State v. Presley
758 So. 2d 308, 2000 WL 233368 (2000)
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Rule of Law:
An offense whose statutory definition inherently includes an 'attempt' cannot be further 'attempted' under Louisiana law, rendering any guilty plea to such a non-existent 'attempted attempt' charge void.
Facts:
- On or about August 22, 1998, Kenneth Presley allegedly fired several shots from a motor vehicle into an occupied trailer home.
Procedural Posture:
- Kenneth Presley was charged with one count of assault by drive-by shooting (La.R.S. 14:37.1) and one count of aggravated criminal damage to property (La.R.S. 14:55).
- On January 6, 1999, pursuant to a plea agreement and with assistance of counsel, Kenneth Presley entered a plea of guilty to attempted assault by drive-by shooting and aggravated criminal damage to property in the trial court (a court of first instance).
- Kenneth Presley was sentenced to two and a half years at hard labor for attempted assault by drive-by shooting and eight years at hard labor plus a $500 fine for aggravated criminal damage to property, with the sentences ordered to run concurrently.
- A motion to reconsider sentence was filed by Kenneth Presley and subsequently denied without a hearing by the trial court.
- Counsel for Kenneth Presley (appellant) filed a motion to withdraw as counsel and an accompanying Anders brief with the Court of Appeal of Louisiana, Third Circuit, asserting that, after review of the record, no nonfrivolous issues could be presented on appeal.
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Issue:
Does Louisiana law recognize the offense of 'attempted assault by drive-by shooting,' such that a guilty plea to this specific charge is legally valid?
Opinions:
Majority - Amy, Judge
No, Louisiana law does not recognize the offense of 'attempted assault by drive-by shooting,' making a guilty plea to this charge invalid. The court explained that assault, as defined in La.R.S. 14:36, is inherently an 'attempt to commit a battery' or to place another in apprehension of one. Therefore, 'attempted assault by drive-by shooting' would literally mean 'attempting to attempt' a battery, which is a legal impossibility and unsupported by Louisiana criminal statutes. Citing State v. Eames, the court noted that the general attempt statute (La.R.S. 14:27) cannot be used to create an 'attempted attempt' offense. Since the plea to attempted assault by drive-by shooting was for a non-existent crime, it was void. Furthermore, because Kenneth Presley's guilty plea to aggravated criminal damage to property was part of the same plea agreement, it too must be vacated to ensure the integrity of the entire agreement, as established in State v. Cook. The court thus vacated the guilty plea, reversed the convictions and sentences, and remanded the matter to the trial court for further proceedings, allowing Presley the option to proceed to trial on the original charges or enter a new guilty plea, with any new sentence not exceeding the original.
Analysis:
This case significantly clarifies the boundaries of Louisiana's general attempt statute, emphasizing that it cannot be applied to crimes that already contain an 'attempt' element within their definitions. It reinforces a fundamental principle of criminal law: a conviction, even through a guilty plea, cannot stand for a non-existent offense. The decision also highlights the importance of the integrity of plea agreements, indicating that the invalidity of one part of a multi-charge agreement can necessitate the vacating of the entire agreement. This serves as a critical precedent for prosecutors and defense attorneys in structuring plea bargains, requiring careful scrutiny of the legal validity of all charges involved.
