MOORE, J.
The defendant, Cornelius Young, pled guilty to two felony charges and one misdemeanor charge pursuant to a plea agreement. Young agreed to enter guilty pleas on the three charges and testify in an unrelated criminal prosecution in exchange for concurrent sentences, a PSI bond reduction, and no multiple offender bill. However, Young was not called to testify in the criminal trial as initially planned. Subsequently, the court imposed maximum
On September 28, 2013, a Webster Parish deputy investigated a possible break-in at the Antioch Baptist Church. The deputy observed that the door had been forced open. Inside the church building he found the defendant asleep on the floor and snoring. Young was arrested and taken into custody.
The day before, on September 27, 2013, Minden police were called to the local Walmart. There, they were met by Brian Ducote, the store manager, who said that earlier he saw the defendant walking near the exit of the building with store items. When confronted by Ducote, the defendant claimed that his wife had receipts for the goods, which were valued at $1611.84. Ducote attempted to escort the defendant to the manager's office to verify that the items were purchased. The defendant then struck Ducote in the face and chest and fled from the store.
On November 14, 2013, Young was charged in three bills of information: (1) one count of middle grade felony theft for the Walmart theft on September 27, 2013, in violation of La. R.S. 14:67(B)(2) punishable by imprisonment with or without hard labor for not more than five years; (2) one count of unauthorized entry of a place of business occurring on September 28, 2013, a violation of La. R.S. 14:62.4 punishable by imprisonment with or without hard labor for not more than six years; and, (3) simple battery, a violation of La. R.S. 14:35, punishable by imprisonment for not more than six months.
On January 6, 2014, the defendant appeared in court with counsel prepared to accept a plea agreement. The prosecutor recited the initial offer on the record:
After an off-the-record discussion, the matter was taken up again with a revised offer:
The defendant accepted the plea agreement. The court advised Young of his rights under Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), and determined that Young's guilty pleas to each offense were free and voluntary. After accepting the guilty pleas, the court set Young's sentencing date for June 30, 2014, nearly seven months hence, so that Young could testify at the Warmack trial scheduled for March 10, 2014. Also, as part of the plea agreement, the court reduced Young's PSI bond to $7500.
On June 30, 2014, the defendant appeared for sentencing. The defendant expressed regret for his conduct, explaining that he was stealing to support the drug habit of his girlfriend, whom he was no longer seeing.
The court reviewed Young's criminal history, which the court described as "very lengthy." The defendant was born in 1982 and his adult criminal record began in Arkansas where Young pled guilty on one day (in July 2002) to eight felony theft and burglary charges; he received an aggregate 10-year sentence. He pled to guilty to breaking and entering, aggravated assault, second degree battery in Arkansas in 2004 and received a five-year suspended sentence. He pled to possession of Schedule II CDS in Arkansas in 2011 and had another pending felony theft charge in Arkansas from 2013. By the trial judge's count, the defendant had been convicted of 13 felony offenses including the instant two offenses.
Young did not graduate from high school or obtain a GED. The defendant was in a car accident in 1998 where his cousin was killed; the accident caused the defendant to suffer from PTSD. The defendant had a sporadic work history, was unmarried and has no children.
The court then sentenced Young to six years at hard labor for the unauthorized entry and five years at hard labor for the middle-grade theft, both maximum sentences, and ordered that the sentences be served consecutively. The court also sentenced Young to six months in the Webster Parish jail for the simple battery conviction, with credit for time already served. The defendant objected to the sentence.
The defendant timely filed a motion to reconsider sentence in which he argued that his sentences were not in compliance with the plea bargain and were excessive.
On October 3, 2014, the court held a hearing on the defendant's motion to reconsider sentence. Defendant's attorney argued that Young gave the district attorney's office useful information regarding the prosecution of Leland Warmack, and although he was prepared to testify, the state decided not to use him at trial. Since it was the state's decision not to call Young to testify, the sentences should run concurrently according to the plea agreement.
The prosecutor
The defendant was placed under oath and made a statement:
Responding to Young's explanation, the court said that with 13 prior felony convictions, he would not give a probated sentence. Regarding Young's request for concurrent sentences instead of consecutive sentences, the court stated:
The appellate record also contains four handwritten letters presumably written by Young to Holli Vining, the Webster Parish Clerk of Court, while he was in jail awaiting sentencing. These letters were not formally introduced into evidence at this hearing. Furthermore, because these letters were to the clerk and not to the district attorney, it is unclear whether the letters are the ones referred to by the prosecutor at the hearing on the motion to reconsider. The first two letters were sent in November and December of 2013 prior to the guilty plea agreement. Young relates a story about some of his fellow inmates at the jail and his fears for his safety owing to the possession of a razor by one of the inmates. In the second letter, Young writes that he has "very important information [that he had] been trying to get to the DA's office and my lawyer involving the Leland Warmack case," but had been unable to do so. In this letter, he expressed fear of the jail staff. The copy of the third letter from March 2014, is illegible due to a poor copy. The fourth letter, from April 2014, is a request for help in clarifying with various authorities the charges against him and the bond amount so that he can make bail.
The court denied Young's motion to reconsider sentence. Young filed this appeal alleging that the court erred in ordering that the sentences be served consecutively, contrary to the plea agreement.
The sole issue on appeal is whether the trial court erred when it failed to order that Young's sentences be served concurrently under the terms of the plea agreement.
Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. Bloom's Inc. v. Performance Fuels, L.L.C., 44,259 (La.App. 2 Cir. 7/1/09), 16 So.3d 476, writ denied, 2009-2003 (La. 11/20/09), 25 So.3d 800. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art. 1993. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. La. C.C. art. 2022.
Young alleges that he is entitled to specific performance of his plea agreement because he was ready and willing to fulfill his part of the agreement by testifying against his former cellmate, Leland Warmack. The state's unilateral decision not to call him as a witness, he contends, should not prejudice his rights under the bargain.
At the hearing on the motion to reconsider, the prosecutor stated that Young was not called as a witness because he had written letters to the district attorney's office and "made comments that in our opinion cast doubt upon his reliability as a witness." He further stated that they had "contacts" that indicated Young might not testify, but that the situation was very "nebulous." The unauthenticated copies of two letters written by Young after he entered the guilty plea that are in the appellate record do not indicate that Young refused to testify.
Young admitted to writing the letters. He indicated at the hearing that he was upset because authorities would not allow him to bond out of jail in order to be with his family while awaiting sentencing. He said that the Webster Parish Chief of Police said he was being held until after he testified at the Warmack trial. Regarding the bond, the guilty plea transcript indicates that the court reduced the bond to $7500 so that Young could bond out for that purpose. The prosecutor noted that Young lived in Arkansas, and he asked the court to require Young to report monthly until the trial and sentencing.
On appeal the state argues that the defendant could not testify as a truthful witness in the Leland Warmack trial because his credibility became questionable after he entered his guilty plea. The state's acceptance of the guilty plea was premised on Young's ability to testify truthfully as a credible witness. When Young's credibility as a witness became suspect, his ability to testify truthfully in the Warmack trial was compromised and he breached the plea agreement.
Public records indicate that Leland Warmack was convicted as charged of aggravated incest and molestation of a juvenile, and he appealed his sentence. The appellate
In our view, the plea agreement clearly stated that, in view of Young coming forward with information regarding Warmack and his agreement to testify at Warmack's trial, his sentences would run concurrently if Warmack pled out, or if Young testified at his trial. If he refused to testify or did not appear, his sentences would run consecutively. The prosecutor stated:
The trial court did not believe that it was constrained to impose consecutive sentences because, irrespective of the reason, Young did not testify. The court stated:
After review, we are unable to ascertain on this record whether the state's decision not to call on Young to testify in the Warmack trial was justified. The record indicates that Young met with the district attorney and disclosed useful information, including a confession, regarding the Leland Warmack prosecution. The state believed that Young was competent and would make a reliable witness. It now argues that Young became unreliable and therefore could not testify truthfully. There is no evidence that prosecutors met with Young and made this determination. The letters in the record on appeal do not support the prosecutor's nebulous explanation that certain statements by Young "cast doubt upon his reliability as a witness," nor was there any evidence submitted at the hearing supporting the prosecutor's statement that Young was no longer a reliable witness. It also appears that Young wrote the letters because he reasonably believed that he was being prevented from bonding out of jail until he testified at the Warmack trial, which appears
In State v. Dixon, 449 So.2d 463 (La. 1984), the defendant pled guilty to a reduced charge of two counts of simple burglary. The trial court imposed the maximum 12-year sentence for each count, and ordered the sentences to be served consecutively. The defendant immediately objected to the sentence, and he told the court that he entered the guilty plea only because he was promised that his sentences would be less than 12 years, and they would be served concurrently. He immediately appealed the sentence. Before his sentence became executory, the trial court amended the sentence so that the two 12-year sentences would run concurrently. The defendant maintained his appeal regarding the length of sentences.
On appeal, the court noted that the record was devoid of comments, explanation, or argument by the state and the defense attorney regarding the allegation of unkept promises, giving credence to the defendant's position. Because of the insufficient record, the court remanded the case for an evidentiary hearing. It stated:
In the instant case, there is no question that, in order to receive concurrent sentences, Young agreed to testify against Leland Warmack if that case went to trial. The prosecutor noted that if Warmack pled out, then Young would not be required to testify, but would still receive concurrent sentences "in light of Mr. Young volunteering to come forward with this information that we believe is truthful and essential in our case." The agreement did not contemplate Young not testifying for other reasons, including the reason that the state no longer needed his testimony because it had other, perhaps more reliable witnesses. Yet it remains certain that Young did provide information that the state believed was essential to its case at the time it entered the plea agreement.
We conclude that the question of whether Young held up his end of the bargain should be resolved based upon evidence and not solely upon the prosecutor's argument that Young's erratic behavior amounted to a failure to perform. Because the record is currently devoid of any evidence that Young refused to testify at Warmack's trial, or that the state had good grounds to believe that Young would not testify, we remand this case for an evidentiary hearing on this sole issue. The trial court should inquire further into the evidence of Young's conduct before deciding that Young was not entitled to the deal he made when he pled guilty, especially since Young's only "bargaining chip" was his personal knowledge of Warmack's admissions and that knowledge is no longer valuable to the state because Warmack has now been convicted. If the evidence adduced at the hearing supports a finding that Young was willing to testify as promised and the state simply elected not to use Young at trial, then the plea bargain must
For the reasons assigned, we remand this case to the district court with instructions to hold an evidentiary hearing to determine whether the defendant breached the plea agreement regarding concurrent sentences by refusing to testify at the trial of Leland Warmack. If the evidence is not sufficient to show that the defendant was unwilling to fulfill his obligation under the plea agreement, the plea agreement must be enforced, or Young must be allowed to withdraw his guilty pleas.
BROWN, C.J., dissents with written reasons.
BROWN, CHIEF JUDGE, dissents.
The prosecution quickly found that defendant was not reliable, and his testimony would not be believable. I would affirm and let the question of his sentences be referred to a PCR application.
