State of Louisiana v. Kyron Theophile

STATE OF LOUISIANA * NO. 2024-K-0019

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 “DIVISION G”
Judge Nandi Campbell,
******
Judge Daniel L. Dysart
******
(Court composed of Judge Daniel L. Dysart, Judge Dale N. Atkins, Judge Karen K.
Herman)

Jason Rogers Williams
DISTRICT ATTORNEY
PARISH OF ORLEANS
Brad Scott
ASSISTANT DISTRICT ATTORNEY
ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR RELATOR, STATE OF LOUISIANA

VACATED AND REMANDED
FEBRUARY 20, 2024

DLD The state seeks review of the trial court’s December 15, 2023 judgment in
DNA which the trial court found that defense counsel rendered ineffective assistance of
KKH
counsel, vacated his adjudication as a multiple offender and resentenced him,

pursuant to his July 25, 2016 plea agreement, to three years at hard labor in the

Louisiana Department of Corrections. For the reasons that follow, we vacate the

trial court’s December 15, 2023 judgment and remand the matter again to the trial

court for the specific purpose of requiring defendant’s counsel, Leon Roche, to

provide testimony regarding his decision for not filing a motion to withdraw

defendant’s July, 2016 guilty plea.

This matter has a long procedural history. Three different district judges

have presided over the matter. Defendant’s original plea of guilty on July 25,

2016, was presented to Judge Byron C. Williams. Defendant’s October 15, 2018

plea bargain, the terms of which defendant violated, was presented to ad-hoc Judge

Dennis Waldron. Finally, defendant’s post-conviction application, in which he

complained, in pertinent part, that he received ineffective assistance of counsel,

was presented to Judge Nandi F. Campbell.

In an earlier writ application (State v. Theophile, 2023-0396 (La. App. 4 Cir.

7/21/23), 371 So.3d 486), this Court set forth the procedural history of the case 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
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

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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.

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.

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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
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

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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.

***

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, 2023-0396, pp. 2-6 (La. App. 4 Cir. 7/21/23), 371 So.3d 486,

488-491 (quoting 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).

After his sentence was affirmed on appeal, the defendant filed a counseled

application for post-conviction relief. The defendant argued he had ineffective

assistance of counsel due to the failure to file a motion to withdraw his guilty plea

when the state filed its second multiple bill. The district court denied the post-

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conviction relief and the defendant subsequently filed a writ application with this

Court which was granted in part. This Court “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.” Theophile, 2023-0396, p.

7, 371 So.3d at 491. Stated differently, this Court ordered:

[T]he district court [shall] 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.

Id.

Pursuant to the above-described limited remand, as this Court explained:

[T]he 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.

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.”

Theophile, 2023-0396, pp. 7-8, 371 So.3d at 491-492.

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In vacating the district court’s May 23, 2023 judgment, this Court noted that

“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.” Theophile, 2023-0396, p. 8, 371 So.3d at 492. Further, “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.” Theophile, 2023-0396, p. 9, 371 So.3d at 492.

Thereafter, the Court found that the “district court’s judgment … went well beyond

this Court’s limited remand order,” provided the following:

First, defendant's application [for post-conviction relief] 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.

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.2d 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.

Theophile, 2023-0396, pp. 9-10, 371 So.3d at 493.

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After vacating the district court’s May 23, 2023 judgment, the Court noted

that “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.” Theophile, 2023-0396, p. 10, 371 So.3d at 493. Accordingly, the

Court remanded the matter to the district court and ordered the following:

[T]he district court [shall] 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.

Theophile, 2023-0396, p. 11, 371 So.3d at 493 (emphasis original).

Pursuant to this Court’s remand, the trial court conducted a hearing on

November 3, 2023. At that hearing, despite this Court’s admonition to determine

whether counsel was ineffective, failed to “hear any testimony from Mr. Roche,”

Theophile, 2023-0396, p. 8, 371 So.3d at 492. Instead, the court, based on the

parties’ stipulation that Roche failed to file a motion to withdraw defendant’s

guilty plea, summarily found that Roche “rendered ineffective assistance of

counsel.” Further, despite this Court’s directive that the matter was remanded for

the “limited purpose” of determining whether Roche rendered ineffective

assistance, the trial court went beyond that directive. Theophile, 2023-0396, p. 11,

371 So.3d at 493 (emphasis original). The trial court, once again, resentenced

defendant, “pursuant to his July 25, 2016 plea agreement to three years at hard

labor in the Department of Corrections….”

Following the issuance of the trial court’s December 15, 2023 judgment, the

state objected, noticed its intent to seek a writ and the trial court set a return date of

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January 15, 2024. The state timely filed the instant writ application on January 10,

2024.

A trial court’s determinations of fact are reviewed for abuse of great

discretion, and legal decisions are reviewed de novo. State v. Candebat, 2013-

0780, pp. 6-7 (La. App. 4 Cir. 1/30/14), 133 So.3d 304-306 (citing State v. Wells,

2008-2262 (La. 7/6/10), 45 So.3d 577).

Here, the trial court went beyond this Court’s remand by reinstating the July

25, 2016 plea agreement and sentencing defendant to three year’s incarceration.

As this Court explained in its decision vacating the trial court’s May 23, 2023

judgment, the trial court erred in reinstating the three-year sentence pursuant to the

July 25, 2016 plea agreement. See Theophile, 2023-0396, p. 10, 371 So.3d at 493.

Nothing has changed since the Court’s ruling in this regard. The matter has been

adjudicated; the trial court erred in reinstating defendant’s three-year sentence

pursuant to the July 25, 2016 plea agreement.

In this case, however, as the state notes, “we” do not know why Roche did

not file a motion to withdraw the plea. In the absence of Roche’s testimony in this

regard, an assessment of ineffectiveness, specifically, a finding of whether it was

based on trial strategy or counsel deficiency that a motion to withdraw defendant’s

guilty plea was not filed, cannot be made.

The trial court’s December 15, 2023 judgment is vacated and this matter is

remanded to the trial court to conduct a hearing for the specific purpose of

requiring defendant’s counsel, Leon Roche, to provide testimony regarding his

failure to file a motion to withdraw defendant’s July 2016 guilty plea.

VACATED AND REMANDED

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