STATE v. LIVAS (2025)

Writ granted in part. The state has conceded that parole assurance at the time of applicant's plea was in error. Consequently, the matter is remanded to the district court for appointment of counsel and a hearing to allow the defendant to withdraw the guilty plea, if he chooses. State v. Rideau, 19-2092 (La. 8/14/20), 300 So.3d 839. For the reasons given by the court of appeal, we reject the defendant's request for enforcement of the plea agreement. In all other respects, the writ is denied.

Pursuant to Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), as revised (Jan. 27, 2016), the defendant was released on parole after serving 33 years in prison. The defendant's plea on the current charges was based on a mutual mistake about parole consequences, and the state concedes the error vitiated the defendant's consent such that the plea is subject to recission and withdrawal. As Judge Pro Tempore Calloway opined in concurring below, the Boykin colloquy shows that a false assurance about the parole consequences precluded the defendant from making his decision to waive trial and enter the guilty plea “with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942); State ex rel. Aleman v. State, 99-1180 (La. 10/1/99), 745 So.2d 602; see also State v. Rideau, 19-2092 (La. 8/14/20), 300 So.3d 839.

This court cannot indulge the defendant's request for enforcement of the plea agreement but must afford the defendant a hearing to allow him to withdraw the guilty plea if he chooses after consulting with counsel. The defendant's ability to confer with counsel is especially important given that the state has indicated that it will regain the right to prosecute the original charges if the plea is withdrawn. Further, it remains unclear whether the state agreed to resolve the case by a plea to the reduced misdemeanor charge because its essential witness was uncooperative, as defendant has alleged, or for other reasons, but defendant is adamant that the state has insufficient evidence to prove the more serious charges it initially levied. If the evidence is genuinely lacking, perhaps the defendant will eventually obtain the outcome he seeks (reinstatement of parole after dismissal of the case). Notably, the state's description of the factual basis for the prosecution aligns with the misdemeanor charge to which the defendant pled guilty, disturbing the peace by a fistic encounter, and not with the felonies charged, suggesting that only that applicant used his hands to hit the victim, with no mention of any firearm being used or brandished.

In light of these considerations, I respectfully concur.

PER CURIAM

Weimer, C.J., additionally concurs and assigns reasons.