State of Louisiana v. Tyrone A. Murray

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-880
consolidated with 13-881

STATE OF LOUISIANA

VERSUS

TYRONE A. MURRAY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 155,970
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Charles A. Riddle, III
District Attorney
Miché Moreau
Assistant District Attorney
Post Office Box 1200
Marksville, Louisiana 71351
(318) 253-6587
Counsel for Appellee:
State of Louisiana

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Tyrone A. Murray

Tyrone A. Murray
In Proper Person
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, Louisiana 70648
Defendant

KEATY, Judge.

In this consolidated appeal, Defendant, Tyrone A. Murray, appeals from the

trial court’s ruling that the State provided a sufficient factual basis to support his

guilty pleas to charges that he molested a juvenile and committed oral sexual

battery. For the following reasons, we find no merit to Defendant’s appeal and,

thus, affirm his convictions and sentences.

PROCEDURAL HISTORY

On April 15, 2010, Defendant was indicted for aggravated rape, a violation

of La.R.S. 14:42, under lower court docket number 155,970; for oral sexual

battery, a violation of La.R.S. 14:43.3, under lower court docket number 155,971;

and for molestation of a juvenile, a violation of La.R.S. 14:81.2, under lower court

docket number 155,972.

On May 17, 2011, Defendant pled guilty pursuant to North Carolina v.

Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), to one count of molestation of a juvenile,

reduced from aggravated rape, and one count of oral sexual battery. The original

molestation of a juvenile charge under docket number 155,972 was nolle

prosequied. Defendant was sentenced on the same date to twenty-five years on

each conviction without the benefit of probation, parole, or suspension of sentence

to be served concurrently.

On June 27, 2011, Defendant filed a pro se ―Motion For Withdrawal of

Guilty Plea‖ under both remaining docket numbers. After a December 13, 2011

hearing, Defendant’s motions were denied. Defendant filed two separate appeals

in this court and asked that they be consolidated. However, this court dismissed

the appeal of docket number 155,971 because the docket number was not included

on the motion for appeal. See 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

155,970 pending the supreme court’s ruling. On December 14, 2012, the supreme

court reinstated Defendant’s appeal of docket number 155,971 and remanded the

matter with instructions to consolidate the two appeals. Id. This court

consolidated the matters on January 14, 2013.

Defendant appealed his convictions on the grounds that his guilty pleas were

not knowingly and intelligently made. He asserted that he was not advised of the

requirements regarding sex offender registration and notification. He argued that

the trial court erred in denying his motion to withdraw his guilty pleas. In State v.

Murray, 12-378, 12-379, p. 8 (La.App. 3 Cir. 4/3/13), 117 So.3d 130, 136, this

court conditionally affirmed the convictions and sentences but remanded the matter

to the trial court:

to conduct an additional Boykin[1] 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.

The trial court held a post-trial motion hearing as ordered by this court on

April 23, 2013. Following the hearing, the trial court ruled that the State provided

a sufficient factual basis to support the guilty pleas to the offenses of molestation

of a juvenile and oral sexual battery pursuant to the requirements of Alford.

Defendant now appeals, alleging that the trial court erred: 1) in failing to

allow him and defense counsel adequate time to prepare for the additional Boykin

1
See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).

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hearing; and 2) in not properly evaluating the case after considering the factual

basis presented by the State and Defendant’s assertions of both innocence and

possession of exculpatory evidence to determine whether there was a sufficient

factual basis to accept his Alford pleas.

DISCUSSION

The State presented the following factual basis for Defendant’s guilty pleas

at the April 23, 2013 hearing:

[I]n order to prove that the defendant was over the age of seventeen
the detective on the case could have testified that he was born August
29, 1985. In order to prove that a lewd or lascivious act upon the
person of the victim, [D.A. 2], the testimony of the victim would have
been that the defendant put his penis in her mouth, that the defendant
put his penis inside her anus, and that the defendant put his finger in
her vagina and told her not to tell anyone. . . .

....

[We also] would have had the testimony of Dr. Mayeux, the
coroner who examined the six year old victim who would’ve testify
[sic] that . . . her hymenal [sic] ring was dilated with a held [sic] scar
at eleven o’clock, also he examined her rectum and it showed dilation
violation and a healed scar at the midline at twelve o’clock . . .

....

In order to establish that the victim was under the age of
seventeen and that there was an age difference of greater than two
years the state would have had the testimony of the victim and the
grandmother to indicate her age was six years old at the time. In order
to establish that the defendant had a position of supervision or control
over the juvenile and was able to complete this lewd and lascivious
act by virtue of being in a position of control of supervision, we would
have had the testimony of the grandmother and the victim that the
defendant babysat the victim when the mother was at work and the
abuse happened while the mother was at work. In addition the
defendant admitted to the detective investigating the case that he was
often alone with the victim.

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Initials of the victim are used in the statement of facts to protect her identity as required
by La.R.S. 46:1844(W).

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In order to establish the charge of oral sexual battery we would
have the testimony of the victim and the grandmother to show her age
as being six years[] old under the age of fifteen and not the spouse of
the defendant. In order to establish the oral sexual battery occurred
we would have had the testimony of the victim that the defendant put
his penis in her mouth without her consent.

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 review, we have found

no errors patent.

Assignments of Error

Defendant argues that the trial court did not allow him or his defense counsel

enough time to prepare for the hearing. He argues that while he is guaranteed the

right to effective counsel by the Sixth Amendment at all relevant proceedings in a

criminal prosecution, the record does not indicate that he ―had a meaningful

opportunity to discuss the matter with appointed counsel and to present to

appointed counsel the evidence he had to counter the State’s factual basis.‖

Furthermore, he argues that the factual basis as stated by the State was insufficient

because he had exculpatory evidence.

At the post-trial motion hearing, the trial court noted that Defendant

appeared without counsel and asked if Defendant would like appointed counsel, to

which Defendant answered affirmatively. The trial court then appointed

Mr. Bradley Dauzat, Chief Public Defender of the Avoyelles Parish Public

Defender’s Office, to represent him. The trial court advised Mr. Dauzat of the

purpose of the hearing as ordered by this court and ascertained that Defendant had

a file that Mr. Dauzat could review. The trial court then recessed. As noted by

both Defendant and the State, there is nothing in the record to indicate how long

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the recess lasted. However, when back on the record, Mr. Dauzat advised the trial

court that he and another public defender from his office, Mr. Whittington, had

spoken with Defendant. Thereafter, Defendant objected, stating ―We didn’t talk

about nothing about what’s going on today.‖ The trial court then allowed the State

to finish presenting the factual basis, after which it allowed Defendant to put his

objections on the record. Defendant testified that his retained trial counsel failed to

give him copies of all discovery, even after he complained to the disciplinary board.

Defendant further claimed that it would have been impossible for a grown man

such as him to commit the charged crimes upon a six-year-old girl without causing

more serious harm than that alleged by the victim. Finally, Defendant claimed that

the State had withheld exculpatory evidence that would have shown that the victim

was never alone with him. Defendant admitted that he had messed up earlier in his

life, and he apologized for that. Nevertheless, he maintained that he was innocent

of the charges that he had pled guilty to in the instant case.

There is nothing in the record before this court to indicate that appointed

counsel at the post-trial motion hearing was ineffective in his representation,

considering that the purpose of the hearing was to allow the State to put into the

record the factual basis of the crimes to which Defendant pled guilty, to determine

whether the factual basis was sufficient, and nothing more. Defendant did most of

the talking during the hearing, and Mr. Dauzat objected to the trial court’s ruling at

the conclusion of the hearing, thereby preserving the issues for appeal.

Following recitation by the State of the evidence it could have presented at

trial and the lengthy diatribe by Defendant, the trial court noted that the State

presented a sufficient factual basis to support the guilty pleas pursuant to the

requirements of Alford.

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In State v. J.S., 10-1233, p. 2 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185, 1187-

88, this court noted the following regarding the requirements of an Alford plea:

The ―best interest‖ or Alford plea, which derives
from the United States Supreme Court case of North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162 (1970), is one in which the defendant pled guilty
while maintaining his innocence. In Alford, the Supreme
Court ruled that a defendant may plead guilty, without
forgoing his protestations of innocence, if ―the plea
represents a voluntary and intelligent choice among the
alternative courses of action open to defendant[,] . . .
especially where the defendant was represented by
competent counsel whose advice was that the plea would
be to the defendant’s advantage.‖ Id., 400 U.S. at 31, 91
S.Ct. at 164; State v. McCoil, 2005-658 (La.App. 5th
Cir.02/27/06), 924 So.2d 1120. In a case involving an
Alford plea, the record must contain ―strong evidence of
actual guilt.‖ Id., 400 U.S. at 38, 91 S.Ct. at 167; State v.
McCoil, supra;

State v. Stevenson, 45,371, pp. 4-5 (La.App. 2 Cir. 6/23/10), 41 So.3d
1273, 1277.

Furthermore, when a defendant claims innocence and still
makes an Alford plea, the trial court is put on notice that a substantial
basis of guilt must be placed into the record. 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.

[T]he 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].‖ Id. 400 U.S.
at 31, 91 S.Ct. at 164.

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

The issue currently before this court is whether Defendant’s guilty pleas

were voluntarily and knowingly made. In brief, the State points out that the issue

of an alleged recantation by the victim was addressed at the December 2011

hearing. After waiving the attorney/client confidentiality, George Higgins,

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Defendant’s retained counsel at the time he pled guilty and was sentenced, testified

that the alleged recantation of the victim was in a video tape obtained by

Defendant’s family. Mr. Higgins testified the tape did not contain a recantation.

He also testified that the plea bargain offered by the State included the agreement

not to charge Defendant as a habitual offender, which could have resulted in at

least a sixty-six year sentence if the jury had found any of the responsive verdicts

applied. Mr. Higgins testified that based on the strength of the State’s case, the

fact that aggravated rape carries a mandatory life sentence and that, in his

professional opinion, Defendant would be found guilty as charged, he

recommended that Defendant accept the State’s offer to plead guilty to the lesser

offense of molestation of a juvenile and the offense of oral sexual battery and

receive concurrent sentences of twenty-five years imprisonment.

Freeman Ford also testified at the motion to withdraw guilty plea hearing.

Mr. Ford, at the time a legal assistant at the public defender’s office, was a thirty-

six year veteran of working cases wherein defendants were charged with sex

crimes. He stated that on the day before trial, he, separately and together with

Mr. Higgins, discussed Defendant’s case with him and that he supported

Mr. Higgins’ recommendation to accept the plea offer. According to Mr. Ford, he

and Mr. Higgins told Defendant to sleep on it. The next morning, the day trial was

to commence, Defendant decided to take the plea offer.

Defendant testified at the motion to withdraw guilty plea hearing and denied

that he ever wanted to accept the offer. However, he did not explain why he pled

guilty even though he did tell the trial court during the Boykin hearing he was

innocent, but ―Man . . . I’m gonna just go with it.‖ Following Defendant’s

testimony, the trial court questioned him extensively regarding whether he believed

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Mr. Higgins gave him good advice. Defendant admitted that considering the facts

of the case and consequences he was facing, Mr. Higgins gave him good advice.

At the conclusion of the December 13, 2011 hearing on Defendant’s motion

to withdraw the guilty pleas, the trial court stated:

BY THE COURT:

Out of Mr. Murray’s own mouth, here today, he included that
the advice given by Mr. Higgins and the advice given by Mr. Ford
who has 36 years of experience in the Twelfth Judicial District Court
both in the prosecutor[’]s office for twenty some odd years or 30 years
and then in the public defender’s office and Mr. Murray admits that
that advice was good advice. And it was in his best interest to take the
plea at the time.

Mr. Murray is now coming into court and saying hey, I made a
mistake, I didn’t do it, I didn’t commit the crime, and I shouldn’t have
taken the plea, I’d rather take my chances which what would end up
happening any lawyer worth his salt what would evaluate the case,
again, would probably give the same advice.

Mr. Murray, you’re going to get 25 years instead of in all
likelihood the rest of your life in prison, you have the chance of
having a future. We must also remember that this is Mr. Murray’s
third felony conviction and all three of which today, he still maintains,
in spite of testifying under oath that he did them, and even testifying
today that as the first two, he was guilty as a principle [sic], he’s still
saying he was not guilty today and now saying that although he pled
guilty to these offenses, he is not guilty. That’s again the third time
that he has pled guilty to felonies and he’s saying no, I did not do it.

I fear for Mr. Murray in the event that I would allow him to
withdraw his guilty plea, based on the testimony I’ve heard here
today, Mr. Murray would be back where he was and in all likelihood,
have a most unfortunate and disastrous result. He has not shown on
today that the [B]oykin [examination] was defective, he has not
shown anything but that he had effectiveness of representation by
George Higgins and the help of Mr. Freeman Ford in advising him
even Mr. Higgins or Mr. Ford, I’m sorry, confirming that one of his
family members acknowledged that it was in his best interest to take
this plea.

If every time a defendant who stands in court and pleads guilty
then comes and says . . . and wants to withdraw because they say later
they didn’t do it, we would be besieged with such cases. Mr. Murray
in this case simply has not met his burden to prove that anything was

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done incorrectly, he received excellent representation, he made a
knowing, intelligently . . . a knowing and intelligent appearance in his
[B]oykin examination and he has failed to provide here today, any
legal basis for me to allow him to withdraw his plea of guilty.

Considering the strength of the State’s case as demonstrated by the factual

basis set out above, coupled with the fact that Defendant was facing life

imprisonment, or at the minimum, several more years than the twenty-five years he

received, the record reflects that Defendant’s plea was voluntary and an intelligent

choice among the alternatives.

DECREE

The factual basis as presented by the State was sufficient to support

Defendant’s Alford plea of guilty of the offenses of molestation of a juvenile and

oral sexual battery. Accordingly, Defendant’s convictions and sentences are

affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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