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COA issues published decision interpreting 971.365(1)(b) and rejects arguments for plea withdrawal

State v. Cordiaral F. West, 2022AP2196, 5/1/24, District II (recommended for publication); case activity

COA interprets a statute allowing aggregation of separate drug offenses into a single charge and holds that West is not entitled to plea withdrawal.

An investigation into suspected drug dealing resulted with West being charged with six crimes related to conduct in the Fall of 2014. Four counts alleged conspiracy to manufacture/deliver cocaine and arose from hand-to-hand transactions which involved a total of 4 grams of crack. (¶3). Police added another two counts to account for the drugs discovered during the execution of a search warrant–14.53 grams of crack and 64.7 grams of marijuana. (¶4). Ultimately the State would file an information adding on two additional charges related to conduct in May of 2015, also relating to small quantities of crack cocaine. (¶5).

West ultimately negotiated a plea wherein it would dismiss all but one charge, and amend the remaining charge to possession with intent to deliver greater than five but not more than 15 grams of cocaine as a second and subsequent offense.  (¶6). The date range for this offense included the entire charging period for all eight original charges–September 2014 through May 2015. (¶7). West’s attorney conceded there was a factual basis for this amended charge and West was eventually sentenced to a decade in prison. (¶8).

West ultimately filed a plea withdrawal motion arguing that he never possessed–“at one single time” five or more grams of cocaine. (¶9). Although he pleaded guilty because he believed the amounts in the charging documents could be added together, his motion averred this was not lawful and, thus, that there was no factual basis for his plea. (Id.). He also argued that his attorney was ineffective for allowing him to plead guilty under these circumstances. (¶11). The postconviction court then rejected these claims by citing § 971.365(1)(b), which it read as permitting the aggregation of these separate transactions into one count. (¶13).

West’s appeal  “hinges on whether a factual basis exists to support his plea.” (¶29). In answering that question, COA first needs to interpret § 971.365(1)(b). (Id.). It holds that the statute “unambiguously permits aggregation of the amount at issue for each violation of an enumerated statute so that multiple violations identifying smaller amounts may be prosecuted as one violation identifying a larger amount where the multiple violations are ‘pursuant to a single intent and design.'” (¶35).

Although this statute was not specifically cited in the amended information or referenced by the parties, because the record clearly demonstrates an intent to use this theory of aggregation to support the amended charge any alleged failure to cite or identify this statute is harmless. (¶41). Given the information in the record and “particularly in light of the multiple transactions alleged in the complaint” it is clear “that the transactions were part of an ongoing ‘intent and design’ to sell drugs–specifically cocaine.” (¶43). And, while West argues that the sizable amount of cocaine discovered during the search warrant cannot be used to add to the total, as he has always denied responsibility for that stash, COA is unpersuaded that this makes a difference. (¶44). Despite the fact that the State failed to list a precise amount for the two hand-t0-hand transactions in May of 2015, the nature of the charges themselves allow COA to infer that he necessarily possessed a total of more than 5 grams of cocaine. (Id.).

Notably, four of the charges–alleged conspiracy offenses–are excluded from aggregation under the statute’s plain language.  (¶47). However, the “reasonably related” criterion of State v. Harrell-permitting a looser factual basis inquiry in certain plea bargaining contexts–means that West cannot take advantage of this favorable plea agreement and then attack its factual basis on appeal. (Id.).

Having determined that the parties lawfully used this aggregation statute to finesse the plea at issue, COA concludes West is not not entitled to a hearing on his plea withdrawal claims and affirms. (¶62).

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