STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2023 KA 0162
STATE OF LOUISIANA
VERSUS
THOMAS CHISTOPUER RIDER
Judgment Rendered: NOV 0 9 2023
Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 3846-F- 2021
The Honorable Scott Gardner, Judge Presiding
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana
Katherine M. Franks Counsel for Defendant/ Appellant
Madisonville, Louisiana Thomas Christopher Rider
BEFORE: GUIDRY, C.J., CHUTZ AND LANIER, JJ.
GUIDRY, C.J.
The defendant, Thomas Christopher Rider, bill
was charged by of
information with unauthorized use of a motor vehicle, a violation of La. R. S.
14: 68. 4, 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 initially sentenced to thirty years imprisonment at
hard labor without benefit of probation or suspension of sentence. He moved to
correct an illegal sentence, and the motion was deemed satisfied after the court
vacated the previously imposed sentence and sentenced the defendant to twenty
years at hard labor without benefit of probation or suspension of sentence. The
defendant now appeals contending the State breached the plea agreement, the State
failed to prove his identity as the person previously convicted in predicate number
3, and 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.
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.
2
BREACH OF 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. A criminal plea
agreement is analogous to a civil compromise. State v. O' Conner, 11- 1696 ( La.
App. 1st Cir. 9/ 21/ 12), 2012 WL 4335425, * 4 ( unpublished), writ denied, 12- 2163
La. 411113), 110 So. 3d 138; see La. C. C. 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. C. C. 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 court may permit a plea of guilty to be
withdrawn at any time before sentence. La. C. Cr.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 st Cir. 1991).
Pursuant to La. R.S. 15: 529. 1( D)( 3), the trial court filed written reasons for
the habitual offender adjudication. The court noted that in November of 2021, 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 in January of 2022. The 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
3
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 BOkin2 hearing indicates that at the beginning of the
hearing, defense counsel set forth the defendant would withdraw his previous not
guilty pleas and enter guilty pleas " 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 court and entered his guilty pleas, 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. A plea bargain agreement requires the consent of the
State and the defendant. State v. Porche, 20- 0246 ( La. App. 1 st Cir. 12130/ 20), 318
So. 3d 184, 187- 88; see also La. C. C. art. 1927. Error, fraud, or duress may vitiate
consent. La. C.C. 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 the amended plea bargain agreement.
a Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 ( 1969).
4
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 L.Ed.2d 565 ( 2004); Boykin v. Alabama, 395 U.S. 238, 243-
244, 89 S. Ct. 1709, 1712- 1713, 23 L.Ed.2d 274 ( 1969); United States v. Gu on,
37 F. Supp.3d 840, 853 ( E. D. La. 2014). There is no colloquy in this case
indicating the defendant himself either consented to or understood the
consequences of the 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)
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
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
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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 after 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. C. C. 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 remanded for further proceedings, allowing
the defendant the opportunity to withdraw his guilty plea.'
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.
M