State of Louisiana v. Tyrone A. Murray

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-378 consolidated with 12-379

STATE OF LOUISIANA

VERSUS

TYRONE A. MURRAY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NOS. 155971, 155970
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

CONDITIONALLY AFFIRMED AND REMANDED, WITH
INSTRUCTIONS.

Hon. Charles A. Riddle, III
District Attorney, 12th JDC
P. O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Tyrone A. Murray

Miche Moreau
Asstant District Attorney
P. O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Tyrone A. Murray
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, LA 70648
COUNSEL FOR DEFENDANT/APPELLANT:
Tyrone A. Murray, Pro Se

SAUNDERS, Judge.

Defendant, Tyrone A. Murray, was indicted on April 15, 2010, for the

aggravated rape of D.A., a violation of La.R.S. 14:42, under docket number

155970.1 D.A. was under the age of thirteen at the time. Defendant was also

indicted for oral sexual battery, a violation of La.R.S. 14:43.3, under docket

number 155971. He was charged under docket number 155972 with molestation

of a juvenile, a violation of La.R.S. 14:81.2.

On May 17, 2011, Defendant pled guilty to the reduced charge of

molestation of a juvenile under docket number 155970 and to oral sexual battery

under docket number 155971 pursuant to North Carolina v. Alford, 400 U.S. 25,

91 S.Ct. 160 (1970). Defendant steadfastly maintained his innocence but stated he

wished to enter a guilty plea as being in his best interest. The trial court found

Defendant was making a knowing and intelligent decision in his best interest and

accepted the plea.

The original charge of molestation of a juvenile filed under docket number

155972 was nolle prossed. Further, the State agreed not to charge Defendant as a

multiple offender. The trial court sentenced Defendant to twenty-five years at hard

labor, without benefit of probation, parole, or suspension of sentence on each count,

without diminution for good behavior, and with the sentences to run concurrently.

Defendant then filed a motion to withdraw his guilty plea on June 27, 2011.

Defendant’s pro se motion to withdraw his guilty plea alleged solely (and

erroneously) that La.Code Crim.P. art. 559(B) permitted him to withdraw the plea

within thirty days of sentencing. At the hearing of the motion to withdraw the

plea, defense counsel expanded the motion to include the argument that

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Initials are used to protect the identity of the victim pursuant to La.R.S. 46:1844(W).

notification of registration as a sex offender “has to be explained to the defendant

in writing before the sentence is handed down.”

The trial court denied the motion on December 13, 2011. He found

Defendant did not show the Boykin colloquy was defective, and Defendant made

“a knowing and intelligent appearance in his boykin [sic] examination.” The trial

court held Defendant “failed to provide . . . any legal basis” on which to allow him

to withdraw his guilty plea.

Defendant filed these two separate appeals in this court and asked for them

to be consolidated. However, this court dismissed the appeal of docket number

155971 because the docket number was not included on the motion for appeal.

State v. Murray, 12-378 (La.App. 3 Cir. 5/23/12), 92 So.3d 591, writ granted, case

remanded, 12-1414 (La. 12/14/12), 104 So.3d 419. Defendant applied for writs

with the Louisiana Supreme Court challenging the dismissal of his appeal.

This court withheld ruling on the appeal of docket number 155970 pending

the supreme court’s ruling. On December 14, 2012, the supreme court reinstated

Defendant’s appeal of docket number 155971 and remanded the matter with

instructions to consolidate the two appeals. Id. This court consolidated the matters

on January 14, 2013, per the supreme court’s instructions.

Defendant now appeals his convictions on grounds his guilty plea was not

knowingly and intelligently made, he was not advised of the requirements

regarding sex offender registration and notification. Finally, Defendant asserts that

the trial court erred in denying the motion to withdraw his guilty plea.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find that there are no errors patent.
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FACTS:

Defendant pled guilty to oral sexual battery and molestation of a juvenile

involving D.A., a child under the age of thirteen.

ASSIGNMENT OF ERROR NO. 1:

The first assignment of error in Defendant’s consolidated appeals alleges he

should be allowed to withdraw his guilty plea because the State failed to establish a

factual basis for the charges as required by Alford, 400 U.S. 25, when the trial

court accepted his plea.

Defendant argues his “best interest” plea was not made knowingly and

intelligently. Thus, it is constitutionally infirm and must be set aside. He contends

the plea was invalid because the State failed to establish a factual basis for the

charge as required by Alford, 400 U.S. 25, when the trial court accepted his plea.

This court may consider this argument even though Defendant did not raise it in

his motion to withdraw because of the constitutional nature of the claim. State v.

Farris, 10-644 (La.App. 3 Cir. 12/8/10), 53 So.3d 537 (citing State v. Jordan, 98-

101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36).

The Supreme Court held in Alford, 400 U.S. 25, that a defendant may enter a

plea of guilty while still maintaining his innocence of the charge. An Alford plea

puts the trial court on notice that it needs to make a judicial finding of a significant

factual basis for the plea. State v. Sutton, 04-88 (La.App. 3 Cir. 7/7/04), 879 So.2d

419, writ denied, 04-2617 (La. 6/24/05), 904 So.2d 730. This court has held an

Alford plea puts the trial court “on notice that a substantial basis of guilt must be

placed into the record.” State v. J.S., 10-1233, p. 2 (La.App. 3 Cir. 5/11/11), 63

So.3d 1185, 1188 (citing State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759

So.2d 126, 129, writ denied, 00-1175 (La. 3/16/01), 786 So.2d 745).

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At the plea hearing in the case at bar, the trial court never asked the State to

put a factual basis for the charge on the record. The trial judge discussed the

meaning of the original and reduced charges and the potential sentences for each.

The trial court determined Defendant believed the plea was in his best interest.

Toward the end of the hearing, the trial court stated:

Okay. The state claims that through a grand jury indictment that
during the last half of two thousand nine you did commit acts of
molestation of a juvenile and oral sexual battery upon a juvenile with
the initials D.A. who was under thirteen years of age. Do you
understand that is the claim being made in the indictment by the grand
jury?

Defendant responded, “[y]es, sir.” The trial court then accepted the best interest

plea, noted Defendant’s waiver of sentencing delays, and imposed sentence.

In State v. Guilbeau, 11-99 (La.App. 3 Cir. 6/22/11), 71 So.3d 1020, the

defendant was charged with two counts of second degree battery. At the plea

hearing on both charges, the defendant mentioned he was struck first, before he hit

anyone. This court determined that statement was sufficient to raise the defense of

justification and thereby “put the trial court on notice that a more detailed factual

basis was needed to support the plea.” Id. at 1029.

This court “conditionally affirmed [the defendant’s conviction and sentence]

on the evidence in the record on appeal.” Id. at 1030. Accordingly, the panel in

Guilbeau remanded the case and ordered the trial court to conduct a hearing

pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969), to allow the

State the opportunity to present a sufficient factual basis for both counts of second

degree battery and noted the trial court should vacate the plea and sentence if the

State failed to do so. The defendant could then appeal any adverse ruling on that

issue. This disposition reflects the remand procedures set out in State v. R.W.W.,

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06-1253 (La.App. 3 Cir. 3/7/07), 953 So.2d 131, writ denied, 07-820 (La.3/27/09),

5 So.3d 130.

Based on our result in Guilbeau, 71 So.3d 1020, we conditionally affirm

Defendant’s convictions and sentence based on the evidence in the record on

appeal. Additionally, we remand the matter and order the trial court to conduct an

additional Boykin hearing, within forty-five days of the date of the opinion, to

allow the State the opportunity to present a sufficient factual basis for the guilty

pleas to oral sexual battery and molestation of a juvenile. Additionally, we instruct

the trial court to vacate the pleas and sentences in the event the State fails to

present a sufficient factual basis for the pleas. Defendant may appeal from any

adverse ruling on the issue of whether the factual basis is sufficient to support the

plea, and, in the absence of such an appeal, Defendant’s conviction is affirmed.

ASSIGNMENT OF ERROR NO. 2:

Defendant alleges the trial court erred in failing to set aside the guilty plea

because he was not advised of the sex offender registration and notification

requirements. Louisiana Revised Statutes 15:543(A) requires the court to “provide

written notification” of registration and notification requirements for sex offenders.

The statute requires the court to “use the form contained in R.S. 15:543.1” and

provide a copy to the offender. The notice must be included “on any guilty plea

forms and judgment and sentence forms provided to the defendant, and an entry

shall be made in the court minutes stating that the written notification was provided

to such offenders.” La.R.S. 15:543(A). “[N]otice after a guilty plea has been

entered and accepted by the court amounts to untimely notice under the statute,

especially since the defendant has no absolute right at the district court level to

withdraw a previously entered plea of guilty under L.C.Cr.P. article 559[,]”

allowing the withdrawal of a guilty plea only before sentencing. State v. Calhoun,
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96-786, p. 7 (La. 5/20/97), 694 So.2d 909, 913. Failure to timely notify a

defendant of the requirements “is a factor that can undercut the voluntary nature of

a guilty plea.” Id. at 914 n.6.

At the hearing of the motion to withdraw, Freeman Ford, an administrative

assistant with the public defender’s office, testified that he did not tell Defendant

of the registration and notification requirements for convicted sex offenders.

However, he thought Defendant may have asked about the requirements, and

Defendant’s attorney mentioned the requirements to him.

Defendant’s attorney, George Higgins, likewise testified at the hearing after

Defendant waived his attorney/client privilege. Mr. Higgins would “be shocked if

[Defendant] didn’t” receive written notification that he would have to register as a

sex offender, but he did not recall seeing such a notification. When asked directly

whether Defendant was given any notification in writing, he responded, “I don’t

know. . . . I don’t recall that happening.” Mr. Higgins recommended Defendant

accept the plea bargain because purportedly favorable evidence was not what he

expected it to be, and he would have no chance of a successful trial unless

Defendant testified. However, Mr. Higgins believed the possibility of Defendant’s

testimony “would be as bad as anything.”

Defendant did testify at the hearing to withdraw his pleas. He stated he was

never given “any paper copies of law about sex offender registration.” No one

ever gave him any forms outlining the laws related to sex offender registration or

to fill out for registration. Neither Mr. Ford nor Mr. Higgins told him he would

have to register as a sex offender. According to Defendant’s testimony, knowledge

of the requirements would have influenced his decision to accept the plea

agreement.

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During sentencing, Defendant asked the trial judge a question about whether

he would serve “the whole twenty five” of his sentence “flat.” The trial judge

replied, “[y]ou do flat time and when you finish your time then you’ll be subject to

the rules of the Department of Corrections on sex offender registration, notification

and all parole rules that they have at that time.” Defendant asked no further

questions. However, this exchange took place after the trial court had accepted

Defendant’s plea, as the trial court was sentencing him.

The record does not contain a plea form. The minutes of the plea hearing do

not indicate Defendant was told anything about notification and registration

requirements. Review of the transcript shows the trial court said nothing to

Defendant about the requirements prior to accepting the plea.

Nothing in the record indicates the trial court timely notified Defendant of

the notification and registration requirements for sex offenders. However,

Defendant testified he pled guilty because his lawyers explained to him a six-year-

old girl was going to testify he had raped her, and the evidence showed she had in

fact been raped. They told him he would go to prison for the rest of his life if he

were convicted. Lack of notice is only one of the factors to be considered in a

motion to withdraw a guilty plea; it does not, by itself, determine the issue.

Calhoun, 694 So.2d 909.

Therefore, we find that, when compared to Defendant’s other reasons for

entering into a guilty plea, the failure to notify Defendant of the notification and

registration requirements was not a factor that undercut the voluntary nature of the

plea. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3:

Defendant contends the trial court should have concluded his “best interest”

plea was not knowingly and intelligently made, and it should have granted his
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motion to withdraw the plea. He argues his plea agreement applied to both charges

so that it stands or falls in totality. Defendant’s assignments of error apply equally

to both convictions. Clearly, this assignment is moot in light of the Louisiana

Supreme Court’s remand.

DISPOSITION:

Defendant’s convictions and sentences are conditionally affirmed based on

our order to remand the matter for the trial court to conduct an additional Boykin

hearing, within forty-five days of the date of the opinion, to allow the State the

opportunity to present a sufficient factual basis for the guilty pleas to oral sexual

battery and molestation of a juvenile. Further, we instruct the trial court to vacate

the pleas and sentences in the event that the State fails to present a sufficient

factual basis for the pleas. Finally, we instruct the trial court to inform the

Defendant that he may appeal from any adverse ruling on the issue of whether the

factual basis is sufficient to support the plea, and, in the absence of such an appeal,

Defendant’s convictions are affirmed.

CONDITIONALLY AFFIRMED AND REMANDED, WITH

INSTRUCTIONS.

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