State of Louisiana v. Tommy Cloud

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-838

STATE OF LOUISIANA

VERSUS

TOMMY CLOUD

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. 2003-1773
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
James T. Genovese, Judges.

REVERSED. GUILTY PLEAS AND SENTENCES
VACATED AND REMANDED FOR FURTHER
PROCEEDINGS.

Honorable Douglas L. Hebert, Jr.
District Attorney
John Erwin Demoruelle
Assistant District Attorney
P. O. Drawer 839
Oberlin, LA 70655
Telephone: (337) 639-2641
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
Telephone: (337) 991-9757
COUNSEL FOR:
Defendant/Appellant - Tommy Cloud

Tommy Cloud
Allen Corr. Ctr.
3751 Lauderdale Woodyard Road
Kinder, LA 70648

THIBODEAUX, Chief Judge.

The Defendant, Tommy Cloud, entered guilty pleas to sexual battery and

oral sexual battery, and was sentenced to two consecutive terms of nine years at hard

labor, without the benefit of probation, parole, or suspension of sentence. He appeals

his guilty pleas because he alleges they were not knowingly and intelligently made.

More specifically, the Defendant contends that his pleas were based upon an

impossible condition of dismissal of criminal charges to which he had already entered

guilty pleas.

We agree. Therefore, we reverse and vacate the Defendant’s guilty pleas

and sentences and remand to the trial court for further proceedings.

FACTS

No facts were entered into the record at the Defendant’s guilty plea. The

following facts were obtained from Defendant’s brief to this court:

A twelve year old girl told authorities in Evangeline
and Allen Parishes that she had been molested by
Appellant. The child claimed to have been digitally and
orally touched by the Appellant in a camper while her
mother slept nearby. Appellant was dating the child’s
mother and living with the family at the time, according to
police reports.

Invalidity of Guilty Pleas

The Defendant contends that his guilty pleas are invalid because the

conditions of the plea bargain were impossible to fulfill. He explains that in

exchange for his guilty plea to sexual battery and oral sexual battery, the State agreed

to dismiss two burglary charges. However, at the time of the plea bargain, the

Defendant had already pled guilty to the two burglary charges.

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The Defendant claims that the State breached their plea bargain. There

are two remedies typically available in this situation: 1) specific performance of the

plea agreement; and 2) withdrawal of the guilty plea. Santabello v. New York, 404

U.S. 257, 92 S.Ct. 495 (1971); State v. Chalaire, 375 So.2d 107 (La.1979); State v.

Wade, 364 So.2d 575 (La.1978). The Defendant cannot seek specific performance

of the plea agreement because the charges which were to be dismissed as part of the

current plea agreement cannot be dismissed as agreed. Therefore, the Defendant’s

only remedy would be withdrawal of his plea, which he requests in his brief to this

court.

In his brief to this court, the Defendant states:

After the plea and sentence, on May 11, 2004, the State
appeared before the court requesting the minutes of
7/10/03 be amended to reflect that the charges in CR-2002-
0763 were not dismissed, as the defendant previously
entered plea in that docket number. This exparte motion
was granted without notice or hearing. It clearly
establishes that the appellant was under a mistake of fact in
believing that he would benefit by the dismissal of the
burglary charge, assuming that the State was correct in
urging that they had already been adjudicated. Since the
appellant is not a lawyer, it is not clear that he understood
the State could not simply dismiss the burglary charge,
even if he had already pled. The lack of any contradictory
hearing on that issue bars affiance of the plea bargain.

The State acknowledges that the plea agreement contained an impossible

condition, but maintains that the Defendant is charged with the knowledge that he had

already pled guilty to the charges that were agreed to be dismissed.

The Louisiana Supreme Court in State v. Crosby, 338 So.2d 584

(La.1986), has stated that a guilty plea is involuntary if it is based upon an impossible

plea agreement. The court stated:

. . . Their plea of guilty was entered upon the express plea
bargain that they did not lose their right to appellate review
of such error.

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If we are not able to afford the accused their
bargained-for appellate review, we must set aside the guilty
pleas. The plea could not therefor be characterized as
voluntary, because of the non-performance of the plea
bargain (or the impossibility of the state to perform it) by
virtue of which the plea was obtained. State v. Baudoin,
334 So.2d 186 (La.1976); Santobello v. New York, 404
U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Id. at 586. See also State v. Joseph, 03-315 (La. 5/16/03), 847 So.2d 1196.

This court in State v. Falls, 98-781 (La.App. 3 Cir. 12/9/98), 722 So.2d

394, held the defendant’s plea was involuntary because it was induced by a plea

agreement containing an illegal sentence. This decision was vacated by the supreme

court in State v. Falls, 99-0063 (La. 6/4/99), 735 So.2d 628. As in Falls and the

instant case, none of the parties, nor the court, realized that the plea agreement

contained an impossible condition. This court stated:

Although in the present case, Defendant himself
ultimately breached the terms of the plea agreement by not
cooperating with law enforcement authorities as specified,
we find the inducement of an illegal sentence vitiated the
knowing and voluntary nature of the plea itself. Had
Defendant complied with the terms of the plea agreement,
the sentencing judge could not have adopted the sentence
which the assistant district attorney agreed to recommend
because it was an illegal sentence. Regardless of any
cooperation by a defendant, a conviction of armed robbery
negates any chance for a suspended or partially suspended
sentence. Therefore, Defendant is entitled to have the
guilty plea set aside.

State v. Falls, 722 So.2d at 396.

The supreme court vacated Falls, but failed to address the specific issue

at hand, stating:

The “cooperation” portion of the plea bargain
included the illegal sentencing term but failed when the
defendant unilaterally breached that part of the agreement
by fleeing to Texas. The defendant’s voluntary act thereby
triggered the alternative portion of the plea bargain, which
called for an entirely lawful sentence, accepted by the
defendant as an alternative to cooperation with the

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authorities when he entered his guilty plea. The case is
remanded for enforcement of that part of the agreement, if
appropriate, after consideration of the defendant’s
remaining claims pretermitted on original appeal, . . . .

State v. Falls, 735 So.2d at 628 (citations omitted).

In this case, the plea bargain contains an impossible condition that

renders the Defendant’s guilty pleas involuntary. There is no alternate portion of the

plea agreement which can be upheld as in Falls.

Thus, we vacate the Defendant’s guilty pleas and sentences and remand

to the trial court for further proceedings.

ERROR PATENT

The minutes of sentencing fail to reflect the denial of diminution of

eligibility. Thus, we instruct the trial court to amend the minutes accordingly.

CONCLUSION

For the foregoing reasons, we conclude that the Defendant’s guilty pleas

were based on an impossible condition and, consequently, unknowingly made and

invalid. We, therefore, vacate the pleas and sentences and remand to the trial court

for further proceedings.

REVERSED. GUILTY PLEAS AND SENTENCES VACATED

AND REMANDED FOR FURTHER PROCEEDINGS.

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