Opinion
NUMBER 2011KA 1696
09-21-2012
STATE OF LOUISIANA v. MARCELL O'CONNER
Hillar C. Moore, III District Attorney Baton Rouge, LA Counsel for Plaintiff/Appellee State of Louisiana Dylan C. Alge Assistant District Attorney Baton Rouge, LA Frederick Kroenke Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Marcell O'Conner
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Suit Number 7-98-0062
Honorable Todd Hernandez, Presiding
Hillar C. Moore, III
District Attorney
Baton Rouge, LA
Counsel for
Plaintiff/Appellee
State of Louisiana
Dylan C. Alge
Assistant District Attorney
Baton Rouge, LA
Frederick Kroenke
Louisiana Appellate Project
Baton Rouge, LA
Counsel for
Defendant/Appellant
Marcell O'Conner
BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.
GUIDRY , J.
On August 13, 1998, defendant, Marcell O'Conner, was charged by grand jury indictment with one count of first degree murder, a violation of La. R.S. 14:30. The state filed notice of its intent to seek the death penalty. On August 26, 1999, defendant's trial date was postponed because his counsel had to be substituted. On August 24, 2001, defendant withdrew his initial plea of not guilty and entered a plea of guilty pursuant to a written plea agreement.
Under the terms of this plea agreement, the state amended defendant's indictment to charge one count of attempted second degree murder, a violation of La. R.S. 14:30.1 and 14:27 (count one); one count of felon in possession of a firearm, a violation of La. R.S. 14:95.1 (count two); and one count of manslaughter, a violation of La. R.S. 14:31 (count three). The written plea agreement provided that defendant would be sentenced to fifty years at hard labor, without the benefit of parole, probation, or suspension of sentence on count one, and to fifteen years at hard labor, without the benefit of parole, probation, or suspension of sentence on count two.
As to count three, the written plea agreement stated that defendant recognized that he had a prior felony conviction and that he would stipulate to being a second-felony habitual offender under La. R.S. 15:529.1, while expressly waiving his right to the filing of a bill of information and a formal hearing on the issue. In connection with the habitual offender stipulation on count three, defendant agreed to a sentence of fifty years at hard labor. Finally, the written plea agreement stated that defendant agreed to his three sentences being run consecutively, committing him to a total of one hundred fifteen years of imprisonment. The trial court accepted defendant's pleas and imposed his sentences in conformity with the written plea agreement.
On August 23, 2002, defendant filed his first application for post-conviction relief, in which he stated a claim that his habitual offender sentence was illegal due to the state's failure to file a habitual offender bill of information prior to his plea. On March 11, 2003, the commissioner recommended that defendant's fifty-year habitual offender sentence be vacated as an illegal sentence and that defendant be resentenced under the terms of his plea agreement. However, on May 13, 2003, the trial court denied defendant's application for post-conviction relief without a hearing.
Defendant raised several other issues in this application for post-conviction relief, but they are not pertinent to this appeal.
The office of commissioner of the 19th JDC was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The commissioner's written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5).
We note that the trial court's order denying defendant's application for post-conviction relief states that it adopts the recommendations made by the Commissioner, but no action was taken to vacate defendant's habitual offender sentence.
Defendant sought writs with this Court and, on September 22, 2003, this Court granted defendant's writ application in part and denied it in part. In partially granting defendant's writ application, we noted that the state acknowledged that it had not filed a habitual offender bill of information before defendant was sentenced and that defendant's fifty-year sentence would be illegal if he had not been properly charged and adjudicated as a habitual offender. Because the record before this Court in that writ application was not sufficient for us to determine with certainty whether or not defendant had been adjudicated and sentenced as a habitual offender, we remanded defendant's case to the trial court to ensure compliance with the requirements of La. R.S. 15:529.1. See State ex rel. O'Conner v. State, 03-1225 (La. App. 1st Cir. 9/22/03) (unpublished writ action).
On April 16, 2004, the state filed a habitual offender bill of information to enhance defendant's manslaughter conviction. At a hearing on May 4, 2004, the trial court noted that the state had filed its habitual offender petition, and it "vacated" the sentence as to count three and imposed a new sentence of fifty years at hard labor, to run consecutive to the sentences on counts one and two. On May 28, 2004, defendant filed a pro se motion for appeal. Also, on June 1, 2004, defendant filed a pro se motion to reconsider sentence, but the trial court denied that motion on October 21, 2004.
The trial court also "maintain[ed]" the sentences on counts one and two.
On March 22, 2011, defendant filed a writ application with this Court, seeking mandamus relief directing the trial court to act on his pro se motion for appeal filed in May 2004. This Court granted defendant's writ application on May 9, 2011, and ordered the trial court to act on defendant's motion for appeal on or before June 9, 2011. See State v. O'Conner, 11-0549 (La. App. 1st Cir. 5/9/11) (unpublished writ action). On June 9, 2011, the trial court granted defendant's pro se motion for appeal.
On appeal, defendant now alleges two assignments of error. First, defendant argues that the trial court erred in failing to vacate all of his convictions and sentences because they were based on a plea agreement conditioned upon a habitual offender bill of information that had not been filed at the time of its acceptance. Second, defendant contends that the trial court erred in failing to advise him of his constitutional rights at the habitual offender hearing. For the following reasons, we affirm defendant's conviction, habitual offender adjudication, and sentence on count three.
For reasons explained later in this opinion, we find that defendant's convictions and sentences on counts one and two are no longer reviewable by appeal.
FACTS
The facts in this case are adopted from the facts stipulated to in defendant's written plea agreement.
On May 20, 1998, defendant drove to the residence at 4050 Beech Street in Baton Rouge, Louisiana. He had in his possession a .380 caliber handgun, knowing it was illegal for him to possess such a weapon due to his prior felony conviction for armed robbery. Defendant remained in his car and called Bridgette Briggs, his estranged girlfriend, to come out to the car to talk to him. Bridgette walked out to the car accompanied by her son, Charles Bradford, who was nine years old at the time. Defendant fired five shots at Bridgette and Charles, killing Bridgette and wounding Charles. Defendant drove away, and he was apprehended about one month later.
ASSIGNMENT OF ERROR #1
In his first assignment of error, defendant contends that the trial court erred in failing to vacate both his conviction and sentence due to the state's failure to file a habitual offender bill of information prior to the acceptance of defendant's plea agreement. It is unclear from defendant's brief whether he is actually arguing that his conviction, habitual offender adjudication, and sentence for his manslaughter conviction alone should be vacated, or whether he is attempting to argue that his entire plea agreement is void. On one hand, defendant simply prays for "a reversal of the conviction and sentence." On the other, he cites State v. Vidrine, 476 So. 2d 537, 540 (La. App. 1st Cir. 1985) and argues that "[w]hen one part of the plea agreement fell, the whole of the agreement fell." However, our ultimate analysis is the same under either circumstance.
The terms of the written plea agreement between defendant and the state are detailed above in the discussion of the procedural history of this case. In short, defendant agreed to plead guilty to one count each of attempted second degree murder, felon in possession of a firearm, and manslaughter. He also stipulated to the fact that he was a second-felony habitual offender due to a previous armed robbery conviction. Defendant also agreed to waive the filing of a habitual offender bill of information, and he accepted sentences of fifty years and fifteen years on counts one and two, and a habitual offender sentence of fifty years on count three, all to be imposed consecutively. A final condition of the plea agreement was written as follows: "If for any reason the defendant's pleas of guilty are not accepted or if he is not immediately sentenced in conformity with this agreement, the defendant stipulates that this agreement is null and void and the parties are placed in the exact position as before the signing of this agreement."
The Nature of a Plea Agreement
A discussion of the legal relations between the state, defendant, and a trial court in a plea agreement is necessary to properly decide this case.
In State v. Lewis, 539 So. 2d 1199, 1204 (La. 1989), appears the following:
We relied on contract principles to reach a decision in Nail, reasoning that a plea bargain is a contract between the state and one accused of a crime. rState v. Nail, 379 So. 2d 731, 733 [(La. 1980)]. Such an approach has been looked upon with approval in the federal jurisprudence, especially where a promise of immunity from prosecution is at issue. See e.g., Rowe v. Griffin, 676 F,2d 524, 528 (11th Cir. 1982). Although the code provisions we interpreted in Nail have been revised, their substance remains unchanged. Compare former La. C.C. arts. 1779, 1819, 1823-24 with current La. C.C. arts. 1927, 1948-50, Thus, the principles enuciated [sic] in that decision remain viable.
A long-standing rule of contract law is that consent of both parties is required for a valid contract. La. C.C. art. 1927. Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. Finally, the Civil Code provides:
Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object.. ., or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.La. C.C. art. 1950.
In State v. Louis, 94-076.1, pp. 7-8, 10 (La. 11/30/94), 645 So. 2d 1144, 1148-49, the Louisiana Supreme Court held:
In determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law. State v. Nail, 379 So.2d 731 (La. 1980); State v. Lewis, 539 So.2d 1199 (La. 1989). Contractual principles may be helpful by analogy in deciding disputes involving plea agreements. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97.'L.Ed.2d 1 (1987); Cf. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). However, the criminal defendant's constitutional right to fairness may be broader than his or her rights under contract laws. State v. Nail, 379 So.2d at 734 (Dennis, J., concurring). Moreover, commercial contract law can do no more than to serve as an analogy or point of departure, since "plea agreements are constitutional contracts." Ricketts v. Adamson, 483 U.S. at 16, 107 S.Ct. at 2689. The Court further stated in Ricketts:
The values that underlie commercial contract law, and that govern the relations between economic actors, are not coextensive with those that underlie the due Process Clause, and that govern relations between criminal defendants and the State. Unlike some commercial contracts, plea agreements must be construed in light of the rights and obligations created by the Constitution.483 U.S. at 16, 107 S.Ct. at 2689.
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In the present case, we refer first to the law of contracts for application by analogy in determining whether a contract was formed. A contract is formed by the consent of the parties established through offer and acceptance. [La. C.C.] art. 1927. The offer and acceptance may be verbal unless the law prescribes a requirement of writing. Id.; Laroussini v. Werlein, 52 La.Ann. 424, 27 So. 89 [(1899)]. Once there is an offer and acceptance, the agreement is subject to specific performance. [La. C.C.] art. 1986. . . . Moreover, the obligation may be dependent upon an uncertain event. [La. C.C.] art. 1767. A lawful cause is also necessary to the existence of a contract. [La. C.C.] art. 1966. The cause is the reason why a party obligates himself. [La. C.C.] art. 1967.
In Lewis v. State. Department of Public Safety and Corrections. 602 So. 2d 68, 74 (La. App. 1st Cir.), writ denied. 604 So. 2d 1312 (La. 1992), this Court held:
Pleas in criminal matters are provided for in La. C.Cr.P. arts. 551-561. A plea of guilty is one of the four kinds of pleas authorized by La. Code. C.Cr.P. art. 552.A criminal plea agreement is analogous to a civil compromise. State v. Canada, 01-2674, p. 5 (La. App. 1st Cir. 5/10/02), 838 So. 2d 784, 788; see La. C.C. arts. 3071-3083.
* * *
Under the substantive criminal law, there are only two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Chalaire, 375 So.2d 107 (La. 1979); State v. Wade, 364 So 2d 575 (La. 1978); State v. Greer, 572 So.2d 1166 (La. App. 1st Cir. 1990).
The Plea Agreement in this Case
The four elements of a valid contract are: 1) the parties' capacity to contract; 2) the parties' mutual consent that is freely given; 3) the existence of a certain, lawful object for the contract; and 4) the existence of a lawful purpose, or cause, of the contract. See La. C.C. arts. 1918, 1927, 1966, & 1971; see also La Bo J Partnership v. Louisiana Lottery Corporation, 08-1279, p. 5 (La. App. 1st Cir. 1/30/09), 6 So. 3d 191, 194, writ denied, 09-0441 (La. 4/13/09), 5 So. 3d 168. In the instant case, there does not appear to be any controversy about the issues of capacity, consent, or cause related to the plea bargain. Instead, defendant's argument in this assignment of error appears to raise two contractual issues. The first is whether the state and defendant entered into a contract with an unlawful object when they agreed that defendant would stipulate to his status as a habitual offender without the state first filing a habitual offender bill of information. The second issue is whether the plea agreement included a suspensive condition that was not fulfilled within the time allocated, causing the entire obligation to fall.
Louisiana Civil Code article 1767, in pertinent part, defines a suspensive condition as:
If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.
Object and Cause
As they relate to this appeal, the objects of the plea agreement were defendant's guilty plea to manslaughter, his stipulation to the fact that he was a second-felony habitual offender, and his acceptance of a fifty-year habitual offender sentence for that conviction. There appear to be dual causes supporting the plea agreement -- the defendant pled guilty to avoid a potential death sentence, and the state accepted that plea in an effort to avoid further delay in a case that did not appear to be ready for trial in the foreseeable future.
Cause is the reason why a party obligates himself. La. C.C. art. 1967.
Therefore, we find that the actual objects and causes of defendant's written plea agreement were themselves lawful. And as explained in our discussion of the second issue raised in this appeal regarding an implied suspensive condition, while the procedural manner in which defendant's habitual offender sentence was initially imposed was improper, this procedural defect did not itself render the objects of the plea agreement unlawful.
Suspensive Condition
Defendant's argument in his brief that the trial court erred in failing to "vacate the plea and subsequent conviction as well as the sentence" sets forth the contention that his pleas were invalid under the agreement because he could not be sentenced as a habitual offender without the state first filing a habitual offender bill of information. Although not directly stated in his brief, this argument seems to rest on the proposition that defendant could not be "immediately sentenced in conformity with th[e] agreement," causing the suspensive condition of the obligation to go unfulfilled, and the overall plea agreement to fail to have legal effect.
To the extent that defendant's argument rests upon this unfulfilled suspensive condition reasoning, we disagree that the suspensive condition set forth in the plea agreement was not met. The plain language of the condition in the plea agreement required only the acceptance of defendant's pleas of guilty and the immediate sentencing of defendant in conformity with the agreement. The trial court clearly accepted all three of defendant's pleas and his stipulation to being a second-felony habitual offender, and defendant was given the exact sentences set forth in the agreement. Despite the later realization of the invalidity of the mechanism by which the agreement was implemented and the resulting technical invalidity of the habitual offender sentence, we find that the acceptance of defendant's pleas and his sentencing by the trial court in conformity with the agreement were enough to give the agreement legal effect between the state and defendant. Therefore, we find that the suspensive condition present in the agreement was fulfilled, albeit by defective means.
We recognize that in the view of the law, the effect of an illegal sentence is the same as if no sentence at all had been imposed. See State v. Johnson. 220 La. 64, 68, 55 So. 2d 782, 783-84 (1951). However, in this case, the parties themselves agreed to a sentence within the statutory guidelines, which was to be imposed by unauthorized means. Therefore, we find the instant situation distinguishable from traditional illegal sentence cases.
Effect of the Habitual Offender Filing
Once defendant's sentences were imposed in conformity with the agreement, his delays to appeal his convictions and sentences began to run. When defendant failed to file a motion to appeal his convictions and sentences on counts one and two within thirty days of those judgments, his convictions and sentences on those counts became final. See La. C. Cr. P. art. 914(B)(1). The trial court's "maintaining" of these sentences at the May 2004 habitual offender hearing did nothing to affect their finality. However, while defendant pled guilty to manslaughter under count three and was sentenced as a habitual offender, he was not given a valid sentence as to that count because the state failed to file a habitual offender bill of information before defendant was sentenced. See La. C. Cr. P. art. 872. Hence, because the defendant's original habitual offender sentence did not rest upon any bill of information, let alone a valid one, his sentence as an habitual offender was invalid and therefore illegal. See State v. Coleman. 465 So. 2d 709, 711 (La. 1985).
The Code articles speak in terms of indictments; however, it has been inferred in the cases interpreting and comments following these articles that these provisions are applicable to bills of information in the same way they are applied to grand jury indictments. State v. Foster 43,777, p. 17 n.2 (La. App. 2d Cir. 1/28/09), 3 So. 3d 595, 605 n.2, writ granted, 09-0617 (La. 11/25/09), 23 So. 3d 885.
An illegal sentence may be corrected at any time by the court that imposed that sentence or by an appellate court on review; La. C. Cr. P. art. 882(A). Defendant's manslaughter conviction was not final until he received a legal sentence. The April 2004 filing of the habitual offender bill of information, as well as the May 2004 adjudication and sentencing of defendant as a habitual offender, cured the defects relating to defendant's illegal habitual offender sentence for manslaughter. Therefore, review of defendant's manslaughter conviction, habitual offender adjudication, and sentence in this appeal are proper, as he filed a motion to appeal within the appropriate window after his habitual offender adjudication and sentencing.
We note that the trial court had imposed no underlying sentence on defendant's manslaughter conviction before sentencing him as a habitual offender.
Even though we have found both that the objects of defendant's plea agreement were lawful and that the suspensive condition included in the agreement was fulfilled, we also find that any error that may have existed with respect to the initial imposition of defendant's habitual offender sentence for manslaughter was harmless. At the time of his guilty pleas and sentencing pursuant to the plea agreement, defendant was informed of his Boykin rights, and he informed the trial court that he understood the implications of his guilty pleas. Although procedurally improper, defendant also agreed at that time to waive the filing of a habitual offender bill of information and to stipulate that he was a second-felony habitual offender in connection with his previous armed robbery conviction. Therefore, the subsequent imposition of defendant's fifty-year habitual offender sentence on his manslaughter conviction through proper procedural means was not shocking, surprising, or unexpected.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct, 1709, 23 L.Ed.2d 274 (1969).
Hence, we find no merit in defendant's first assignment of error. The objects and causes of the plea agreement entered into between the state and defendant were lawful, and all conditions set forth in the plea agreement were fulfilled. Further, the state's subsequent filing of the habitual offender bill of information and the trial court's May 2004 sentencing of defendant under that habitual offender bill in conformity with the plea agreement cured any defects related to the initial sentence imposed on defendant as a result of the manner in which the plea agreement was originally executed.
ASSIGNMENT OF ERROR #2
In his second assignment of error, defendant argues that the trial court erred in failing to advise him of his constitutional rights at the May 2004 habitual offender hearing.
At defendant's May 2004 habitual offender hearing, defendant did not stipulate to the fact that he was a second-felony habitual offender. Instead, his counsel raised the issue addressed in the first assignment of error and argued that defendant's plea was invalid because of the late filing of the habitual offender bill of information. In support of its habitual offender bill of information, the state alleged that defendant had previously been convicted of armed robbery under docket number 07-84-0398 in East Baton Rouge Parish, and it included defendant's bill of information and a minute entry reflecting his guilty plea for this predicate conviction. Based on this evidence and "in consideration of the plea agreement and the stipulations entered by the defendant as to his status as a two time felony offender," the trial court imposed the fifty year habitual offender sentence as set forth in the written plea agreement.
We note that the transcript of the May 4, 2004 habitual offender hearing reveals that the trial judge did not actually use any specific words to indicate that he adjudicated defendant a habitual offender. However, at least one other court has found that a trial judge's mere failure to state that a defendant is found to be a habitual offender is not cause for reversal where the trial judge clearly intends to sentence the defendant as a habitual offender. See State v. Melancon, 01-1656 (La. App. 4th Cir. 8/21/02), 826 So. 2d 633, 639, writ denied, 02-2407 (La. 3/21/03), 840 So. 2d 547. In any event, defendant did not raise this issue on appeal, and a habitual offender hearing is not considered part of the record for purposes of review under La. C. Cr. P. art. 920. See State v. Moore, 12-0102 (La. 5/25/12), 90 So. 3d 384 (per curiam).
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Due to the nature of the proceedings at defendant's May 2004 habitual offender hearing and the lack of any stipulation entered into by defendant at that time, it was unnecessary for the trial court to inform defendant of any constitutional rights at that hearing. Under La. R.S. 15:529.1(D)(1)(3), a defendant must only be duly cautioned as to his rights if he acknowledges or confesses in open court that he has been convicted of a prior felony or felonies. Even under those circumstances, the Louisiana Supreme Court has "declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty." State v. Moore, 12-0102, p. 1 (La. 5/25/12), 90 So. 3d 384 (per curiam) (quoting State v., Harris, 95-0900 (La. 5/19/95), 654 So. 2d 680). Therefore, this assignment of error lacks merit as it relates to defendant's May 2004 habitual offender hearing, because he did not admit to his status as a habitual offender at this hearing.
To the extent this assignment of error is also sufficient to call into question whether defendant was properly informed of his rights relating to his habitual offender stipulation during his original guilty pleas, we also find no merit in such a claim. At the time he pled guilty to all three offenses, defendant was fully informed of his Boykin rights. Further, the trial judge specifically asked defendant whether he stipulated to his status as a second-felony habitual offender, as set forth in the written plea agreement, and defendant responded affirmatively. Thus, at that time, defendant had been fully informed of his constitutional rights and the consequences of his stipulation. The Louisiana Supreme Court has held that a trial judge may take judicial notice of the record at an earlier proceeding before him in the same case, pursuant to La. C.E. arts. 201(A) & (B)(2). See State v. Valentine, 397 So. 2d 1299, 1300 (La. 1981); see also Armand v. Lady of the Sea General Hospital, 11-1083, p. 7 (La. App. 1st Cir. 12/21/11), 80 So. 3d 1222, 1227, writ denied, 12-0230 (La. 3/30/12), 85 So. 3d 121. Therefore, at the May 2004 habitual offender hearing, the trial judge was entitled to, and did, take notice of defendant's prior stipulation, which was made after being informed of his Boykin rights.
This assignment of error lacks merit.
For the foregoing reasons, we affirm defendant's conviction, habitual offender adjudication, and sentence on count three.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE ON COUNT THREE AFFIRMED.