Petition for Writ of Certiorari — Allen James Harrison, Petitioner v. Louisiana

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STATE OF LOUISIANA

No. 2022-KO-00069

VS.

ALLEN JAMES HARRISON

IN RE: Allen Harrison - Applicant Defendant; Applying For Writ Of Certiorari,

Parish of St. Tammany, 22nd Judicial District Court Number(s) 612593, Court of

Appeal, First Circuit, Number(s) 2021 KA 0525;

, March 15,2022

Writ application denied.

JTG

JLW

JDH

SJC

WJC

JBM

PDG

Supreme Court of Louisiana

March 15, 2022

Chief Deputy Glgrk of Court

For the Court

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T DESIGNATED FOR PUBLICATION

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STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

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2021 KA 0525

STATE OF LOUISIANA

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VERSUS

ALLEN JAMES HARRISON

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Judgment rendered DEC 2 2 2021

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On Appeal from the

Twenty-Second Judicial District Court

In and for the Parish of St. Tammany

State of Louisiana

No. 612593

The Honorable Ellen M. Creel, Judge Presiding

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Attorneys for Appellee

State of Louisiana

Warren LeDoux Montgomery

District Attoijney

Matthew Caplan

Assistant District Attorney

Covington, Louisiana

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Attorney for Defendant/Appellant

Allen James Harrison

Cynthia Kliebert Meyer

Louisiana Appellate Project

New Orleans, Louisiana

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BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

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HOLDRJDGE, J.

Hie defendant, Alien James Harrison, was charged by bill of information

with two counts of molestation of a juvenile, a violation of La. R.S. 14:81.2

(Counts 1 and 2) and one count of oral sexual battery, a violation of La. R.S.

14:43.3 (Count 3).1

(R. p. 20). The defendant pled not guilty to all counts.

Following a plea negotiation, the State deleted the “under the age of thirteen years”

language from Count 1. The defendant withdrew his not guilty pleas and, at a

hearing on the matter, pled guilty to all three counts. The trial court sentenced the

defendant to eight years imprisonment at hard labor without the benefit of parole,

probation, or suspension of sentence.2

The sentences were ordered to run

concurrently. The defendant subsequently filed a motion to withdraw his guilty

plea to oral sexual batteiy based on information that he would be eligible for parole

after serving 75% of his sentence for that conviction. Following a hearing on the

matter, the trial court denied the motion to withdraw the guilty plea.

defendant now appeals, designating one assignment of error.

The

We affirm the

convictions and sentences.

FACTS

The facts of the instant offenses were not developed because the defendant

elected not to go to trial and, instead, to enter guilty pleas.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends that because defense

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counsel did not properly inform him about parole eligibility, his guilty pleas were

1 Count 1 initially alleged molestation of a juvenile victim under the age of thirteen years. Count

2 alleged molestation of a juvenile under the age of seventeen years. Count 3 alleged oral sexual

battery upon a victim under the age of fifteen years. It appears it was the same victim in all three

counts.

2 The Honorable William J. Knight heard the guilty plea and sentenced the defendant, but

subsequently retired.

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not entered into freely and voluntarily. He argues that trial counsel was ineffective

for not properly informing him about parole eligibility.

Upon motion of the defendant and after a contradictory hearing, the court

may permit a plea of guilty to be withdrawn at any time before sentence. La.

C.Cr.P. art. 559(A). A trial court may permit the withdrawal of a guilty plea after

sentencing if the court finds that the guilty plea was not entered into knowingly

and voluntarily, or if there was an inadequate Boykin colloquy advising the

defendant of the rights he was waiving by pleading guilty, making the guilty plea

constitutionally infirm. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,23

L.Ed.2d 274 (1969); State v. Lewis, 421 So.2d 224, 225-26 (La. 1982). See also

State v. Williams, 2017-0339 (La. App. 1 Cir. 9/15/17), 2017 WL 4082429, *1

(unpublished). A guilty plea is constitutionally infirm when a defendant is induced

to enter that plea by a plea bargain or by what he justifiably believes was a plea

bargain, and that bargain is not kept. State v. Maza, 2011-1430 (La. App. 1 Cir.

3/23/12), 2012 WL 997038, *2 (unpublished). See State v. Sheppard, 2018-1412

(La. App. 1 Cir. 6/27/19), 2019 WL 2635678, *2 (unpublished).

A guilty plea is a conviction and, therefore, should be afforded a great

measure of finality. Sheppard, 2019 WL 2635678 at *2. There is no absolute

right to withdraw a previously entered plea of guilty. State v. Barnes, 97-2522

(La. App. 1 Cir. 9/25/98), 721 So.2d 923, 925. The withdrawal of a guilty plea is

within the discretion of the trial court and is subject to reversal only if that

discretion is abused or arbitrarily exercised. See State v. Johnson, 406 So.2d 569,

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571 (La. 1981). For a guilty plea to be found valid, there must be a showing that

the defendant was informed of and waived his constitutionally guaranteed right to

trial by jury, right of confrontation, and right against compulsory self­

incrimination. See Boykin, 395 U.S. at 243, 89 S.Ct. at 1712; Williams, 2017 WL

4082429 at *2.

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In the Boykin colloquy, the defendant unconditionally admitted his guilt.

The defendant was fully informed of his Boykin rights at the time of his pleas. He

explicitly confirmed that he understood the sentences he was accepting by pleading

guilty, and he indicated that he was satisfied with his attorneys’ representation.

Moreover, the defendant herein does not raise any issues concerning the advice of

his Boykin rights.

He argues instead that his plea is constitutionally infirm

because, based on the incorrect advice of defense counsel, he pled guilty.

One month after pleading guilty and being sentenced, new defense counsel

for the defendant filed a motion to withdraw his guilty plea or in the alternative a

motion to reconsider sentence. At the hearing on this matter, defense counsel

informed the trial court that the defendant was informed by his previous counsel (at

the Boykin hearing), J. Kevin McNary, that the sentencing agreement was for eight

years and that the defendant would be eligible for parole upon completion of 75%

of the sentence(s). McNary could not be present at the motion to withdraw

hearing, so he provided a letter to the trial court. McNary’s letter was submitted

into evidence.

In his letter, McNary indicated that, to the best of his recollection, he and co­

counsel, Hank Graham, informed the defendant that they had obtained a reduction

in the State’s sentence bargain from “double digits” to eight years at hard labor.

Counsel also indicated to the defendant that he would be eligible for parole after

serving 75% of his sentence and that “eligibility” meant review and not automatic

parole. The defendant was also told he would not be eligible for diminution of

sentence because he was pleading guilty to sex offenses. McNary concluded that

his advice was erroneous because he was not aware that the oral sexual battery

conviction was without benefit of parole.3

3 The sentences for the two molestation of a juvenile convictions did not have parole restriction.

See La. R.S. 14:81.2(B)(1).

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The State noted that its position was set forth in the memorandum it had

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filed. The State informed the trial court that before he pled guilty, the defendant

was advised that the sentence for oral sexual battery was without benefit of parole,

probation, or suspension of sentence; the defendant said he understood and pled

guilty.4

In denying both the motion to withdraw the guilty plea and the motion to

reconsider sentence, the trial court stated in pertinent part:

I’ve read both of the memoranda and I’ve reviewed the letter

submitted by defense prior counsel. I’ve also reviewed the transcript.

The transcript very clearly shows to me that Mr. Harrison was

informed of his rights, as well as the consequences of his plea,

including, but not limited to, the very specific articulation that he

would serve one of those counts without benefit of probation, parole

or suspension of sentence.

There was a lengthy colloquy between the Court and Mr.

Harrison at the time of his plea. And Mr. Harrison was asked

immediately after the Court stated that “the time would be without

benefit of probation, parole or suspension of sentence for not more

than ten years, do you understand?” Mr. Harrison responded, “I do.”

So there’s no indication, or I don’t think you have an allegation,

that the defendant’s misunderstanding was induced by either the DA

or the Court. His unfulfilled expectation that he would get out earlier,

or his misunderstanding, is not in itself grounds to withdraw the plea.

Of particular note, in going back through the record, is the fact

that Mr. Harrison benefitted, and benefitted rather substantially, from

his bargain. In brief, I read a quote that Mr. Harrison submitted about

the penalty from 14:43 B, that the sentence was to be not more than

25 years. Actually, the bargain that he cut was far better than that. He

was actually originally charged with Oral Sexual Battery with a

Juvenile under the age of 13. So rather than carrying a sentence of not

more than 25 years without benefit of parole, that crime with which he

was originally charged, and was about to go to trial on, would have

carried a sentence of 25-to-99 years. At least 25 of which would have

had to have been served without benefit of parole.

So while he articulates that 25 year statutory maximum, his

actual risk prior to entering that plea was for a 25 year statutory

minimum. So instead he, and his attorneys on his behalf, negotiated

that down and significantly limited his liability to instead plea to a

charge with a 10 year maximum, rather than the 25 year minimum.

4 During the Boykin colloquy, the trial court explained the elements of oral sexual battery to the

defendant, then stated: “Whoever commits this crime shall be punished, with or without hard

labor, without benefit of probation, parole or suspension of sentence, for not more than ten years.

Do you understand the elements of the crime and possible penalties?” The defendant replied, I

do.” The trial court then asked, “And as to Counts 1, 2 and 3, two counts of molestation of a

juvenile and one count of oral sexual battery, victim under 15, how do you plead, sir?” The

defendant replied, “I plead guilty.”

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Even with that exposure, he only received 8 years. So he’s serving

less than one-third of die mandatory minimum for which he was at

risk.

Even considering the other charges that he pled to that day, 8

years each, they run concurrent, not consecutively.

Under those circumstances, any acts or omissions of Mr.

Harrison’s attorneys I don’t find to be outside the wide range of

professional and competent assistance of counsel. I find that the

defendant has failed to overcome the presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance. And any question he had would have been remedied by

the Judge’s clear articulation that his time was to be served without

benefit of parole, and his clear articulation that he did indeed

understand that.

We find no reason to disturb trial court’s rulings.5 The trial court herein

noted correctly that the defendant’s misunderstanding was not induced by either

the State or the trial court. While McNary’s advice to the defendant was that he

would, in effect, be eligible for parole in six years on an eight-year sentence, there

was no guarantee the defendant would have been granted parole.

McNary

explained to the defendant that eligibility simply meant that his situation would be

reviewed after serving 75% of his sentence,

It is well settled that a

misunderstanding between a defendant and counsel for a defendant does not have

the same implication as a breached plea bargain agreement, and this

misunderstanding does not render the guilty plea invalid. See State v. Lockwood,

399 So.2d 190, 193 (La. 1981); State v. Johnson, 533 So.2d 1288, 1292 (La. App.

3 Cir. 1988), writ denied, 563 So.2d 873 (La. 1990).

The defendant’s sentencing exposure was much greater if he had gone to

trial and been found guilty on all counts. While it appears it was the same victim

in each''count, the bill of information indicates separate acts at separate times.

Accordingly, in sentencing the defendant, the trial court could have imposed

consecutive rather than concurrent sentences. See La. C.Cr.P. art. 883; State v.

5 A claim of ineffectiveness of counsel is generally relegated to post-conviction proceedings. See

State v. Bias, 2014-1588 (La. App. 1 Cir. 4/24/15), 167 So.3d 1012,1020-21, writ denied, 20151051 (La. 5/13/16), 191 So.3d 1053; State v. Tingle, 2012-1928 (La. App. 1 Cir. 6/7/13), 2013

WL 2484316, *6 (unpublished).

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Willie, 2020-0340 (La. App. 1 Cir. 3/11/21), 2021 WL 925922, *6 (unpublished);

State v. Humphries, 48,235 (La. App. 2 Cir. 9/25/13), 124 So.3d 1177, 1190-91.

Moreover, prior to being amended, Count 1 charged the defendant with

molestation of a juvenile under the age of thirteen years. The dates of the offense

span four years. For this entire four-year period, except for two days, the victim

would have been under the age of thirteen years. As part of the plea agreement,

and as the amended bill of information, the Boykin colloquy, and the State’s

written opposition to the motion to withdraw the guilty plea make clear, the “under

the age of thirteen years” language was struck, and the State agreed to amend it to

“under the age of seventeen.” Accordingly, it can be reasonably presumed that had

the defendant declined the State’s plea offer and gone to trial, the State would have

kept the “under the age of thirteen years” language in Count 1.

For each of the second count and third count, the maximum sentencing range

is ten years. See La. R.S. 14:81.2(B)(1) & La. R.S. 14:43.3(C)(1). For Count 1,

when the victim is under the age of thirteen years, the sentence is imprisonment at

hard labor for not less than twenty-five years nor more than ninety-nine years, with

at least twenty-five years of the sentence to be served without benefit of parole,

probation, or suspension of sentence. See La. R.S. 14:81.2(D)(1). Thus, had the

defendant gone to trial and, assuming maximum and consecutive sentences, he

would have faced a sentencing exposure of 119 years with at least twenty-five

years of that sentence served without the benefit of parole. Given instead the

eight-year sentence he received, the defendant made what can be considered a

highly successful plea bargain.

See State v. Ott, 2012-111 (La. App. 5 Cir.

10/16/12), 102 So.3d 944, 952.

We cannot say that defense counsel’s actions or inactions rendered the plea

agreement constitutionally infirm. Nor can we say that but for trial counsel’s

representation, the defendant, faced with the risk of several guilty verdicts and the

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possibility of lengthy consecutive sentences, would have maintained his not guilty

pleas and gone to trial. See Tingle, 2013 WL 2484316 at *6-7.

Accordingly, we find the defendant’s guilty plea was entered into knowingly

and voluntarily and that his assignment of error is without merit.

reasons, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

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For these