State of Louisiana v. Robet Thomas Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-338 consolidated with 04-339

STATE OF LOUISIANA

VERSUS

ROBERT THOMAS SMITH

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 259,154
HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, C.J., Billie Colombaro Woodard, and
Oswald A. Decuir, Judges.

WOODARD, J., CONCURS IN THE RESULT.

REVERSED AND REMANDED;
CONVICTIONS AND SENTENCES VACATED
AND SET ASIDE.

James C. Downs
District Attorney - Ninth Judicial District Court
Michael W. Shannon
Assistant District Attorney
P. O. Drawer 1472
Alexandria, LA 71309
Telephone: (318) 473-6650
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Karen G. Arena
Louisiana Appellate Project
110 Veterans Boulevard - Suite 222
Metairie, LA 70005
Telephone: (504) 828-6870
COUNSEL FOR:
Defendant/Appellant - Robert Thomas Smith

Robert Thomas Smith
Pro Se
Louisiana State Penitentiary
Angola, LA 70712

THIBODEAUX, Chief Judge.

The Defendant, Robert Thomas Smith, pled guilty to manslaughter and

aggravated robbery charges1 with an agreed-upon sentencing cap of sixty years for

both charges. He reserved his right to appeal on grounds of excessive sentence.

After being sentenced to consecutive terms of forty years at hard labor for

manslaughter and twenty years at hard labor for aggravated robbery, the Defendant

appeals his convictions and sentences.

Because the crime of aggravated robbery was nonexistent at the time of

the commission of the offense, we reverse the convictions and sentences. The guilty

pleas are vacated and set aside and we remand to the trial court for further

proceedings with the result that the parties are in the same position which they

occupied prior to the plea bargain. State v. Boudreaux, 402 So.2d 629 (La.1981).

LAW AND DISCUSSION

Validity of the Guilty Plea

The Defendant contends his guilty plea is null and void because he pled

to an offense that was nonexistent at the time of the commission of the offense. The

charging instrument alleges that the aggravated robbery occurred October 1, 2000;

however, the crime of aggravated robbery was enacted and became effective August

15, 2001, almost one year after the commission of the offense. See 2001 La. Acts No.

347 § 1.

The State asserts on appeal that the Defendant and his attorney requested

that he be allowed to plead guilty to aggravated robbery because it was not defined

as a crime of violence. The State claims it acquiesced and allowed the Defendant to

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The aggravated robbery charge was filed under a separate docket number.

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plead to the crime although the parties were aware that aggravated robbery was not

defined as a crime at the time of commission. According to the State’s brief, defense

counsel assured them that he would not raise the issue on appeal and would raise only

the excessive sentence issue. The State contends it proceeded with the plea

agreement based upon this reassurance. The State argues that the Defendant received

what he requested and this court should uphold the plea as it is a contract between the

State and the Defendant. The State suggests that this claim was waived by the

Defendant at the time of his plea and that if this court sets aside the conviction and

sentence for aggravated robbery, the Defendant has breached the plea bargain and the

matter should be remanded to either enforce the agreement or vacate the plea.

The Defendant filed a reply brief noting that most of the State’s factual

allegations are not contained in the record. Accordingly, he requests this court not

consider them on appeal. Additionally, the Defendant notes that a plea bargain is

unenforceable if it is entered into without a lawful cause. The Defendant also

contends that his guilty plea to manslaughter should not be affected because the

charge arose out of a different case number than the aggravated robbery charge.

In response to the Defendant’s reply brief, the State requested and was

granted leave of court to file a second brief. In this brief, the State contends that it

contacted the Defendant’s trial counsel and he acknowledged that he requested his

client be allowed to plead to aggravated robbery since it was not defined as a crime

of violence. Although counsel stated he contacted Defendant’s appellate counsel and

apprised her of these facts, she still persisted in her request to have the factual

allegations set forth by the State in its original brief stricken. Despite the State’s

request that trial counsel submit an affidavit reflecting the facts surrounding the plea

bargain negotiations, he refused. The State requests that the pleas should be upheld

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and if this court determines the record is insufficient, that the case should be

remanded for an evidentiary hearing for trial counsel to testify to these facts.

Jurisprudence exists which, although not directly on point, lends

guidance on this issue. In State v. Alfred, 95-76 (La.App. 3 Cir. 5/3/95), 657 So.2d

116, the defendant pled no contest to a crime she could not have committed. Criminal

abandonment, the crime to which the defendant pled no contest, requires that the

abandoned child be under the age of ten. The charges in the bill of indictment did not

state facts sufficient to charge the crime of criminal abandonment. Thus, this court

recognized as error patent that the defendant legally could not have committed the

offense to which she pled no contest and it reversed her convictions and sentences for

criminal abandonment. Additionally, because Alfred’s guilty plea to the charge of

second degree battery was part of the plea agreement with the charge of criminal

abandonment, a crime the trial court had no authority to accept, this court found the

plea to that charge was also invalid.

Similar action was taken by this court in State v. Presley, 99-802

(La.App. 3 Cir. 3/1/00), 758 So.2d 308. In Presley, this court discovered an error

patent in the defendant’s guilty plea. Pursuant to a plea agreement, the defendant

pled guilty to aggravated criminal damage to property and attempted assault by drive-

by shooting, an offense which is not a recognized offense under Louisiana law. Thus,

this court vacated the plea and set aside the convictions and sentences. The case was

remanded for further proceedings with the instructions that the defendant had the

option of either pleading guilty or proceeding to trial on the charged offenses and if

he chose to plead guilty, the sentence imposed should be no greater than the original

sentence.

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In State v. Holmes, 03-177 (La.App. 3 Cir. 2/18/04), 866 So.2d 406, the

defendant pled guilty to two counts of obscenity. On review of the denial of a post-

conviction relief application, he alleged that his plea to one of the charges was invalid

because the crime did not exist. At the time of the commission of the offense, one of

the essential elements of the crime of obscenity was that the conduct occur in a public

place or place open to public view. Within hours after the commission of the offense,

the language of the statute was expanded by the legislature to encompass proscribed

conduct occurring “in any prison or jail.” Since the conduct at issue in the case

occurred in the jail shower, the amended language criminalized the defendant’s

actions. The defendant argued that the application of the amended statute to his case

constituted ex post facto application of law. This court determined that a prison

shower was not a “place open to the public view” and that the defendant’s conduct

did not constitute obscenity under the law as it existed at the time of the commission

of the offense. Thus, this court reversed the defendant’s conviction and sentence for

that charge.

The foregoing cases indicate the Defendant’s pleas should be vacated,

but they do not discuss whether such an error may be waived, as alleged by the State.

In Alfred, this court characterized a similar error, one in which the defendant legally

could not commit the charged crime, as a jurisdictional defect. Such a defect cannot

be waived by the entry of a guilty plea. The supreme court has stated:

[E]ven an un qualified plea of guilty does not preclude
review of what are regarded as “jurisdictional” defects –
those which, even conceding the accused’s factual guilt, do
not permit his conviction of the offense charged. These
include, for example: the lack of jurisdiction of the
sentencing court, La.C.Cr.P. art. 362(1); the conviction
represents double jeopardy, La.C.Cr.P. art. 362(2), State ex
rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974);
Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d
195 (1975); the prosecution, when instituted, had

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prescribed, La.C.Cr.P. art. 362(7), see also State ex rel.
Williams v. Henderson, 289 So.2d 74 (La.1974); the state
lacked constitutional or legal power to try the accused for
the offense charged, Blackledge v. Perry, 417 U.S. 21, 94
S.Ct. 2098, 40 L.Ed.2d 628 (1974); State ex rel. Jackson v.
Henderson, 283 So.2d 210 (La.1973); the statute under
which the prosecution is brought is unconstitutional, State
v. Bergeron, 152 La. 38, 92 So. 726 (1922); the charge
brought by the indictment does not constitute a crime, State
v. Watson, 41 La.Ann. 598, 7 So. 125 (1889); certain types
of patent error preventing conviction for the offense,
La.C.Cr.P. art. 920(2), see indicative listing at State v.
Guillot, 200 La. 935, 9 So.2d 235, 239 (1942).

State v. Crosby, 338 So.2d 584, 588 (La.1976).

The State contends this case is similar to State v. Gobert, 02-771

(La.App. 3 Cir. 11/12/03), 865 So.2d 779, a case in which the defendant pled guilty

despite a double jeopardy violation inherent in the plea agreement. From the record,

this court determined that both the defendant and his attorney were aware of the

violation, but the defendant chose to plead guilty to avoid the imposition of a

mandatory life sentence. This court concluded that “fundamental fairness dictate[d]

that Mr. Gobert, who knowingly and intelligently entered a plea that raised double

jeopardy concerns, [could not] attack the validity of that plea. Thus, we find that he

waived his right to attack its validity.” Id. at 786. Earlier in the opinion, this court

stated:

Generally, a guilty plea is considered a waiver of all
non-jurisdictional defects and courts usually only review
them to ensure that the plea was both counseled and
voluntary. An exception to this rule exists for double
jeopardy violations. A plea of guilty (or plea bargain) does
not preclude a double jeopardy challenge when the
violation is apparent on the face of the record. However,
in United States v. Broce, [488 U.S. 563, 569, 109 S.Ct.
757, 762, 102 L.Ed.2d 927 (1989),] the United States
Supreme Court noted an important qualification to this rule
when it stated: “We do not hold that a double jeopardy
claim may never be waived.”

Id. at 784. (Footnotes omitted).

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The Louisiana Supreme Court has also held an exception exists for

double jeopardy violations. In State v. Arnold, 01-1399 (La. 4/12/02), 816 So.2d 289,

290, the court stated:

Generally, guilty pleas constitute a waiver of all
non-jurisdictional defects, see, e.g., State v. McKinney, 406
So.2d 160, 161 (La.1981), and generally courts review
them only to ensure that the plea “was both counseled and
voluntary.” United States v. Broce, 488 U.S. 563, 569, 109
S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Though the
Supreme Court and this Court have created an exception to
this rule for double jeopardy violations, Broce, 488 U.S. at
575-76, 109 S.Ct. at 765; State ex rel. Adams v. Butler, 558
So.2d 552, 553 n. 1 (La.1990), that exception applies only
“where on the face of the record the court had no power to
enter the conviction or impose the sentence.” Broce, 488
U.S. at 575-76, 109 S.Ct. at 765. Properly applied, the
exception requires limited review of only the charging
documents and plea colloquy. See Hagan v. State, 836
S.W.2d 459, 461 (Mo.1992).

Gobert, the case relied upon by the State, is distinguishable from the

present case in that double jeopardy violations may be waived; most jurisdictional

defects may not. See State v. Rivers, 28,565 (La.App. 2 Cir. 9/25/96), 681 So.2d 39,

citing State v. Gooden, 523 So.2d 283 (La.App. 2 Cir.), writ denied, 530 So.2d 570

(La.1988).

A review of the foregoing case law dictates a conclusion that the

Defendant’s plea should be vacated, the convictions and sentences should be set aside

and the case remanded to the trial court for further proceedings. The parties are now

in the same position as they were prior to acceptance of the plea bargain. State v.

Boudreaux, 402 So.2d 629 (La.1981).

EXCESSIVENESS OF SENTENCE

The Defendant contends his sentences are excessive. This claim is now

rendered moot.

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CONCLUSION

For the foregoing reasons, the Defendant’s convictions and sentences are

vacated and set aside. This case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED; CONVICTIONS AND

SENTENCES VACATED AND SET ASIDE.

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