author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. William PERKINS.
    No. 81-KA-3120.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, David Plav-nicky, Asst. Dist. Attys., for plaintiff-appel-lee.

      Clyde D. Merritt, Dwight Doskey, Orleans Indigent Defender, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant William Perkins was indicted by a grand jury for first degree murder in violation of R.S. 14:3o. After being tried by a jury of twelve persons and found guilty, he was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence, pursuant to the jury’s recommendation. C.Cr.P. 905.6. Defendant appeals and asserts four assignments of error for the reversal of his conviction and sentence.

On the morning of April 9, 1979 defendant and his girl friend, Cynthia Whitney, were having an argument on Washington Avenue as the defendant was attempting to get her to take their baby home. Defendant grabbed her by the shoulder and squeezed her until she fell to the ground. At this time David Cage, the victim, who was driving by in his tow truck, stopped to intervene. As he approached the defendant and his girl friend, he had either a pipe or crowbar in his hand and he was calling the defendant vulgar names and threatening him with abusive language. He also suggested that the defendant fight with him, instead of pushing a woman around. The defendant started walking away stating that he did not want any trouble. David Cage attempted to strike the defendant, but the defendant was able to avoid the blow because his girl friend called out a warning to him. After this unsuccessful attempt, David Cage returned to his tow truck and placed the pipe or crowbar in the back of the truck. He then reentered the cab of the truck, which was still running, and leaned down by the dashboard, below window level.

Defendant approached the tow truck holding a gun by his leg, and attempted to speak to the victim who still had his head ducked out of view. When David Cage raised his head, defendant raised his gun and shot the victim in the head. The defendant ran, the truck swerved to the right, hit a vehicle and then crashed into a church. The coroner testified that the victim died from the gunshot wound to his temple. Additionally, he testified that black marks surrounding the wound indicated that the gun had been placed close to the victim’s head. Homicide detective Curóle testified that he did not find any weapon in the cab of the tow truck; the record does not reflect whether the pipe or crowbar was found in the back of the tow truck.

The record indicates that only one shot was fired, although one of the witnesses, Tyronne Weber, who saw only the shooting and the events subsequent to the shooting, testified that he heard more than one shot. The gun was retrieved after the defendant told a detective where it could be found. Only three bullets remained unspent. The only two eyewitnesses to the shooting were Tyronne Weber and Cynthia Whitney.

Assignment of Error No. S

Defendant contends that the trial court erred in denying his motion for a new trial on the basis that the state failed to disclose a statement made to the police by the defendant’s girl friend. This is a written statement that was obtained by the police during the investigation of the victim’s death. The defendant asserts that this statement constitutes Brady material because its presence might have produced a different outcome at trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The defendant requested a copy of any statements of any person who had been interviewed by an agent of the state in connection with the subject matter of this case or matters related to the evidence, and whom the state did or did not intend to call at trial. The state responded that a written statement had been taken from Cynthia Whitney, but did not supply the defendant with the contents of the statement, nor a copy of the written statement. The state indicated that it did not intend to call Cynthia Whitney at trial. She was subpoenaed by the state to testify at trial, appeared at the trial to testify, and was told by the state that she would not be needed. The defense counsel, during the trial, requested the trial court to issue an instanter subpoena for the appearance of Cynthia Whitney. She did not testify at trial and the written statement was entered into the record by the trial court at the hearing on the motion for a new trial.

The trial court, at the hearing on the new trial motion, determined that the statement was not Brady material and denied the motion for a new trial. The pertinent part of the withheld statement reads as follows:

“Q. Were you in the 2700 block of Washington Ave on Monday April 9-1979, and if so did you witness a shooting occur.
A. Yea, I was.
Q. Would you explain in your own words what you observed occur.
A. Me and Sonny and the baby were standing on the corner and I went across the street to the store to check on some milk for my baby. Then I went back to the corner where Sonny and the baby were and told him that I didn’t have enough for the milk. Then Sonny told me to take the baby home, and I told him that I wasn’t going home, that I was going to a friend’s house in the Magnolia. Sonny then started walking to he momma house and I was following him with the baby. Then he turn around and saw me and I tried to run away with the baby but he caught me and grabbed me by the shoulder. Then he start squeeze me hard and I went to the ground. I was screaming for him to stop it but he didn’t. Then the man in the truck saw me and he stop the truck and went to the back and got one of them pipes that you fix tires with. Then he come up to Sonny with the pipe and I told Sonny, look at that man behind you with the pipe. After that the man said ‘Nigger, leave that girl alone,’ and he asked me, ‘baby is that man doing you anything’. Then the man started calling Sonny all kinds of punks and whores and all and I told Sonny not to tell him anything, so Sonny shut up. Then the man said that ‘that punk better not say nothing, or I’ll pop him in his damned head with this pipe.’ Then Sonny started walking the other way and he told the man to go on ahead, that he didn’t want any trouble. I stayed on the corner and watched. Then the man came up behind Sonny and it looked like he tried to hit Sonny in the back of the head with the pipe, so I hollered to Sonny to watch out. Then I got scared so I went to the alley by Sonny momma house and watched. Then the man went back to the truck and put the pipe in the back and then he got in and was leaning down in the truck by the dashboard. The engine of the truck was still running. Then Sonny pulled his gun and he walked up the middle of the street and then stood by the truck holding the gun by his leg. Then Sonny was telling the man something but the man was still ducking his head in the truck. Then, when the man raised his head, I saw Sonny bring the gun up and shoot the man in the head. Then Sonny ran and I had saw the man truck curve to the side and then it hit a car and then it ran into the church.
Q. When you refer to Sonny, whom are you speaking about.
A. William Perkins.
Q. In which way are you acquainted with William Perkins.
A. I used to sleep with him sometimes and I had a baby for him.
Q. To your knowledge, did Sonny know the man that he shot in the truck.
A. I don’t know he told me that he didn’t.
Q. Did Sonny tell you anything else about the shooting.
A. After it happen, Sonny said that he didn’t want to do it that his mind just snapped on him.
Q. Did you ever meet the man that Sonny shot before the day of the shooting.'
A. No, that was my first time seeing him.
Q. Was Sonny beating you before the man walked up and told Sonny to stop.
A. He probable was going to hit me for to make me go home, but he was squeezing my shoulder.
Q. Where did Sonny go after he shot the man.
A. He went to his antee house on Bar-onne by Melpomene.
Q. When the man in the truck raised his head, was he attempting to drive the truck away from Sonny.
A. No, the truck started moving after Sonny shot him.
Q. Did you see the gun that Sonny used to shoot the man.
A. It was a little pistol, I didn’t see the color. It sounded like either a .25 or a .22.
Q. What did Sonny do with the gun after he shot the man.
A. I don’t know.
Q. Did the man push Sonny before the shooting.
A. Yea, he pushed him a little and told him, ‘Whore, you the kind that like to beat on woman, beat on me I’m a damned man.’
Q. Did Sonny tell you anything else about the shooting.
A. No, he just say that he didn’t want to shoot him, that he mind just clicked, but he said that he just got tired of people mistreating him like that because that wasn’t the first time a man mistreated him like that.”

Under Brady, the suppression of favorable evidence by the prosecution, when production of such evidence is requested, violates due process when the evidence is material to either guilt or punishment, regardless of the good or bad faith of the prosecution. Brady v. Maryland, supra at 87, 83 S.Ct. at 1196-1197. See United States Constitution, Amendment XIV. See also C.Cr.P. 718. Furthermore, the Louisiana Constitution, Article 1, § 16 provides:

“... An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.” (Emphasis added).

The defendant cannot be expected to present a proper defense, and is denied a fair trial when the prosecution withholds evidence which has been requested and which is favorable to the defendant. The United States Supreme Court in United States v. Agars, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), established three standards, depending on the type of request made by the defendant, to determine if the withheld evidence is Brady material. The request in the present case is a specific request, like the request in Brady, for the statements made by persons other than the defendant. This case is governed by the materiality standard set out in Agars:

“... Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge.” United States v. Agurs, supra at 106, 96 S.Ct. at 2399.

See State v. Willie, 410 So.2d 1019, 1030 (La.1982); State v. Martin, 376 So.2d 300, 306 (La.1979). The test of materiality is whether the suppressed evidence “... might have affected the outcome of the trial.” United States v. Agurs, supra 427 U.S. at 104, 96 S.Ct. at 2398. See State v. Willie, supra at 1030-31.

In many respects the statement of Cynthia Whitney substantially corroborates the defendant’s version of the shooting, and if it had been heard by the jury it might have affected the outcome as to either guilt or punishment. In her statement Cynthia Whitney describes the prior argument between the victim and the defendant, and the repeated insulting and threatening language of the victim toward the defendant. Her statement stresses the fact that the victim attempted to strike the defendant with the pipe or crowbar prior to the shooting. Most importantly, her statement suggests that only one shot was fired by the defendant, rather than the two or three shots that the only other eyewitness, Tyronne Weber, heard. And her statement supports the defendant’s version of the facts — that the victim leaned below window level as if to reach for something. Whitney’s testimony could have supported a reasonable doubt, or a different verdict.

We find that Cynthia Whitney’s written statement constitutes Brady material, and that the withholding of the contents of this written statement from the defendant is reversible error. The trial court should have granted the defendant a new trial based on this ground.

Assignment of Error No. 4

Defendant argues that the trial court erred when it allowed his written statement to be brought into the jury deliberation room after the jury had retired. The trial court denied the defendant’s motion for a mistrial based upon this ground. The following colloquy points out that during its deliberations the jury asked to see the written statement of the defendant which he had given to the police, and that the trial judge had the statement sent into the jury room. The defense attorney was not present nor was he summoned before the defendant’s written statement was sent into the jury deliberation room. The colloquy, between the defense counsel and the deputy, who took the statement into the jury deliberation room, took place after the jury returned a verdict of guilty against the defendant and prior to the sentencing stage of the trial:

“Q. State your name, please, sir.
A. Willie Moten. Criminal Sheriff, Orleans Parish.
Q. On this date, that is, January 22, 1980, did you have the occasion to act at the request of the jury to view exhibits offered in evidence?
A. Not at the request of the jury. At the request of the judge.
Q. On the judge’s orders?
A. Yes.
Q. Would you presume the jury requested it?
BY THE DEFENSE: Do you wish to stipulate, Your Honor, the jury requested it?
BY THE COURT: Yes, sir. I’ll stipulate to that.
EXAMINATION RESUMED BY DEFENSE:
Q. And you brought the exhibits into the jury room?
A. Right.
Q. Did you make any effort to contact me before bringing them in?
A. No.
Q. Did anybody ask that I be contacted before they were brought in?
A. I don’t know. I was outside. The judge called for me in the back. I don’t know.
Q. I show you now a series of exhibits and ask you if these are the exhibits that were brought into the jury room?
A. It seem to be the same thing I took in there. I didn’t go through them when I took them in. I just picked them up and ...
Q. You brought them out from the stack in here.
A. The jury brought them back and put them there and I took them from the jury.
Q. I show you what has been previously marked as B-3, which purports to be a statement taken in the homicide division and ask you, did this go in the jury room?
A. If it came out the stack.
BY THE COURT: I’ll stipulate it went in.”

C.Cr.P. 793 provides an explicit legislative mandate as to what evidence can and cannot go into the jury deliberation room:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict. (Emphasis added).

This court has recognized that jurors may inspect physical evidence in order to arrive at a verdict, but they cannot inspect written evidence to assess its verbal contents. State v. Passman, 345 So.2d 874, 885 (La.1977); State v. McCully, 310 So.2d 833 (La.1975); State v. Freetime, 303 So.2d 487, 489 (La.1974); State v. Arnaudville, 170 La. 151, 127 So. 395 (1930); State v. Harrison, 149 La. 83, 88 So. 696 (1921).

The general rule as expressed by C.Cr.P. 793 is that the jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue which does not require the examination of the verbal contents of the document. For example, a jury can examine a written statement to ascertain or compare the signature, or to see or feel it with regard to its actual existence. State v. Freetime, supra at 489. The legislature has made an express choice in this instance, and this court must follow the explicit prohibition of article 793, of jury access to written evidence during the deliberations, except for the sole purpose of physical examination. As stated by this court in State v. Freetime, supra at 488-89:

“The policy choice thus represented is to require jurors to rely on their own memory as to verbal testimony, without notes and without reference to written evidence, such as to depositions or transcribed testimony. The general reason for the prohibition is a fear that the jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them_”

In State v. Freetime, supra, this court found reversible error when the trial court permitted the jury to read the defendant’s confession after retiring to deliberate. The written statement in this case, although not a confession, is an inculpatory statement made by the defendant, and the same danger which was present in Freetime is present in this case. This danger is that undue weight may be given to this particular piece of evidence. The legislature designed article 793 to prevent this precise danger. This legislative directive has not been amended, nor has Freetime been overruled: this court is bound to find that the sending of this written statement to the jury deliberation room is reversible error. The trial court should have granted the defendant’s motion for a mistrial based upon this ground.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

CHARLES R. WARD, J. Pro Tem., concurs and will assign reasons.

DAVID R.M. WILLIAMS, J. Pro Tern., concurs.

WILLIAM H. BYRNES, J. Pro Tern., dissents.

       Judges Charles R. Ward, William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . “First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.” R.S. 14:30 (as it appeared prior to amendment in 1979 by Acts 1979, No. 74, § 1, eff. June 29, 1979).

      . The defendant requested in a document titled Bill of Particulars the discovery of specific items, and in paragraphs 10 and 11 he specifically requested the discovery of written statements of any person. Paragraphs 10 and 11 read as follows:
      “10. Does the State have in its possession statements of any person who has been interviewed by an agent of the State in connection with the subject matter of this case or matters related to the evidence to be introduced in this case and whom the State does not presently intend to call at trial? If yes, please provide copy of same to the defendant.
      11. Does the State have in its possession statements of any person who has been interviewed by an agent of the State in connection with the subject matter of this case or matters related to the evidence to be introduced in this case and whom the state does not presently intend to call at trial? If yes, please provide copy of same to the defendant.”

      . The following is the defendant’s statement taken by the police when the defendant surrendered himself for the shooting. It is the defendant’s version of the shooting, and it suggests that the shooting was either in self-defense (justifiable homicide) or was a heat of passion (manslaughter) shooting:
      “Q. Do you know David Cage?
      A. No, I don’t.
      Q. Did you shoot a man in the 2700 block of Washington Avenue on April 9th, 1979.
      A. Yes.
      Q. Would you explain in your words what occurred at that time?
      A. I went to my mother’s house on Washington Avenue with my lady friend, Cynthia Whitney, and I was trying to get her to go home with the baby. Then this dude walked up to me with a pipe in his hand and pushed me. The dude started calling me names and told me I had no business ‘fucking with the woman’. I told him that he had no business in my affair that it doesn’t concern him. Then I walked off and he walked behind me. I told him to go ahead and get away from me. I turned around and saw him sitting in a tow truck across the street and I went back to try to talk to him. Then I called to him and told him to let me talk to him and it looked like he was searching for something in the cab of the truck. Then I pulled the gun out of my back pocket and fired it at him. Then I turned and ran because I did not know what to do.
      Q. Where did you run to?
      A. I ran down Clara Street towards Baronne Street.
      Q. What kind of gun did you shoot the man with?
      A. A nickle (sic) plated .25 Caliber Automatic with pearl handle.
      Q. What did you do with the gun after you shot the man?
      A. I wrapped it up in a brown paper bag and I hid it.
      Q. Where did you hide the gun?
      A. Underneath a house on Baronne Street.
      Q. Can you point out the house where you hid the gun?
      A. Yes.
      Q. Why did you shoot and kill this man?
      A. It was not my intention to shoot him, but I thought the gun was empty. I just wanted to scare him.
      Q. Have you ever met the man that you shot before?
      A. No, I have never met him.
      Q. What time in the morning did you shoot this man?
      A. I don’t remember the exact time, it was between ten and eleven in the morning.”

      . The statement of Cynthia Whitney may have resulted in a different outcome as to guilt or punishment because it might have resulted in a responsive verdict of manslaughter. Further, it might have resulted in a finding of justifiable homicide (self-defense). The finding of manslaughter would have resulted in a lesser punishment. Finally, if the jury had found that the homicide was justifiable, the defendant would have been acquitted.

      . To aid in the retrial of this case, another assignment of error which presents an issue will be discussed in this footnote. This is presented by the defendant as Assignment of Error No. 2. In this assignment the defendant maintains that the jury charge given by the trial judge was improper under the ruling in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) since it shifted the burden of proof to the defendant. The portion of the charge which the defendant objects to is contained in part of the trial court’s instruction relative to specific intent. In this part of the instruction the trial court presented a hypothetical example to the jurors in an attempt to explain the type of circumstances which infer intent. The court, when it finished the example, then stated that in such an instance the law would presume that a killing in such a manner was deliberate and intentional, and, therefore, done for the purpose of killing. Although this portion of the instruction is suggestive of constitutional problems, viewed in the context of the overall charge it does not present reversible error. The instruction as a whole does not present the danger the United States Supreme Court sought to eliminate. This instruction could not have created in the mind of a reasonable juror either a conclusive presumption or a direction to find intent upon proof of the defendant’s voluntary acts; thus, it did not effectively shift the burden of persuasion as to the essential element of intent. Sandstrom v. Montana, supra at 517, 99 S.Ct. at 2455-2456. The trial court, however, should avoid any reference to “presumptions” made by the law, even if couched in mild language, when it presents its instructions to the jury at the new trial.


source: Caselaw Access Project

author: CALOGERO, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Warren HAYES.
    No. 82-KA-0369.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack Derrick Miller, Asst. Dist. Atty., for plaintiff-appellee.
    Charles Soileau, Rayne, for defendant-appellant.
   CALOGERO, Justice.

Defendant, Warren Hayes, appeals his conviction as a second offender, and the imposition of a sentence of twenty four (24) years at hard labor.

Defendant was charged by separate bills of information with three counts of simple burglary and one count of simple burglary of an inhabited dwelling in violation of La.R.S. 14:62 and La.R.S. 14:62.2, respectively. The crimes were alleged to have been committed within an inclusive two week period from mid-May to June 1, 1981. He pled not guilty to all charges. On September 24, 1981, he changed his plea to guilty on each count upon assurances made by the district attorney and communicated to him by his attorney that the state would agree to sentences on each count of four years, the sentences to run concurrently. Following his entry of the four guilty pleas, the trial judge did so sentence him.

Less than one month later, on October 19, 1981, the district attorney filed a bill of information charging that defendant was a second offender under La.R.S. 15:529.1, because of the four convictions of September 24, 1981, and the fact that they followed convictions on two counts of simple burglary on April 12, 1976. To the multiple offender bill the defendant chose to remain silent, and a plea of not guilty was entered on his behalf. The multiple offender charge came on for hearing on December 1, 1981. At the hearing defendant requested that he be allowed to withdraw his previous four guilty pleas of September 24, 1981, because (1) he was not advised that multiple offender proceedings would be instituted against him thereafter and because (2) he unknowingly and involuntarily pleaded guilty under the assumption that a plea bargain had been reached with the District Attorney’s office by which he would receive a specified four year sentence.

The trial judge denied his motion to withdraw the guilty pleas, adjudicated the defendant a second offender, vacated the sentences earlier imposed and sentenced the defendant to serve a single twenty-four year sentence at hard labor.

Defendant now appeals his twenty-four year sentence and presents three arguments. Hayes argues that the trial judge at the multiple offender proceeding erred in not allowing him to withdraw his four guilty pleas of a month before; erred in adjudging him a multiple offender on the basis of inadequately boykinized guilty pleas; and erred in imposing an .insufficiently reasoned and excessive sentence.

Because we agree with his first contention, we reverse the conviction under La. R.S. 15:529.1, vacate the twenty four (24) year sentence, and remand the case to the district court for further proceedings.

An outset question is whether or not on appeal we may review the trial judge’s refusal to permit withdrawal of the guilty pleas after the guilty pleas and initial sentence and before the hearing on the multiple offender bill, considering that La.C. Cr.P. art. 559 merely provides: “the court may permit a plea of guilty to be withdrawn at any time before sentence.” We conclude that we may. We have permitted a constitutionally infirm guilty plea to be withdrawn after sentencing either by means of appeal or post conviction relief. State v. Galliano, 396 So.2d 1288 at 1289 (La.1981); State v. Banks, 383 So.2d 1009 at 1010 (La.1980); State ex rel. Clark v. Martillo, 352 So.2d 223 at 227 (La.1977). For instance in Galliano, supra, we upheld a trial court’s decision to permit a plea of guilty to be withdrawn after sentencing because a mistake as to the minimum sentence to which the defendant was exposed precluded a voluntary and intelligent plea. Concerning the availability of this remedy after sentence had been imposed, we said at 396 So.2d 1289:

The reason for this exception in the context of guilty pleas was to insure that no person was deprived of his liberty merely because he failed to challenge the volun-tariness of his plea within the limited period of time between the plea and sentencing.

We will, then, in this appeal from his December 1, 1981 multiple offender adjudication and sentence, consider the defendant’s contention that his September 24,1981 guilty pleas were not voluntarily given.

Turning to the issue before us, we find that the defendant Hayes should indeed have been allowed to withdraw his guilty plea when multiple billed by the district attorney, because the defendant justifiably believed when he pled guilty to the four charges, that he would not, for those four convictions, be exposed to any greater sentence than he originally received.

A guilty plea has been found to be constitutionally infirm when the state does not fulfill an express or implied part of the plea bargaining agreement which precipitated the defendant’s decision to so plead. State ex rel LaFleur 416 So.2d 82 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981); State v. Neitte, 363 So.2d 425 (La.1978); State ex rel. Clark, supra.

In LaFleur, supra the record supported the defendant’s assertion that he would not have pleaded guilty to simple burglary and possession of a firearm had he known he would be ineligible for probation or parole under the firearms statute. The Jones guilty plea to attempted distribution of marijuana was allegedly induced in part by the state’s promise that the defendant would receive no jail or prison time. After Jones was sentenced to five years imprisonment at hard labor and fined $7000, we set aside the sentence imposed and ordered a new sentencing hearing in part because the record on the plea bargain was deficient. Of the final disposition of the plea bargain question, we said at 398 So.2d 1053:

If the new evidence supports the finding that defendant’s plea of guilty was induced in part by a promise by the state of probation, or no jail or prison time, the plea bargain must be enforced. If there was no such plea bargain, but defendant justifiably believed there was, and pleaded guilty 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, (emphasis provided)

Therefore due process may be offended both when there is a promise and when the defendant justifiably believes that there is a promise, which is later broken.

A district attorney’s promise to recommend probation formed the basis of Melvin Neitte’s attack on his guilty plea to the charge of theft of property valued between $100 and $500. After Neitte entered his plea, the district attorney neglected to recommend probation as agreed and Neitte received a sentence of two years at hard labor. The record established that the district attorney had offered to recommend probation in return for the defendant’s testimony at the trial of another offender. When the other defendant pleaded guilty, Neitte’s testimony became unnecessary. The district attorney argued that the plea bargain was conditional. As the condition of testifying was not met, he did not have to follow through with a recommendation of probation for Neitte. This Court found otherwise and concluded at 363 So.2d 427:

It is well settled that whenever a guilty plea rests in any significant degree on an agreement or promise by the prosecutor, so that it can be viewed as part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The defendant was denied due process of law because the State failed to comply with the material representation or promise which induced the defendant’s guilty plea.

State ex rel. Clark, supra is most like the facts of the instant case, but with one twist. The Clark defendant was permitted to withdraw his guilty plea after sentencing and thereafter complained that the trial court should not have set it aside. In February 1975, Clark was charged with armed robbery to which in March of the same year he pleaded guilty and was sentenced to five years at hard labor. Soon thereafter he learned that, contrary to a plea bargaining agreement, the state intended to charge him as a multiple offender. The trial court allowed Clark’s guilty plea to be withdrawn and set aside because of the broken agreement. Subsequently he was found guilty by a jury and then sentenced as a multiple offender to thirty-three (33) years at hard labor. While his appeal was pending, Clark filed a motion challenging the district court’s authority to have set aside his original guilty plea and sentence. In response to his writ application, we affirmed the trial court’s determination that the withdrawal of the guilty plea after sentencing was proper because of the broken plea bargain (not to multiple bill). Therefore his later prosecution and 33 year enhanced sentence was valid.

It is well settled then that when a guilty plea is induced by a plea bargain or by what a defendant justifiably believes is a plea bargain, and that bargain is not kept, defendant is denied due process of law because the guilty plea was not freely and knowingly given.

The remaining question then is whether this defendant Hayes was induced to plead guilty by a promise or what he justifiably believed was a promise on the part of the district attorney not to institute multiple offender proceedings against him, nor to take any steps to expose him to sentences in excess of the agreed-upon four-year concurrent terms. We find that he was so induced.

From the record, it is clear that Hayes was concerned first and foremost about the jail sentence that he would receive in return for his plea of guilty. His attorney testified at the hearing on the motion to withdraw the guilty pleas:

The one thing Mr. Hayes was interested in was “is four years all I’m going to get.” And I told him yes, that’s it; that’s all you’re going to get. And of course he went along with it with that view in mind, that that was all the time he was going to get. I might add this too: I would never have suggested to him that he accept four years on this charge if I had any idea at all that the District Attorney would later institute these proceedings under the Habitual Offender Law.

The state argues that since there was never any overt discussion or agreement between the defendant and the district attorney concerning future habitual offender proceedings, there was no inducement or promise by the district attorney in order to obtain the pleas from the defendant. The defendant’s attorney did testify that “there was never any specific agreement. Mr. Miller never said we will not proceed against him under the Habitual Offender Law.” The attorney continued, however: “Just from my past experience with the D.A.’s office, that if you reach a plea bargain agreement and they are in full awareness of the prior record of the defendant that they do not institute these proceedings, [sic]”

The district attorney’s office was fully aware of the defendant’s prior record at the time they negotiated the plea of guilty. Of the negotiations, defense counsel testified, “[W]e discussed what evidence supposedly the State had. We discussed the prior record of the defendant; and with those things in mind, we arrived at an agreement, at a plea bargain, that the defendant would receive four years on each count to run concurrent, credit for time served, [sic]”

At the entry of the guilty pleas and sentencing hearing, the plea bargaining agreement was brought to the court’s attention:

BY THE COURT:
Now, is this plea which you now offer to make a free and voluntary plea?
BY THE DEFENDANT:
Yes, sir.
BY THE COURT:
Has your attorney discussed this in the attorney’s office any joint recommendation to be made to the Court in respect to this plea? [sic]
BY THE DEFENDANT:
Yes sir.
BY THE COURT:
O.K. What would be the joint recommendation?
BY MR. BERTRAND:
We have agreed to a sentence of four (4) years being charged with the sentences to run concurrently, [sic]
BY THE COURT:
Do you recommend this as well, Mr. D.A.? BY MR. FOREMAN:
Yes, your honor.

The Court accepted the defendant’s plea of guilty and, upon the defendant’s waiver of the delay, sentenced Hayes accordingly.

BY THE COURT:
I will accept the recommendation jointly made by the State and District Attorney’s office and by the defense counsel and in accordance therewith, I will sentence you to be confined to hard labor for a period of four (4) years on each of these matters, in the custody of the Louisiana Department of Corrections, each sentence to be concurrent with every other sentence, that would be, four (4) years then gentlemen in 34,574; and four (4) years in 34,604; and four (4) years in 34,605; and for (4) years in 34,608, all concurrent each with the other. All at hard labor.

There was an express agreement that, upon entry of the guilty plea, the district attorney would recommend four four-year concurrent sentences. Conceding that a bargain was reached between the defendant and the district attorney with both sides knowing that Hayes had a record that could expose him to multiple offender prosecution, it is either at best implicit in the deal promised that they would not multiple bill Hayes or at worst a most reasonable assumption on Hayes’ part when he decided to plead guilty that four years was all he was going to receive.

We therefore find that there was either an implied promise on the part of the district attorney not to multiple bill or otherwise expose Hayes to more than four years, or a justifiable belief in that regard on the part of the defendant; and, in any event, we find that the defendant’s pleas were induced by that assumption, however mistaken it may have turned out.

Under these circumstances, we cannot permit his conviction as a multiple offender to stand since it resulted in his receiving a twenty four instead of the four year jail sentence.

DECREE

Accordingly we reverse defendant’s adjudication as a second felony offender and vacate his sentence of twenty four years. We remand the case to the district court for its decision, after a contradictory hearing, in light of the circumstances of the case, whether due process requires (a) that there be specific performance of the plea bargain or (b) that the defendant be tried on the four charges. In the event the circumstances require that the defendant only be allowed to withdraw his guilty pleas, he will be permitted to go to trial with a different judge presiding.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

BLANCHE and WATSON, JJ., dissent for reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

Plea bargaining “must have explicit expression and reliance and is measured by objective, not subjective, standards.... ” Johnson v. Beto, 466 F.2d 478 (5th Cir.1972). The record must indicate that a bargain was made in reference to the multiple offender charge in order to come within the principles of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); otherwise, there would be no bargain to enforce. Even absent a plea bargain as to double billing, defendant should be able to withdraw his guilty pleas on the ground that they were not knowingly made if he is able to show that he justifiably believed that there was such a bargain, that is, that he would not be double billed, and that he pleaded guilty in part because of that justifiable belief. If the record supports neither of these conclusions, that is, that there was an actual plea bargain or a justifiable belief in a bargain not to multiple bill, then the sentence resulting from multiple billing should be maintained.

I do not consider that double billing was part of the plea bargain in this case nor that defendant was justified in believing that it was part of the plea bargain. Hence, I would affirm his conviction and sentence. Even if a remand for another hearing was considered necessary, the alternate results should be based on the principles set forth above. State v. Jones, 398 So.2d 1049 (La.1981); Scrivens v. Henderson, 525 F.2d 1263 (5th Cir.1976).

I respectfully dissent.

      . R.S. 15:529.1 provides pertinently that the sentence for a given crime committed by a second offender shall be for a determinate term not less than one-third the longest time and not more than twice the longest time prescribed for a first conviction for the same offense.

      . In imposing the sentence, the trial judge remarked:
      The Court finds that the defendant is a multiple offender. As I understand, even though there were four charges when you pled guilty, that’s one. And when you pled on the other two, that’s one. Actually, he’s very fortunate... Here he has committed six burglaries, including one inhabited dwelling, and all he gets is four years. I’m going to change that. I’m going to recall the last sentence imposed of four years at hard labor in custody of the Department of Corrections, and in accordance with 15:529.1 as a second offender sentence him to twenty-four (24) years at hard labor in custody of the Department of Corrections. You have to learn, Mr. Hayes, that the property of others is not yours and you can’t take it. .Thank you.

      . In Jones, we found also that the sentence was excessive, so resentencing was required in any event.

      . In State v. Chalaire, 375 So.2d 107 (La.1979), we afforded the defendant a similar remedy when the sentencing judge cancelled a plea agreement without a contradictory hearing, and without giving the defendant an opportunity to withdraw his guilty plea.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Westley RAY.
    No. 82-KA-0283.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., James C. McMichael, Trial Counsel, Anne Goodman, Catherine Estopinal, Asst. Dist. Attys., for plaintiff-appellee.
    Timothy Fischer, Jeannette G. Garrett, Francis Baker Jack, Asst. Indigent Defender, Shreveport, for defendant-appellant.
   BLANCHE, Justice.

Westley Ray was convicted by a six-person jury of one count of forgery, a violation of LSA-R.S. 14:72. Ray was then sentenced by the trial court to serve ten years at hard labor, the maximum sentence. In appealing his conviction and sentence, the defendant urges two of the four errors he assigned below.

On August 15, 1980, the defendant and another man entered the B & W Drive-in Grocery in Shreveport, Louisiana. Defendant presented to Mrs. Tidwell, wife of the proprietor, a check for $110.00 drawn on the account of Ina Dew, signed by W.E. Dew, and made out to Westley Ray. Mrs. Tid-well requested identification, and the defendant produced a drivers’ license which identified him as Westley Ray. Since it was not the ordinary practice of this grocer to accept two-party personal checks, Ray explained to Mrs. Tidwell that the check actually was a payroll check from a landscaping company. After the defendant endorsed the check as Westley Ray, he was paid $110.00.

The other man who had entered with the defendant then presented another check drawn on the same account, made out for $90.00 to Reginald Metcalf. Mrs. Tidwell balked at cashing this check because the man could produce no identification showing that he was Reginald Metcalf. The proprietor, Mr. Tidwell, asked the two to wait while he called Ina Dew’s phone number, printed on the check, to ascertain the identity of Reginald Metcalf and to confirm the validity of the check. When he left to make the call, the defendant and the man left the store, leaving the check behind.

Three days later, the defendant was arrested while attempting to cash another of Ina Dew’s checks at a liquor store. Mr. and Mrs. Tidwell viewed a live lineup and identified the defendant, Westley Ray, as the man who had cashed the check at their store.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant urges that the trial court erred in allowing the state to introduce into evidence an identification card belonging to Reginald Metcalf which had been in his wallet at the time of his arrest. Specifically, the defendant argues that the identification card was not listed by the state in its supplemental response to his pretrial motion for discovery. By the motion, Ray had sought a list of any and all items which were obtained from him or belonged to him at the time of his arrest.

Pursuant to an order of the trial court on the motion of the defendant, the state has an obligation to make available to the defendant an itemization of things in its control and which are: (1) favorable to the defendant and material to the issue of guilt or punishment, or (2) intended for use by the state as evidence at trial, or (3) obtained from defendant or belong to him. La.C. Cr.P. art. 718; State v. Toomer, 395 So.2d 1320 (La.1981). The duty to disclose is a continuing one. If the state, subsequent to the ordered disclosure, discovers additional evidence or decides to use a particular item as evidence, it must notify the defendant of the existence of the additional evidence or its intended use at trial. La.C.Cr.P. art. 729.3; State v. Strickland, 398 So.2d 1062 (La.1981).

On September 2, 1980, the defendant filed a motion for discovery seeking, among other things, written information from the state concerning the existence of any tangible items in its possession which were obtained from or belonged to him. On September 23,1980, the state answered, listing, among other things, the two checks brought into the store by the defendant and the other man, one of which was the check made out to Reginald Metcalf.

At the time of defendant’s arrest, the police obtained from his wallet a non-picture, armed services “meal card” which had originally been issued to one “Reginald Metcalf.” This card had been stapled into the inside flap of a police case file and was not discovered by the prosecution until May 11, 1981, the day before trial. On May 12, 1981, after the trial had begun, the state notified the defendant of its intention to introduce into evidence the check made payable to Reginald Metcalf. The meal card was not included in this supplemental discovery response because the prosecutor had no intention of introducing it into evidence.

In cross-examining the investigating officer, defense counsel asked if any identification had been offered with the Metcalf check. The officer replied that there had been. When asked what the item of identification had been, the officer replied, “A meal card with the name Reginald Metcalf on it.” On re-direct, in response to the question posed by defense counsel, the prosecutor asked the officer about the recently discovered meal card. The officer retrieved the card from his file folder and explained that it had been taken from the defendant’s wallet at the time of his arrest. The state then offered the card into evidence, obviously to further establish that it had indeed been the defendant who had cashed the forged check.

The defendant urges that the failure of the state to include the card in its supplemental discovery response impaired his ability to properly assess the strength of the state’s case against him and that the introduction of the card into evidence prejudiced his case to the point where reversal of his conviction is required. We disagree. Our review of the record shows that any prejudice which may have resulted from the nondisclosure of the card was harmless.

We have previously held that where the defendant has been lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Strickland, supra, State v. Hatter, 350 So.2d 149 (La.1977); State v. Boothe, 310 So.2d 826 (La.1975). However, the failure of the state to comply with the discovery procedure will not automatically command reversal. Rather, we must review the record for a determination of whether any prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Davis, 399 So.2d 1168 (La.1981); State v. Strickland, supra; State v. Statum, 390 So.2d 886 (La.1980), cert. denied, 450 U.S. 969.

The evidence against the defendant was overwhelming. The most damaging evidence against the defendant had already been introduced by the time the meal card was ever mentioned. The forged check on which the defendant had been paid, and on which his name had appeared as endorser, had already been introduced. The eyewitness testimony of Mr. and Mrs. Tidwell had placed the defendant in the store with the check. Mr. and Mrs. Tidwell both picked the defendant out of a live lineup. The lineups were conducted independently of one another so that neither of the Tidwells knew which suspect the other had picked out. Each took the stand under oath and identified the defendant in court as the man for whom they had cashed the check. At trial, the witnesses had been sequestered, so when Mr. Tidwell took the stand following his wife, he had no idea that she had identified the defendant in court.

Mrs. Tidwell testified that the defendant had been in the store for approximately ten minutes and that the store had been well lighted. She explained that she had studied the defendant closely because his explanation of the check as being that of a landscaping company had piqued her interest. With the defendant’s drivers’ license in hand, she had carefully compared the picture with his present appearance. Mrs. Tidwell also compared the signature on the license with the endorsement on the check. They matched. Further, Mrs. Tidwell testified that she had carefully studied all of the suspects at the lineup and was certain that it was Westley Ray who had cashed the check. Likewise, Mr. Tidwell testified that he too had studied the defendant closely because he had aroused his wife’s suspicions. He was certain that the man at the store and the man he had chosen out of the lineup were the defendant, Westley Ray.

The meal card did have the effect of placing the defendant at the scene of the crime. That could be its only relevance. However, even as such, the evidence was merely cumulative in light of the overwhelming eyewitness testimony placing the defendant in the store with the check. Undoubtedly, it was error for the prosecutor to omit the meal card from his supplemental discovery response and then to introduce the card into evidence at trial. We do not hold that such prosecutorial misconduct will never constitute reversible error. The inquiry, in such cases, would always be as to the degree of prejudice suffered by the defendant. Based on the evidence already before the trier of fact, we cannot hold that any prejudice which may have resulted caused the jury to reach the wrong result. Likewise, given the overwhelming amount of eyewitness evidence against the defendant, we cannot hold that the failure of the state to disclose the existence of the meal card impaired the defendant’s ability to properly assess the strength of the state’s case against him in preparing his defense. cf. State v. James, 396 So.2d 1281 (La.1981); State v. Statum, supra; State v. Williams, 389 So.2d 60 (La.1980); State v. Landry, 381 So.2d 462 (La.1980); State v. Strickland, supra, at 1068 (Calogero, J. concurring). For these reasons, we find that the failure of the state to disclose the existence of the meal card in its supplemental discovery response, although improper, constituted harmless error.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment, the defendant argues that the ten year sentence imposed by the trial court is excessive. Specifically, the defendant contends that the maximum sentence was not imposed pursuant to the guidelines of La.C.Cr.P. art. 894.1 and was based on improper factors and the personal prejudices of the trial judge. After reviewing the record, we must agree. Accordingly, we vacate the sentence and remand the case to the trial court.

Under La.C.Cr.P. art. 894.1, the trial judge must state the considerations taken into account and the factual basis therefor in imposing sentence. While the judge need not articulate every aggravating and mitigating circumstance, the record must adequately reflect that he considered these guidelines in particularizing the sentence to the defendant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Gulden, 399 So.2d 194 (La.1981); State v. Molinet, 393 So.2d 721 (La.1981); State v. Vaughn, 378 So.2d 905 (La.1979). The judge should indicate that he has considered not only the factors militating for incarceration, but also any factors mitigating against it. State v. Franks, 373 So.2d 1307 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepuivado, 367 So.2d 762 (La.1979).

Before proceeding with the sentencing in this case, the trial judge noted that he was required to consider certain factors under art. 894.1 and that “the court had considered those items.” Other than this bare statement by the judge, there is no indication in the record that any of the requisite factors were taken into account. Without a record more reflective of all relevant factors, we cannot subscribe to the opinion of the trial judge that the maximum sentence is required.

The defendant in this case is no saint. Westley Ray has been arrested nineteen times in the last ten years for such crimes as battery, burglary, auto theft, robbery, and crime against nature. He has four previous convictions on a 1972 charge of receiving stolen things, a 1975 charge of simple burglary, a 1976 charge of crime against nature and a 1978 charge of burglary. However, despite the criminal propensities of Westley Ray, we still require that the guidelines of art. 894.1 be followed in the imposition of sentence. The record must reflect that mitigating as well as aggravating circumstances have been considered, even if the mitigating circumstances are minimal. State v. Duncan, supra.

We note with interest that no pre-sentence investigation had been conducted in this case. While we recognize that a pre-sentence investigation is not required by law, it is a helpful tool in imposing sentence, particularly where the law provides for a wide range of sentences for the crime in question. State v. Dunns, 404 So.2d 1235, n. 1 (La.1981); cf. La.C.Cr.P. art. 875; State v. Bell, 377 So.2d 275 (La.1979).

On remand, it may well turn out that the defendant deserves the maximum sentence, but we cannot subscribe to the sentence imposed in this case based on the record before us. Without an articulation of the factual basis therefor, a sentence may appear to have been arbitrary and excessive. It is for this reason that the factual basis underlying the sentence is required. La.C. Cr.P. art. 894.1; State v. Williams, 397 So.2d 1287 (La.1981); cf. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Gambino, 362 So.2d 1107 (La.1978).

In addition, as a prelude to the imposition of sentence, the trial judge lectured the defendant on the recent rash of burglaries in the Shreveport area. The judge remarked that the “big thing” among burglars in the Shreveport area at the time was to steal checks, “and then these checks would later appear at one of the local financial institutions forged and so it is a serious problem that is facing our community, this business of having forged checks that come from burglaries.” The judge tried to qualify his remarks by stating that he did not mean to suggest that the defendant was involved in the burglaries; however, he did suggest that the defendant had “[mjaybe ... got together” with the burglar who had stolen the checks. The judge followed his burglary lecture by stating that, taking “all of these things together,” the defendant had shown an utter disregard for the laws of society and that the defendant was in the need of correctional treatment.

As we noted in Dunns, supra, it is not improper for the judge to take into account larger sociological concerns in imposing sentence, as long as the sentence is particularized to the defendant. 404 So.2d at 1236. However, we are forced to conclude that this trial judge erred in basing the sentence in part upon the recent rash of burglaries in the Shreveport area. In our opinion, the trial judge’s commentary on the burglary problem fell outside the “sociological concerns” we spoke of in Dunns, and we find unpersuasive the judge’s qualification that the burglary problem did not bear on his decision to impose the maximum sentence. The judge expressly suggested that the defendant may have gotten together with the burglars who stole the checks. The judge stopped just short of accusing Westley Ray of the burglary in which Ina Dew’s checks were stolen. Because there is no evidence in the record which would link the defendant to any burglaries, we find that the trial judge erred in taking these matters into consideration in imposing sentence. State v. Williams, 397 So.2d 1287, 1293 (La.1981).

At the sentencing hearing, the defendant had expressed a desire to show circumstances which mitigated against imposition of the maximum sentence. The trial judge refused to allow him to do so. We consider such a refusal to be an abrogation of the defendant’s right to rebut misinformation relied upon in imposing sentence or to show mitigating factors. Since we vacate the sentence and remand the case to the trial court for re-sentencing, the defendant should be afforded the opportunity to make such a showing at that time. State v. Cox, 369 So.2d 118 (La.1979); State v. Sepulvado, supra.

DECREE

Therefore, for the foregoing reasons, the conviction of the defendant, Westley Ray, is affirmed. But because we find the record markedly devoid of any consideration of the proper sentencing factors, and because the trial judge in part based the sentence on improper factors, we must vacate the sentence and remand the case to the trial court for consideration of any factors which may mitigate against the maximum sentence, and for re-sentencing in accordance with the guidelines set forth in La.C.Cr.P. art. 894.1.

AFFIRMED; SENTENCE VACATED AND CASE REMANDED TO THE TRIAL COURT FOR RE-SENTENCING.

DENNIS, J., concurs in the result although he disagrees with the formulation of the harmless error rule. See State v. Gibson 391 So.2d 421 (La.1980.)

WATSON, J., concurs but dissents from remand for resentencing.

LEMMON, J., concurs in remanding for resentencing only because the trial judge refused to allow evidence of mitigating factors.

      . It was the policy of the B & W Grocery to cash only payroll checks on proper identification. On the day of the offense, August 15, the Grocery cashed several other payroll checks, but none from Ina Dew or W.E. Dew. Sometime before the offense, the business of W.E. Dew had been burglarized and one of his wife’s checkbooks had been stolen. Beyond the fact that he had forged some of the stolen checks, the defendant, Westley Ray, had never been linked to or formally charged with the burglary.

      . This testimony seems to be in error. Neither of the Tidwells testified that the identification card of Reginald Metcalf had been offered either by the defendant or the other man with him. In fact, their testimony was that no identification could be produced by the other man. Although it is not difficult to conceive of reasons why the defendant was carrying the card, we hesitate to hypothesize on the matter.

      . The range of sentences which could be imposed for one count of forgery is quite wide. LSA-R.S. 14:72 provides for a term of incarceration ranging from zero to ten years, with or without hard labor.


text:
    STATE of Louisiana v. Elice PARKER.
    No. 82-K-1424.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Kenneth S. Womack, Baker, for relator.
    Paul T. Thompson, City Prosecutor, City of Baker, for respondent.
   BLANCHE, Justice.

Defendant Elice Parker was charged by affidavit with operating a vehicle while intoxicated, first offense, a violation of LSA-R.S. 14:9s. Pursuant to a plea bargain, the defendant withdrew his original plea of not guilty and pleaded guilty as charged. Following a pre-sentence investigation, the trial court sentenced the defendant to 60 days in the parish jail, suspended on the condition that the defendant serve two years of active probation and pay a $250.00 fine and $27.50 in court costs within 30 days. The defendant’s probation was subject to the following conditions: (1) “stay out of trouble,” (2) undergo blood analysis, (3) undergo hair analysis, (4) undergo Kirlean photography analysis, (5) receive counseling, (6) undergo schooling to learn to read and write, (7) “upgrade his profession,” and (8) attend meetings of Alcoholics Anonymous. The defendant was to pay for the costs of the enumerated conditions by depositing into the Baker City Court “criminological fund” a sum not to exceed $200.00 per month. In order to comply with the probation and stay out of jail, the defendant would therefore be required to pay as much as $4,800.00 over the two year term. We stayed execution of the sentence pending our consideration of the defendant’s application for writs to this court.

Our review of the record shows that the offense occurred under the following circumstances: during the early morning hours of December 19,1981, the defendant’s vehicle was observed proceeding in an erratic manner through Baker, Louisiana. A police officer stopped the vehicle and arrested the defendant for DWI. A photoelectric intoximeter test showed the defendant’s blood alcohol level to be .2 percent.

The pre-sentence investigation shows the defendant to be 31 years of age and nearly illiterate, but hard working and cooperative. He has held the same job as a warehouseman for the past seven and one-half years and presently earns $5.00 per hour. He is the sole support of his aged mother, with whom he lives, and provides child support of $150 per month for his three minor children who live with his former wife. The defendant is in good health, is active in his religion, participates in hobbies, and has exhibited a positive community attitude. Since his arrest on this charge, the defendant has remained current in his child support payments and has regularly attended meetings of Alcoholics Anonymous. Although he has no prior felony convictions, the defendant does have several minor offenses on his record: disturbing the peace in 1968, littering in 1972, simple battery in 1977, and another DWI in 1977. The record does not reflect whether any of these charges resulted in convictions.

We exercised our supervisory jurisdiction and granted writs in this case to examine the defendant’s contentions that the sentence is excessive, illegal, and an abuse of the trial court’s discretion. Our primary consideration in granting writs was to assess the validity of the onerous burden created by the excessive conditions placed on the defendant’s probation. We find the 60 day suspended jail term, $250 fine, and assessment of court costs of $27.50 to be valid under the law. However, we must vacate the entire sentence because the two-year probationary period and its attendant conditions are illegal.

In this case, the 60 day jail term and the $250 fine are well within the statutory limits of LSA-R.S. 14:98(B)(1), and it is well-founded in our law that court costs may be assessed against a criminal defendant. State v. Chapman, 38 La.Ann. 348 (La.1886). Also, under La.C.Cr.P. art. 894(A), the trial judge is authorized to suspend any portion of the jail term imposed. Accordingly, there is nothing wrong with this portion of the sentence. However, under art. 894(A), the term of a probationary period may not exceed one year where the jail term which has been suspended is less than 90 days. Therefore, since the defendant was only sentenced to 60 days, the trial judge erred in requiring defendant to serve a two year probationary term. Accordingly, the probationary term is illegal, and we must vacate the entire sentence. On remand, as a condition of the suspension, the trial judge may place the defendant on unsupervised probation for no more than one year.

Pursuant to our original purpose in granting writs in this case, we now examine the propriety of the trial judge’s actions in placing such conditions on the defendant’s probation. In our opinion, the trial judge abused his great discretion in so conditioning the probation for the following reasons: (1) the $200 per month payment is not reasonably related to the defendant’s rehabilitation; (2) the Baker City Court “criminological fund” was created illegally; (3) neither the trial judge nor the Baker City Court “criminology department” are authorized under law to prescribe a course of treatment for the defendant.

1.

In the past, we have consistently afforded the trial judge a wide latitude in the imposition of probationary conditions, as long as the conditions are reasonably related to the rehabilitation of the individual and do not constitute excessive, cruel, or unusual punishment. La. Const, art. 1, sec. 20; La.C.Cr.P. arts. 894, 894.1; State v. Morgan, 389 So.2d 364 (La.1980); State v. Davis, 375 So.2d 69 (La.1979); State v. Credeur, 328 So.2d 59 (La.1976). This discretion is not without its bounds, however. We cannot countenance the imposition of sentences under conditions which heap an unjust burden upon the generally impecunious criminal defendant. In this ease, we are of the opinion that the $200 per month payment is not reasonably related to the defendant’s rehabilitation.

The trial judge, obviously motivated by good intentions, has sought to use the criminal justice process to root out the causes of criminal conduct in order that they might be eliminated. The judge has hoped that the tests which he has ordered the defendant to undergo might signal some organic reason for the defendant’s behavior, allowing for proper treatment in order that he might continue to contribute as a productive member of society. While these may be laudable and worthwhile goals, the imposition of conditions upon a probation which will cost the defendant nearly $5,000 in order to stay out of jail may actually be counter-productive to the basic intention of probation — that being that the defendant can be better rehabilitated if not incarcerated.

The defendant is already burdened with fixed expenses which consume the larger part of his disposable income. He is the sole support of his aged mother. He has had some difficulty in paying the $150 per month in child support, and this was one of the stated reasons for his intoxication on the night of the offense. He felt depressed over the fact that he was having some difficulty in providing support for his loved ones. In this instance, the $200 per month requirement is not in fact reasonably related to the rehabilitation of the individual. It is readily apparent that the requirement is so burdensome that it would actually endanger Parker’s rehabilitation.

2.

In our view, the actions of the trial judge in creating the Baker City Court “criminological fund” operated to circumvent a legislatively-created statutory scheme regulating the payments of fines and costs by criminal defendants prosecuted in city court.

The trial judge ruled ex parte as follows:

“There is hereby created a criminological fund, fixed and assessed as costs [to the defendant], payable by each defendant placed on [ajetive [probation, at the monthly rate of $200, payable as long as defendant is on probation.
These funds will be used by the court to provide services to said defendant as prescribed by the criminology department and as approved by the judge.
Said sum may be reduced, changed, or exempted as the judge may direct.
To all Article 894 sentencing shall be attached a cost for counseling fee of $20.00, except for first traffic offenders.”

There already exist statutory provisions for the handling of fines and costs which may be assessed by the trial court in city prosecutions. LSA-R.S. 13:1899 provides that payment of costs assessed to a defendant are to be paid into the city treasury when the prosecution is on behalf of a city. As to matters specifically before the Baker City Court, R.S. 13:2488.34 provides that all fines and penalties, excluding costs, shall be paid into the city treasury. R.S. 13:2488.36 provides that in all criminal matters, including traffic violations, costs assessed by the trial judge onto the defendant shall be paid into the city’s general fund. Therefore, any costs or fines payable by the defendant in this case were payable to the treasury or general fund of the city of Baker. In creating the Baker City Court “criminological fund,” the trial judge failed to confine his exercise of the judicial power to its proper scope and usurped the legislative prerogative as to the proper allocation of costs and fines assessed in criminal proceedings in city courts. For these reasons, we deem the fund to have been created illegally.

3.

In our opinion, neither the trial judge nor the Baker City Court “criminology department” is authorized by law to prescribe a course of treatment for the defendant.

Under LSA-R.S. 15:1132, the Department of Corrections is authorized to administer “necessary medical tests” in connection with reports used for sentencing purposes, such as the pre-sentence investigation, or where the defendant has been placed under Department supervision. Under La.C.Cr.P. art. 894(A), a defendant may be placed under the supervision of the Department of Corrections only where the suspended jail term exceeds 90 days. Since the defendant had only been sentenced to 60 days, and also because the tests here ordered were a condition of probation rather than as part of the sentencing procedure, these tests could not be conducted under the auspices of the Department of Corrections. Therefore, the authorization for such testing could only come from an “authorized treatment facility” as provided in LSA-R.S. 14:98.

R.S. 14:98(B)(2) allows the trial court, in addition to a fine and jail term, to order the defendant to undergo treatment at a substance abuse facility “as defined in R.S. 28:2(28),” which provides as follows:

* s}: * * ¡fc
“(28) ‘Treatment facility’ means any public or private hospital, retreat, institution, mental health center or facility licensed by the state of Louisiana in which any mentally ill person or person suffering from substance abuse is received or detained as a patient. It shall also include Veterans Administration and public health hospitals. Treatment facility includes, but is not limited to, the following, which shall be selected with consideration of first, medical suitability; second, least restriction of the person’s liberty; third, nearness to the patient’s usual residence; and fourth, financial or other status of the patient:
(a) Community mental health center.
(b) Private clinics.
(c) Public or private halfway houses.
(d) Public or private nursing homes.
(e) Public or private general hospitals.
(f) Public or private mental hospitals.
(g) Detoxification centers.
(h) Substance abuse clinics.
(i) Substance abuse in-patient facility.”
sfc % * 4: sfc

Since the Baker City Court “criminology department” does not fall within the statutory definition of “substance abuse treatment facility,” the trial judge had no authority to order that the defendant avail himself, at a cost of $200 per month, of the services “prescribed by the criminology department”. For these reasons, we deem the order that the defendant undergo tests, counseling, and schooling “as prescribed by the criminology department” to have been given without authority of law.

In conclusion, we find that the trial judge abused his discretion in imposing such onerous conditions on the defendant’s probation. The large monthly payment required in order for the defendant to comply with the terms of the probation and remain out of jail is not reasonably related to the rehabilitation of the individual. If anything, it represents such an onerous burden that it is actually counter-productive to the basic intention of probation. Additionally, we deem the Baker City Court “criminological fund” to have been created illegally since there is already a legislative scheme regulating the payment of costs and fines for criminal prosecutions in city courts. Also, there exists no authority under law for the judge or the criminology department to prescribe the ordered tests as “treatment.” Finally, the entire probationary period, with its attendant conditions, is illegal under La. C.Cr.P. art. 894(A) since the judge could only impose a maximum probationary period of one year.

DECREE

For these reasons, that portion of the sentence which imposes a 60 day suspended jail term, $250 fine and $27.50 in court costs is valid under the law. However, because the two-year probationary period and its attendant conditions are illegal, we must vacate the entire sentence and remand the case to the trial court for consideration of a probationary term of proper duration and possible permissible conditions thereon under La.C.Cr.P. art. 894, and for further proceedings in accordance with the law and in a manner not inconsistent with this opinion.

VACATED AND REMANDED.

      . LSA-R.S. 14:98 provides the following as to first offenders:
      “A. The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.
      B. On first conviction, the offender shall be fined not less than one hundred dollars nor more than four hundred dollars. The court may, in addition, impose one of the following penalties:

        (1) Imprison the offender in the parish jail for nt less than thirty days nor more than six months; or
      (2) Order the offender to undergo treatment at a substance abuse treatment facility as defined in R.S. 28:2(28).”

      . La.C.Cr.P. art. 894(A) provides:
      “A. When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant in unsupervised probation upon such conditions as the court may fix, where suspension is not prohibited under this law. Such suspension of sentence and probation shall be for a period of one year or such shorter period as the court may specify.
      When a suspended sentence in excess of ninety days is imposed, the court may also place the defendant on probation under the supervision of the Department of Corrections, division of probation and parole for a period not in excess of two years and upon such conditions as the court may fix.
      The court may suspend a misdemeanor sentence after the defendant has begun to serve the sentence.”
      * * * * * *
      We recognize that art. 894 was amended on July 18, 1982 by Acts 1982 No. 270 to allow the trial judge to place a defendant on probation for two years even if the suspended jail term is less than 90 days. To apply this provision retroactively, however, would have the effect of an ex post facto law and violate La. Const, art. 1, sec. 23. See State ex rel. Bickman v. Dees, 367 So.2d 283 (La.1978); State v. Sepulvado, 342 So.2d 630 (La.1977).

      . In accordance with art. 894(A) as it read prior to the 1982 amendment.


author: WATSON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Malcolm G. MUNDY, Jr.
    No. 81-B-0094.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Wood Brown, III, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick, R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Phillippi P. St. Pee’, Me-tairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitaches, Thomas 0. Collins, Jr., Richard A. Deas, New Orleans, for Louisiana State Bar Ass’n.
    Philip S. Brooks, Metairie, for Mundy.
    Malcolm G. Mundy, Jr., pro se.
   DISCIPLINARY PROCEEDING

WATSON, Justice.

This is a disciplinary proceeding brought by the Louisiana State Bar Association against one of its members, Malcolm G. Mundy, Jr.

Mundy was accused of client neglect and nonperformance of his professional duties. The Committee on Professional Responsibility of the Bar Association held an investigatory hearing on March 10, 1980. Mundy was found guilty of three charges, all violations of Disciplinary Rules 1-102 and 6-101(A)(3) of the Code of Professional Responsibility of the Louisiana State Bar Association:

(1)Morris Johnson paid Mundy $175 to obtain a transcript and attempt to get a new trial for his son, Morris Johnson, Jr. Mundy failed to perform those services. Restitution was made to Morris Johnson on September 4, 1981, seventeen months after the investigatory hearing and three years after the money was paid. Johnson has “no bad feelings” toward Mundy. (CR-6)

(2) William T. Lavene paid Mundy $300 to represent him at trial of a criminal charge on September 22, 1975. Mundy failed to appear as counsel for Lavene on the day set for trial. Mundy made a refund of the $300 on April 6, 1982, seven years after the payment. Lavene bears Mundy “no ill-will”. (CR-4)

(3) Mrs. Pearl Spears hired Mundy to represent her son and nephéws for $300 and was dissatisfied with his representation. Mundy agreed to give her a $150 refund, which she had not received as of April 8, 1976, when she wrote a letter of complaint. The partial fee was returned on January 15, 1982.

In all three instances, other counsel was obtained. Mundy did not contest his guilt on these charges and said they were the result of alcoholism. A petition for disciplinary action was filed by the Committee on Professional Responsibility on January 13, 1981. A commissioner was appointed and a hearing held on April 19, 1982. The commissioner recommended a six month suspension for Mundy and the committee suggests that a longer period of suspension would be appropriate.

Mundy said he had never been intoxicated in court, electing not to appear rather than show up drunk. He is now a member of Alcoholics’ Anonymous. There are eighty A.A. units in the city and he regularly attends Wednesday meetings at a church on Metairie Road. He also periodically goes to a Friday night meeting, averaging two to two and a half meetings a week. Mundy takes Antabuse pills, prescribed by Dr. Frank Minyard, and has kept regular office hours for two and a half years. He has been a diligent practitioner since October of 1979 when he was released from the chemical dependency unit at the Metairie General Hospital. Dr. Jack Ruli verified that Mun-dy completed a twenty-eight day program at Metairie General Hospital.

Mundy said his tardiness in making restitution was due to his financial difficulties when he came out of the hospital. He had a $4,000 bill, no hospitalization insurance and a nonexistent law practice. One of his ex-wives has three children, all of an age to require support, and Mundy was almost arrested for past due child support. Because he was deep in debt and his practice had slipped when he went into the hospital, he was unable to earn much money when he got out. The Bar Association’s efforts to serve Mundy at his present business address, 2638 Tulane Avenue, were evaded because he thought they were creditors.

Judge Jerome Winsberg of the Orleans Criminal District Court, testified that Mun-dy has practiced in his court during the ten years he has been on the bench. Initially, Mundy’s representation was highly competent, but it later became obvious that he had a drinking problem. Judge Winsberg testified that Mundy had a slow deterioration during his years of drinking and was sometimes unavailable for arraignments. Since January of 1980, Judge Winsberg said that Mundy is available, able and prepared in his cases and has had a complete turn around in his demeanor. Mundy does not appear to be drinking and has had no problems in representing his clients.

Judge Charles Ward, a member of the Orleans Criminal District Court for ten years and now a member of the Fourth Circuit Court of Appeal, testified that Mun-dy had initially been very competent and skilled but then began missing courtroom appearances and lost some of his diligence. Since January of 1980, Mundy has resumed good work habits and became a competent practitioner. To Judge Ward’s knowledge, Mundy has not been drinking since January of 1980.

Judge Edward A. Haggerty, Jr., testified that Mundy is now clean, neat and sober but had a drinking problem prior to his change in January of 1980.

Judge Louis P. Trent of the New Orleans Traffic Court testified that Mundy had been charged with alcohol related driving offenses over a period of several years. Judge Trent ordered Mundy to submit to treatment or go to jail. As a result of the treatment, Judge Trent felt that there had been a complete change in Mundy. To this judge’s knowledge, Mundy has not been drinking since January of 1980 and has had no more driving while intoxicated charges.

Albert Hyman, a publisher, testified that he is an alcoholic but, like all alcoholics, had a great deal of difficulty in admitting that condition. Hyman, a member of A.A., attends three days a week and said that he had seen Mundy at the meetings frequently. Hyman said he would know immediately if Mundy had been drinking.

Edward Koch, Jr., a practicing attorney and an alcoholic, testified that he had known Mundy since 1958. In Koch’s opinion, the practice of forcing alcoholics to seek treatment is a good one, which statistics show save seven years of an alcoholic’s life. Koch was willing to swear that Mundy has not been drinking since January of 1980. Whenever Koch has attended the Wednesday A.A. meeting in Metairie, Mundy has been present.

Edward J. Villere, an attorney, testified that he was associated with Mundy in use of office space when Mundy began to drink excessively in 1966 and 1967. Mundy would not show up at the office intoxicated but would sometimes not appear. Villere sees Mundy at least two or three times a week. Mundy has not been drinking since January of 1980. His legal ability has always been excellent.

Judge Rudolph Becker, III, of the Orleans Criminal District Court testified that he first met Mundy in the District Attorney’s office under Garrison when they both served as Assistant D.A.’s. In his opinion Mundy was extremely capable until he developed his drinking problem. Since January of 1980, Mundy has done a good, capable and courteous job. Judges Ward, Wins-berg and Becker observed that Mundy once had a drinking problem outside the courtroom but had never appeared in court intoxicated.

Judge Alvin V. Oser of the Orleans Criminal District Court, who was unable to be present for the hearing, attested by letter to Mundy’s rehabilitation and present competence. Judge Jim Garrison of the Fourth Circuit Court of Appeal also urged that Mundy be given another chance because of his sobriety.

It is clear that Mundy at one time was unable to properly discharge his professional duties. However, all the evidence indicates that he has overcome his addiction to alcohol and is completely rehabilitated. Compare Louisiana State Bar Ass’n v. Heymann, 405 So.2d 826 (La.1981). Even during his period of addiction, Mundy had too much respect for the courts to appear in an intoxicated condition and exercised some measure of self-control.

It would be better, both for the profession and Mundy, if action had been taken by the Bar Association during the period of his addiction. Mundy admittedly dodged the Bar Association’s process servers, but it is difficult to understand why he could not be located for such a protracted period of time.

All three of the charges against Mundy involved failure to act on behalf of a client after acceptance of a fee. This is an extremely serious matter, but it does not involve the type of deliberate criminal activity found in many other cases. While restitution was not made timely, Mundy had severe financial problems. Under these circumstances, the inference that payment would not have been made without disciplinary action is not warranted. Compare Louisiana State Bar Association v. Weysham, 307 So.2d 336 (La.1975). Fortunately, all three of the clients obtained other counsel and did not suffer from Mundy’s neglect except for being deprived of their money. The sums involved, though small, were important to the clients: none of them was wealthy. Despite the gravity of the misconduct, it is not as blatent a violation as conversion of a client’s funds. Compare Louisiana State Bar Association v. Van Buskirk, 249 La. 781, 191 So.2d 497 (1966) and Louisiana State Bar Association v. Klein, 253 La. 603, 218 So.2d 610 (1969).

The penalty imposed should protect the courts and the public. Louisiana State Bar Association v. Klein, supra; In re Craven, 204 La. 486, 15 So.2d 861 (1943). Craven dealt with acceptance of fees and failure to perform, exactly the conduct here. Defendant Craven’s only defense was domestic troubles and he was suspended for a period of six months. While domestic difficulties can certainly affect professional performance, they are generally not as heavy a burden as the disease of alcoholism. This is not a case where there has been past disciplinary action. Compare Louisiana State Bar Association v. Jacques, 260 La. 803, 257 So.2d 413 (1972). Two of the people whom Mundy wronged have apparently forgiven him for his conduct. Attorney discipline is intended to safeguard the courts and the public. It is protective rather than punitive. If Mundy did not now have his alcoholism under control, disbarment would be an appropriate punishment. However, because of his rehabilitation, disbarment would serve no purpose. It would have little effect on other members of the bar or the integrity of the courts. Louisiana State Bar Ass’n v. Kramer, 420 So.2d 1110 (La.1982); Louisiana State Bar Ass’n v. Edwards, 387 So.2d 1137 (La.1980).

The Louisiana jurisprudence relied on by the committee includes: Louisiana State Bar Association v. Van Buskirk, supra; Louisiana State Bar Association v. Klein, supra; and Louisiana State Bar Association v. Jacques, supra, all distinguished herein. More similar is Louisiana State Bar Association v. Causey, 393 So.2d 88 (La.1980) which concerned neglect of a legal matter. However Causey accepted a $2,000 fee, which the commissioner found excessive; Causey’s client remained in jail for eight and one-half months while the attorney procrastinated; and there was apparently no excuse for Causey’s failure to act. He was suspended for ninety days. Mundy’s clients were not seriously prejudiced and his neglect resulted from the disease of alcoholism.

The committee cites Matter of Fogel, 422 A.2d 966 (D.C.1980); Matter of Daggs, 307 N.W.2d 66 (Mich. 1981); and Matter of Snyder, 428 N.E.2d 17 (Ind.1981). None of these cases is precisely in point.

In Snyder the attorney damaged his client by failure to carry out the contract of employment. Specifically, the attorney advised his client that she was divorced. She remarried and subsequently learned that proceedings to dissolve her marriage had never been instituted. In the instant case, the clients’ cases and concerns were not prejudiced.

Daggs involved negligence in handling client matters. However, the attorney who was suspended for one year also had a 1970 reprimand and a 1971 suspension. He apparently lacked credibility at the hearing and there was no evidence that his failure to act on behalf of the clients was the result of an addiction from which he had been rehabilitated.

Fogel also involved a negligent failure in conduct of legal matters. However, the attorney was also guilty of affirmative misrepresentations to court personnel and had prior disciplinary sanctions. There was no evidence that he had been rehabilitated. Fogel is, in any event, irrelevant because the D.C. Court of Appeal, under its rules, has a limited standard of review in these cases. In Louisiana the ultimate responsibility for attorney discipline rests with the Supreme Court. Louisiana State Bar Ass’n v. Edwins, 329 So.2d 437 (La.1976).

There was no criminal offense here. Compare Louisiana State Bar Ass’n v. Kramer, supra, and Louisiana State Bar Ass'n v. Stevenson, 356 So.2d 408 (La.1978). Mundy’s actions were not willful but resulted from his addiction. Disciplinary action protects against future misconduct by an appropriate penalty. Louisiana State Bar Ass’n v. Summers, 379 So.2d 1065 (La.1980); Louisiana State Bar Ass’n v. Jones, 372 So.2d 1186 (La.1979). Since all the evidence indicates that Mundy has been rehabilitated and is now conducting his practice in a responsible manner, the courts and the public will not suffer from his continuation in the practice of law. Suspension is inappropriate, and the proper penalty is a public reprimand for Mundy’s violations of the Code of Professional Responsibility. Compare Louisiana State Bar Ass’n v. Edwards, supra.

DECREE

For the reasons assigned,

IT IS ORDERED, ADJUDGED AND DECREED that Malcolm G. Mundy, Jr., be publicly reprimanded for his violations of the Code of Professional Responsibility as set forth in this opinion. All costs are assessed to respondent, Malcolm G. Mundy, Jr.

      . Rule 1-102, Code of Professional Responsibility provides:
      “(A) A lawyer shall not:
      “(1) Violate a Disciplinary Rule.
      “(2) Circumvent a Disciplinary Rule through actions of another.
      “(3) Engage in illegal conduct involving moral turpitude.
      “(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      “(5) Engage in conduct that is prejudicial to the administration of justice.
      “(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”

      . Rule 6-101(A)(3) of the Code of Professional Responsibility provides:
      “(A) A lawyer shall not:
      ******
      “(3) Neglect a legal matter entrusted to him.”