
    STATE of Louisiana v. Donnie LONDON.
    No. 93-KA-387.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 1994.
    Harry J. Morel, Jr., Dist. Atty., Kurt F. Sins, Gregory Champagne, Asst. Dist. Attys., Parish of St. Charles, Hahnville, for plaintiff-appellee.
    Robert A. Chaisson, Destrehan, for defendant-appellant.
    
      Before BOWES, GAUDIN and DUFRESNE, JJ.
   1GAUDIN, Judge.

Donnie London pled guilty on January 22, 1993 in St. Charles Parish to possession of cocaine, LSA-R.S. 40:967. He was sentenced to five years at hard labor. We affirm.

On April 1, 1993, London filed for post conviction relief, alleging ineffective assistance of counsel and that his guilty plea was not knowingly, voluntarily and intelligently made. He was granted an out-of-time appeal.

The main thrust of London’s appeal is that during the plea bargaining process, he and his attorney were under the false impression that he could be double billed if he went to trial and was convicted. The prosecuting attorney agreed not to double bill London if he entered a guilty plea. London now argues he was not then subject to double billing as the so-called cleansing period had run.

The statutes which allow double billing are not applicable if more than five years have elapsed since the expiration of the maximum sentence of the previous conviction. pSee LSA-R.S. 15:529.1(0). In his application for post conviction and now on appeal, London contends that the probationary period for his previous five-year suspended sentence expired on September 30, 1992. The instant crime, possession of cocaine, occurred on October 1, 1992.

London raised this very same issue during the plea bargaining process on January 22, 1993 in open court. The prosecuting attorney stated, to the trial judge and to London’s counsel, that the prior five-year period did not end until October 29, 1992. There was further discussion about this while the trial judge, apparently, examined London’s past conviction records. The trial judge said this to London’s attorney, Gregory Miller, inviting him to also examine records of London’s past criminal activity:

“You want to come look at this, Mr. Miller?”

The transcript then states:

“At which point, Mr. Miller and Mr. Sins (the prosecuting attorney) read the records.”

There was further talk about London’s possible plea but it is crystal clear from the transcript that all parties, including the trial judge and London’s lawyer, understood and knew that London was a bona fide candidate for double billing. The assistant district attorney said that if London did not plead, that “... there’s a guarantee I will file a multiple bill.”

London did plead guilty to possession of cocaine with the state agreeing not to file a double bill and thereby subject London to an enhanced sentence. No doubt the legitimate possibility of a double bill caused London to plead.

London’s past convictions records, including his rap sheets, are not part of this record for an obvious reason: London was not double billed. Past conviction records were not required.

laWe note that London’s application for post conviction relief in district court and his appeal to this Court are completely devoid of any documentation showing that the October 1, 1992 crime was beyond the previous five-year probationary term. London claims that he was released from a five-year probation on September 30, 1992 but this assertion remains totally unsubstantiated.

Judicial time and economy would not be served by a remand giving London yet another opportunity to produce evidence establishing a September 30, 1992 termination date. If such proof exists, London can attach it to an application for supervisory writs to the Supreme Court of Louisiana.

AFFIRMED.

BOWES, J., dissents with reasons.

I iBOWES, Judge,

dissents for the following reasons:

I disagree with the views expressed in the majority opinion. In my view, this matter should be remanded for an evidentiary hearing.

The record in this case reflects that this matter comes to us by virtue of a granting by the district court of an application for post-conviction relief which granted defendant an out-of-time appeal. However, the record does not disclose all of the evidence necessary to address appellant’s complaint.

The defendant’s plea may have been involuntarily entered if his allegations are true; however, there is an unresolved factual issue as to whether or not the district attorney could have filed a multiple bill. The issue of a possible multiple bill was discussed during the sentencing hearing and the district attorney alleged at that time that the five year cleansing period had not passed since the expiration of appellant’s prior sentence. Unfortunately, the record contains only oral assertions by the district attorney simply stating that the defendant’s prior sentence expired on October 27, 1987 (without giving or furnishing the source or proof of the correctness of this assertion), and therefore the state contends that the five year cleansing period ended on October 27, 1992.

Since the present crime was committed on October 1, 1992, appellant would be within the cleansing period and could be charged with a multiple bill if the district attorney is correct in this assertion.

In contrast, the defendant claims in his application for post-conviction relief that his sentence expired on September 30, 1987, and that the cleansing period expired on September 30, 1992. It may be true, as contended by the majority opinion, that the ^record reflects that defense counsel “knew and understood” that defendant was subject to multiple billing because he and the district attorney went up to the bench and looked at the criminal record of London, but there is no statement in the record by defense counsel, or anyone, as to what that document revealed. However, this is the very gravamen of defendant’s complaint: that his counsel allowed him to plead guilty in exchange for the state’s promise not to file a multiple bill in a situation where no multiple bill could have been filed even had defendant gone to trial and been convicted. If the appellant is correct, and he was not eligible to have a multiple bill filed against him, then defense counsel’s action in allowing defendant to plead guilty in exchange for the state’s agreement not to file a multiple bill may, indeed, and probably does, amount to ineffective assistance of counsel since one could not have been filed anyway.

Thus, from my appreciation of the facts, there is present in this ease a serious factual issue which must be addressed at some point in the proceedings. We note that defendant attempted to raise this claim in his application for post-conviction relief to the trial court. But, because the trial court granted defendant the relief of an out-of-time appeal instead of hearing the issue raised by the application, defendant was not provided with an opportunity to present in the district court' evidence in support of his assertions and to show ineffective assistance of counsel as mandated by the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, the defendant could not introduce the evidence in this Court, for the first time, as this Court is precluded from considering evidence attached to the appellate brief, but not introduced at the trial court level. Bouterie v. Crane, 604 So.2d 1051 (La.App. 5 Cir.1992); State v. Aubrey, 609 So.2d 1183 (La.App. 3 Cir.1992).

Accordingly, in the interest of justice and judicial economy, I would not require this defendant to file a second application for post-conviction relief urging ineffective ^assistance of counsel and, instead, would remand this ease to the trial court for a full evidentiary hearing on this issue. See State v. Lobato, 603 So.2d 739 (La.1992).

Therefore, I respectfully DISSENT. 
      
      . London also pled guilty at the same time to possession of drug paraphernalia, for which he was sentenced to 15 days in parish prison. This plea and sentence are not involved in this appeal.
     