Opinion
22-KH-60
02-28-2022
STATE OF LOUISIANA v. DONALD E. BICKHAM IN RE DONALD E. BICKHAM
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 18-5925, 18-5926, 18-7237
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson.
WRIT DENIED
Relator, Donald E. Bickham, seeks review of the district court's denial of his application for post-conviction relief ("APCR"). Finding no error in the district court's ruling, we deny the writ.
On November 12, 2019, Bickham entered pleas of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and was sentenced accordingly to the following: Count 1-possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1-eight years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; Count 2- aggravated flight from an officer, a violation of La. R.S. 14:108.1(C)-two years imprisonment at hard labor; Count 3-possession of marijuana, fourth offense, a violation of La. R.S. 40:966(C)-two years imprisonment at hard labor; Count 4- possession of heroin, a violation of La. R.S. 40:966(C)-two years at hard labor; and, Count 5-possession of drug paraphernalia, a violation of La. R.S. 40:1023- fifteen days in the parish prison. The district court ordered the sentences to run concurrently and that Bickham receive credit for time served.
The "best interest" or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. See State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1122-23.
On November 12, 2019, Bickham also stipulated to being a second-felony offender, again under Alford, supra. The district court subsequently vacated Bickham's sentence in reference to count 1-convicted felon with a firearm-and resentenced him as a second-felony offender to eight years imprisonment at hard labor without benefit of probation or suspension of sentence, to run concurrently with the other sentences previously imposed that date. The court further recommended any drug treatment, self-help, work release, or re-entry programs available to Bickham. Bickham did not seek an appeal of his convictions and/or sentences.
On July 12, 2021, Bickham filed an APCR, asserting that (1) his convictions were based on an illegal warrantless search, and (2) his guilty plea and habitual offender stipulation were involuntary. On July 14, 2021, the district court ordered the State to file a response, which was filed on August 18, 2021. In its response, the State argued that Bickham waived all non-jurisdictional defects in the proceedings leading up to the plea, and further asserted that Bickham failed to meet his post-conviction burden of proof under La. C.Cr.P. art. 930.2. On November 23, 2021, the district court denied Bickham's APCR, finding that Bickham was "precluded from challenging the merits of the State's case" and "raising a constitutional claim concerning pre-plea constitutional violations" because he pled guilty to a negotiated plea agreement. The district court further found that Bickham failed to meet his burden of proving that relief should be granted because his claims were "purely speculative and conclusory."
La. C.Cr.P. art. 930.2 provides that "[t]he petitioner in an application for post-conviction relief shall have the burden of proving that relief should be granted."
On February 15, 2022, Bickham filed the instant writ application, re-urging the claims he previously made in the district court challenging the warrantless search of his vehicle and the voluntariness of his guilty plea and habitual offender stipulation.
Search of Bickham's Vehicle
Bickham maintains that the police used an "inventory search" as a pretext to illegally search his vehicle without a warrant. Generally, however, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Tanner, 09-1079 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, the record reflects that Bickham entered an unqualified guilty plea, and therefore, all non-jurisdictional defects were waived. The transcript further reflects that no pre-trial rulings were preserved for appellate review pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). Accordingly, we find that Bickham's claim challenging the warrantless search of his vehicle is precluded from this Court's review.
Under Crosby, supra, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Williams, 18-137 (La.App. 5 Cir. 9/19/18), 254 So.3d 1260, 1265.
Voluntariness of the Guilty Plea and Habitual Offender Stipulation
Bickham contends that his guilty plea was a result of coercion based on comments made by the district court during the motion to suppress hearing. Specifically, Bickham claims that the judge made a remark that Bickham had repeatedly refused the State's plea offer and then stated to him that "there's only so much ethically I can say to you on this stand." Bickham claims the judge also told him that if he refused the plea offer, his sentence would be "more than five years."
A trial judge has the discretion to allow a guilty plea to be withdrawn at any time before sentencing. La. C.Cr.P. art. 559(A); see also State v. Gross, 95-621 (La.App. 5 Cir. 3/13/96), 673 So.2d 1058, 1059. Once a defendant has been sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. Gross, 673 So.2d at 1059-60. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily; if the Boykin colloquy is inadequate; or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. McCoil, supra, 924 So.2d at 1124.
According to the official record, the motion to suppress hearing was held on November 12, 2019, the same day as Bickham's guilty plea and habitual offender hearing. Although Bickham included a copy of the transcript from the guilty plea and habitual offender hearing, his writ application does not include a transcript from the hearing on his motion to suppress. Moreover, although Bickham asserts that the district court's remarks during the suppression hearing placed him in a state of "emotional pressure," this Court has previously held that "[a]n otherwise valid plea of guilty is not rendered involuntary merely because it was entered to limit the possible maximum penalty to less than authorized by law for the crime charged." State v. Kron, 07-1024 (La.App. 5 Cir. 3/25/08), 983 So.2d 117, 122, writ denied, 08-813 (La. 10/24/08), 992 So.2d 1039 (citing State v. Bouie, 00-2934 (La. 5/14/02), 817 So.2d 48, 53); see also State v. Celestine, 20-170 (La.App. 5 Cir. 11/4/20), 306 So.3d 579, 586 (where this Court found "no inherent coerciveness by the trial judge explaining the sentencing range faced by a defendant under a multiple bill if he goes to trial and is convicted by a jury.").
Our review of the guilty plea transcript shows that Bickham advised the district court that his highest level of education was "an associate's degree in college." He responded affirmatively when the district court asked if his guilty plea was a "knowing, free, intelligent, and voluntary act." Bickham also responded affirmatively to the court's inquiry that "no promises or threats have been made to encourage you to enter into a guilty plea[.]" Bickham acknowledged that he had been informed of all of the plea offers made by the State. Based on the foregoing, we find no merit to Bickham's contention that his guilty plea was coerced by the district court.
Bickham further argues that the State failed to provide a sufficient factual basis for the charged offense during the guilty plea hearing. Generally, there is no requirement that a guilty plea be accompanied by the recitation of a factual basis for the crime. State v. Autin, 09-995 (La.App. 5 Cir. 4/27/10), 40 So.3d 193, 196, writ denied, 10-1154 (La. 12/10/10), 51 So.3d 725. Due process requires a finding of a significant factual basis for a defendant's guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. Id. at 196-97. Only in that event does due process require a judicial finding of significant factual basis for the defendant's plea. Id.
Here, Bickham entered a guilty plea pursuant to Alford, supra, thus mandating a factual basis for the charged offenses prior to the district court's acceptance of his guilty pleas. Despite Bickham's contention to the contrary, our review of the guilty plea transcript confirms that the State presented a factual basis for each of the charged offenses. The transcript reflects that at no time did Bickham contest the factual statement given by the State or claim a lack of notice as to the charged offenses. In fact, Bickham answered affirmatively when asked earlier in the guilty plea colloquy by the district court: "Do you understand the nature of the crime to which you're pleading guilty …?" Accordingly, we find no merit to Bickham's contention that the State failed to provide a sufficient factual basis for the charged offenses.
Finally, Bickham claims that both his attorney and the district court judge led him to believe that he would be eligible for parole when he entered his habitual offender stipulation. In support, Bickham refers to the transcript from the habitual offender hearing wherein the district court stated that relator's sentence as a second-felony offender would be "without benefit of probation or suspension of sentence." In sentencing Bickham, the district court also stated that the sentence would be without benefit of probation or suspension of sentence. Bickham faults his attorney as well for allowing him to sign the waiver of rights form from his habitual offender stipulation, which did not include the restriction on parole.
La. R.S. 15:529.1(G) provides that an enhanced sentence shall be at hard labor, without benefit of probation or suspension of sentence. However, the restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 are "those called for in the reference statute." State v. Bruins, 407 So.2d 685, 687 (La. 1981). In the instant case, the underlying offense that was enhanced-possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1(B)-states that the sentence shall be "without benefit of probation, parole, or suspension of sentence[.]" Because the underlying offense carries a parole restriction, the habitual offender sentence is likewise imposed without parole. See State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied, 09-2102 (La. 4/5/10), 31 So.3d 357. Here, the trial court failed to advise Bickham of the restriction on parole eligibility on his enhanced sentence, and also failed to impose the restriction on Bickham's enhanced sentence.
La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence whether or not specified by the sentencing court, and are therefore statutorily effective. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 798-99.
A trial court's failure to inform a defendant of the mandatory statutory restriction of benefits does not render a habitual offender stipulation involuntary. See State v. Duncan, 16-493 (La.App. 5 Cir. 2/8/17), 213 So.3d 1247, 1253, writ denied, 17-668 (La. 2/2/18), 233 So.3d 618. Our review of the transcript from the habitual offender hearing shows that the district court advised Bickham of his habitual offender rights, and that Bickham indicated his willingness to stipulate to the habitual offender bill. Bickham also acknowledged that he was satisfied with the explanation of the stipulation and its consequences provided by the district court and his attorney. Despite the district court's omission concerning parole, the transcript does not reflect that receiving the benefit of parole was crucial to Bickham's stipulation. In fact, Bickham was correctly advised of the restriction on parole with respect to La. R.S. 14:95.1 during the guilty plea hearing, which immediately preceded his stipulation as a second-felony offender. The district court properly imposed the original sentence without benefit of parole following Bickham's plea of guilty to possession of a firearm by a convicted felon. Moreover, Bickham, who faced up to forty years imprisonment at hard labor as a second-felony offender, appears to have received a substantial benefit by entering his stipulation to the habitual offender bill, as he received only an eight-year sentence. Consequently, we find no merit to Bickham's contention that his habitual offender stipulation was involuntary.
For the foregoing reasons, finding no error in the district court's denial of Bickham's APCR, this writ application is denied.
Gretna, Louisiana, this 28th day of February, 2022.
SMC
JGG
RAC