State of Louisiana v. Dominic Dewane Harris

Judgment rendered February 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,467-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DOMINIC DEWANE HARRIS Appellant

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 228,679

Honorable R. Lane Pittard, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Edward K. Bauman

J. SCHUYLER MARVIN Counsel for Appellee
District Attorney

RICHARD R. RAY
Assistant District Attorney

*****

Before PITMAN, THOMPSON, and ELLENDER, JJ.

PITMAN, C. J.

Pursuant to a plea agreement, Defendant Dominic Dewane Harris pled

guilty to attempted sexual battery, and the district court sentenced him to

serve five years at hard labor. Defendant filed a motion to withdraw his

guilty plea, and the district court denied this motion. Defendant appeals.

For the following reasons, we affirm.

FACTS

On August 17, 2018, the state filed a bill of information charging

Defendant with one count of third degree rape, in violation of La.

R.S. 14:43(A)(1).

In court on January 3, 2022, the state noted for the record that there

was a tentative agreement that Defendant would plead guilty to an amended

charge of attempted sexual battery, in violation of La. R.S. 14:43.1 and

14:27, for an agreed-upon sentence of five years at hard labor and that a

separate charge would be dismissed. Defendant, through his retained

counsel, asked that the district court recommend or approve any programs

that could reduce his time in jail. The district court responded that the only

program he was aware of was for substance abuse. The district court asked

about the Steve Hoyle Program, and the state explained that it is a local

program and that there are other programs in the Department of Corrections

(the “DOC”). The district court stated that it would recommend the DOC

program.

A guilty plea and sentencing hearing was held on January 4, 2022.

The state explained that Defendant was going to plead guilty to the amended

charge of attempted sexual battery for an agreed-upon sentence of five years

at hard labor and that an unrelated charge of unauthorized entry of an

inhabited dwelling would be dismissed. Defense counsel agreed and added

that the court would make any recommendations regarding substance abuse

programs that would reduce his sentence. The district court replied that it

would refer Defendant to a substance abuse program and asked if the Steve

Hoyle Program was the correct program; defense counsel responded that it

was, and the district court referred Defendant to the Steve Hoyle Program.

Defense counsel stated that Defendant asked him if he would receive any

good time, and defense counsel responded that it is “not a calculator of the

DOC.” The district court responded that it is “not a DOC calculator either”

and that it would be speculating if it answered that question. The district

court noted that the best way to receive an answer was to ask a probation

officer, explained that it is a “moving target” and stated that “what the DOC

does, the DOC does.” Defendant then withdrew his plea of not guilty and

entered a plea of guilty. A Boykin colloquy followed, and the district court

accepted the guilty plea. The district court then sentenced Defendant to five

years at hard labor and referred him to the Steve Hoyle Program.

On January 11, 2022, Defendant filed a motion to withdraw the guilty

plea. He stated that he pled guilty with the understanding that he was

eligible for a reduction in sentence through good time and the Steve Hoyle

Program. He noted that after the guilty plea, his counsel spoke with a DOC

representative and learned that sex offenses are served day-for-day without

exception, including programs that may reduce time. He claimed that his

counsel called the DOC prior to his guilty plea, but that no one answered.

He alleged that the state said it would withdraw the five-year-sentence offer

unless it was accepted on January 4, 2022, so Defendant accepted the offer

2

without speaking to the DOC. He requested that he be allowed to withdraw

his guilty plea because of the misunderstanding of his expected sentence.

A hearing on the motion to withdraw the guilty plea was held on

February 14, 2022. The district court reviewed the transcripts and the

minutes from the guilty plea hearing and determined that it was not an

essential part of the plea that Defendant be accepted into the Steve Hoyle

Program. The court emphasized that it is not the arbiter of the Steve Hoyle

Program or the DOC—it can refer someone to a program, but the DOC has

its own criteria for determining time. The district court denied the motion.

Defendant appeals.

DISCUSSION

In his sole assignment of error, Defendant argues that the district court

erred in denying his motion to withdraw his guilty plea. He states that his

plea was not knowingly or voluntarily made due to his mistaken belief that

he would be eligible for a reduction of his sentence for taking part in the

Steve Hoyle Program. He contends that as his sentence was not what was

agreed upon, he should have the opportunity to withdraw his guilty plea.

The state argues that the district court did not abuse its discretion in

denying Defendant’s motion to withdraw his guilty plea. It states that

Defendant knowingly, voluntarily and intelligently pled guilty and was

sentenced pursuant to the plea agreement. It contends that Defendant was

aware he was not guaranteed any type of reduction in time served based

upon his participation in a substance abuse program or any good time

calculation. It assumes that Defendant sought to withdraw his guilty plea in

an attempt to bargain for a better deal or a better good time calculation. The

state notes that in exchange for Defendant’s guilty plea, it amended and
3

dismissed felony charges that reduced his sentencing exposure from 31 years

at hard labor to 5 years at hard labor.

Upon motion of a defendant and after a contradictory hearing, which

may be waived by the state in writing, the court may permit a plea of guilty

to be withdrawn at any time before sentence. La. C. Cr. P. art. 559(A). The

withdrawal of a guilty plea after sentencing is discretionary with the trial

court. State v. Bates, 29,252 (La. App. 2 Cir. 1/22/97), 711 So. 2d 281.

Such discretion cannot be disturbed on appeal unless an abuse or arbitrary

exercise of that discretion is shown. State v. McGarr, 52,641 (La. App.

2 Cir. 4/10/19), 268 So. 3d 1189. A defendant has no absolute right to

withdraw a guilty plea. Id.

When the record establishes that an accused was informed of and

waived his right to a trial by jury, to confront his accusers and against self-

incrimination, the burden shifts to the accused to prove that despite this

record, his guilty plea was involuntary. State v. McGarr, supra. An express

and knowing waiver of those rights must appear on the record, and an

unequivocal showing of a free and voluntary waiver cannot be presumed.

Id. When ruling on a motion to withdraw a guilty plea, the trial court should

look beyond the Boykin colloquy and consider all relevant factors. Id. In

order to properly exercise its discretion and for the appellate court to review

the exercise of that discretion, the trial court should conduct a hearing on the

motion to withdraw a guilty plea. Id.

Reasons supporting withdrawal of a guilty plea ordinarily include

factors bearing on whether the guilty plea was voluntarily and intelligently

made, such as breach of a plea bargain, inducement, misleading advice of

counsel, strength of the evidence of actual guilt or the like. State v. McGarr,
4

supra. A mere change of heart or mind by the defendant as to whether he

made a good bargain does not ordinarily support allowing the withdrawal of

a bargained guilty plea. Id.

Unless otherwise prohibited, every offender in the custody of the

DOC who has been convicted of a felony may earn, in lieu of incentive

wages, a diminution of sentence by good behavior and performance of work

or self-improvement activities, or both, to be known as “good time.” La.

R.S. 15:571.3(B)(1)(a). These provisions do not apply to offenders who are

serving a sentence for a sex offense, as defined in La. R.S. 15:541, which

includes a conviction for the attempted perpetration of sexual battery. La.

R.S. 15:571.3(B)(1)(b).

As detailed above, the state noted the plea offer on the record,

Defendant agreed and requested that the district court recommend any

program that would reduce his sentence, the district court stated that it would

recommend a DOC program and the state did not object. As a result of the

plea agreement, Defendant received the significant benefits of pleading to

the reduced charge of attempted sexual battery rather than third degree rape,

having an unrelated charge of unauthorized entry of an inhabited dwelling

dismissed and reducing his sentence exposure from 31 years for third degree

rape and unauthorized entry of an inhabited dwelling to an agreed-upon

5 years. Defendant received an additional benefit of the district court

agreeing to recommend him for possible consideration for a substance abuse

treatment program with the DOC and any resulting benefits affecting his

sentence.

A review of the record confirms that the district court informed

Defendant of his rights at the guilty plea hearing. Defendant has not met his
5

burden of proving that despite this record, his plea was involuntary. At a

hearing on the motion to withdraw, the district court reviewed the transcript

of the Boykin colloquy and considered other relevant factors. The district

court differentiated its ability to recommend someone for a program and the

DOC’s role in accepting persons into a program and calculating time.

The district court did not abuse or arbitrarily exercise its discretion

when it denied Defendant’s motion to withdraw his guilty plea. The

circumstances contemplated in jurisprudence that might support a

withdrawal by showing that the plea was not voluntarily and intelligently

made are not present in this case. Defendant has not shown a breach of the

plea bargain, inducement by the state, misleading advice of counsel or the

lack of evidence of actual guilt. To the contrary, the record demonstrates a

detailed discussion of the plea agreement, including Defendant’s request that

the district court recommend a DOC program, and that the district court

agreed to that request with no objection from the state. The record suggests

that Defendant’s retained counsel provided sound advice to Defendant and

presented Defendant’s requests to the district court. The record also

demonstrates the strength of the state’s case against Defendant, including

evidence of bruises and bite marks on the victim’s body and Defendant’s

DNA on her legs near her vaginal area.

Defendant’s argument of an alleged misunderstanding of his expected

sentence does not support allowing the withdrawal of his guilty plea. The

transcripts from the hearings on January 3 and 4, 2022, demonstrate that the

agreement was only for a “recommendation” from the district court. The

agreement did not guarantee that the DOC would accept Defendant into a

6

program. Defendant received everything he requested and benefited

significantly from the plea agreement.

Accordingly, this assignment of error lacks merit.

ERROR PATENT

The district court imposed an illegally lenient sentence by failing to

order that Defendant’s sentence be served without benefit of parole,

probation or suspension of sentence, as required by La. R.S. 14:43.1(C)(1)

and 14:27(D)(3). However, these required restrictions are self-activating by

operation of La. R.S. 15:301.1, and there is no need to remand for

correction. State v. Green, 54,955 (La. App. 2 Cir. 4/5/23), 361 So. 3d 546.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of

Defendant Dominic Dewane Harris.

AFFIRMED.

7