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STATE of Louisiana v. Dorian Datorn EVANS
The defendant, Dorian Datorn Evans, was charged by bill of information with armed robbery (count one), a violation of La. R.S. 14:64(A), and aggravated second degree battery (count two), a violation of La. R.S. 14:34.7(A), and initially pled not guilty on each count. At a Boykin 1 hearing, the defendant withdrew his former pleas and pled no contest 2 to the charges. The trial court sentenced the defendant to fifty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one, and to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two, to be served concurrently. The trial court denied the defendant's motion to reconsider sentence. He now appeals, assigning the following errors: (1) the fifty-year sentence rendered his pleas constitutionally infirm; (2) his physical absence at sentencing was patent error; (3) he received ineffective assistance of counsel at sentencing; and (4) the trial court imposed an unconstitutionally excessive sentence. As follows, we set aside the convictions and sentences, and remand for further proceedings.
STATEMENT OF FACTS
Because the defendant entered no contest pleas to the charges, the facts were not developed in this case. According to the bill of information, on or about April 1, 2020, the defendant robbed Trevelle A. Bridges while armed with a dangerous weapon. On said date, the defendant further committed a battery with a dangerous weapon upon Bridges, intentionally inflicting serious bodily injury.3
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues his pleas became constitutionally infirm when he was not sentenced in accordance with a plea agreement of ten years imprisonment on count one. He contends the trial court did not inform him that his failure to appear at sentencing would warrant a higher sentence. He claims he pled no contest only on the belief that he would receive an imprisonment sentence of ten years.
Due process requires, as a prerequisite to its validity, that a guilty plea be a voluntary and intelligent relinquishment of known rights. There must be an affirmative showing in the record that the defendant was informed of the constitutional privilege against self-incrimination, the right to trial by jury, and the right to confront his accusers and that he knowingly and intelligently waived them. See Boykin, 395 U.S. at 243, 89 S.Ct. at 1712; State v. Wetzel, 2023-1316 (La. App. 1st Cir. 11/22/24), 2024 WL 4863871, *2 (unpublished). Defense counsel cannot consent to a guilty plea on his client's behalf, nor can a defendant's tacit acquiescence in the decision to plead guilty render the plea valid. Instead, the jurisprudence requires the trial court to conduct a colloquy with the defendant, on the record, to determine the guilty plea is entered with the defendant's full knowledge of its consequences. State v. Rider, 2023-0164 (La. App. 1st Cir. 11/9/23), 379 So.3d 49, 53, writ denied, 2023-01711 (La. 6/5/24), 385 So.3d 1160.
An unqualified guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects by either appeal or post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La. 1976); Wetzel, 2024 WL 4863871 at *3. There is no absolute right to withdraw a previously entered plea of guilty. Id. at *2. The withdrawal of a guilty plea must be predicated on legal cause; that is, on a showing made by the defendant that his plea bargain was constitutionally infirm, creating a legal defect that nullifies the agreement between the parties. 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. A constitutionally infirm guilty plea may be set aside either by means of an appeal or postconviction relief. State v. Paige, 2024-0142 (La. App. 1st Cir. 11/21/24), 2024 WL 4850505, *2 (unpublished).
A criminal plea agreement is analogous to a civil compromise. Rider, 379 So.3d at 52; see La. Civ. Code art. 3071, et seq. In determining the validity of plea bargain agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant's constitutional right to fairness may be broader than his or her rights under contract law. State v. Porche, 2020-0246 (La. App. 1st Cir. 12/30/20), 318 So.3d 184, 187; see also La. Civ. Code art. 1927. 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. Rider, 379 So.3d at 52; see La. Civ. Code arts. 1918, 1927, 1966, & 1971.
Error, fraud, or duress may vitiate consent. La. Civ. Code art. 1948. If the plea agreement calls for a legal sentence and the trial court agrees, the trial court is bound by the terms of the agreement. Under substantive criminal law, there are two alternative remedies for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea. Porche, 318 So.3d at 188. The party demanding performance of a plea bargain agreement has the burden of proving its existence and the terms thereof. See State v. Cotton, 2015-1623 (La. App. 1st Cir. 4/15/16), 194 So.3d 69, 79, writ denied, 2016-0897 (La. 4/24/17), 221 So.3d 69.
At the outset, we note the defendant did not file a motion to withdraw his no contest plea in this case. However, the Louisiana Supreme Court has consistently permitted a constitutionally infirm guilty plea to be withdrawn after sentencing by way of appeal or postconviction relief. State v. Dixon, 449 So.2d 463, 464 (La. 1984). Further, courts have reviewed claims of constitutionally infirm pleas on appeal even in the absence of a motion to withdraw a guilty plea. Thus, we find the defendant is not prohibited from challenging the constitutionality of his no contest plea by means of appeal. See Paige, 2024 WL 4850505 at *4; State v. Mitchell, 2023-225 (La. App. 5th Cir. 12/27/23), 379 So.3d 127, 134, writ denied, 2024-00146 (La. 10/1/24), 393 So.3d 869; and State v. Gamboa, 2022-806 (La. App. 3d Cir. 9/13/23), 370 So.3d 1260, 1266, writ denied, 2023-01376 (La. 4/9/24), 382 So.3d 842.
In the instant case, on November 15, 2021, before the trial court began its colloquy with the defendant, the State announced it made an offer of imprisonment of ten years at hard labor, to run concurrent with a separate charge in another parish, after which the defendant would be recommended for work release. The trial court agreed to the arranged sentence, and defense counsel thereafter requested sentencing be deferred until January. The State agreed, noting certain conditions, in pertinent part, as follows, “But with doing that, he understands completely that if he doesn't show up ․ on that turn in [sic], revokes the plea and I can go up on the time.” The State then clarified its edict as follows, “It will not overturn the plea. But he can get the max which is ninety nine.” Sentencing was set for January 11, 2022. The State reiterated its condition, stating, “But he understands all of those conditions on if he misses on January 11, nine am.” Upon the trial court's request, defense counsel restated the offer as “ten years,” followed by the State's elaboration, “Ten years with the Department of Corrections on each, to run concurrent with each other.” Following a brief discussion led by defense counsel to place on the record the defendant would not be subject to a habitual offender adjudication, the defendant was then sworn in and the Boykin colloquy between the defendant and the trial court was conducted.
The trial court confirmed the defendant's ability to read and write and inquired about his level of education, which the defendant answered as “[s]ome highschool [sic].” The State then informed the defendant of the minimum and maximum penalties associated with the offenses. The trial court confirmed the defendant understood the nature of the charges and the applicable sentencing ranges and advised the defendant of his rights. After the defendant confirmed that he understood his rights, the defendant entered his no contest plea on each count. The defendant denied being threatened, coerced, or promised leniency other than what was discussed in court.
After a discussion to delay sentencing until the agreed upon date of January 11, 2022, defense counsel noted, “Now unless he gets in trouble between now and then, all of that is off the table.” The defendant replied, “Yes, ma'am.” The trial court likewise, in pertinent part, stated, “Now, like I said, January 11 you come back. We'll do sentencing on that day. If everything remains the same as it is today and you haven't been in any kind of trouble whatsoever, then the sentence as agreed upon will be given. Okay?” The defendant replied, “Yes, sir.” The defendant failed to appear for sentencing on January 11, 2022. The trial court subsequently, on a later date,4 sentenced him to fifty years imprisonment on count one.
On appeal, the defendant, in arguing his pleas are constitutionally infirm, in part, relies on Rider. In Rider, the defendant pled guilty pursuant to a plea agreement. During the Boykin examination, defense counsel stated the defendant would enter guilty pleas “as per our pretrial discussions.” After the plea colloquy, the State advised the defendant it would file a habitual offender bill of information against him if he failed to appear for sentencing and defense counsel stated he understood.5 When the defendant failed to appear for sentencing, the State filed a habitual offender bill against him. The defendant then moved to withdraw his guilty pleas, which the trial court denied. The trial court adjudicated the defendant a fourth-felony offender and sentenced him to twenty years in prison without benefits. Rider, 379 So.3d at 51-53.
On review therein, this court set aside the defendant's conviction, habitual offender adjudication, and sentence and remanded the case to the trial court to allow the defendant an opportunity to withdraw his guilty plea. This court found the plea colloquy did not establish the defendant consented to or understood the consequences of the additional condition the State attempted to impose after the defendant pled guilty. Thus, this court found the State unilaterally changed the terms of the agreement after the defendant entered his guilty plea, thereby rendering the plea invalid. Rider, 379 So.3d at 53-54.
In a very similar, more recent case, Paige, the State offered the defendant a maximum concurrent sentence of eighteen years and the promise not to file a habitual offender bill against him in exchange for the defendant's guilty plea, and the defendant expressly agreed to those conditions. Thereafter, but still within the plea colloquy and prior to the trial court accepting the defendant's plea, the State added the condition that if the defendant did not appear as scheduled for sentencing, it would seek the maximum sentences for the defendant's respective charges and would further file a habitual offender bill. Following the State's insertion of this added condition, the only response given by the defendant was to the court's inquiries of whether he had any questions he would like to ask the court, the State, or his attorney, whether he was satisfied with the representation of his attorney, and whether the sentencing delay stipulations recited by the court were “all right,” to which he responded, “No, sir,” “Yes, sir,” and “Yes, sir,” respectively. Paige, 2024 WL 4850505 at *5.
On review therein, this court stated, “although the defendant expressly agreed to plead guilty to the specified charges under the condition that he receive sentences of either 10 years or 18 years on the respective charges, it cannot be said that the defendant expressly agreed to the condition that he would accept a greater sentence ․ in the event he failed to appear as scheduled for sentencing.” Id. This court noted while the defendant's failure to object or question the condition and consequences added by the State could be viewed as implicit or tacit consent, it was not express. Thus, this court remanded the case to allow the defendant an opportunity to withdraw his guilty plea. Id. at *6.
In the instant case, the setting of the sentencing date and the failure to appear edict, in addition to the agreed upon sentence of ten years on each count to run concurrently, were discussed among the State, defense counsel, and the trial court prior to the Boykin colloquy conducted with the defendant. On appeal, the defendant notes, after accepting his guilty plea, the trial court merely informed him that if everything remains the same and he had not “been in any kind of trouble whatsoever,” he would receive the agreed upon sentence. The defendant notes the trial court did not tell him that his failure to appear at sentencing would warrant a higher sentence. The defendant argues his plea became constitutionally infirm when the trial court sentenced him to fifty years on count one, five times longer than the agreed upon sentence of ten years.
The State argues the instant case is distinguishable from Rider and Paige because the plea agreement herein, including the failure to appear edict, was reached and agreed to on the record prior to the trial court beginning the Boykin colloquy. The State notes the defendant thereafter had a meaningful Boykin colloquy, at which point the defendant himself entered the plea. Thus, the State argues there was no “unilateral addition” after the agreement was reached, as in Rider and Paige.
As recognized in Rider and Paige, a defendant's tacit acquiescence in the decision to plead is insufficient to render the plea valid. While the State is correct in that the failure to appear edict in this case was discussed in open court prior to the Boykin examination and defendant's express no contest plea, the defendant did not participate in that discussion. Thus, it cannot be said that the defendant expressly agreed to the condition that he would accept a greater sentence than the agreed upon sentence of ten years in the event he failed to appear as scheduled for sentencing. Prior to the Boykin colloquy, the State and defense counsel made it clear the defendant had been offered a ten-year plea deal. There was no indication the failure to appear edict had been discussed with the defendant prior to the plea, nor was there any exchange with the defendant regarding the edict in the record. The failure to appear edict was never repeated after the trial court began the Boykin colloquy. Moreover, while the State informed the defendant that, should he not appear for the January 11, 2022 sentencing hearing that “he [could] get the max which is ninety[-]nine[,]” this was not expressly restated or relayed to the defendant by the trial court, either before or during the Boykin colloquy.
A plea agreement requires the freely given mutual consent of the State and the defendant. See La. Civ. Code art. 1927; Rider, 379 So.3d at 53. In this case, there was no acknowledgment by the defendant in the record of the failure to appear edict, nor did the defendant expressly agree to the condition. The defendant's silence or failure to object or question the failure to appear edict, assuming he was present, aware, and understood the consequences of a failure to appear at the sentencing, could be viewed, at best, as implicit or tacit consent, not express consent. Cf. State v. Heard, 2016-0012 (La. App. 1st Cir. 7/12/16), 2016 WL 3685357, *2 (unpublished) and State v. Stewart, 2003-976 (La. App. 5th Cir. 12/30/03), 862 So.2d 1271, 1276-77 (wherein the defendants answered “Yes, sir[,]” when asked if they understood that their sentence would be different if they failed to appear as scheduled for sentencing during their respective guilty plea colloquies). As the plea agreement did not provide for the defendant to receive any sentence greater than ten years, we find the plea agreement is null.
CONCLUSION
Accordingly, we set aside the defendant's convictions and sentences, and remand the case for further proceedings, allowing the defendant an opportunity to withdraw his no contest pleas. In so holding, we pretermit consideration of the defendant's remaining assignments of error as moot.
CONVICTIONS AND SENTENCES SET ASIDE; REMANDED FOR FURTHER PROCEEDINGS TO ALLOW THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS NO CONTEST PLEAS.
I believe the plea is valid and constitutional, and that the cases relied upon by the majority, State v. Rider, 2023-0162 (La. App. 1 Cir. 11/9/23), 379 So.3d 40 and State v. Paige, 2024-0142 (La. App. 1 Cir. 11/21/24), 2024 WL 4850505 are distinguishable.
In Rider, the defendant was not informed on the record prior to entering his plea that his failure to appear at sentencing would result in the filing of a habitual offender bill. Rather, the State added the condition at the end of the plea colloquy after the trial court accepted the plea. Rider, 379 So.3d at 44. Thus, this Court set aside the defendant's conviction and sentence and the case was remanded for further proceedings to allow defendant an opportunity to withdraw his guilty plea.
In Paige, the State offered the defendant a maximum concurrent sentence of eighteen years and the promise not to file a habitual offender bill against him in exchange for the defendant's guilty plea, and the defendant expressly agreed to those conditions in exchange for his guilty plea. Thereafter, but still within the plea colloquy and prior to the trial court accepting the defendant's plea, the State added the condition that if the defendant did not appear as scheduled for sentencing, it would seek the maximum sentences for the defendant's respective charges and would further file a habitual offender bill. Following the state's insertion of this added condition, the only response given by the defendant was to the trial court's inquiries of whether he had any questions he would like to ask the trial court, the State or his attorney, whether he was satisfied with the representation of his attorney, and whether the sentencing delay stipulations recited by the trial court were “all right” to which he responded “No, sir,” “Yes, sir,” and “Yes, sir,” respectively. Paige, 2024 WL 4850505, at *5.
This Court in Paige found that while the defendant's failure to object or to question the condition and consequences added by the State could be viewed as consent, such consent, as most, was implicit or tacit; it was not express. Consequently, this Court found that the record failed to establish that the defendant validly agreed to the imposition of sentences greater than the respective 10 and 18 year concurrent terms or to the filing of a habitual offender bill of information if he failed to appear for sentencing. This Court set aside the conviction and sentence and remanded the case with instructions for the trial court to allow the defendant an opportunity to withdraw his guilty plea. Paige, 2024 WL 4850505, at *6.
In this case, the plea agreement which included the failure to appear edict was reached and agreed to prior to the trial court beginning the Boykin colloquy. Thus, there was no unilateral addition after the agreement was reached. Further, the defendant had a meaningful Boykin colloquy with the trial court after the terms of the agreement were stated, and the defendant himself entered the plea. This defendant was well aware of the consequences of failing to appear on his sentencing date and should not be able to avoid those consequences by having the convictions and sentences set aside.
FOOTNOTES
1. “Boykin” refers to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
2. A plea of no contest is equivalent to an admission of guilt and is treated as a guilty plea. State v. Oliver, 2020-0190 (La. App. 1st Cir. 2/24/21), 321 So.3d 1033, 1037 n.5.
3. At the Boykin hearing, before the defendant pled no contest, the State offered all discovery to establish a factual basis for the offenses. Defense counsel then noted the defendant was advised of his rights, the case, and the facts therein.
4. The instant record reflects a bench warrant was issued when the defendant failed to appear for sentencing on January 11, 2022. Nearly two years later, on December 5, 2023, the defendant appeared via Zoom video conference for sentencing. At the subsequent hearing on the motion to reconsider sentence, defense counsel noted the defendant was in Texas when he absconded for the near two-year period.
5. In Rider, it was noted the State and the defendant agreed the defendant would enter guilty pleas in exchange for the State withholding filing a habitual offender bill of information against him. The State and the defendant further agreed to a sentence of thirty months to be imposed. Rider, 379 So.3d at 52.
WOLFE, J.
GREENE, J., dissents with reasons
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Docket No: NO. 2024 KA 0805
Decided: May 30, 2025
Court: Court of Appeal of Louisiana, First Circuit.
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