State Of Louisiana v. Marcus Clayton

STATE OF LOUISIANA

FIRST CIRCUIT

STATE OF LOUISIANA

VERSUS

MARCUS CLAYTON

Judgment Rendered:
JAN 15 2024

On Appeal from the
19' Judicial District Court
Parish of East Baton Rouge, State of Louisiana
Trial Court No. 21- 01142

The Honorable Louise Hines, Judge Presiding

Hillar C. Moore, III Attorneys for Appellee,
District Attorney State of Louisiana
Dylan C. Alge

Assistant District Attorney
Baton Rouge, Louisiana

Jacob Longman Attorneys for Defendant -Appellant,
Kathryn Jakuback Burke Marcus Clayton
F. Richard Sprinkle
Baton Rouge, Louisiana

Harry Daniels, III
Prairieville, Louisiana

BEFORE: WOLFE MILLER AND GREENE Tj

5 p k,

WOLFE, J.

The defendant, Marcus Clayton, was charged by bill of information with

nineteen counts of possession with the intent to distribute a Schedule II controlled

dangerous substance ( oxycodone) ( counts one through nineteen), in violation of

La. R.S. 40: 967( A) and 40: 964( A)( 1)( p); two counts of possession with the intent

to distribute a Schedule III controlled dangerous substance ( suboxone) ( counts

twenty and twenty- one), in violation of La. R.S. 40: 968( A) and 40: 964( D)(2)( a);

five counts of possession with the intent to distribute a Schedule IV controlled

dangerous substance ( alprazolam) ( counts twenty-two through twenty- six), in

violation of La. R.S. 40: 969( A) and 40: 964( B)( 2); and four counts of illegally

carrying a firearm while in possession of a controlled dangerous substance ( counts

twenty- seven through thirty), in violation of La. R.S. 14: 95( E).' Though initially

pleading not guilty, the defendant later pled guilty to the amended charges of

possession of oxycodone with an aggregate weight of two grams or more but less

than twenty- eight grams ( counts one and two), in violation of La. R.S.

40: 967( C)( 2). The State dismissed the remaining charges and, thereafter, the

defendant was sentenced to consecutive terms of five years at hard labor on each

count.
The defendant filed a motion for reconsideration or modification of

sentence and a motion to withdraw guilty plea and set aside sentence, both of

which were denied.
The defendant now appeals, designating two assignments of
error.
For the following reasons, we vacate and set aside the convictions and

sentences and remand the matter for further proceedings consistent with this

opinion.

We note the bill of information contains several citation omissions and errors. For counts
twenty and twenty- one, the defendant was erroneously charged with violating La. R. S.
40: 964( D)( 2)( 1),
and for counts twenty-two through twenty-six, the defendant was erroneously
charged with violating La. R.S. 40: 964( B)( 1. 5). It is well- settled the statute in effect at the time
of the commission of the offense controls. See State v. Sugasti, 2001- 3407 ( La. 6/ 21/ 02), 820
So. 2d 518, 520- 21. At the time of the commission of the offenses - September 22, 2020 - the
correct citations for the respective charges were La. R.S. 40:964(D)( 2)( a) and 40:964(B)( 2).
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FACTS

Because the defendant pled guilty, the facts were not developed at trial.

However, during the defendant' s plea colloquy, the State provided the following

factual basis for the charges:

Back in 2020, the Narcotics Division of the East Baton Rouge [ Parish]
Sheriff' s Office was investigating the transfer and possession of
oxycodone. They spoke with a confidential informant who stated she
had gotten oxycodone from an individual named Marcus. She agreed
to wear a hidden recording device. On that device, it showed an
individual identified as Marcus Clayton possessing oxycodone. With
those recordings, . . . the Narcotics Division ... applied for multiple
warrants both at addresses known to Marcus Clayton and a car shop
that he had. They executed those warrants at those locations. They
found more oxycodone.

ASSIGNMENTS OF ERROR

In his first assignment of error, the defendant alleges he was denied effective

assistance of counsel when his attorney, who was suspended from practicing law at

the time of the plea, promised he would receive a probated sentence. In his second

assignment of error,
he argues the trial court erred in denying his motion to

withdraw guilty plea, as his plea was based on counsel' s promise of a probated

sentence. As the issues are interrelated, we will address them together.

A guilty plea is a conviction and, therefore, should be afforded a great

measure of finality. State v. Emerson, 2023- 0120 ( La. App. 1st Cir. 9/ 15/ 23), 375
So. 3d 1027, 1029. As a general proposition, the validity of a guilty plea turns on

whether the defendant was informed of three fundamental constitutional rights—

his privilege against compulsory self-incrimination, his right to trial by jury, and
his right to confront his accuser's— and whether, having been informed of those

rights,
the defendant knowingly and voluntarily waived them. State v. Smith,
2014- 0578 ( La. App. 1st Cir. 11/ 7/ 14), 167 So. 3d 736, 738, writ denied, 2014-

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2566 ( La. 10/ 2/ 15), 178 So. 3d 987. Here, the defendant argues his pleas were not

knowing or voluntary on account of counsel' s ineffective assistance.'

A defendant is entitled to effective assistance of counsel under the Sixth

Amendment to the United States Constitution and Article 1, § 13 of the Louisiana

Constitution of 1974. 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) that counsel' s inadequate performance prejudiced the

defendant to the extent that the trial was rendered unfair and the verdict suspect.

See State v. McGee, 2018- 1052 ( La. 2/ 25/ 19), 264 So. 3d 445, 446 ( per curiam).

For claims like the defendant' s, that counsel' s ineffective assistance rendered a

guilty plea invalid, the Strickland analysis under the first deficiency prong

remains unchanged. 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." Hill v.

Lockhart, 474 U.S. 52, 58- 59, 106 S. Ct. 366, 370, 88 L.Ed.2d 203 ( 1985).

A valid guilty plea must be a voluntary choice by the defendant and not the

result of force or threats. La. Code Crim. P. art. 556. 1( B). Prior to accepting a

guilty plea, the court must personally inform the defendant of the nature of the

charge to which the plea is offered, any mandatory minimum penalty, and the

maximum possible penalty. La. Code Crim. P. art. 556. 1( A)( 1). When the record

Generally, an ineffective assistance of counsel claim is most appropriately addressed through
an application for post -conviction relief filed in the trial court, where a full evidentiary hearing
can be conducted, if necessary, rather than by direct appeal. State v. Anderson, 2023- 0271 ( La.
App. 1st Cir. 11/ 3/ 23), 2023 WL 7270839, * 4 ( unpublished), writ denied, 2023- 01591 ( La.
5/ 21/ 24), 385 So. 3d 241. But when the record contains sufficient evidence to rule on the merits
of the claim and the issue is properly raised in an assignment of error on appeal, it may be
addressed in the interest of judicial economy. Id. If the record does not contain sufficient
evidence to fully explore a claim of ineffective assistance of counsel, the claim is relegated to
post -conviction proceedings. State v. 'Taylor, 2004- 346 ( La. App. 5th Cir. 10/ 26/ 04), 887 So. 2d
589, 595.
Here, the record is sufficient to fully consider the defendant' s claim that counsel' s
ineffective assistance rendered his guilty pleas unknowing and involuntary.
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establishes an accused was informed of and waived his right to a trial by jury, to

confront his accusers, and against self-incrimination, the burden shifts to the

accused to prove that despite this record, his guilty plea was involuntary. State v.

McGarr, 52, 641, 52, 642 ( La. App. 2d Cir. 4/ 10/ 19), 268 So. 3d 1189, 1196.

When ruling on a motion to withdraw a guilty plea, the trial court should

look beyond the colloquy concerning the waiver of rights and consider all relevant

factors. See State v. Green, 468 So. 2d 1344, 1346 ( La. App. 1st Cir. 1985). A

court, when called upon to ascertain an accused' s state of mind, has the power,

notwithstanding a record waiver of constitutional rights, to determine whether

other factors present at the time of a guilty plea, whether inside or outside the plea

colloquy record, were sufficient to render the plea involuntary or unintelligent.

State v. Galliano, 396 So. 2d 1288, 1290 ( La. 1981). Reasons supporting

withdrawal of the plea would ordinarily include factors bearing on whether the

guilty plea was voluntarily and intelligently made, such as breach of a plea bargain,

inducement, misleading advice of counsel, strength of the evidence of actual guilt,

or the like. A mere change of heart or mind by the defendant as to whether he

made a good bargain would not ordinarily support allowing the withdrawal of a

bargained guilty plea. McGarr, 268 So.3d at 1197.

A trial court may permit a guilty plea to be withdrawn at any time prior to
sentence. La. Code Crim. P. art. 559( A). However, a trial court retains authority to

permit the withdrawal of a constitutionally infirm guilty plea even after a sentence

has been imposed. See State v. Thompson, 2008- 1099 ( La. App. 1st Cir.

12/ 23/ 08), 2008 WL 6809587, * 1 ( unpublished); see also State v. Allah, 2017-

0785 ( La. 1/ 9/ 18), 232 So. 3d 554 ( per curiam).
A guilty plea is constitutionally

infirm when it is not intelligent and voluntary. Boykin v. Alabama, 395 U.S. 238,
242, 89 S. Ct. 1709, 1711, 23 L. Ed.2d 274 ( 1969). A defendant has no absolute

right to withdraw a previously entered plea of guilty, and the trial court' s decision

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to permit withdrawal of a guilty plea is discretionary, subject to reversal only if

that discretion is abused or arbitrarily exercised. See State v. Rider, 2023- 0162

La. App. 1st Cir. 11/ 9/ 23), 379 So. 3d 40, 43, writ denied, 2023- 01713 ( La.

6/ 5/ 24), 385 So. 3d 1154.

The record reveals the defendant was arrested on the instant charges in

September 2020, and he retained Ronald Haley as his attorney in February 2021.

During his representation of the defendant, on December 7, 2021, Mr. Haley was

suspended from the practice of law for a year and a day, with all but six months of

the suspension deferred. See In re Haley, 2021- 01466 ( La. 12/ 7/ 21), 328 So. 3d

418 ( per curiam). Mr. Haley' s associate, Ryan Beaulieu, represented the defendant

during his suspension, including at the Boykin hearing.

At the Boykin hearing on March 21, 2022, the State indicated a plea

agreement had been reached, and the defendant would enter a guilty plea on counts

one and two. Specifically, the State said:

Mr. Clayton will be entering a change of plea [ on] Counts I and 2,
he' d plead responsively to Possession of Oxycodone. However, that
would be two to twenty- eight. Those each carry, potentially, up to five
years. There' s a potential exposure of ten years. He' s going to request
a PSI. Do not object to any PSI, but the other counts will be dismissed
in return for Mr. Clayton pleading responsively to Counts I and 2 to
Possession of Oxycodone between two and twenty-eight grams.

When asked if his guilty pleas were a result of any force, intimidation,

coercion, or promises, the defendant responded in the negative. The defendant also

stated he discussed his case with his attorney and was satisfied with his

representation. Thereafter, the trial court addressed the defendant in accordance

with the mandates set forth in La. Code Crim. P. art. 556. 1. The trial court

specified the sentencing range for each charge was not less than one year nor more

than five years, with or without hard labor, and a fine of not more than five

thousand dollars.
The trial court informed the defendant he was giving up the right
to a trial by jury, the right to require the State to prove his guilt beyond a

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reasonable doubt, the right to confront and cross- examine witnesses against him,

the right to remain silent, the right to assistance of a lawyer, the right to present

witnesses in his defense, and the right to appellate review of an adverse trial

verdict. The defendant said he understood he was giving up those rights, and the

trial court found the pleas were entered knowingly, intelligently, freely, and

voluntarily. The trial court ordered a presentence investigation ( PSI) and set the

matter for sentencing on May 25, 2022.

On May 25, 2022, the defendant was represented by Mr. Beaulieu, who

asked for a continuance to allow Mr. Haley to represent the defendant for

sentencing. At a bench conference, Mr. Beaulieu said:

Yes, I' m not going to say -- even if whatever mitigation he wants to
provide, the judge considered or not, just being that this matter was
totally worked out prior to me, I understand that when you step into
the shoes in some cases, you become the lead guy. I' ve done that. I
think this case, I came in at more than the tail end of it. So like I said,
if Your Honor was leaning the opposite way of imprisonment, I would
like that to, at least -- him to, at least, be standing next to Mr. Haley[.]

The trial court granted the continuance, and Mr. Haley represented the defendant at

sentencing on June 16, 2022.

On August 31, 2022, the defendant moved to withdraw his guilty pleas

through newly retained counsel. According to the defendant, his pleas were

neither voluntary nor knowing as a result of ineffective assistance of counsel. The

defendant alleged he learned of Mr. Haley' s suspension from the practice of law

sometime between December 9 and December 15, at which time the defendant

requested a meeting. The defendant contended that during the meeting with Mr.

Haley, Mr. Haley informed the defendant an attorney from his office, Mr.

Beaulieu, would represent him until Mr. Haley was eligible to practice law again.

However, Mr. Haley continued to provide updates on the case to the defendant via

phone calls, in-person meetings, and text messages. In an attached affidavit, the

defendant contended he would not have pled guilty to the charges had he not been

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promised by Mr. Haley that he would receive a probated sentence. According to

the defendant, Mr. Haley advised him "[ three] years of probation was the

agreement."

Also attached to the motion were screenshots of numerous text messages

between the defendant and Mr. Haley. As early as September 2021, the defendant

asked Mr. Haley about entering into a plea agreement in exchange for eighteen

months of probation, to which Mr. Haley responded that he would call the

prosecutor. In October 2021, the defendant messaged that he was "[ c] hecking on

the deal[,]" and Mr. Haley said lie would have the deal finalized once he finished

trial in another case. The text messages further confirm a meeting was scheduled

between the defendant and Mr. Haley shortly after the supreme court suspended

Mr. Haley, and Mr. Haley continued to message the defendant with case updates.

A few days before the Boykin hearing, on March 18, 2022, Mr. Haley texted the
defendant, " Hey my friend. Plea Monday to a psi. Judge will probate you at

sentencing. Good news is [ A]mber will take your bracelet off Monday." The

defendant asked about the judge ordering a PSI to which Mr. Haley responded,
But he' s gonna [ sic] probate you." A few days after their exchange, the defendant

asked Mr. Haley whether he should hire another attorney or wait until he was

sentenced to probation.

At a hearing on the motion to withdraw guilty plea, Mr. Haley was

questioned about the plea agreement:

Q. Okay. And then so you represent Mr. Clayton, and you said
there was a resolution on the table, right?

A. Yes.

Q. And you communicate that resolution with Mr. Clayton?

A. Absolutely.

Q. And during your conversations with Mr. Clayton, you guys
spoke via telephone sometimes?

E.',

A. Yes.

Q. You guys also spoke via text message?

A. Yes.

Q. And also sometimes in person?

A. Absolutely.

Q. Okay. So I want to take you to this resolution. Okay. What was
your communication to Mr. Clayton about what this resolution was?

A. My communication to Mr. Clayton, and this was the first time I
communicated that to hire, was actually in this courtroom was that
Mr. Clayton be allowed to plead guilty to two counts of possession,
and the State was going to offer probation. To the best of my memory,
that' s what it was.

Mr. Haley testified he believed a contract existed with the State in which the

defendant would receive probation but indicated the contract was verbal and had

not been reduced to writing or put on the record.' Later, however, Mr. Haley said

he told the defendant a probated sentence was not guaranteed. Mr. Haley agreed

he was suspended from the practice of law from December 2021 to June 2022,

during which time Mr. Beaulieu represented his clients, including the defendant.

Mr. Beaulieu testified he enrolled in the defendant' s case, and his understanding at

the time of his enrollment was that an agreement had been reached with the State.

The trial court denied the motion to withdraw guilty plea, finding the pleas were

knowing, voluntary, and intentional.

On appeal, the defendant does not contest the sufficiency of the trial court' s

Boykin advisement or his waiver of those rights. Rather, he argues that he was

induced to plead guilty based on Mr. Haley' s ineffective assistance insomuch as he

was promised he would receive a probated sentence in exchange for his guilty
pleas in accordance with an agreement with the State. The defendant relies on

State v. Lewis, 421 So. 2d 224, 226 ( La. 1982), as support for his argument the

trial court erred in denying his motion to withdraw his pleas. In Lewis, the

3 The defendant waived the attorney-client privilege prior to Mr. Haley' s testimony.
I

defendant claimed his guilty plea was involuntary because he had been misled by

his defense attorney as to the possibility of probation. Apparently, his defense

attorney alleged that he had misunderstood the trial court and, in turn,

inadvertently misled" the defendant. Id.

While we acknowledge the State did not make any sentencing

recommendations and the trial court advised the defendant of the sentencing range,

it is apparent that Mr. Haley misled the defendant to believe an agreement had

been reached with the State. Mr. Haley testified a verbal plea agreement had been

reached with the State, though the agreement was not reduced to writing or put on
the record. Despite failing to memorialize the verbal agreement, Mr. Haley

repeatedly told the defendant, in writing, that a probated sentence would be

imposed. There are numerous text messages from Mr. Haley wherein he not only

advised the defendant probation would likely be ordered, but he promised the

defendant he would receive probation. Based on that promise, the defendant

misunderstood his plea agreement and justifiably thought he would receive

probation.

A guilty plea is constitutionally infirm when it is not entered freely and

voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced

to enter the plea by a plea bargain or what he justifiably believes was a plea

bargain and that bargain is not kept. State v. Young, 2020- 0049 ( La. App. I st Cir.
11/ 6/ 20), 315 So. 3d 904, 907, writ denied, 2020- 01402 ( La. 2/ 9/ 21), 310 So. 3d

177. The defendant has demonstrated Mr. Haley induced his misunderstanding and
that Mr. Haley' s representations rendered his guilty pleas involuntary and

uninformed. The defendant has established that, but for Mr. Haley' s errors, he

would not have pled guilty and would have gone to trial. See Lockhart, 474 U.S.

at 58- 59. Based on the record before this court, we find the defendant' s guilty pleas

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were not constitutionally entered, and the trial court abused its discretion in

denying the motion to withdraw guilty plea.

Accordingly, we vacate and set aside the defendant' s convictions and

sentences. The matter is remanded to the trial court to allow the defendant to

withdraw his guilty pleas.

CONVICTIONS AND SENTENCES VACATED; REMANDED TO ALLOW
THE DEFENDANT THE OPPORTUNITY TO WITHDRAW GUILTY
PLEAS.

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STATE OF LOUISIANA STATE OF LOUISIANA

COURT OF APPEAL VERSUS

FIRST CIRCUIT MARCUS CLAYTON

DOCKET NUMBER 2024 KA 0080

MILLER, J., dissenting.

Upon consideration of the majority' s opinion herein, I must respectfully

dissent. The majority correctly explains the applicable rights and obligations at play

in the Bow process and notes that the defendant does not contend on appeal that

the Boykin was defective. Instead, the defendant argues that he was justified in

relying on the advice ofan attorney who represented him at some point, but who was

suspended from the practice of law for much of the time during which this matter

was pending.

I do not believe that the defendant is justified in his expectation that he would

be placed on probation based on a representation by a suspended attorney, when at

the time his plea was entered in court, the State specifically requested a PSI and

candidly informed him that his plea of guilty to counts one and two, possession of

oxycodone, could potentially carry a sentence of up to five years each for a total

exposure often years.
The transcript further reveals that the trial court thoroughly

examined the defendant to ensure that he understood that he may be sentenced to no

more than five years on each count and a incur a fine of up to $ 5, 000.00 on each

count, to which the defendant responded affirmatively, " yes sir."

While the opinion makes clear that this attorney represented to the defendant
that his acceptance of a plea agreement would result in a suspended sentence or

probation and not jail time, the Boykin transcript does not remotely suggest or

otherwise indicate that a suspended sentence was in the making. Neither the State
nor the trial court insinuated or promised the defendant that he would receive a

probated sentence, and the trial court' s order for production of a PSI belied the

premise that a suspended sentence was impending. Further, the defendant appeared

with a substitute counsel who never suggested that a sentence had been agreed upon.

Finally, as the majority pointed out, the defendant "responded in the negative" when

asked if his guilty plea was a result of any promises.

A trial court' s decision to deny or grant a motion to withdraw a p lea of guilty

is subject to reversal only if the trial court' s discretion is abused or arbitrarily

exercised. State v. Rider, 2023- 0162 (La. App. Is' Cir. 11/ 9/ 23), 379So. 3d4O, 43.

I believe that the trial court in the instant matter did not abuse its discretion. I do not

believe that a defendant can ignore the trial court' s express admonishments in favor

of contrary representations made by an attorney who the defendant knew to be

suspended from the practice of law at the time. To hold otherwise would allow any

defendant with buyer' s remorse to back out of a p lea agreement based on a proper

Boykinization by simply proving that a third party guaranteed a different sentence.

This conclusion diminishes the value of the trial court' s role in the process. The

jurisprudence does not support such an exception.

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