of bail jumping,

in violation of La. R.S. 14:110.1. Before the bail jumping charge, Defendant pled

guilty as charged on October 4, 2017, to three drug possession offenses as part of a

plea agreement. The agreement stipulated that upon successful completion of the

District Attorney’s Office Diversion Program, Defendant would be allowed to

withdraw his guilty plea and the case would be dismissed.

After accepting the guilty plea, the trial court set a $2,500.00 pre-sentence

bond in accordance with La. C.Cr.P. art. 312(E), and set the case for a “Diversion

Review Hearing” on October 17, 2017. Defendant was given notice of the hearing

date in open court. He later filed a Release on Recognizance (ROR) bond and was

released from jail. However, on October 17, 2017, Defendant failed to appear for

his scheduled hearing and an alias capias was issued.

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In response to Defendant’s failure to appear, on November 20, 2017, the

State filed the instant bail jumping charge. The bill of information alleged that on

October 17, 2017, Defendant committed the crime by "intentionally failing to

appear in section "L" of Criminal District Court in State v. Dwayne Griffin, case

number 535-802, a felony case."

Defendant remained at large until January 20, 2019, when he was arrested

on the capias. He was subsequently sentenced to three years in the custody of the

Louisiana Department of Corrections in the drug case. The sentence was

suspended, and Defendant was ordered to serve two years active probation.

Later, Defendant filed a motion to quash the instant bill of information

alleging that it failed to charge an offense punishable under a valid statute. After a

hearing, the trial court denied the motion to quash. Defendant then entered a guilty

plea, pursuant to State v. Crosby, 338 So.2d 584, 588 (La. 1976), reserving his

right to appeal the trial court’s ruling. As a result of his guilty plea in this case, the

trial court sentenced Defendant to one year imprisonment and suspended the

sentence, subject to one year active probation. This appeal followed.

STANDARD OF REVIEW

“[T]his Court in reviewing a motion to quash involving solely a legal issue,

such as presented in the instant case, applies a de novo standard of review.” State v.

Broyard, 14-1026 (La. App. 4 Cir. 12/23/15), 183 So.3d 796, 798 (citation

omitted).

DISCUSSION

On appeal, Defendant asserts that the trial court erred when it denied his

motion to quash. He raises two major issues concerning the charge against him:

the elements of the offense charged and double jeopardy.

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La. C.Cr.P. art 532(5) provides that a motion to quash may be granted based

on any grounds contained in Article 485, which states:

If it appears from the bill of particulars furnished under Article
484, together with any particulars appearing in the indictment, that the
offense charged in the indictment was not committed, or that the
defendant did not commit it, or that there is a ground for quashing the
indictment, the court may on its own motion, and on motion of the
defendant shall, order that the indictment be quashed unless the defect
is cured. The defect will be cured if the district attorney furnishes,
within a period fixed by the court and not to exceed three days from
the order, another bill of particulars which either by itself or together
with any particulars appearing in the indictment so states the
particulars as to make it appear that the offense charged was
committed by the defendant, or that there is no ground for quashing
the indictment, as the case may be.

In State v. Byrd, 96-2302 (La. 3/13/98) 708 So.2d 401, the Louisiana

Supreme Court addressed the purpose and the limits of a motion to quash as

follows:

A motion to quash is, essentially, a mechanism whereby pre-
trial pleas are urged, i.e., pleas which do not go to the merits of the
charge. At a hearing on such a motion, evidence is limited to
procedural matters and the question of factual guilt or innocence is not
before the court. La.C.Cr.P. art. 531 et. seq.; State v. Rembert, 312
So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).

In considering a motion to quash, a court must accept as true
the facts contained in the bills of information and in the bill of
particulars, and determine as a matter of law and from the face of the
pleadings, whether a crime has been charged; while evidence may be
adduced, such may not include a defense on the merits. State v.
Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may
have a good defense is not sufficient grounds to quash the
indictment”).

ELEMENTS OF THE OFFENSE CHARGED

Concerning the first issue, the elements of the offense charged, Defendant

argues that the bail jumping charge was not committed because two elements

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under La. R.S. 14:110.1 were not present. Specifically, he argues: 1) the drug case

was not pending; and 2) there was no active bond.

La. R.S. 14:110.1 provides in pertinent part:

A. Jumping bail is the intentional failure to appear at the date, time,
and place as ordered by the court before which the defendant's case is
pending. If the state proves notice has been given to the defendant as
set forth in Code of Criminal Procedure Articles 322 and 344, a
rebuttable presumption of notice shall apply, and the burden of proof
shifts to the defendant to show that he did not receive notice. The fact
that no loss shall result to any surety or bondsman is immaterial.
(emphasis added).

PENDENCY OF THE CASE

As to the first element, Defendant submits that his case was concluded when

he pled guilty. Thus, he contends that there was no "pending" case on October 17,

2018, when the crime was alleged to have been committed as required by La. R.S.

14:110.1. A case is pending from the date charges are filed and ends when the

defendant is convicted and sentenced, or when the defendant is found not guilty of

the alleged charges. Broyard, 14-1026, p. 8, 183 So.3d at 801 (citation omitted)

(emphasis added).

In this case, the bill of information alleges that Defendant jumped bail by

intentionally failing to appear in court on October 17, 2017. The record further

reflects that the Defendant was not sentenced in the drug case until January 23,

2019. Thus, since the bill of information alleges that Defendant jumped bail before

he was sentenced, his drug case was still pending.

In support of his argument that the case was closed, Defendant relies on the

trial court’s statements during his guilty plea colloquy. In particular, Defendant

points to the following portion of the colloquy:

Mr. Griffin, you are not going to get sentenced. What I have
here is a guilty plea. There is no sentence and hopefully there will

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never be any sentence. Who controls whether there will be a sentence
is you. You have entered into a contract with the State of Louisiana. It
is real simple. The contract which you have entered into with them of
which I have no part by the way. My part is now over with. The
contract you entered into with the State of Louisiana is that you will
successfully complete their diversion program. If you do, your lawyer
comes back in here and I tear this up. This guilty plea goes away as
[if] it never happened.

Contrary to Defendant’s argument, a review of the plea colloquy does not

suggest that his drug case was closed. The trial court’s statements during the plea

colloquy simply conveyed that if he successfully completed the Diversion

Program, he would not be sentenced. However, the trial court also explained that

if he did not successfully complete the diversion program, he would return for

sentencing.

Here, the record reflects Defendant did not complete the Diversion Program

and did not appear for his status hearing on October 17, 2017, after receiving

notice in open court. Since sentencing was deferred, Defendant’s case was, in fact,

pending, as required by La. R.S. 14:110.1, when he failed to appear for his status

hearing.

BOND

As to the second element, Defendant argues that there was no active bond to

violate. He contends that once he was convicted, his original bond was satisfied.

He further suggests that there was no active pre-sentencing bond because a

sentencing hearing was not set. La. C.Cr.P. art. 312(E) provides that “[a]fter

conviction and before sentence, bail shall be allowed if the maximum sentence

which may be imposed is imprisonment for five years or less.”

Defendant alleges that because no date had been set for sentencing, the ROR

bond was not for his sentencing, rather it was for diversion. However, the lack of a

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hearing date specific for sentencing is of no moment. Moreover, there is nothing

in the record to reflect that the bond was to ensure participation in the Diversion

Program.

After Defendant entered his guilty plea in the drug case, the court set a pre-

sentencing bond, as required by law. At that point, Defendant was awaiting

sentencing. Under these circumstances, Defendant’s ROR bond was active and

enforceable at the time of the instant offense.

Accordingly, there was both a pending drug case and an active bond

associated with that case. For these reasons, the record supports the conclusion

that the elements of the bail jumping statute, as alleged in the bill of information,

were present in this case.

DOUBLE JEOPARDY

Concerning the second issue, Defendant argues that double jeopardy

prohibits him from being punished for the instant offense. The Fifth Amendment

to the United States Constitution and Article I Section 15 of the Louisiana

Constitution of 1974 prohibit the government from twice placing a person in

jeopardy for the same conduct. The protections against double jeopardy mandated

by the federal constitution, as restated in the Louisiana constitution, fall within the

analytical framework set forth in Blockburger v. United States, 284 U.S. 299, 52

S.Ct. 180, 76 L.Ed. 306 (1932), and Louisiana courts need only apply that

framework in analyzing questions of double jeopardy. State v. Frank, 16-1160, p.

10 (La. 10/18/17), 234 So.3d 27, 33-34. Under the Blockburger test, a defendant

can be convicted of two offenses arising out of the same criminal incident if each

crime contains an element not found in the other. Frank, 16-1160, p. 4, 234 So.3d

at 30.

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In this case, there are two distinct offenses, with no common elements.

Defendant submits that he was punished twice for the same conduct: failing to

appear for the diversion program. He notes that as per the terms of his plea

agreement, he was sentenced in the original case to probated sentences, as a

consequence of his failing to appear for the Diversion Program. He further claims

that he was charged with bail jumping also as a consequence of his failing to

appear for the Diversion Program.

Defendant’s contention is misplaced because neither of his sentences were a

consequence for failing to complete diversion. First, Defendant was sentenced in

the drug case to probated sentences as punishment for his having possessed illegal

narcotics. Second, Defendant was punished in this case for failing to appear in

court. As the State aptly noted, “if the defendant had appeared in court on October

17, 2017 and informed the court that he had decided not to participate in the

diversion program, he would not have been subject to bail jumping charges.”

Under Blockburger, there is no obstacle to convicting defendant of, and punishing

him for, a drug offense, as well as bail jumping in conjunction with missing his

court date for the initial drug offense. Accordingly, there is no double jeopardy

violation.

CONCLUSION

Under the foregoing facts, Defendant has not established grounds to quash

the bill of information. For these reasons, we do not find that the trial court erred

in denying Defendant’s motion to quash the bill of information. Accordingly, the

Defendant’s conviction and sentence are affirmed.

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