State of Louisiana v. Juane Harris

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1072

STATE OF LOUISIANA

VERSUS

JUANE HARRIS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 114939
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese,
Judges.

REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney, 15th JDC
Keith A. Stutes
Assistant DA
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel forAppellee:
State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
707 Julia St.
Rayville, LA 71269
(318) 728-2043
Counsel for Defendant/Appellant:
Juane Harris

Juane Harris
Avoyelles Corr. Ctr. C1-B1
1630 Prison Rd.
Cottenport, LA 71327
Defendant/Appellant In Proper Person

SAUNDERS, Judge,

On March 29, 2007, the State filed a bill of information charging Defendant,

Juane Harris, with forcible rape, a violation of La.R.S. 14:42.1, and unauthorized

entry of an inhabited dwelling, a violation of La.R.S. 14:62.3. On March 18, 2008,

Defendant appeared with counsel and entered a “best interest plea” pursuant to a plea

agreement, which included a twenty-five-year sentencing cap and a dismissal of the

unauthorized entry charge.1

On June 30, 2008, after referring to a presentence investigation (PSI) report,

the trial court sentenced Defendant to twenty-five years at hard labor. On July 7, the

trial court granted Defendant’s motion for appeal and appointed the Louisiana

Appellate Project to represent him.

Subsequently, appellate counsel filed a motion to withdraw and a supporting

brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). Counsel

alleged that he had found no non-frivolous issues to raise for review. Defendant filed

a pro se brief assigning two errors, including an argument that the trial court should

have ascertained a factual basis for his “best interest” guilty plea.

On April 1, 2009, this court denied appellate counsel’s motion to withdraw and

ordered appellate counsel to file a brief addressing the issue of whether a factaul basis

was necessary to support the plea. Counsel complied and has filed the ordered brief.

We remand with instructions for further proceedings.

FACTS:

Pursuant to his “best interest plea,” Defendant admitted having sexual relations

with the woman but asserted the encounter was consensual. The record does not

include details of the incident.

1. A “best interest plea” is also known as an “Alford plea” pursuant to North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160 (1970).

ASSIGNMENT OF ERROR:

Appellate counsel now argues that Defendant’s plea is defective due to the lack

of a factual basis. We note that such an argument has a constitutional dimension.

Thus, it can be raised even though Defendant did not file a motion to withdraw the

plea in the trial court. State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36.

This court has further explained:

Generally, a defendant waives the right to question the merits of
the State’s case or the underlying factual basis by entering a plea of
guilt, or plea of nolo contendere. State v. Brooks, 38,963 (La.App. 2
Cir. 9/22/04), 882 So.2d 724. “When a guilty plea is otherwise
voluntary, there is no necessity to ascertain a factual basis for that plea
unless the accused protests his innocence or for some other reason the
trial court is put on notice that there is a need for such an inquiry. In
that event, due process requires a judicial finding of a significant factual
basis for the defendant’s plea.” State v. Linear, 600 So.2d 113, 115
(La.App. 2 Cir.1992); See North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162 (1970). However, this court has held that a
plea of nolo contendre alone, unlike a guilty plea accompanied by a
claim of innocence, does not put the trial court on notice that a
significant factual basis must be obtained. State v. Villarreal, 99-827
(La.App. 5 Cir. 2/16/00), 759 So.2d 126, writ denied, 00-1175
(La.3/16/01), 786 So.2d 745; State v. Guffey, 94-797 (La.App. 3 Cir.
2/1/95), 649 So.2d 1169, writ denied, 95-973 (La.9/22/95), 660 So.2d
469. Citing Alford, the Louisiana Supreme Court has stated:

Moreover, even assuming that relator had protested
his innocence when he entered his guilty plea and further
assuming that in all cases involving a bona fide Alford plea
the record “before the judge [must] contain [ ] strong
evidence of actual guilt,” 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, but rather 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
alternative[s].”

State v. Orman, 97-2089, pp. 1-2 (La.1/9/98), 704 So.2d 245, 245
(citations omitted).

2

State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950-51.

The following colloquy took place during the plea proceedings:

THE COURT: MR. JUANE HARRIS, you are asking
me to accept your plea to the charge of forcible rape; is that
right?

MR. JUANE HARRIS:

A Yes, sir.

THE COURT: Do you understand that if I accept that
plea, you will stand convicted of this crime and as a result,
you could be sentenced to a term of imprisonment -- this
form shows “with or without hard labor,” but I’m almost
positive it’s with hard labor. Let me check.

MR. STUTES: That’s correct, Your Honor.

MR. NEUMANN: Yes, sir. It should be at hard labor.

THE COURT: I’ve got it. I checked it. As a result, you
could be sentenced to a term of imprisonment at hard labor
for not less than five years nor more than forty years, and
at least two years of the sentence imposed must be imposed
without benefit of probation, parole, or suspension of
sentence. Do you understand that?

MR. JUANE HARRIS:

A Yes, sir.

THE COURT: Now, having told you that, as well as
everything else I’ve said to you today, do you still want to
plead guilty?

MR. JUANE HARRIS:

A Yes, sir.

THE COURT: What happened?

MR. JUANE HARRIS:

A We had sex and she said it was not consensual but it was
consensual.

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THE COURT: All right, sir. Are you afraid if you went
to trial, you might lose? Is that one of the reasons why you
are pleading guilty today?

MR. JUANE HARRIS:

A Not really.

THE COURT: You don’t think you’d lose?

MR. JUANE HARRIS:

A Yes, sir.

THE COURT: I have to feel like you feel like it’s in
your best interest to enter this plea. Do you feel like it’s in
your best interest considering the facts that the State would
present and the possible charge against you?

MR. JUANE HARRIS:

A Yes, sir.

THE COURT: All right, sir. Under those circumstances
I will accept your plea. I find that you made a knowing and
intelligent waiver of the rights previously explained to you
and that your plea is freely and voluntarily given without
threats or inducements whatsoever.

Prior to the foregoing colloquy, there was no indication that Defendant

intended to enter an Alford plea. Nonetheless, it is clear the trial court accepted the

plea as such. An “Alford plea” and a “best interest plea” are synonymous. See, e.g.,

State v. Love, 00-3347, p. 4 (La. 5/23/03), 847 So.2d 1198, 1203.

Further, Defendant’s claim that the sex was consensual was sufficient to put

the trial court on notice that a more detailed factual basis was necessary. The plea

colloquy above cannot reasonably be viewed as a nolo contendere proceeding. It is

clear that the trial court and Defendant both treated the matter as a guilty plea and that

ultimately, the trial court accepted it as an Alford plea.

This court has stated:

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In State v. Orman, 97-2089 (La.1/9/98); 704 So.2d 245, the
Louisiana Supreme Court considered a plea purportedly entered under
the qualifications of Alford, and concluded that circumstances of the
plea did not preserve the plea. The supreme court explained:

Although relator purported to enter a guilty plea under
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970), relator did not claim at the guilty plea
colloquy, and does not maintain in his present application,
that he is innocent of the crime but instead has alleged only
that as the result of drug and alcohol intoxication at the
time of the offense, he remains unable to recall the critical
events surrounding the death of the victim. Relator thus
entered the equivalent of a nolo contendere plea which did
not require the trial court to resolve the inherent conflict
between the waiver of trial and a claim of innocence. See
State v. Guffey, 94-0797, p. 11 (La.App. 3d Cir.2/1/95),
649 So.2d 1169, 1174 (a nolo contendere plea, unlike a
plea accompanied by a claim of innocence, does not put the
trial court on notice that it must ascertain a factual basis).

....

Id. at p. 1-2; 245. See also State v. Villarreal, 99-827 (La.App. 5 Cir.
2/16/00); 759 So.2d 126, writ denied, 00-1175 (La.3/16/01); 786 So.2d
745.

Our review of the plea colloquy reveals similarity to that
examined by the Louisiana Supreme Court in Orman in that there is no
express declaration of innocence.

....

In Alford, the defendant entered an express declaration of his
innocence. The same is not true in the instant matter. Instead, only a
passing reference to Alford was made. Given the guidance provided by
Orman, defense counsel’s reference was insufficient to afford the
protections of Alford. Furthermore, the defendant does not proclaim his
innocence in his brief to this court. Rather, he asserts that he admitted
to no fact which would support a conviction under La.R.S. 14:31.
Although the defendant’s attorney purported to enter a plea under
Alford, we conclude that, as in Orman, the defendant entered the
equivalent of a nolo contendere plea, relieving the trial court of the
burden to resolve the conflict between a waiver of trial and a claim of
innocence. . . .

5

State v. Francis, 02-862, pp. 3-5 (La.App. 3 Cir. 12/11/02), 832 So.2d 1225, 1226-28,

writ denied, 03-149 (La. 5/2/03), 842 So.2d 1099.

Unlike the defendants in Francis and Orman, Defendant made a claim of

innocence in that he claimed the sex was consensual. This clearly obviated an

element of the crime and put the trial court on notice that a more extensive factual

basis was needed.

The State argues that this court should review the PSI report because it contains

a significant factual basis for the plea. The jurisprudence indicates that evidence

taken in a pre-plea evidentiary hearing, such as a preliminary examination or a motion

to suppress, may provide the necessary factual basis to support a plea. State v.

Trahan, 98-1442 (La.App. 4 Cir. 12/1/99), 752 So.2d 921, rev’d on other grounds,

99-3470 (La. 10/5/01), 797 So.2d 38; Linear, 600 So.2d 113. The State cites State

v. Simmons, 466 So.2d 777 (La.App. 4 Cir. 1985), in support of its argument that the

PSI and Defendant’s lack of objection to it “ratified the taking of the plea from the

[D]efendant.” However, Simmons does not support the argument in an Alford

context, as Simmons was a review of a jury trial.

This court’s research has revealed no case which would allow reference to the

PSI to provide a factual basis in support of an Alford plea. Further, such use of the

PSI would be inappropriate, since the report was generated after the plea had already

been taken. The language of Orman, cited above, indicates that the facts to be

analyzed in the review of an Alford plea are those that were available at the time of

the plea. As our supreme court has stated, the test 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 alternative[s].’” Orman, 704

6

So.2d at 245. (Emphasis added) (quoting Alford, 400 U.S. at 31, 91 S.Ct. at 164).

Our second circuit has stated that the factual basis for an Alford plea “had to [be]

placed of record and judicially accepted for the plea to meet the Alford requirements.”

State v. Romano, 627 So.2d 766, 767 (La.App. 2 Cir. 1993).

For the reasons discussed, the assignment of errorhas merit; therefore, the case

is remanded. This court has previously remanded a case involving an Alford plea and

allowed the State an opportunity to conduct a new Boykin hearing:

For the reasons expressed, we remand the case to the trial court
for further proceedings consistent with this opinion and with
instructions that it shall conduct an additional Boykin hearing to
determine whether a significant factual basis for the plea entered by
defendant exists and whether the plea was freely and voluntarily entered
as required by the principles articulated in Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162. . . .

DECREE

The district court shall conduct an additional Boykin hearing and
allow the State opportunity to present other evidence of defendant’s
guilt at said hearing within 90 days after rendition of this opinion and
within 10 days after the hearing the court shall submit a certified copy
of its ruling and a transcript of the hearing for inclusion in the appellate
record now lodged with this court. Accordingly, we pretermit full
review of the errors assigned by defendant pending remand of the case
to the trial court and supplementation of the record.

State v. Bowie, 95-795, pp. 7-8 (La.App. 3 Cir. 11/13/96), 684 So.2d 68, 73. Further,

our supreme court implicitly approved this procedure in State v. Bowie, 96-2987 (La.

1/31/97), 687 So.2d 369, as it granted writs to provide guidance regarding the new

Boykin hearing but declined to implement its supervisory authority. We have not

found any other third circuit cases discussing the remedy but note that a similar

procedure is typically used by our second circuit. See State v. McMillion, 42,124

(La.App. 2 Cir. 6/20/07), 961 So.2d 546.

7

In State v. Clark, 97-1064, p.8 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, 742

writ granted and remanded in light of supplemental filing, 98-1180 (La. 9/25/98), 726

So.2d 2, this court stated the following in its decree:

For the above reasons, we remand this case with instructions that
the trial court (1) conduct an evidentiary hearing within thirty days of
this date to determine whether defendant knowingly and intelligently
waived his right to trial by jury and (2) re-lodge the appellate record,
supplemented with a transcript of the hearing, within fifteen days of the
hearing. The State and defendant will be given the opportunity to file
supplemental briefs, should either party wish to raise any issues arising
from the hearing.

In State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, this court

followed Clark, and we do so in the case before us.

DISPOSITION:

The trial court shall conduct an additional Boykin hearing and allow the State

opportunity to present other evidence of Defendant’s guilt at said hearing to be held

within thirty days of the date of this opinion, and the trial court is further ordered to

prepare and lodge with this court an appellate record containing the transcript of the

above-referenced evidentiary hearing within ten days of the hearing. Once this record

is lodged with this court, the State and Defendant will be given the opportunity to file

briefs should either party wish to raise any issues arising from the hearing.

REMANDED WITH INSTRUCTIONS.

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