State of Louisiana v. Kyron Theophile

STATE OF LOUISIANA * NO. 2023-K-0396

VERSUS *
COURT OF APPEAL
KYRON THEOPHILE *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 528-690, SECTION G
Judge Nandi Campbell,
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

Jason R. Williams
DISTRICT ATTORNEY
Brad Scott
CHIEF OF APPEALS
Orleans Parish District Attorney’s Office
619 South White Street
New Orleans, Louisiana 70119

COUNSEL FOR RELATOR / STATE OF LOUISIANA

Kevin Boshea
ATTORNEY AT LAW
2955 Ridgelake Drive, Suite 207
Metairie, Louisiana 70002

COUNSEL FOR RESPONDENT / DEFENDANT

WRIT GRANTED; VACATED AND REMANDED

JULY 21, 2023

SCJ
TGC
DNA

The State of Louisiana seeks review of the district court’s May 23, 2023

judgment, granting post-conviction relief to defendant, following a hearing ordered

by this Court in a prior writ opinion, State v. Theophile, 22-0659 (La. App. 4 Cir.

11/3/22), unpub’d. In that prior writ, defendant sought review of the district

court’s denial of his application for post-conviction relief, which raised two claims.

This Court granted, in part, defendant’s writ, finding that as to his claim of

ineffective assistance of trial counsel, there remained a question as to whether

defendant should have been given the opportunity to withdraw his guilty plea.

Theophile, 22-0659, p. 4. Consequently, this Court “grant[ed] the writ for the

limited purpose of remanding the case to the District Court and order[ed] that it

conduct a hearing on whether relator’s [trial] counsel rendered ineffective

assistance by failing to file a motion to withdraw relator’s guilty [plea] once relator

violated the terms of the negotiated plea bargain.” Id. From our review of the

hearing held on remand from this Court, we find that the district court failed to

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comply with this Court’s order and erred in its judgment granting defendant post-

conviction relief. For the reasons that follow, we grant the State’s writ, vacate and

set aside the trial court’s May 23, 2023 judgment, and remand this matter to the

district court with further orders.

PROCEDURAL BACKGROUND

The matter before this Court concerns defendant’s post-conviction

application in which he sought relief from the life sentence imposed after being

adjudicated a third felony offender, in November 2018. In his counseled post-

conviction application, defendant raised a claim of ineffective assistance of trial

counsel due to the failure to file a motion to withdraw defendant’s July 2016 guilty

plea. To expound this claim, we review the procedural history of defendant’s case,

as stated by this Court in his direct appeal of the multiple bill adjudication and life

sentence, as follows:

On July 25, 2016, Defendant pleaded guilty to domestic abuse
battery involving strangulation in exchange for a sentence of three
years. The trial court accepted Defendant's guilty plea and agreed,
because Defendant's loved one was expecting to give birth on or about
September 3, 2016, to postpone sentencing Defendant until September
12, 2016. However, the trial court warned that there would be dire
consequences should Defendant fail to appear for sentencing. The trial
court informed Defendant that a capias would be ordered for
Defendant's arrest and he would face the prospect of having the State
file a multiple bill against him.

On September 12, 2016, Defendant failed to appear for
sentencing and the trial court continued the matter until September 19,
2016, again warning that Defendant's failure to appear on that date
would result in the issuance of a capias for his arrest and a
recommendation to the State “that they proceed with a multiple bill
proceeding.”

Defendant once again failed to appear for court on September
19, 2016. In response, the trial court issued a capias for his arrest and

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the State announced that Defendant was “eligible for a multiple bill.”
In an unrelated matter, during the time period in which Defendant
failed to appear for sentencing, a warrant was issued for his arrest on a
separate charge of second-degree murder.

Defendant was arrested on December 23, 2016, on the trial
court's capias, as well as, on the second degree murder warrant. On
March 14, 2017, Defendant appeared for sentencing and the trial court
sentenced Defendant to three years incarceration in accordance with
the original plea agreement. Despite Defendant's failure to appear in
court on September 12, 2016, and later, on September 19, 2016, the
prosecution, at that point, agreed not to charge Defendant as a
recidivist.

On September 13, 2017, the State filed a multiple bill of
information alleging that Defendant was a quadruple felony offender.
A multiple bill hearing was conducted. At the hearing, the prosecutor
stated that at the time he agreed not to multiple bill Defendant, back
on March 14, 2017, he “was unaware that [Defendant] had a pending
murder charge.” Specifically, the prosecutor explained:

So Mr. Theophile, you attempted a plea agreement
of no-bill and [three] years. I was unaware that you had
been arrested for murder with a murder charge and it's
currently pending in Section “F”. The State alleg[es] that
that's a breach of our plea agreement and therefore, I'm
filing a multiple bill against you.

Thereafter, Defendant filed a motion to quash the multiple bill;
after a hearing, the trial court denied the motion. Defendant's writ
application was denied by this Court. State v. Theophile, 2018-0679
(La. App. 4 Cir. 9/14/18) unpub'd. Following this Court's ruling, a
multiple bill hearing was scheduled to proceed on October 15, 2018.
At the multiple bill hearing, there was a delay in proceedings due to
Defendant's consultation with his attorney about whether to accept a
plea deal offered by the State. The State explained that the proposed
plea agreement would be that Defendant plead guilty to being a
quadruple offender and in exchange he would receive a sentence of
twenty-five years and that plea would be conditioned on Defendant
also entering a plea to twenty-five years on the charges pending in
Section “F”. The State explained:

THE STATE:
And to be clear, Judge. The sentence would be 25 years
as a multiple offender.... [T]his plea is conditioned on
him entering the same plea in all of his other cases in
Section “F” to run concurrently.

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THE COURT:
Those are the new charges that the gentleman has?

THE STATE:
[H]is homicide....

THE COURT:
But he would receive a 25 year sentence there because
you would reduce it to manslaughter?

THE STATE:
Correct. That is the conditions of the State's plea.

Defendant ultimately accepted the conditions of the
aforementioned plea agreement. The trial court then informed
Defendant that by pleading guilty he was waiving his right to proceed
to trial and all the privileges associated therewith, such as the right to
remain silent and the right to have the State prove that he was the
same person convicted of the prior offenses. The trial court
specifically noted that in pleading guilty, Defendant was also agreeing
to plead guilty to a manslaughter charge in Section “F,” which would
include a concurrent sentence of twenty-five years.

Next, the trial court reviewed the convictions that comprised the
multiple bill to which defendant was pleading guilty: 1) 528-690 -
domestic abuse battery involving strangulation; 2) 512-702 -
possession of contraband in a penal institution; 3) 479-964 -
aggravated assault with a firearm; 4) 449-707 - possession of heroin.
Thereafter, the plea of guilty to the multiple bill was signed by
Defendant, his attorney and the judge. The trial court sentenced
Defendant to a term of twenty-five years in the care and custody of
the Department of Corrections as a fourth offender pursuant to La. R.
S. 15:529.1.

On October 31, 2018, the State filed a multiple bill against
Defendant, seeking a life sentence. That multiple bill was prompted
by Defendant's refusal to plead guilty to the charge of manslaughter in
Section “F”, thereby reneging on the October 15, 2018 twenty-five-
year plea agreement. The new multiple bill charged that Defendant
pled guilty to the following offenses: 1) 528-690 - domestic abuse
battery involving strangulation; 2) 479-694 - aggravated assault with a
firearm; 3) 449-707 - aggravated assault with a firearm.

During the October 31, 2018 multiple bill proceeding, the trial
court asked Defendant if he was still interested in trying to obtain a
twenty-five-year plea deal. Defendant refused to respond to the
inquiry, instead he sought a fifteen-day delay to object to the multiple
bill filed against him by filing a motion to quash. The trial court

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granted Defendant the fifteen-day delay, resetting the matter for
hearing on November 19, 2018.

In Defendant's motion to quash the multiple bill, he claimed
that the State was using the new multiple bill as selective enforcement
to have Defendant plead guilty to the pending murder charge. The
State responded by describing Defendant as “extremely violent” and
went through several violent crimes that Defendant had committed, . .
..

After hearing arguments from both sides, the trial court denied
Defendant's motion to quash and vacated the October 15, 2018
twenty-five-year sentence. The court then reviewed Defendant's prior
actions that had precipitated the court's order vacating the twenty-five-
year sentence.

[T]he Court notes for the record that the Defendant stood
before this Court and he indicated that he would enter a
plea of guilty to the multiple bill that would not expose
him to life imprisonment and that ... [a] multiple bill of
information was duly filed and the sentence that was
agreed to would be twenty five years. There was a
condition attached thereto, the condition was his plea of
guilty would also be entered in the days that followed ...
before her, Honor Judge Robin Pittman [Section “F”] for
the crime of manslaughter.... It was further agreed that
his sentence there would run concurrently with the
twenty-five-year sentence that this Court imposed. Upon
this Court's return for the second appointment as the Ad
Hoc Judge here ... the Court was formally notified by all
parties that ... Mr. Theophile had not carried through on
the commitment that he had made and that this additional
proceeding would indeed be necessary from the State's
prospective.

* * *

After it was established that Defendant was the same person
who had been convicted on two separate charges of aggravated assault
with a firearm and domestic abuse battery involving strangulation, the
trial court went through the history of the case noting that Defendant
faced a life sentence because his earlier, twenty-five-year sentence
“has now been rescinded when the gentleman did not follow through
and also entered [sic] a plea of guilty before Your Honor Judge
Pittman for the crime of manslaughter....” Thereafter, Defendant
argued that domestic abuse battery involving strangulation is not an
enumerated crime of violence under La. R.S. 14:2(B) and therefore,
should not be considered a crime of violence for purposes of La. R.S.
15:529.1. The trial court noted Defendant's argument, but rejected it.

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* * *

Thereafter, the trial court, having earlier vacated Defendant's
twenty-five-year sentence, proceeded to find Defendant to be a third
felony offender with three crimes of violence, mandating a sentence
of life imprisonment.

State v. Theophile, 19-0467, pp. 1-7 (La. App. 4 Cir. 12/11/19), 287 So.3d 53, 56-

59, writ denied, 20-00075 (La. 11/10/20), 303 So.3d 1047.

In the direct appeal of his life sentence, defendant argued that once the

district court accepted his October 15, 2018 guilty plea and sentenced him to 25

years as a quadruple offender, then the State had no authority to file a second

multiple bill seeking a mandatory life sentence. In addition, he argued that the

October 15, 2018 plea agreement was binding but that he did not understand the

condition to plead guilty in Section “F” as a required part of receiving the 25-year

sentence. This Court reviewed and rejected both arguments, and, after finding no

merit in his remaining claims, affirmed defendant’s life sentence. Theophile, 19-

0467, pp. 9-10, 17, 287 So.3d at 61, 64.

Following his direct appeal, defendant filed a counseled application for

post-conviction relief. In one of the two claims raised by defendant, he argued

ineffective assistance of trial counsel due to the failure to file a motion to withdraw

defendant’s guilty plea when the State filed the second multiple bill.1 On

September 6, 2022, the district court issued a judgment denying the application for

1 In defendant’s application, when identifying the “lawyer representing you at your plea”,
defendant named the two attorneys who represented him over the history of his case: Mr.
Thomas Shlosman and Mr. Leon Roche. Defendant also listed both attorneys as witnesses who
could testify in support of his claim[s]. However, defendant did not state the relevant dates of
each attorney’s representation of him, and defendant identified only Mr. Shlosman as his “lawyer
at trial”.

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post-conviction relief. Defendant then filed the prior writ, mentioned at the

beginning of this opinion.

As stated previously, this Court granted defendant’s writ, in part, and

remanded the matter to the district court with instructions “that it conduct a hearing

on whether relator’s [trial] counsel rendered ineffective assistance by failing to file

a motion to withdraw relator’s guilty [plea] once relator violated the terms of the

negotiated plea bargain.” Theophile, 22-0659 (La. App. 4 Cir. 11/3/22), unpub’d.

Restated, this Court ordered the district court to determine whether trial counsel,

who represented defendant at the time he violated the October 15, 2018 plea

agreement (thereby resulting in the State filing a second multiple bill), rendered

ineffective assistance by failing to file a motion to withdraw defendant’s July 2016

guilty plea, to the charge of domestic abuse battery by strangulation, which was

used to adjudicate defendant as a multiple offender.

Pursuant to this Court’s limited remand, the district court conducted a

hearing on April 25, 2023. At this hearing, the trial court only heard testimony

from Mr. Shlosman, who represented defendant when he pled guilty to domestic

abuse battery involving strangulation on July 25, 2016. Mr. Shlosman testified that

he withdrew from defendant’s case on May 3, 2018, before the October 15, 2018

plea agreement at issue took place. Notably, no testimony was attained from Mr.

Roche, the attorney who represented defendant during the October 15, 2018

negotiated plea agreement and at the time when defendant violated the specific

condition of that plea agreement by refusing to plead guilty in Section “F” to the

charge of manslaughter.

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At the conclusion of the hearing, the district court took the matter under

advisement. In its May 23, 2023 written judgment, the district court found no

ineffective assistance of counsel rendered by Mr. Shlosman. Then, the district

court granted post-conviction relief to defendant based on its own finding of

ineffective assistance of appellate counsel. The district court vacated defendant’s

sentence and resentenced him to three years “pursuant to the July 25, 2016 plea

agreement.”

The State’s timely writ seeking review of the district court’s judgment

follows.

DISCUSSION

The State argues that the district court erred in granting defendant post-

conviction relief on a claim he did not raise in his application. We agree. From

our review, we find, first, that the district court failed to comply with this Court’s

November 3, 2022 remand order. We further find that the district court erred in its

reasoning and conclusion.

As stated previously, at the hearing on remand, the district court did not hear

any testimony from Mr. Roche, the attorney who represented defendant at the time

he violated the October 15, 2018 negotiated plea agreement. Rather, the district

court noted, in its reasons for judgment, that the defendant’s post-conviction

counsel interpreted this Court’s remand to involve a determination regarding Mr.

Shlosman’s representation of defendant. The district court then discussed its

reasons for finding that defendant failed to prove that Mr. Shlosman’s assistance of

counsel was deficient under the Strickland test.2 In making this finding, the district

2 In reviewing a claim of ineffective assistance of counsel, a district court applies the two-part

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

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court clearly acknowledged that “grounds for withdrawing [defendant’s] guilty

plea did not exist until several months after . . . Mr. Shlosman had secured a

generous sentence [the March 14, 2017 sentencing to 3 years] and implicitly

withdrawn from the case”. But, the district court failed to make any inquiry into

Mr. Roche’s performance, neither seeking to hear testimony from him at the

hearing or noting in its judgment the defense’s failure to call him as a witness.

The district court’s judgment then went well beyond this Court’s limited

remand order. The district court determined from its own “review of the facts and

appellate record evidence that [defendant] received ineffective assistance on

appeal.” The district court proceeded to provide its own reasons for this claim that

appellate counsel rendered constitutionally deficient assistance prejudicial to the

defendant and concluded that defendant was entitled to post-conviction relief. The

district court then vacated defendant’s sentence imposed in November 2018 and

resentenced him, pursuant to the terms of the July 25, 2016 plea agreement to three

years, with credit for time served, for domestic abuse battery involving

strangulation.

We find the district court’s leap to this judgment wholly unsupported by law

and the record. First, defendant’s application does not raise a claim of ineffective

assistance rendered by appellate counsel; the application does not even name

appellate counsel. See La. C.Cr.P. art. 926(B)(3); State v. Mead, 14-1051, p. 11

(La. App. 4 Cir. 4/22/15), 165 So.3d 1044, 1050-51. Considering it was not raised,

the State was not provided any opportunity to file procedural objections and

respond to such a claim, as required by La. C.Cr.P. art. 927.

that defendant must first show counsel’s performance was deficient and then that the deficiency
prejudiced the defendant. State v. Mercadel, 12-0685, p. 16 (La. App. 4 Cir. 7/24/13), 120 So.3d
872, 883.

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Next, even assuming this claim had been raised by defendant, we find the

trial court erred in finding grounds for relief. Defendant’s appellate counsel, on

direct appeal of his multiple bill adjudication and life sentence, was procedurally

restricted to seeking review of issues raised in the district court. See La. C.Cr.P.

art. 841. Since trial counsel did not file a motion to withdraw defendant’s guilty

plea in the district court, appellate counsel could not raise that issue on appeal. See

State v. Cuccia, 05-0807, p. 34 (La. App. 4 Cir. 3/15/06), 933 So.3d 134, 158.

Finally, we also find the district court’s resinstatement of the three-year

sentence, “pursuant to the July 25, 2016 plea agreement” to be in error, in light of

the district court’s own prior ruling. When the first multiple bill was filed in

September 2017, defendant filed a motion to quash arguing he was entitled to the

three-year sentence based on the validity of the July 25, 2016 plea agreement; the

district court denied that motion to quash, and this Court denied defendant’s writ.

Theophile, 18-0679 (La. App. 4 Cir. 9/14/18), unpub’d.

In consideration of the foregoing, we find that the district court failed to

comply with this Court’s order on remand in Theophile, 22-0659 (La. App. 4 Cir.

11/3/2022), unpub’d, and erred in its May 23, 2023 judgment by granting

defendant post-conviction relief. Accordingly, we grant the State’s writ and vacate

the district court’s May 23, 2023 judgment.

But, the question still remains as to “whether [defendant] should have been

given the opportunity to withdraw his guilty plea” when he violated the terms of

the October 15, 2018 negotiated plea deal, prompting the State to file the second

multiple bill. Therefore, as to defendant’s claim of ineffective assistance of

counsel, the district court has not yet considered whether defendant’s trial counsel,

who represented him at the time he violated the terms of the October 15, 2018 plea

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agreement, rendered ineffective assistance by failing to file a motion to withdraw

defendant’s guilty plea to the charge of domestic abuse battery involving

strangulation, which served as a predicate offense for the multiple bill filed on

October 31, 2018.

DECREE

For the foregoing reasons, we vacate and set aside the district court’s May

23, 2023 judgment, remand this matter to the district court, and hereby order the

district court to conduct a hearing for the limited purpose of determining whether

trial counsel who represented defendant at the time he violated the October 15,

2018 plea agreement—Mr. Roche—rendered ineffective assistance by failing to

file a motion to withdraw defendant’s guilty plea, at some time prior to the

multiple bill hearing held on November 19, 2018.

WRIT GRANTED; VACATED AND REMANDED

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