STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2023 KA 0163
STATE OF LOUISIANA
VERSUS
THOMAS CHRISTOPHER RIDER
Judgment Rendered: NOV 0 9 2023
io
ON APPEAL FROM THE
TWENTY- SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 07$ 3- F- 2021
HONORABLE SCOTT GARNER, JUDGE PRESIDING
Katherine M. Franks Attorney for Defendant -Appellant
Louisiana Appellate Project Thomas Christopher Rider
Madisonville, Louisiana
Warren LeDoux Montgomery Attorneys for Plaintiff -Appellee
District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana
BEFORE: THERIOT, WOLFE, AND GREENE, 31.
GREENE, J.
The defendant, Thomas Christopher Rider, was charged by bill of information with
possession of less than two grams of a schedule II CDS ( methadone), a violation of %
a.
R. S. 40: 967( 0)( 1), and initially pled not guilty. Thereafter, pursuant to a plea agreement,
he withdrew his initial plea and pled guilty as charged. Subsequently, the State filed a
habitual offender bill of information against the defendant alleging he was a fourth -felony
habitual offender.' The defendant moved to withdraw his guilty plea, but the motion was
denied. Following a hearing, he was adjudged a fourth -felony habitual offender and
sentenced to twenty years imprisonment at hard labor without benefit of probation or
suspension of sentence. The defendant now appeals contending, ( 1) the State breached
the plea agreement, ( 2) the State failed to prove his identity as the person previously
convicted in predicate number 3, and ( 3) the trial court erred in overruling his objection
to testimony offered to establish that the cleansing period had not elapsed between
predicate numbers 1 and 2. For the following reasons, we set aside the conviction,
habitual offender adjudication, and sentence, and remand for further proceedings,
allowing the defendant the opportunity to withdraw his guilty plea.
FACTS
No trial testimony was presented concerning the facts of the offense because the
defendant pled guilty. At the habitual offender hearing, the defendant stipulated a factual
basis existed for the offense.
BREACH QF PLEA AGREEMENT
In assignment of error number one, the defendant contends the trial court erred
in failing to order specific performance of the plea agreement or, in the alternative, failed
to allow him to withdraw his guilty plea because the State' s " failure to appear" edict was
not part of the plea agreement.
1 Predicate number 1 was set forth as the defendant's September 3, 2015 conviction, under Twenty -Fourth
Judicial District Court docket number 15- 2394, for simple burglary. Predicate number 2 was set forth as
the defendant's August 18, 2008 conviction, under Twenty -Fourth Judicial District Court docket number 07-
6759, for burglary of an inhabited dwelling. Predicate number 3 was set forth as the defendant's February
13, 2003 conviction, under Twenty -Fourth Judicial District Court docket number 02- 5120, for burglary of
an inhabited dwelling.
ra
A criminal plea agreement is analogous to a civil compromise. State v. O' Conner,
2011- 1696 ( La. App. 1 Cir. 9/ 21/ 12), 2012 WL 4335425, * 4 ( unpublished), writ denied,
2012- 2163 ( La. 4/ 1/ 13), 110 So. 3d 138; see La. Civ. Code arts. 3071- 3083. 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. O' Conner, 2012 WL
4335425 at * 4; see La. Civ. Code arts. 1918, 1927, 1966, & 1971.
Upon motion of the defendant and after a contradictory hearing, which may be
waived by the State in writing, the trial court may permit a plea of guilty to be withdrawn
at any time before sentence. La. Code Crim. P. art. 559( A). Under this Article, a
defendant has no absolute right to withdraw a previously entered plea of guilty. The trial
court's decision is discretionary, subject to reversal only if that discretion is abused or
arbitrarily exercised. State v. Carmouche, 589 So. 2d 53, 55 ( La. App. 1 Cir. 1991).
Pursuant to La. R. S. 15: 529. 1( D)( 3), the trial court issued written reasons for the
habitual offender adjudication. The trial court found that in November of 2021, the State
and the defendant agreed the defendant would enter a guilty plea 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 in January of
2022. The trial court noted, "[ t] he State made clear that if [ d] efendant did not appear
for sentencing, it would not be bound by its agreement as to the sentence and the filing
of a habitual offender bill." Thereafter, the defendant failed to appear for sentencing in
January of 2022, and the State filed a habitual offender bill of information against him,
alleging he was a fourth -felony habitual offender.
The transcript of the 2021 Boykin2 hearing indicates that at the beginning of the
hearing, defense counsel set forth that the defendant would withdraw his previous not
guilty plea and enter a guilty plea " as per our pretrial discussions." Thereafter, the
defendant was advised of and waived his rights, and defense counsel advised the court
that sentencing was set for January 5, 2022. After the defendant was questioned by the
2 Boykin v. Alabama, 395 U. S. 238, 89 S. Q. 1709, 23 L. Ed. 2d 274 ( 1969).
3
trial court and entered his guilty plea, the State put on the record that should the
defendant fail to appear for sentencing, it would file a multiple offender bill of information
against him. Defense counsel stated, "[ u] nderstood."
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. 1 Cir. 12/ 30/ 20), 318 So. 3d 184,
187. A plea bargain agreement requires the consent of the State and the defendant. See
La. Civ. Code art. 1927. Error, fraud, or duress may vitiate consent. La. Civ. Code art.
1948. Where 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 available 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 187- 88. The party demanding performance of a plea bargain agreement
has the burden of proving its existence and the terms thereof. Porche, 318 So. 3d at
188. In this case, the State demanded specific performance of what it claims is the plea
bargain agreement.
The State argues in brief that defense counsel, acting as the defendant's agent,
accepted the State' s plea agreement offer ( including the additional requirement of
appearing for sentencing) and the defendant's inaction and/ or failure to ask questions
was indicative of his consent thereto. 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. See Florida v. Nixon, 543 U. S.
175, 187- 188, 125 S. Ct. 551, 560, 160 La. Ed. 2d 565 ( 2004); Boykin v. Alabama, 395
U. S. 238, 243- 244, 89 S. Ct. 1709, 1712- 1713, 23 La. Ed. 2d 274 ( 1969); United States
v. Guyton, 37 F. Supp. 3d 840, 853 ( E. D. La. 2014). There is no colloquy in this case
indicating the defendant himself consented to or understood the consequences of the
4
additional condition the State attempted to impose after the defendant had already pled
guilty.
The trial court abused its discretion in refusing to allow the defendant to withdraw
his guilty plea. The plea agreement signed by the defendant specifically provided:
8. 1 further declare my plea of guilty is free and voluntary, that no
additional understandings, promises, or conditions have been
entered into other than that contained in the plea colloquy
conducted in open court on the record ( emphasis added).
R. 15).
At no point during the plea colloquy conducted in open court did the defendant
agree to be charged as a habitual offender should he fail to appear for sentencing. To
the contrary, according to the trial court, the defendant pled guilty specifically to avoid
being charged as a habitual offender. The record indicates the trial court asked the
defendant if he had been promised or offered anything in return for his guilty plea, either
by defense counsel, by the State, or by anyone else, and the defendant answered
negatively. Thus, no additional conditions, including the condition that the defendant's
failure to appear for sentencing would result in the filing of a habitual offender bill of
information against him, were set forth in the plea colloquy. The State only added that
the agreement not to file a habitual offender bill was conditioned on the defendant's
appearance at sentencing ager the defendant entered his guilty plea. Thus, the State
unilaterally changed the terms of the plea agreement after the plea had been entered. A
plea agreement requires the freely given mutual consent of the State and the defendant.
See La. Code Civ. P. art. 1927 & O' Conner, 2012 WL 4335425 at * 4. The defendant
performed his part of the plea agreement by pleading guilty to the instant offense; the
State did not.
The record is devoid of evidence that the defendant agreed to the filing of a
habitual offender bill of information against him if he failed to appear for sentencing.
Since there was no existing plea agreement providing for the filing of a habitual offender
bill, there was no plea agreement for which to demand specific performance, and the trial
court should have allowed the defendant to withdraw his guilty plea. Accordingly, the
conviction, habitual offender adjudication, and sentence are set aside, and the case is
5
remanded for further proceedings, allowing the defendant the opportunity to withdraw
his guilty plea. 3
This assignment of error has merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE
SET ASIDE; REMANDED FOR FURTHER PROCEEDINGS TO ALLOW THE
DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA.
3 Our disposition of this assignment of error causes us to pretermit consideration of assignment of error
number two which challenges the sufficiency of the State's proof of the defendant's identity as the person
convicted in Twenty -Fourth Judicial District Court docket number 02- 5120 ( predicate number 3) and
assignment of error number three which challenges the overruling of the defendant's objection to Officer
Wall' s testimony concerning whether or not the cleansing period between predicate numbers 1 and 2 had
elapsed.