State of Louisiana v. Ronald L. Barber

Judgment rendered June 28, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,135-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

RONALD L. BARBER Appellant

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 21CR5118

Honorable Larry D. Jefferson, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: G. Paul Marx

ROBERT S. TEW Counsel for Appellee
District Attorney

R. NICOLAS ANDERSON
Assistant District Attorney

*****

Before PITMAN, ROBINSON, and ELLENDER, JJ.

ROBINSON, J.

The defendant, Ronald Barber (“Barber”), was arrested on October 3,

2021, following a domestic abuse battery complaint. On January 11, 2022,

Barber was charged by bill of information with domestic abuse battery-

fourth offense. On July 26, 2022, Barber pled guilty to an amended charge

of domestic abuse battery-third offense under North Carolina v. Alford, 400

U.S. 25, 91 S. Ct. 160, 27 L. E. 2d 162 (1970). Barber was sentenced to one

year at hard labor without benefit of probation, parole, or suspension of

sentence, and a $2,000 fine. Barber appeals both his plea and sentence.

For the reasons set forth below, we AFFIRM the plea and sentence.

FACTS AND PROCEDURAL HISTORY

On October 3, 2021, Ouachita Parish Sheriff deputies arrived at 1807

Bailey Street, West Monroe, Louisiana, in response to a domestic abuse

battery complaint. Upon their arrival, officers made contact with Carolyn

Barber, the victim. The victim stated that Barber, her live-in boyfriend of 23

years, struck her in the right side of her jaw and her left breast, then grabbed

her legs and attempted to pull her out of the chair. Deputies observed and

photographed scratches on the victim’s left calf and thigh area, though the

victim stated the scratches were from a previous altercation with Barber.

She stated Barber had been drinking all day and the two became involved in

a verbal confrontation, which ultimately led to a physical altercation.

Deputies made contact with Barber and advised him of his Miranda

rights. Barber denied attacks upon the victim. Deputies noticed that Barber

slurred his words and appeared unsteady on his feet.

Based upon the victim’s statements, the injuries to the victim’s leg,

and Barber’s suspected intoxication, Barber was arrested and transported to

Ouachita Parish Correctional Center (“OCC”). During transport, Barber told

officers he was going to “whip some ass” when he got out of jail and

threatened to kill the victim.

At the 72-hour hearing, the trial judge noted Barber’s extensive

criminal history consisting of multiple arrests for simple battery, domestic

abuse battery, and public intoxication, including a conviction for domestic

abuse battery. Based upon Barber’s intoxicated condition at the time of his

arrest and threats of physical violence and even death to the victim, Barber

was ordered to be held without bail.

On January 11, 2022, a bill of information was filed charging Barber

with domestic abuse battery-fourth offense. On July 26, 2022, Barber pled

guilty to an amended charge of domestic abuse battery-third offense under

Alford. Barber was sentenced to serve one year at hard labor without benefit

of probation, parole, or suspension of sentence, and a fine of $2,000.

Barber appeals both his plea and sentence.

DISCUSSION

Acceptance of Alford Plea

Barber argues that there was not a sufficient factual basis to support

the trial court’s acceptance of his guilty plea under Alford. He claims that

the alleged victim was never interviewed by the State and did not attend any

court proceedings, and the only evidence in the record was denied by the

accused, who consistently told the court that he was pleading guilty to get

out of jail, despite his innocence. He further asserts that a police report is

not sufficient evidence to prove guilt beyond a reasonable doubt, noting that

although his girlfriend called the police, no injuries were found related to the

complaint.
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Barber also argues that he was coerced by the threat of remaining in

jail for an indeterminate amount of time. He filed a series of pro se motions

that were not heard, leaving him with a choice of either waiting longer or

taking the plea offer for immediate release. Also, his social security

payments – his only source of income – were discontinued while he was in

custody and would not be renewed until his release.

Barber claims that his plea was not entered into freely and voluntarily

under the circumstances because there was so little investigation into the

matter and because of how long he was detained until his guilty plea was

offered. He urges that there was no way to prove the elements of the charge

since the sole witness was not going to appear and the only other evidence

available was the police report. Barber reasons that since the key witness

not available, had he not been held in custody, there would have been no

plea.

The United States Supreme Court in Alford held that, “[a]n individual

accused of crime may voluntarily, knowingly, and understandingly consent

to the imposition of a prison sentence even if he is unwilling or unable to

admit his participation in the acts constituting the crime.” Alford, 400 U.S.

at 37, 91 S. Ct. 160, 167. This Court in State v. Banks, 49,767 (La. App. 2

Cir. 4/15/15), 163 So. 3d 895, 901, further provided:

Alford holds that an accused may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence
even though he is unwilling to admit participation in the crime,
or even if his guilty plea contains a protestation of innocence,
when he intelligently concludes that his interests require a guilty
plea and the record strongly evidences guilt.

In Alford, the defendant had been indicted for first degree murder. Id.

Faced with strong evidence of guilt and no substantial evidentiary support of

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his innocence, the defendant entered a plea of guilty to a reduced charge of

second degree murder. Id. Although the defendant denied he committed the

offense, he stated to the trial court that he was pleading guilty and indicated

that he was doing so to avoid the death penalty for first degree murder. Id.

The trial court accepted the defendant’s guilty plea and imposed a sentence.

Id. On appeal, the United States Supreme Court held that the trial court did

not err in accepting the plea in view of the strong factual basis for the plea

and the defendant’s clearly expressed desire to enter the plea despite his

professed belief in his innocence. Id.

When the court is faced with such assertive claims of innocence and

coercion, there must be a different standard for affirming the guilty plea.

State v. Fullilove, 11-34 (La. App. 5 Cir. 12/13/11), 81 So. 3d 809, 811. “A

guilty plea is constitutionally infirm if it is not entered freely and voluntarily,

if the Boykin colloquy is inadequate.” State v. McCoil, 05-658 (La. App. 5

Cir. 2/27/06), 924 So. 2d 1120, 1124. The Court in United States v.

Johnson, 612 F.2d 305, 309 (7th Cir. 1980), held as follows:

The Constitution does not require the establishment in all cases
of a factual basis for a guilty plea, McCarthy v. United States, 394 U.S. 459, 465, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), but
it does require that a plea be voluntary, Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976).
Failure to establish a factual basis is likely to affect
voluntariness. Cf. Carreon v. United States, 578 F.2d 176, 179
(7th Cir. 1978). This is so because some information about the
facts is necessary to an assessment of whether the accused
understood “the law in relation to the facts,” McCarthy v. United
States, 394 U.S. at 466, 89 S. Ct. at 1171, and was able to
appreciate “the nature of the charge against him,” of which he
was entitled to “adequate notice,” Henderson v. Morgan, 426
U.S. at 645 n.13, 96 S. Ct. at 2257.

In addition, a no-contest guilty plea is valid only if “the plea

represents a voluntary and intelligent choice among the alternative courses

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of action open to the defendant.” Alford, supra; Wilcox v. Hopkins, 249 F.3d

720, 724 (8th Cir. 2001), cert. denied, 534 U.S. 1139, 122 S. Ct. 1088

(2002). The court must look at the circumstances of each case to determine

whether a plea has been entered voluntarily and intelligently. Hill v.

Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Neal v.

Grammer, 975 F.2d 463 (8th Cir. 1992).

The standard under Alford is not whether the State may prevail at trial

by establishing the essential elements of the crime beyond a reasonable

doubt and negating all possible defenses. State v. Orman, 97-2089 (La.

1/9/98), 704 So. 2d 245. Rather, the standard is whether the strength of the

factual basis, coupled with the other circumstances of the plea, reflect that

the plea represents a voluntary and intelligent choice among the alternatives.

Id. The fact that a defendant believes he is innocent, and makes such belief

known to the court, does not preclude him from entering a guilty plea. State

v. McCarty, 499 So. 2d 292 (La. App. 1 Cir. 1986), writ denied, 505 So. 2d

56 (La. 1987).

This Court has required that there be “strong evidence of actual guilt”

or a “significant factual basis” to support a plea which is entered under

Alford. State v. Jordan, 619 So. 2d 648 (La. App. 2 Cir. 1993); State v.

Linear, 600 So. 2d 113 (La. App. 2 Cir. 1992). Appellate courts have used

evidence adduced at evidentiary hearings, such as a preliminary examination

or a hearing on a motion to suppress, to find a factual basis to support an

Alford plea. Orman, supra. In State v. Scroggins, 18-1943 (La. 6/26/19),

276 So. 3d 131, the Louisiana Supreme Court noted that a guilty plea was

supported because there was strong evidence in the record with a complete

sentencing hearing, presentence investigation, and police reports. However,
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in State v. Jackson, 17-612 (La. App. 5 Cir. 4/11/18), 245 So. 3d 1250, the

Fifth Circuit found patent error in the State’s failure to present strong

evidence of actual guilt and held the guilty plea invalid.

The State argues that the following factual basis provided for the plea

at the Alford proceeding was sufficient to support Barber’s guilty plea

because it contained the requisite details for the domestic abuse charge:

Judge, if I may, deputies arrived at 1807 Bailey Street in
reference to a domestic battery complaint. Upon arrival, they
made contact with Carolyn Barber, who stated her live-in
boyfriend, Ronald Barber, of approximately twenty-three years
battered her. She stated that he had been drinking all day, and
they became involved in a verbal altercation. She stated that
Ronald struck her in her right cheek area and then struck her in
her left breast. Carolyn stated Ronald grabbed her calves and
attempted to drag her from the chair she was sitting in. The
deputy did say that she observed no signs of battery but did
obtain photographs and observed scratches on her left calf and
thigh area. Carolyn admitted that those marks were made some
time back by Ronald when he hit her with a fork. Then, based
upon that information, the injuries to Carolyn’s leg and her
statement, Ronald was arrested for one count of domestic abuse
battery.

In addition, the State asserts that the record contains strong evidence

of Barber’s actual guilt. Discovery material disclosed to Barber included the

bill of information, affidavit for arrest without a warrant, Barber’s lengthy

criminal record, the police report, pictures, and prior convictions. The police

report contained the victim’s statement at the scene that Barber had been

drinking all day and that a verbal confrontation had turned physical. Also,

deputies acknowledged that upon contact with Barber, he exhibited signs of

intoxication – his words were slurred and he was very unsteady on his feet.

Photographs were taken by deputies of scratches on the victim’s left calf and

thigh area. After Barber was arrested, he threatened physical harm and even

death to the victim.

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Further, the record shows that Barber suggested the Alford plea

himself. Although he claims that he filed several pro se motions that were

never heard, no motions were filed to move the matter forward, such as a

motion for speedy trial. He clearly expressed a desire to plead despite his

professed belief in his innocence. The following exchange took place

between Barber and his trial counsel:

MR. BRITTON: And I advised my client of that offer, and the -
- I told my client that based upon our earlier conversations, in
which he indicated that he was not guilty, that in the event that
he took this plea that the -- he would be required to pass boykin
and that if he did not pass boykin, he could not accept that
particular plea offer. He has written me a letter, which I have not
read today, in which he says he wants to plead nolo contendere
in reference to that particular matter, and I would accept that as
some type of re -- request for an Alford versus North Carolina
matter. Is that correct, Mr. Barber?

MR. BARBER: Yeah.

MR. BRITTON: Do you wish to accept the plea, but you --

MR. BARBER: Yeah.

MR. BRITTON: --want to do it under nolo contendere?

MR. BARBER: Yeah. That means that I didn’t --

MR. ANDERSON: Judge, --

MR. BARBER: -- do it.

Barber stated that he understood his rights and that by pleading no

contest, he would be waiving those rights. He stated that he was entering the

plea voluntarily and no one forced or coerced him to accept the plea. The

following exchange also took place between the trial court and Barber:

THE COURT: Do you want to get this over with?

MR. BARBER: Yeah. Let’s get it over with, but I -- really, I
didn’t do it. But I’ll take the plea where I can get out of jail and
go south.

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THE COURT: So, you’re not going to fight her --

MR. BARBER: No.

THE COURT: -- allegations?

MR. BARBER: But it didn’t happen.

THE COURT: Listen to me. You’re not going to fight her
allegations; is that right?

MR. BARBER: Your Honor, I just want to get out where I can
go -

THE COURT: Is that a yes, or no?

MR. BARBER: -- down south.

THE COURT: Just answer my question.

MR. BARBER: My brother is dying.

THE COURT: Just answer my question, sir, so I can --

MR. BARBER: Yeah. I ain’t going to fight it. I’ve done did ten
months for nothing. And they’re going --

THE COURT: And do you understand that --

MR. BARBER: -- to knock something off.

***

THE COURT: All right. All right. And -- and you heard what
they state that Ms. Barber said you did; right?

MR. BARBER: I didn’t --

THE COURT: You -- you heard that?

MR. BARBER: Yeah. I heard it.

THE COURT: That’s -- so, that’s what the State would be trying
to prove at a trial that that is true and that’s what happened. Do
you understand that?

MR. BARBER: I know what they’re trying to do. Yeah.

THE COURT: All right. And you’re saying that that may be so,
but you’re saying that you didn’t do it, but you’re not going to
contest?
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MR. BARBER: Yeah. I didn’t do it, but I ain’t going to fight it.
I done did my time, and I’m fixing to get out and home.

THE COURT: And did you understand your rights, sir?

MR. BARBER: I -- I understand it all.

***

THE COURT: All right. And you’re giving up your rights; is
that correct?

MR. BARBER: That’s right.

THE COURT: All right. Anyone forcing you to do so?

MR. BARBER: Nobody ain’t forcing me to do nothing.

Barber clearly expressed his desire to enter the plea despite his

profession of innocence. He understood the charges against him and knew

that the State would have to prove the allegations at trial, but still chose to

enter a guilty plea because he was fully aware that he would soon be

released from prison under the pled sentence. In addition, there was a

sufficient factual basis to support the pled charge given the victim’s

statement at the scene, the officers’ observations and suspicions of Barber’s

intoxication, Barber’s threats made toward the victim, and Barber’s criminal

history, which included domestic violence. The trial judge also gave Barber

the opportunity to discuss potential additional evidence to support his

defense, which Barber was unable to produce. There was more than enough

of a factual basis for Barber to understand the law in relation to the facts of

the case and appreciate the nature of the charges, clearly establishing the

voluntariness of the plea among the alternatives.

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Hardship Hearing Requirement and $2,000 Fine

Barber argues that the trial court erred when it imposed a fine of

$2,000 without conducting the mandatory hearing under La. C. Cr. P. art.

875.1 to determine whether the fine is unreasonable considering Barber’s

indigent status. He states that the record shows he was an indigent

defendant whose sole income was social security, which was suspended

during his incarceration, so there should have been a full hearing on the

hardship involved in imposing the fine with a sanction of jail time if unpaid.

Barber cites this Court’s holding in State v. Jarratt, 53,525 (La. App 2

Cir. 6/24/20), 299 So. 3d 1202, 1216, which discussed the requirements set

out in La. C. Cr. P. art. 875.1 of a sentencing court before imposing financial

obligations, as follows:

For sentences imposed after August 1, 2019, Art. 875.1C(1)
requires a hearing in the district court to determine whether any
“financial obligations,” which are defined in paragraph B as “any
fine, fee, cost, restitution, or other monetary obligation,” will
impose undue hardship on the defendant or his dependents. This
hearing cannot be waived. La. C. Cr. P. art. 875.1C(2). Pursuant
to this hearing, the court is authorized to waive all or part of the
payments or to make a payment plan. Additionally, La. C. Cr. P.
art. 875.1D(2) offers options for the payment plan or alternatives
to payment. Most importantly, Art. 875.1A enacts the policy that
“financial obligations” (fines, fees, costs, and restitution) should
not create a barrier to the offender’s successful rehabilitation and
reentry into society. Financial obligations in excess of what an
offender can reasonably pay undermine the primary purpose of
the justice system which is to deter criminal behavior and
encourage compliance with the law. Financial obligations that
cause undue hardship on the offender should be waived,
modified, or forgiven.

In particular, Barber emphasizes that this hardship hearing cannot be

waived.

However, the terms and effective dates of La. C. Cr. P. art. 875.1 have

fluctuated since its enactment in 2017, as explained in State v. Dauzat, 23-16

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(La. App. 3 Cir. 4/26/23), 2023 WL 3086034. When La. C. Cr. P. art. 875.1

was first enacted, with an effective date of August 1, 2018, the requirement

of the hearing could not be waived. Article 875.1 was amended in 2018 to

include the ability of either the defendant or the court to waive the hardship

hearing pursuant to certain requirements, with such changes effective

August 1, 2019. Nevertheless, the provisions of Article 875.1 were

suspended through August 1, 2021. Ultimately, La. C. Cr. P. art. 875.2 was

enacted in 2021 that repealed Article 875.1 in its entirety, essentially

resulting in Article 875.1 never becoming effective.

Barber pled guilty to domestic abuse battery-third offense, in violation

of La. R.S. 14:35.3, on July 26, 2022. Subsection E provides in pertinent

part:

On a conviction of a third offense...the offender shall be
imprisoned with or without hard labor for not less than one year
nor more than five years and shall be fined two thousand dollars.
The first year of the sentence of imprisonment shall be imposed
without benefit of probation, parole, or suspension of sentence.

After finding a factual basis for Barber’s Alford plea, the trial court asked if

he was ready to be sentenced or whether he wanted to wait for three days.

Barber responded that he was ready for sentencing. The trial court imposed

a sentence within statutory limits, one year at hard labor without benefit of

probation, parole, or suspension of sentence, and a fine of $2,000. The trial

court took into consideration Barber’s indigency and ran his fine default

time concurrent with his sentence; therefore, even if Barber defaulted on the

fine, he would serve no additional time.

As explained above, there is no longer any requirement that the trial

court conduct a financial hardship hearing prior to imposing a fine. Even

with Barber’s seemingly public policy argument that the fine is wrongful
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since he is an indigent defendant, Barber’s claim is moot because any default

time would never have been served since it was ordered concurrent with the

existing sentence.

CONCLUSION

For the foregoing reasons, this Court AFFIRMS Barber’s Alford plea

and sentence of one year at hard labor without benefit of probation, parole,

or suspension of sentence, and the imposition of a $2,000 fine, with default

time to be served concurrently.

AFFIRMED.

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