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Longley v. State6/3/2005
Longley appeals from the judgment of guilt and sentence imposed on him following the revocation of his probation. Longley was originally placed on probation by Judge Anthony Johnson but Judge Frank Kaney presided over the revocation proceeding. Judge Kaney revoked Longley's probation and sentenced him to 30 months in prison after Longley did not accept the judge's plea offer of 6 months in county jail. After considering the "totality of the circumstances" relating to the plea offer and sentence, we conclude that Longley's due process rights have been violated and he is entitled to a new probation violation hearing. For reasons which will become clear below, we direct that hearing be conducted by a judge other than Judge Johnson or Judge Kaney.
In May 2001, Longley was charged with trafficking in 28 grams or more of cocaine, possession of cocaine with intent to sell or deliver, possession of cocaine and possession of drug paraphernalia. Pursuant to a plea agreement, Longley pled guilty to possession of cocaine before Judge Johnson and the state nol prossed the other charges. Judge Johnson withheld adjudication of guilt and placed Longley on five years probation.
In December 2003, Longley's probation officer charged that Longley had violated condition nine of his probation by testing positive for cocaine use. The March 2004 violation of probation hearing was held before Judge Kaney.
According to an affidavit filed by Richard Hornsby, the Public Defender assigned to represent Longley, Judge Kaney called the attorneys who were representing defendants on violation of probation cases into the back jury room and held a conference off the record. The purpose of the conference seemed to be to advise the court of how the cases were going to be disposed once the parties went back on the record and to address matters that might help resolve the cases or move them along. Judge Kaney addressed the violation of probation cases and, if requested by the attorney, discussed the issues in a particular case.
During this conference, Judge Kaney addressed Longley's case. In an effort to work out a disposition agreeable to Longley, Hornsby told Judge Kaney about the original charges against Longley, his plea to possession of cocaine pursuant to a substantial assistance agreement and the withholding of adjudication of guilt and imposition of five years probation. Hornsby also told Judge Kaney that Longley violated his probation by testing positive for cocaine, his probation officer recommended that probation be reinstated and modified to include further drug treatment, and the state was seeking a revocation of probation and one year in prison based on the nature of the original charges.
After hearing this information, Judge Kaney made Hornsby the following offer which was to be relayed to Longley: revoke and terminate probation, serve six months in county jail with no credit for time previously served and be remanded into custody that day. Hornsby relayed Judge Kaney's offer to Longley. Longley did not accept or reject the offer but instead asked Hornsby to seek a continuance so that he could pursue the opportunity to retain private counsel.
When the parties returned to open court, Judge Kaney asked about Longley's status and the following ensued:
MR. HORNSBY: Judge, Mr. Longley has informed me he would like to retain a private lawyer.
THE COURT: It's too late. Today is the day. He either goes to trial or we have a hearing. What does he want?
DEFENDANT LONGLEY: He -- He was telling me about -- telling me about some six months that.
THE COURT: Do you want to have a hearing?
DEFENDANT LONGL
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