
    STATE of Louisiana v. Corinne M. MOREE.
    No. W99-402.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 4, 2000.
    
      J. Phil Haney, District Attorney, St. Martinville, LA, Counsel for State of Louisiana.
    David M. Smith, Lafayette, LA, Counsel for Defendan1>-Applicant, Corinne M. Mor-ee.
    (Court composed of Judge HENRY L. YELVERTON, Judge ULYSSES GENE THIBODEAUX and Judge ELIZABETH A. PICKETT).
   | iPICKETT, Judge.

This is a writ application that has been remanded to this court by the Louisiana Supreme Court for fifing of briefs, oral argument and issuance of an opinion. The Relator, Corinne Moree, pled guilty to possession of marijuana with intent to distribute and the trial court sentenced her to five years hard labor, suspended two years and placed the Relator on five years supervised probation subject to general and special conditions.

The Relator filed an application for post conviction relief claiming that her attorney assured her that if she pled guilty, she would be placed on five years probation and not have to serve any time in jail. The trial court rejected the Relator’s claim at the conclusion of an evidentiary hearing, but this court granted the Relator’s writ application and found merit to her claim. State v. Moree, an unpublished writ bearing docket number 99-402 (La.App. 3 Cir. 8/11/99). As noted, the Louisiana Supreme Court granted the State’s writ application and remanded this matter to this court for reconsideration. State v. Moree, 99-2670 (La.3/24/00); 757 So.2d 648.

ISSUE

The issue is whether the evidence presented at the evidentiary hearing on the petition for post-conviction relief sufficiently established that Corinne Moree justifiably believed that she had entered into a plea bargain, which would have granted her a five-year suspended sentence and a $10,000.00 fine, without imprisonment, in exchange for her guilty plea.

FACTS

The Louisiana State Police arrested the Relator on February 24, 1996, after she consented to a search and approximately fifty-three (53) pounds of marijuana were | j>found in the trunk of the rental car the Relator was driving. The Relator was charged with possession of marijuana with the intent to distribute, a violation of Louisiana Revised Statutes 40:966(A)(1). It appears from the transcripts of the hearings that a public defender initially represented the Relator but she later retained Mr. Lomax Jordan in January of 1997 to represent her. On September 23, 1997, the Relator pled guilty before Judge Paul deMahy to the charged offense. In the colloquy between the trial judge and the Relator, there appeared to have been no plea bargain and no sentence recommendation.

During the plea colloquy, a dispute arose whether the Relator refused to testify against a co-defendant, or if the prosecutor was simply not satisfied with the information the Relator could provide about the co-defendant. It appears that the State had previously offered a plea bargain to the Relator if she agreed to testify against Cynthia West, a co-defendant who hired the Relator to drive the rental car. The Relator told the police she had been paid by Cynthia West to drive the rental car from Lafayette, Louisiana, to another location. However, the Relator changed her story about whether Ms. West was driving in another car that had been in front of the Relator, or if Ms. West had given the Relator a pager number to call when the Relator reached the drop-off location. Ms. West was considered the mastermind of the criminal transaction, and she was charged and convicted for her participation in the crime. The State mentioned at Relator’s sentencing that because the Relator refused to cooperate, Ms. West received a light sentence that did not reflect her degree of culpability. There is nothing in the record to show precisely what sentence the co-defendant received.

Immediately after the Relator pled guilty, the State and Mr. Jordan presented witnesses for the sentencing hearing. Ms. Moree testified that at the time of her | ¡¡arrest, she had fallen on hard times financially. She acknowledged she made a bad judgment call by agreeing to drive a car for a person whom she had heard trafficked drugs, but she insisted that she would not have agreed to drive the car in return for $1,000.00 if she knew it contained over fifty pounds of marijuana. On cross-examination, the prosecutor brought out that Ms. Moree had told the arresting officer and the investigating officers one thing about Ms. West’s involvement, but when the Relator later met with the prosecutor to attempt to work out a plea agreement in return for her testimony against Ms. West, the Relator changed her story. Since the initial police reports were inconsistent with what the Relator later said about the crime, the State could not use her testimony against Ms. West, and Ms. West apparently benefitted from it.

Both the prosecutor and Mr. Jordan argued to the trial judge about what they felt the Relator’s sentence should be, and in the end, the trial judge noted that the Relator received money for her participation in the crime, she had lived a law-abiding life, and that she was in a difficult financial situation. However, the trial judge noted that the Relator knew she was transporting something illegal in the car and that there was no justification for her conduct. The trial judge sentenced the Relator to five years at hard labor, and he suspended two of these years and placed the Relator on five years supervised probation. As conditions of probation, Relator was ordered to pay a $20.00 monthly supervision fee, serve twenty eight-hour days of community service, submit to random drug tests, pay the Louisiana State Police $1,000.00 for the cost of the investigation, pay $50.00 to the Louisiana Commission on Law Enforcement fund, and finally, pay a fine of $1,000.00.

Seven months later, another attorney retained by the Relator’s family filed an application for post conviction relief. In this application, the Relator claimed she had Lbeen led to believe by Mr. Jordan that the trial judge had agreed to sentence her to five years probation and she would not have to serve any time in jail, and further that the hearing on September 23, 1997, was a formality that she had to go through. An evidentiary hearing began on October 2, 1998, before Judge Paul de-Mahy, but when it became apparent that he would be called as a witness, he recused himself. Judge Wattigny presided over the next evidentiary hearing on December 2, 1998. At the conclusion of the hearing, the judge rejected Ms. Moree’s claims.

The testimony at the evidentiary hearing revealed that after Mr. Jordan had been retained to represent Ms. Moree, he approached the prosecutor about the possibility of a plea bargain. According to Mr. Jordan, Mr. Haney said “he had no problem with Mr. Jordan ‘cutting a deal with whatever judge I chose, and that I was welcome to go and do that’ and he was fine with that.” However, Mr. Haney refused to make any recommendation for a sentence. As a result, Mr. Jordan approached Judge deMahy about his client’s case. “I went to the judge and I told him that I had permission from Mr. Haney to speak with him directly concerning a potential plea of Ms. Moree and what sentence she would be looking at in the event that she entered a plea, and then he told me, and then Mr. Haney came in later at the second conversation and, that was repeated, and — .” According to Mr. Jordan, Judge deMahy said Ms. Moree would be looking at a sentence of five years hard labor, suspended and a $10,000.00 fine.

Later that same day, Mr. Jordan met with Judge deMahy and Mr. Haney about the case. Mr. Haney informed Mr. Jordan and Judge deMahy that “he would have to oppose that deal by way of having a sentencing hearing.” Mr. Jordan then said he was concerned about problems arising from a sentencing hearing, and when he related his concerns to Judge deMahy, the judge “told me not to worry about that, that Phil |Boften went through sentencing hearings and it was just his way.” Mr. Jordan testified that he thought it was firm that Ms. Moree would receive a suspended five-year sentence, no time in jail, and a $10,000.00 fine, and he relayed this information to her. The key piece of evidence in this ease is a letter written by Mr. Jordan on August 29, 1997. This letter was addressed to Judge deMahy and a copy was sent to Mr. Phil Haney, the prosecutor, and the letter stated:

Dear Judge deMahy:
As you will recall, we attempted to set the plea and sentencing of Corinne Mor-ee for July 28, 1997. She had ear trouble in Beaumont and was unable to attend.
Shortly thereafter I was engaged in the legislative session and we were unable to accommodate a plea as intended.
It is my recollection that you had agreed to sentence Ms. Moree to five (5) years hard labor suspended, five (5) years active supervised probation, and a $10,000 fine. Half of the fine, namely $5,000 would be paid on the date of sentencing and the remaining balance would be paid over a period of time. It is our desire that we coordinate an acceptable plea date in this matter with Phil Haney’s office.
Thanking you for your kind professional courtesies and extending my own, I remain
Sincerely,
s/J. Lomax Jordan, Jr.

At the December 2, 1998 evidentiary hearing, Judge deMahy testified he could not recall receiving the letter from Mr. Jordan. The letter was not in any of his files. The judge recalled speaking with Mr. Jordan about Ms. Moree’s case, and Mr. Jordan had asked the judge to give him an idea of what the Relator would be facing and if it was possible for her to receive a suspended sentence. Judge de-Mahy did not recall giving Mr. Jordan a firm commitment on the sentence he was going to impose upon Ms. Moree. The judge said it was not his intention to convey to Mr. Jordan that regardless of the information produced at the sentencing hearing that Ms. Moree | ¿would receive a suspended sentence. However, Judge de-Mahy could not recall the specifics of the conversation. The judge admitted that in the past he had promised defense attorneys what the sentence would be prior to the sentencing of their clients.

Later, Judge deMahy testified:

Q Did you make any promises to Mr. Jordan?
A The only thing that may be considered a promise is that, if the evidence at the sentencing hearing presented — the evidence proved only the facts that he revealed to me in our discussion, then there’d be — that Miss Moree probably would receive a completely suspended sentence. But the evidence at the sentencing hearing — the information he provided me in that conversation was presented at the sentencing hearing, but that was not all that was presented. None of the information provided through the state’s witnesses was I aware of at the time Mr. Jordan and I spoke.

The information provided by the State’s witnesses was that Ms. Moree told the police she was to drive the car to Jackson, Mississippi, (she later said Meridian, Mississippi), and once there she was to page Cynthia West to make the transfer. However, the Relator changed her story and said she was following Cynthia West who was driving another car ahead of her on the interstate.

Ms. Moree testified that Mr. Jordan led her to believe that the Boykinization and sentencing hearing was a formality or “dog and pony show” and that he had the assurances from the judge who was his friend that she would receive a suspended sentence with no time in jail. Ms. Moree claimed that as a result of Mr. Jordan’s assurances to her and her parents, she answered all of the questions in the Boyk-inization in such a manner as to establish that no plea bargain or agreement had been reached as inducement for her to plead guilty. After Ms. Moree was sentenced, she was ordered to begin serving her sentence immediately. She testified that her parents paid Mr. Jordan a retainer of $10,000.00, but he never filed any further |7motions nor an appeal on her behalf, despite constant calls from the Relator and her parents.

LAW AND DISCUSSION

The Relator claims she had a justifiable belief that in return for her guilty plea, she would receive a suspended sentence and a fine of $10,000.00. The Relator’s “justifiable belief” was based upon assurances of her attorney, Lomax Jordan.

There must be an affirmative showing in the record that a defendant, at the time he enters his guilty plea, knowingly and voluntarily waives his constitutional privilege against self-incrimination, right to trial by jury, and right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The knowing and voluntary nature of the waiver can be affected by misunderstandings about the inducements or promises made to the defendant. This court ruled in State v. Readoux, 614 So.2d 175, 176-177 (La.App. 3 Cir.1993), that not all misunderstandings will invalidate a guilty plea:

A guilty plea is invalid, or constitutionally infirm, when a defendant is induced to enter a plea of guilty by a plea bargain agreement, or what he reasonably or justifiably believes was a plea bargain agreement, and the terms of the bargain are not satisfied. State v. Jones, 546 So.2d 1343, 1346 (La.App. 3d Cir.1989); State v. Taylor, 535 So.2d 1229, 1230 (La.App. 3d Cir.1988), quoting State v. Dixon, 449 So.2d 463, 464 (La.1984). It is well settled that if a defendant’s misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there is no ground for invalidating the guilty plea. State v. Malmay, 548 So.2d 71, 73 (La.App. 3d Cir.1989); State v. Jones, supra.
It is also well settled that a misunderstanding between a defendant and counsel for defendant does not have the same implication as a breached plea bargain agreement, and this misunderstanding does not render the guilty plea invalid. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Johnson, 533 So.2d 1288, 1292 (La.App. 3d Cir.1988), unit denied, 563 So.2d 873 (La.1990). In the absence of fraud, intimidation, or incompetence of counsel, a guilty plea is not |Rmade less voluntary or less informed by the considered advice of counsel. See, State v. Johnson, 461 So.2d 1259, 1261 (La.App. 1st Cir.1984).

Id.

In the present case, there were no promises or assurances given to the Relator by the trial judge. Furthermore, the only time the prosecutor spoke with the Relator was during the unsuccessful attempt to bargain for Ms. Moree’s testimony against her co-defendant in return for a beneficial plea agreement. That leaves the defense attorney, Mr. Jordan, as the only person who made assurances or promises to the Relator that led her to plead guilty.

In State v. Readoux, we noted that absent fraud, intimidation or incompetence of defense counsel, a guilty plea will not be invalidated based simply upon a misunderstanding between the defense counsel and his client. In State v. McBroom, 25,781 (La.App. 2 Cir. 2/23/94); 632 So.2d 916, on appeal after new trial, State v. McBroom, 27,027 (La.App. 2 Cir. 5/10/95); 655 So.2d 705, the incompetency of defense counsel in advising a defendant to accept a plea bargain without having the trial judge also join in the sentence recommendation resulted in the reversal of the convictions and sentences. In McBroom, the defendant faced three counts of aggravated rape of his young stepdaughter and he agreed to plead guilty to two counts of simple rape, but the defense attorneys did not obtain an agreement from the trial judge that the two twenty-five-year sentences would be served concurrently rather than consecutively. When the trial judge imposed consecutive sentences, the defendant in McBroom successfully argued that counsel’s incompetence in advising the defendant invalidated the guilty plea; however, the result of the successful appeal was reinstatement of the original charges.

|aIn State v. Hidalgo, 96-403 (La.App. 3 Cir. 11/6/96); 684 So.2d 26, the defendant claimed his defense counsel fraudulently assured him and another attorney that he was going to receive a suspended sentence. At his Boykinization, the defendant in Hi-dalgo was asked by the trial judge if any promises had been made, other than an agreement to pay a fine rather than have a vehicle forfeited, to induce the defendant to plead guilty and the defendant stated that no additional promises had been made to him. The trial judge ordered a presen-tence investigation report and allowed the defendant to present any additional information relative to mitigating circumstances.

Approximately eight months after pleading guilty, Hidalgo was sentenced to ten years hard labor, with all but two and one-half years suspended, and he was placed on probation subject to conditions. Within a few weeks, the defendant filed a motion to withdraw his guilty plea and he argued that he was induced to plead guilty not by a simple misunderstanding with his defense attorney, but by fraudulent misrepresentation by defense counsel throughout the Boykinization that led the defendant to believe the colloquy was a mere formality. Id. We found that the trial judge did not err in rejecting the claims of the defendant. The determination whether the conduct of defense counsel constitutes fraudulent misrepresentation sufficient to invalidate a guilty plea is based upon a weighing of the credibility of the witnesses against the remaining evidence, and the fact-finder’s determinations will not be second-guessed. Id.

In State v. Bernard, 97-362 (La.App. 3 Cir. 10/8/97); 702 So.2d 876, the defendant argued that his defense attorneys had assured him he would receive a suspended sentence in return for his guilty plea. At his Boykinization, which was an en masse Boykinization of several defendants, some of the defendants pled guilty 11flpursuant to plea agreements, but there was no such indication that Bernard did so, and the trial judge informed defendant-Bernard that his sentencing would await the outcome of a presentence investigation report. The court advised Bernard that if he desired to present any evidence in mitigation, “that’s the time to do it ... ” Id. at 880.

Bernard later objected at the sentencing hearing, stating that he was told by his defense attorneys there was a plea agreement, but the trial judge rejected the defendant’s attempts to withdraw his guilty plea or reconsider the seventeen and one-half year sentence. In affirming the rulings of the trial court, we stated:

In the present case, the misunderstanding, if one occurred, appears to be wholly between the defendant and his attorney, whether the attorney involved was either Edmund Reggie, who represented the defendant up until his guilty plea, or Greg Reggie, who represented the defendant at the guilty plea hearing. The defendant maintains that he believed that he was pleading guilty and would receive a specific suspended sentence and be ordered to pay a specific fine. However, the transcript of the guilty plea hearing clearly indicates that the trial court was ordering a Pre-Sen-tence Investigation and that sentencing would be based on that report. There is no indication that either the trial court or district attorney was involved in the misunderstanding/misrepresentation.
In the face of this portion of the record, we do not conclude that the defendant’s plea was made any less freely or voluntarily.

Id. at 883.

More recently, in State v. Walton, 98-1433 (La.App. 3 Cir. 3/24/99); 738 So.2d 36, writ denied, 99-1195 (La.10/1/99); 748 So.2d 434, we rejected a defendant’s claim that defense counsel’s misrepresentations led him to plead guilty. In Walton, 738 So.2d at 46, we stated:

In its reasons denying the Defendant’s Motion to Withdraw the Guilty Plea, the trial court stated that no credible evidence existed indicating that promises had been made to him regarding the terms and the conditions of incarceration in the Jefferson Davis facility. The trial court chose to believe the testimony of Defense counsel and the sheriff over the Defendant and his family members. The trial court was not manifestly erroneous in determining that no credible evidence existed establishing that his guilty plea was the result of illicit promises concerning the terms and the conditions of incarceration.

| Id. at 46.

These three third circuit cases show that a defendant has a heavy burden of proving that defense counsel’s actions or inactions induced the client to give a constitutionally defective guilty plea. The McBroom case appears to be an exceptional ease; the second circuit emphasized that before the State offered to reduce the three aggravated rape charges to two simple rape charges, the defendant had rejected the initial offer to reduce the charges to one forcible rape charge with a forty-year sentence. We are to decide, in essence, if Mr. Jordan’s actions and his inaction rise to a level of “fraud, intimidation or incompetence” sufficient to invalidate the Relator’s guilty plea.

In State v. Hall, 26,006, 26,007 (La.App. 2 Cir. 5/4/94); 637 So.2d 645, writ denied, (La.9/30/94); 642 So.2d 868, a defendant introduced a letter written by his attorney that said the defendant would be sentenced to probation pursuant to a plea bargain agreement. Pursuant to a plea bargain, the defendant pled guilty to reduced charges, subject to a sentence cap of ten years. The trial court went through an extensive colloquy with defendant and discussed the rights he was waiving by pleading guilty, the minimum and maximum sentences and the terms of the plea bargain. The trial court found that there was a factual basis for defendant’s pleas, that the pleas were freely and voluntarily made and that defendant understood the nature of the charges against him. While out on bond awaiting completion of a pre-sentence investigation report, the defendant was arrested in Texas on drug charges. Later, the trial court sentenced the defendant to ten years at hard labor, but the defendant claimed he thought he was to receive a suspended sentence and probation:

In support of his motion to set aside his guilty pleas, defendant introduced into evidence a letter typed on Gregory Caver’s, his former attorney’s, letterhead, addressed “To Whom It May Concern” and dated December 1,1992. The letter stated that Mr. Caver represented Mr. Hall | ^(defendant) on all criminal charges and that “after reviewing the matters with all District Attorneys involved, and upon agreement with the Judge presiding over his cases, Mr. Hall is to be placed on supervised probation.”
During questioning, defendant admitted that he got his former attorney to write this letter to the finance company who had repossessed his car. According to defendant, in order to get his car back, he needed verification that he would not be going to jail, but would be placed on probation. This letter was written prior to the guilty pleas and while Hall was- on bond. The state objected to this letter on the basis of hearsay and lack of authentication. The trial court allowed the letter into evidence, but stated that “Mr. Caver was not called, and I have the unsubstantiated allegation that that was the purpose of this letter. It does not take the place of the court’s discussion with the defendant on the record under oath.”

Id. at 647.

The trial court rejected the defendant-Hall’s claim, and the second circuit found no error in this conclusion.

In the present case, the presiding judge made a credibility determination that Judge deMahy did not give defense counsel, Mr. Lomax Jordan, a firm commitment to suspend Ms. Moree’s sentence. The problem with Mr. Jordan’s claim that he received a firm commitment is that other than his testimony, all that Mr. Jordan has to prove his claim is the confirmation letter. It may be argued that either Judge deMahy or the prosecutor, if they received copies of this letter, should have said something to refute its contents. However, the Relator may not have relied upon the letter because she testified that she never saw the letter until after her sentencing, and she only heard Mr. Jordan talk about a “confirmation” letter prior to it. Mr. Jordan acknowledged that Ms. Moree’s case was not set for the plea docket of the court, but rather the trial docket and he received a letter from the prosecutor informing him that the Moree case was a top priority case.

Thus, we find that while Ms. Moree was induced to plead guilty to the original charge as a result of a misunderstanding ■with her defense counsel, such a guilty plea launder the circumstances was not sufficient to invalidate the plea. This conclusion is supported by her failure to speak up during the Boykinization and sentencing colloquy. Further, there does not appear to have been an agreement between the defense and the State or the trial judge to impose a particular sentence. Therefore, Ms. Moree’s guilty plea was not constitutionally infirm.

CONCLUSION

Based on the foregoing discussion, Cór-teme Moree’s conviction and sentence are affirmed.

AFFIRMED.

THIBODEAUX, J., dissents and assigns written reasons.

11THIB ODEAUX, J.,

dissenting.

It is a generally accepted principle that the district attorney is the only person granted the authority to contract in a plea agreement. State v. Howard, 448 So.2d 150 (La.App. 1 Cir.1984), writ denied, 449 So.2d 1355 (La.1984). It has been held that a trial court has no authority to enter into an ex parte agreement with a defendant or to enforce its terms. See State v. McFarland, 578 So.2d 1014 (La.App. 4 Cir.1991). However, “[e]ven if there was no plea bargain with the State, if defendant justifiably believed there was, and pled guilty in part because of that justifiable belief, the guilty plea was not knowingly made. In such a case the plea must be set aside and defendant allowed to plead anew.” Id. at 1016 (citations omitted).

12The record reveals that Ms. Moree, along with her attorney, Mr. Jordan, justifiably relied upon the representations of the court that she would receive a suspended five-year sentence and a $10,000.00 fine. Mr. Jordan testified that the letter dated August 29, 1997 memorialized the oral agreement he made with Judge de-Mahy.

Mr. Jordan never received a response from either Judge deMahy or Assistant District Attorney Phil Haney, who received a copy of the letter. Judge de-Mahy’s silence led Mr. Jordan to believe that the terms of the agreement were appropriately set forth in the letter, and that the agreement would be executed as such. Mr. Jordan testified at the evidentiary hearing that before reducing the terms to writing, he repeated the agreement to Mr. Haney, who said that for the record, he would not be able to go along with the agreement, and he would have to oppose it at a sentencing hearing. Mr. Jordan then communicated Mr. Haney’s sentiments to Judge deMahy. The judge told Mr. Jordan not to worry because, according to Mr. Jordan’s testimony of his conversation with the judge, “Phil [Haney] often went through sentencing hearings and it was just his way.” As a result of the conversations with Judge deMahy and Mr. Haney, Mr. Jordan was under the impression that if Ms. Moree entered a guilty plea, she would receive a suspended five-year sentence and a $10,000.00 fine.

This is precisely what Mr. Jordan relayed to Ms. Moree. He indicated to her that this was basically a “done deal.” On the original plea date, Ms. Moree was unable to attend because of car trouble which left her stranded in Beaumont, Texas. The matter had to be further delayed during the time that Mr. Jordan was in a legislative session. During these delays, Mr. Jordan did not receive any communications from Judge deMahy or from Mr. Haney. When the sentencing [shearing was finally conducted, Ms. Moree, as a result of Mr. Jordan’s assurances to her and to her parents, pled guilty and answered all the questions in the Boykin colloquy, and signed a Boykinization form in such a manner as to establish that no plea bargain agreement had been reached as inducement for her to plead guilty. Ms. Moree testified at the evidentiary hearing that she had been told by Mr. Jordan that the Boykinization and sentencing hearing were formalities, or a “dog and pony show” and that he had the assurance from Judge deMahy that she would receive a suspended sentence with no time in jail.

Judge deMahy, however, was unable to recollect the specifics of his interactions with Mr. Jordan regarding Ms. Moree’s case. He testified at the evidentiary hearing on December 2, 1998 that he did not recall receiving the August 29 letter from Mr. Jordan nor did he remember giving Mr. Jordan a firm commitment on the sentence that he was going to impose on Ms. Moree. He does not dispute the accuracy of the letter; rather, he could not recall receiving it. Judge deMahy did, however, admit that in the past, he had promised defense attorneys what the sentence would be prior to the sentencing of their clients. According to the judge, it was not his intent to convey to Mr. Jordan that regardless of the information produced at the sentencing hearing that Ms. Moree would receive a suspended sentence.

The record is void of evidence that Judge deMahy notified Mr. Jordan that conditions were going to be placed on the plea agreement. The judge’s silence to Mr. Jordan’s recommendation was acceptance of the agreement as it was discussed. See La.Civ.Code art. 1942.

A plea of guilty is void and should be vacated when a plea agreement induces the defendant to plead guilty or when the defendant reasonably believes he has entered into a plea agreement and the terms of the bargain are not fulfilled. State v. Holmes, 475 So.2d 1057 (La.1985); State v. Jones, 546 So.2d 1343 (La.App. 3 Cir.1989); State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98); 716 So.2d 36. It is unmistakable that Ms. Moree reasonably relied on the communications between the trial court and Mr. Jordan that she would receive a suspended sentence if she pled guilty. Consequently, Ms. Moree must be allowed to withdraw her plea of guilty to the charge of possession with intent to distribute marijuana.

The State contends that during the Boy-kin examination, Ms. Moree admitted that no promises or threats had been made to induce her to plead guilty, and that Ms. Moree signed the Boykinization form; therefore, her plea was appropriately entered. The State also indicates that Ms. Moree’s attorney, Mr. Jordan, was present with her during her guilty plea, and he made no interruption during the plea nor did he object to the sentence. Therefore, this court should not oblige Ms. Moree by setting aside her sentence. I disagree with both contentions.

The State concludes that by the defense’s inaction, Ms. Moree has no basis to object to the breach of the plea bargain. However, I find that Ms. Moree duly attacked her guilty plea by seeking post-conviction relief on the ground that her plea was constitutionally infirm. See State v. Hayes, 423 So.2d 1111 (La.1982).

State v. Neitte, 363 So.2d 425 (La.1978); State v. Jones, 398 So.2d 1049 (La.1981); and State v. Dixon, 449 So.2d 463 (La.1984) add additional for my position.

In Neitte, the defendant was charged with simple robbery. Pursuant to a plea bargain with the district attorney, he pleaded guilty to a reduced charge of theft of property valued between $100.00 and $500.00. Neitte was sentenced to serve two years at hard labor. The District Attorney contended that no one in his office promised to make a recommendation of probation to the sentencing judge, and that | ¡¡the defendant acknowledged during the Boykinization that no promises had been made to him to induce him to plead guilty, other than the reduction of the charge against him. In the sentencing hearing, Neitte introduced a letter addressed to him from his attorney dated June 7, 1977. The letter outlined the lawyer’s discussion of Neitte’s case with the district attorney and a proposed plea bargain. Neitte argued that he entered the guilty plea in exchange for the district attorney’s recommendation of supervised probation. He instead received two years at hard labor. After finding that Neitte was denied due process of law because the State failed to comply with the representation that induced his guilty plea, the supreme court remanded Neitte’s case, with instructions, to the district court to vacate Neitte’s guilty plea and sentence and to allow him to reinstate his plea of not guilty.

The defendant in Jones pled guilty to attempted distribution of marijuana after a plea bargain with the State was negotiated, reducing the charge from distribution of marijuana. He was sentenced to five years imprisonment at hard labor and fined $7,000.00. Jones alleged that his guilty plea was induced in part by the State’s promise that he would receive no jail sentence. During the original sentencing, Jones answered in the negative when asked if he had been promised any particular sentence. When the sentence was imposed, neither Jones nor his attorney objected to the sentence. Instead, a written motion was filed by the defense several days later. The court in Jones found that the bargain gave the State “a sure conviction in a case in which the state’s main witness was out of the country. What benefit went to the defendant is difficult to find.” Jones at 1053. A new sentencing hearing was ordered because fault in the deficiency of the records was on both the prosecution and the defense, and the sentence was again set aside. The court concluded that “[i]f there was no such plea bargain, but defendant justifiably believed there was, and pleaded Uguilty in part because of that justifiable belief, the guilty plea was not knowingly made and must be set aside, and defendant must be allowed to plead anew.” Id.

In Dixon, the defendant originally pled not guilty to one count of aggravated burglary and one count of simple burglary. The State later reduced the charges to two counts of simple burglary, and Dixon withdrew his not guilty pleas and entered guilty pleas. The court imposed the maximum sentence, sentences of twelve years at hard labor on each count, with the sentences to run consecutively. Dixon, himself, immediately objected to the sentence. Dixon contended that his guilty pleas were entered only because the prosecution and his own attorney had represented to him that he would receive sentences considerably less than twelve years on each count, and that the sentences would be concurrent. Dixon admitted that in his oral Boykin colloquy with the trial court, he affirmatively responded when he was asked if he understood the penalties for the crimes to which he was pleading. He negatively responded to the inquiry of whether he had been promised anything in return for his guilty plea. A written waiver of rights form was signed by Dixon in which he gave the same responses. Dixon contended that these answers were given on the advice of his attorney who informed him that the questions and answers were merely procedural for the purpose of entering his guilty plea and they would have no effect on his plea bargain agreement. The supreme court concluded that the fact that the trial court, in its discretion, “sought to amend the sentence to provide for the concurrent terms Dixon said he was promised certainly lends credence to his assertions,.... ” Id. at 465. The case was remanded for an evidentiary hearing because the record before the court was insufficient. If the evidence adduced at the hearing did not support Dixon’s contention that a plea bargain agreement existed, but |7he justifiably believed there was and pled guilty in part because of that justifiable belief, then his guilty plea was not knowingly entered and must be set aside.

In this case, the record clearly shows that although Ms. Moree did not admit that she had been induced in any manner, she justifiably believed that by pleading guilty to possession of marijuana with intent to distribute, she would be placed on five years probation and would not be imprisoned. As in Dixon, the signing of the Boykinization form did not negate Ms. Moree’s certainty that this was merely a formality, just as Mr. Jordan had assured her that the sentencing hearing on September 23, 1997 was merely a formality or a “dog and pony show” that she had to undergo.

Ms. Moree’s attorney took the initiative to schedule the date of Ms. Moree’s sentencing. As a practical consideration, it is difficult to imagine an attorney and a criminal defendant desirous of and initiating a court proceeding which will result in the imposition of incarceration at hard labor. Common sense defies this sort of logic and, as the late Justice William O. Douglas once observed, “common sense often makes good law.”

Ms. Moree justifiably believed that she entered into a plea bargain agreement created by her attorney, Mr. Jordan, and the presiding trial judge, Judge deMahy. I, therefore, conclude that her guilty plea was constitutionally infirm, and that she was denied due process in that her plea was not given freely and knowingly. Her conviction and sentence should be set aside.

For the foregoing reasons, I respectfully dissent.  