State of Louisiana v. Damari Jennings

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-94

STATE OF LOUISIANA

VERSUS

DAMARI JENNINGS

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR-143443
HONORABLE DAVID M. SMITH, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W.
Perry, Judges.

REMANDED WITH INSTRUCTIONS.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Damari Jennings

Damari Jennings
Louisiana State Prison
628346 Pine - 2
Angola, LA 70712
IN PROPER PERSON

Keith A. Stutes
District Attorney
Alan P. Haney
Assistant District Attorney
Post Office Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

This appeal arises from a “best interest” plea made by Defendant, Damari

Jennings, to the reduced offenses of aggravated battery and second degree murder.

Defendant appeals and asserts that those pleas should be vacated or, alternatively,

that this court should remand for an evidentiary hearing regarding those pleas. We

agree and remand this case with instructions to the trial court for an evidentiary

hearing.

FACTUAL AND PROCEDURAL BACKGROUND:

Defendant, Damari Jennings, was charged by two separate grand jury

indictments. In the bill of indictment in docket number 143443, appellate number

19-94, Defendant was charged with attempted second degree murder of Tano

Gentile on August 8, 2013, a violation of La.R.S. 14:30.1 and 14:27. In the bill of

indictment in docket number 143444, appellate number 19-95, Defendant was

charged with the first degree murder of Connie Burch on August 18, 2013, a

violation of La.R.S. 14:30.

Defendant was fifteen at the time he was initially charged. Pursuant to

La.Ch.Code art. 305, Defendant became subject to the jurisdiction of the adult

court for both offenses once the grand jury returned the indictments. Defendant, at

age sixteen, entered a guilty plea to an amended charge of aggravated battery, a

violation of La.R.S. 14:34, in docket number 143444, appellate number 19-94, and

an amended charge of second degree murder, a violation of La.R.S. 14:30.1, in

docket number 143444, appellate docket number 19-95.1 According to the factual

basis submitted by the State at the plea proceeding, there were eyewitnesses to

1
Despite Defendant’s plea to lesser and included offenses, the adult court retained
jurisdiction pursuant to La.Ch.Code art. 305(D).

both shootings, and the murder weapons used in both offenses were found in

Defendant’s bedroom.

The trial court sentenced Defendant to an agreed upon sentence of ten years

at hard labor, with one year to be served without the benefit of parole, probation, or

suspension of sentence, for aggravated battery. For second degree murder,

Defendant was sentenced to an agreed upon sentence of life in prison with a

stipulation that he would be eligible for parole in accordance with La.R.S.

15:574.4(E).2 The sentences were ordered to run concurrently.

On February 18, 2016, almost a year and a half after he was sentenced,

Defendant filed a post-conviction relief application for an out-of-time appeal. By

handwritten notation on the writ application, the trial court granted the out-of-time

appeal. Thereafter, on July 19, 2016, the Louisiana Appellate Project notified the

district court that it had been assigned to handle the appeal. After a year and a half

of various motions, on December 11, 2018, Defendant’s counsel submitted a

“Motion for Clerk of Court to Process Out of Time Appeal Without Need for a

Further Hearing and to Forward Record with the Third Circuit Court of Appeals.”

The trial court granted the motion that same date.

On March 1, 2019, appellate counsel filed a brief in both appellate docket

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

seeking to withdraw from the cases because of the alleged lack of non-frivolous

issues for review. In conducting its review of the case, this court noticed potential

issues that should be briefed by appellate counsel, and therefore, issued orders in

both appellate docket numbers, ordering appellate counsel to brief certain issues.

2
At the time Defendant’s offense was committed and at the time of his plea, La.R.S.
15:574.4(E) was the applicable provision. Since that time, La.R.S. 15:574.4 has been amended.

2

In both appellate docket numbers, this court ordered Defendant to file a brief

addressing whether Defendant’s pleas should be considered “best interest” pleas

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970) and, if

considered “best interest” pleas, whether Defendant’s pleas represent a voluntary

and intelligent choice considering the strength of the factual basis and the other

circumstances of the pleas. Additionally, in appellate docket number 19-94, this

court ordered appellate counsel to address the issue of whether the imposition of

one year without benefit of parole, probation, or suspension of sentence for

aggravated battery was authorized by La.R.S. 14:34(B). In appellate docket

number 19-95, this court ordered appellate counsel to address the concerns raised

in Defendant’s pro se letter file-date stamped January 9, 2017, particularly

Defendant’s misunderstanding as to when he would get out of prison and whether

that misunderstanding impacted the voluntariness of Defendant’s plea to second

degree murder.

Appellate counsel filed a motion to consolidate the cases for briefing

purposes only, and this court granted the motion. Because the issues in both

docket numbers are so intertwined, we will address all issues together.

On appeal, Defendant alleges that his plea, allegedly a “best interest” or

Alford plea, was entered without the trial court first ascertaining that a factual basis

existed to support the plea; that the trial court erred in ordering one year of his

aggravated battery sentence be served without the benefit of parole, probation, or

suspension of sentence; and that he was denied effective assistance of counsel

before, during, and after due proceedings were held. For the following reasons, we

remand the case to the trial court for an evidentiary hearing on the factual basis

3

supporting the pleas, as well as whether those pleas were knowingly, intelligently,

and voluntarily entered based on the circumstances.

ERRORS PATENT:

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

errors patent on the face of the record. After reviewing the record, we find an error

patent involving the sentence imposed for aggravated battery. However, this error

patent has been assigned as error and will be discussed in Assignment of Error

Two.

ASSIGNMENT OF ERROR ONE:

In his first assignment of error, both through appellate counsel and pro se,

Defendant asserts that the trial court erred in allowing him to enter “best interest”

pleas without first ascertaining a sufficient factual basis and determining that

Defendant made an intelligent and voluntary choice. Defendant, pro se, more

specifically asserts, that his plea is defective because his attorney’s advice to plead

guilty was unreasonable considering his innocence. Additionally, considering the

seriousness of his offense, he asserts that he should not have been Boykinized

during a mass Boykinzation.

Considering Defendant’s argument on appeal, we first note that the absence

of a formal motion to withdraw a guilty plea does not prevent this court from

setting aside a constitutionally infirm plea. State v. Dixon, 449 So.2d 463

(La.1984); State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36.

Additionally, in his application for post-conviction relief for an out-of-time appeal

and in a letter to the trial court, Defendant made known to the trial court his belief

that his pleas were unconstitutional as well as his desire to withdraw the pleas.

4

Thus, the constitutionality of Defendant’s pleas is properly before this court for

review.

Defendant was sixteen years old, facing life in prison, and entered his guilty

pleas during a mass Boykinization proceeding. After advising Defendant of his

constitutional rights, the trial court asked Defendant if he still wanted to plead

guilty to second degree murder. The following colloquy took place:

THE COURT: . . . . All right, sir. You are asking
me to accept your guilty plea to second degree murder as a juvenile; is
that right, sir?

MR JENNINGS:

A Yes, sir.

THE COURT: Do you understand that to convict you
at trial the State of Louisiana would have to prove that in Lafayette
Parish you did commit a homicide with the specific intent to kill or
cause great bodily harm? Do you understand that?

MR. JENNINGS:

A Yes, sir.

THE COURT: And do you further understand that if
I accept your plea, you will stand convicted of this crime and as a
result you would be sentenced to a term of imprisonment for life with
parole considerations, according to a particular law in Louisiana
which is 15:574.4; is that right, sir?

MR. JENNINGS:

A Yes, sir.

THE COURT: Tell me what you did.

MR. JENNINGS:

A Nothing.

THE COURT: Well, sir, I know Mr. Hamilton is not
here but somebody has to give me a factual basis if he’s going
to say nothing.

5

Sir, you are pleading guilty to this charge. Is there a
reason why you won’t say anything about it?

MR. JENNINGS:

A No, sir.

THE COURT: Then why don’t you tell me what you
did?

MR. JENNINGS:

A I was accused of shooting two people.

THE COURT: All right, sir. And did you kill someone?

MR. JENNINGS:

A No, sir.

THE COURT: No, sir? All right, sir. Why are you
pleading guilty, young man?

MR. JENNINGS:

A. It’s the best option.

THE COURT: Explain that to me, please.

MR. JENNINGS:

A. (No response)

THE COURT: What do you mean? What do you mean?

MR. JENNINGS:

A. They found evidence but I still didn’t do it, but they found
evidence.

Defense counsel subsequently informed the court that Defendant’s plea to

second degree murder was considered a “best interest plea” due to the “parole

eligibility” offer. The court resumed its questioning of Defendant as follows:

THE COURT: Mr. Jennings, you choose not to contest
those facts; is that what you’re telling me?

6

MR. JENNINGS:

A. Could you repeat that again?

THE COURT: Are you choosing not to contest those
facts, to object to those facts?

MR. JENNINGS:

A. No, sir.

THE COURT: You do now understand after what was
just said, what the State would attempt, what evidence the State
would present in an attempt to convict you at trial. Do you
understand that?

MR. JENNINGS:

A. Yes, sir.

THE COURT: Do you also understand or are you telling
me that you are choosing not to contest those facts because you
believe that the State of Louisiana very well may convict you?

MR. JENNINGS:

A. Yes, sir.

BY THE COURT: And is that the reason why you want
to plead guilty to that charge today?

MR. JENNINGS:

A. Yes, sir.

Later, when taking Defendant’s plea to aggravated battery, the following

colloquy took place:

THE COURT: After telling you all of that and
everything else I’ve told you today, do you still want to plead
guilty to aggravated battery?

MR. JENNINGS:

A. Yes, sir.

THE COURT: Is your position the same, that you do not
want to contest the facts or to make any other statement?

7

MR. JENNINGS:

A. Right.

According to the minutes, Defendant entered a plea of no contest to

aggravated battery and a plea of guilty to second degree murder. However, after

reviewing the plea colloquy, we conclude that Defendant pled guilty pursuant to

Alford, 400 U.S. 25. An “Alford plea” “is one in which the defendant pled guilty

while maintaining his innocence.” State v. J.S., 10-1233, p. 2 (La.App. 3 Cir.

5/11/11), 63 So.3d 1185, 1187 (quoting State v. Stevenson, 45,371, pp. 4-5

(La.App. 2 Cir. 6/23/10) 41 So.3d 1273, 1276). Defendant clearly maintained his

innocence when the trial court accepted his plea to second degree murder.

Although the same extensive colloquy was not repeated when Defendant entered

his plea to aggravated battery, Defendant’s agreement with the trial court that his

position was the same indicates that Defendant also maintained his innocence as to

aggravated battery. Additionally, the State does not dispute that Defendant’s pleas

were “best interest” pleas. Rather, as will be discussed, the State asserts that the

factual basis for the pleas was sufficient.

Factual Basis for the Pleas

Before the trial court accepted Defendant’s Alford pleas, appellate counsel

contends that the State should have set forth a strong factual basis of Defendant’s

guilt. Additionally, appellate counsel contends that the trial court should have

made sure the pleas were being entered knowingly and intelligently. In response,

the State argues that the uncontested facts are sufficient to sustain both convictions

and therefore, are sufficient to form a factual basis for Defendant’s pleas.

Furthermore, the State contends that Defendant agreed the evidence was sufficient

to convict him.

8

“[T]he standard under Alford is whether the strength of the factual basis,

coupled with the other circumstances of the plea, reflects that the plea was a

voluntary and intelligent choice among the alternatives available to Defendant.”

State v. Fregia, 12-646, pp. 6-7 (La.App. 3 Cir. 12/5/12), 105 So.3d 999, 1004.

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.

J.S., 63 So.3d at 1187-88 (alterations in original).

In the present case, before accepting Defendant’s plea to second degree

murder, the trial court advised Defendant that the State would have to prove he

committed a homicide with the specific intent to kill or inflict great bodily harm.3

Prior to entering his guilty plea, the State entered the following factual basis for

second degree murder:

MR. COLBERT [(State)]: Yes, sir, Your Honor. At trial the
State of Louisiana would prove that on or about August 18, 2013,
Damari Jennings did commit an act of first degree murder of one

Second degree murder is defined in La.R.S. 14:30.1 as “the killing of a human being: (1)
3

When the offender has a specific intent to kill or to inflict great bodily harm[.]”

9

Connie Burch in violation of the provisions of Louisiana Revised
Statute 14:30. Do you want to know the evidence, Your Honor.

THE COURT: Well, sir, I know what the bill of information or
the indictment says but I need more than just the charge. I need a
factual basis before I can accept a plea or even a best interest plea.

MR. MCCANN [(defense counsel)]: There was an eye witness
and there was a murder weapon found in his bedroom.

MR. COLBERT: And forensics came back from the Acadiana
Crime Lab on the murder weapon which was found in his room. At
the crime there was a 40 caliber cartridge that was found right next to
the victim and that when they found the gun in his room, it came back
as positive, having been fired from the gun which he was found in
possession of.

THE COURT: Any additional forensics on the weapon?

MR. COLBERT: No, sir.

THE COURT: None was done or - -

MR. MCCANN: None was found. There were no forensics
done that would have excluded him but the eye witness puts him
there. And under those circumstances and under the circumstances of
the parole offer, the parole eligibility, it is considered to be a best
interest plea.

....

MR. MCCANN: Judge, let me put some additional information
in the record to make the Court feel better and/or other purposes. The
circumstances were similar. There was a second eye witness that saw
the other shooting. That weapon was a 25 caliber and it was also
found with the same search warrant in Mr. Jennings’ bedroom. So,
the 404B inclusive of the eye witness of the homicide would have
made defending this case very difficult.

Later, when Defendant pled to aggravated battery, the trial court informed

Defendant that the State would have to prove he committed a battery on another

person while armed with a dangerous weapon.4 No additional factual basis was

given for this charge.

4
Aggravated battery is defined in La.R.S. 14:34 as “a battery committed with a
dangerous weapon.”

10

On appeal, the State makes additional claims regarding the factual basis for

the pleas, such as “the victim in the aggravated battery case picked the defendant

out of a lineup[,]” and that in the second degree murder case “a juvenile witness

told police that he witnessed the defendant shoot the victim (who was living at

Faith House) and then take her medication and cellular phone off of her dead body.”

However, these assertions are not supported by the record on appeal, thus, are not

properly before this court. See La.Code Civ.P. art. 2164; State v. Hoffpauir, 17-

416 (La.App. 3 Cir. 11/2/17), 232 So.3d 670.

Instead, reviewing the factual basis presented to the trial court prior to

Defendant’s plea, we find that the evidence established that Defendant was

involved in two shootings—eyewitnesses placed him at the shootings, and the guns

used in the shootings were found in his room. However, because nothing in the

presentation of facts indicated what the eyewitnesses saw, the extent of

Defendant’s involvement is unclear. Assuming Defendant was the shooter, the

factual basis fails to establish that Defendant had the specific intent to kill or inflict

great bodily harm on the victim of the second degree murder and failed to establish

Defendant’s intentional use of force or violence on the victim of the aggravated

battery.

The supreme court in State v. Orman, 97-2089, pp. 1-2 (La.1/9/98), 704

So.2d 245, 245, explained the test for determining whether the factual basis is

sufficient:

[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.

11

Therefore, in addition to the factual basis already discussed, this court must

evaluate the other circumstances surrounding Defendant’s pleas.

Circumstances Surrounding the Pleas

As previously stated, Defendant was sixteen when he entered the pleas.

Defendant maintained his innocence, but stated he was pleading guilty because it

was in his best interest to do so. Although Defendant received a benefit from his

plea to aggravated battery (the charge was reduced from attempted second degree

murder), the sentence for aggravated battery was ordered to run concurrently with

Defendant’s life sentence for second degree murder. Thus, Defendant’s plea to the

reduced charge of aggravated battery did not benefit Defendant for practical

purposes, and he received the maximum imprisonment permitted for aggravated

battery.5

Moreover, Defendant did not receive a significant benefit from his plea to

second degree murder. Defendant was originally charged with first degree murder

but could not receive the death penalty since he was under eighteen at the time the

offense was committed. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005).

Additionally, Defendant’s age prohibited a mandatory life sentence without the

possibility of parole. Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012).

Thus, Defendant’s sentence would have been the same under either first degree

murder or second degree murder.

Furthermore, as part of Defendant’s plea, the Defendant would be eligible

for parole pursuant to La.R.S. 15:574.4(E). The State also agreed that if a hearing

was held in accordance with the mandates of Miller v. Alabama, sufficient

5
La.R.S. 14:34 (B) provides: “Whoever commits an aggravated battery shall be fined not
more than five thousand dollars, imprisoned with or without hard labor for not more than ten
years, or both.”

12

evidence would be introduced to make Defendant eligible for parole in the future.

However, at the time of Defendant’s plea and at the time Defendant committed the

offense at issue, La.Code Crim.P. art. 878.1 required a parole eligibility hearing to

be held for any defendant convicted of first or second degree murder committed

when he was under the age of eighteen to determine whether the defendant would

be eligible for parole under La.R.S. 15:574.4(E). Article 878.1(D) also provided

that the denial of parole eligibility should normally be reserved for the worst

offenders and the worst cases. Thus, even if Defendant would have gone to trial

and been convicted of either first or second degree murder, Defendant would have

been sentenced to life imprisonment and had a Miller hearing to determine his

parole eligibility. In short, parole eligibility was a possibility, unless Defendant

was in the category of the worst type of offender and this murder was one of the

worst cases.

In addition to Defendant’s young age, protestations of innocence, and the

minimal benefit he received from pleading guilty, Defendant asserts that his guilty

pleas were unconstitutional. As discussed, Defendant filed a pro se brief in this

court alleging the unconstitutionality of his pleas. Additionally, in his Uniform

Application for Post-Conviction Relief (PCR application) filed in the trial court,

Defendant sought an out-of-time appeal and made various claims that his pleas

were unconstitutional. Most notably, Defendant submitted a letter to the trial court

alleging that he was mis-informed as to the time he would serve in prison. The

letter states in pertinent part:

The purpose of me personally writing you is to fully inform you
that my Post Conviction relief was granted on March 3, 2016, and I
am asking can you strip me of this plea deal. The plea deal was
originally life and a 10 year sentence. Unfortunately, I took the deal
at the age of 16. I really didn’t have any understanding of the law.

13

My state appointed lawyer told me I will get out at the age of 21. He
scared me told me if I don’t take the deal I could spend the rest of my
life in prison. He played mind games with me. I was 15 years old for
1 month and 1 week exact before I became incarcerated. My mind
wasn’t fully develope [sic], I was easily influenced by other humans.
Over my years of incarceration I grew older[;] I covered goals that I
set for myself (G.E.D., graduated the youthful offender program,
completed 8 different classes, A pride member, over 2 years write-up
free) I start a welding trade the beginning of next year. I believe I
have the privilege to be relocated back into society and you have the
power to give me another chance at my life. This isn’t a place for
humans to be caged up like animals. It took me a long time to figure
that out, but I couldn’t realise [sic] because I was never in a position
like this. This is not what I want, so im [sic] asking for you to put it in
your heart to give me another chance at my life, that I barely got the
privilege to live.

In response, the State asserts this argument is without merit because the trial

court informed Defendant that he would “be sentenced to a term of imprisonment

for life with parole considerations, according to a particular law in Louisiana which

is [La.R.S.] 15:574.4[.]” Defendant indicated that he understood. Later, the trial

court and Defendant again discussed the sentence imposed for second degree

murder:

THE COURT: All right. Pursuant to that agreement I
hereby sentence you to serve life in prison. However, the State
of Louisiana and your defense agree that if evidence was
presented at a particular hearing called a Miller Hearing, that
there would be sufficient evidence to make you available for
parole at some time in the future. Do you understand that?

MR. JENNINGS:

A. Yes, sir.

THE COURT: Is that what you expected to happen
today?

MR. JENNINGS:
A. Yes, sir.

Although Defendant’s case was set for hearing several times after the letter

was submitted, each hearing was continued. Thus, the record contains no ruling on

14

the assertions made in Defendant’s letter. We note the following jurisprudence

regarding misunderstandings as to plea agreements:

Dissatisfaction with a sentence or a mere change of heart or mind by
the defendant as to whether he made a good bargain will not
ordinarily support allowing the withdrawal of a bargained guilty plea.
State v. Green, 03-410 (La. App. 5 Cir. 10/28/03), 860 So.2d 237,
242, writ denied, 03-3228 (La. 3/26/04), 871 So.2d 346. Moreover,
where a defendant’s misunderstanding of the plea bargain is not
induced by or attributed to representations made by the district
attorney or the trial court, there are no grounds for withdrawal of the
plea. In the absence of fraud, intimidation, or incompetency of
counsel, a guilty plea is not made less voluntary or informed by the
considered advice of counsel. Joseph, 169 So.3d at 664.

State v. Johnson, 18-294, p. 4 (La.App. 5 Cir. 1/16/19), 264 So.3d 593, 597.

In his letter to the trial court, Defendant claimed he was told by his trial

counsel that he would get out of prison at age twenty-one. Although this

misunderstanding alone may not justify withdrawal of Defendant’s pleas, as will

be discussed below, the trial court’s lack of explanation of a “life sentence” as

opposed to a “juvenile life” sentence may have led to Defendant’s confusion.

Furthermore, Defendant’s misunderstanding should be considered along with the

strength of the State’s factual basis to evaluate the voluntariness of Defendant’s

pleas.

While, it is clear from the above colloquy that the trial court informed

Defendant that if it accepted Defendant’s plea, Defendant would be sentenced to a

“term of imprisonment for life with parole considerations . . . .[,]” “juvenile life” is

a common term for a juvenile’s sentence until age twenty-one. See State in the

Interest of A.F., 11-1437, p. 7 (La.App. 4 Cir. 2/15/12) (unpublished opinion)6 and

State v. S.D., 16-1953, p. 1 (La. 11/15/16), 205 So.3d 907, 908 (Knoll, J.,

concurring). Additionally, the trial court initially began his conversation with

6
This case is cited at 2012 WL 4754159.

15

Defendant at the plea hearing by stating, “You are asking me to accept your guilty

plea to second degree murder as a juvenile; is that right, sir?” (emphasis added).

Considering the above, it is possible Defendant thought the trial court’s

reference to “life” meant juvenile life. Although this misunderstanding alone may

not justify withdrawal of Defendant’s pleas, the trial court’s lack of explanation of

a “life sentence” as opposed to a “juvenile life” sentence may have led to

Defendant’s confusion. Furthermore, Defendant’s misunderstanding is considered

along with the strength of the State’s factual basis to evaluate the voluntariness of

Defendant’s pleas.

Additionally, Defendant, pro se, contends he should have been Boykinized

alone instead of alongside several other people who were charged with less serious

offenses than Defendant. While a mass Boykinization does not in and of itself

render a guilty plea unconstitutional, it is an appropriate factor in determining

whether the plea is valid under the circumstances of the case. See State v. Richard,

00-659 (La. 9/29/00), 769 So.2d 1177.

Defendant was Boykinized along with five other people ranging in age from

seventeen to fifty. As it did with the other participants, the trial court questioned

Defendant personally as to his competency to proceed:

BY THE COURT:

Q. MR. JENNINGS, what’s your name and date of birth, please?

A. DAMARI JENNINGS, 7/14/98.
Q. How old are you?

A. Sixteen.

Q. What’s your Social Security Number?

A. 1071.

16

Q. How far did you go in school?

A. GED.

Q. Can you read, write, and understand English?

A. Yes, sir.

Q. Are you under the influence of drugs or alcohol or do you
suffer from a mental defect or disability which prevents you from
understanding what’s said to you in English?

A. No, sir.

Q. Did you understand everything I’ve said to you today?

A. Yes, sir.

Q. I have a plea form in my hand that has your signature. Did you
sign this form?

A. Yes, sir.

Q. Were you able to read and understand the form when you went
over it with your lawyer?

A. Yes, sir.

Q. I find you competent to proceed.

After questioning each of the defendants individually regarding their

competency, the trial court questioned the defendants as a group as to the

constitutional rights they were waiving by pleading guilty. The trial court then,

again, questioned each of the defendants individually regarding the specific

offenses to which each was pleading and regarding each of their plea agreements.

The trial court’s colloquy with Defendant as to the specifics of his plea agreements

was set forth above. In addition to the colloquy with the trial court, Defendant

signed a written plea form as to both offenses.

17

Analysis of Pleas

As stated previously, the strength of the factual basis given by the State for

Defendant’s guilty pleas should be evaluated with the other circumstances of

Defendant’s pleas to determine whether Defendant’s pleas represent a voluntary

and intelligent choice among the alternatives available to him. Fregia, 105 So.3d

999. The factual basis presented by the State established only that an eyewitness

placed Defendant at the two shootings and that the guns used in the shootings were

found in his bedroom. It is not clear, however, if Defendant was the actual shooter,

if the second degree murder was committed with specific intent to kill or to inflict

great bodily harm, or if the aggravated battery was committed with the intentional

use of force or violence on the victim. Thus, the factual basis presented by the

State was not substantial. When the factual basis is coupled with the other

circumstances of Defendant’s pleas—Defendant’s young age, the trial judge’s

scant questioning of Defendant as to his competency, the minimal benefit

Defendant received from his pleas, and Defendant’s assertion that he believed he

would be released at age twenty-one—we conclude that there is merit to

Defendant’s assertion that the record does not support a finding that his pleas were

a voluntary and intelligent choice among the alternatives available to him.

In Fregia, this court stated:

Ordinarily, in the case of an Alford plea, when a defendant
alleges that the record fails to contain a sufficient factual basis for his
plea, the defendant has either filed a motion to set aside the guilty plea
because it was not intelligently or knowingly made, or the defendant
raises the constitutionality of the plea on appeal for the same reason.
In such cases, if this court finds merit in the defendant’s assertions,
the remedy, depending on the circumstances of the case, is to either
remand for a hearing to allow the State the opportunity to present a
sufficient factual basis or to vacate the guilty plea, conviction, and
sentence and remand the matter.

18

Fregia, 105 So.3d at 1003.

In State v. Johnston, 16-1460 (La. 6/5/17), 221 So.3d 46, the supreme court

remanded the case for an evidentiary hearing to determine whether the juvenile

knowingly and voluntarily entered a guilty plea to the reduced charge of attempted

aggravated rape. The defendant argued that his guilty plea was not intelligently

entered because he was unaware that a juvenile non-homicide offender could no

longer be sentenced to life without parole eligibility. The supreme court noted that

the defendant may have been misinformed as to his sentencing exposure.

Remanding the matter for an evidentiary hearing, the supreme court stated,

“Because the precise sentencing advisements that defendant received remain

unclear from the materials before us, we . . . remand to the district court for an

evidentiary hearing on this issue.” Id. When the case appeared before the supreme

court after remand, the supreme court stated:

After remand, it is clear that defendant was misinformed of his
sentencing exposure, i.e. he was told that he faced a sentence of life
imprisonment without parole eligibility. We find that misinformation
impeded his ability to make a voluntary and intelligent choice among
the alternatives. Therefore, we grant the application to remand to the
district court with instructions that defendant be given the opportunity
to withdraw his guilty plea.

State v. Johnston, 18-604 (La. 8/31/18), 251 So.3d 400.

Additionally, in Fregia, 105 So.3d 999, this court likewise remanded the

case for an evidentiary hearing. In Fregia, the defendant did not allege that his

plea was involuntary or request that his plea be withdrawn, but asserted that the

trial court failed to ascertain a significant basis for the plea:

The trial court did not request, nor was it provided with, any
specific factual information regarding the offense of indecent behavior
with a juvenile. The only information regarding the offense put into
the record was essentially a recitation of the statute under which
Defendant was charged. . . .

19

Except for the victims’ unverified statements attached to a
discovery response, the record contains nothing pertaining to the facts
of the case which would serve as substantial evidence of Defendant’s
guilt. See State v. Graig, 10–854 (La.App. 5 Cir. 5/24/11), 66 So.3d
60, in which the fifth circuit noted the trial court failed to recite
specific evidence of defendant’s guilt following an Alford plea but
stated only that a factual basis existed. However, a suppression
hearing transcript which was in the record revealed a sufficient factual
basis for the Alford plea. At the suppression hearing, a witness
testified he saw the defendant shoot the victim and then run away.

Following the rationale in our decision in [State v.] Guilbeau
[11-99 (La.App. 3 Cir. 6/22/11), 71 So.3d 1020], we remand this
matter for a hearing to allow the State the opportunity to present a
factual basis for the plea. In State v. Bowie, 96–2987 (La.1/31/97),
687 So.2d 369, the state supreme court implicitly approved this
procedure as it granted writs to provide guidance regarding the new
Boykin hearing but declined to exercise its supervisory authority
further.

Id. at 1004–05. In its decree, the Fregia court remanded the case for an

evidentiary hearing, but also ordered the trial court “to prepare and lodge with this

Court an appellate record containing the transcript of the above-referenced

evidentiary hearing[.]” Id. at 1007. Thereafter, “the State and Defendant will be

given the opportunity to file briefs should either party wish to raise any issues

arising from the hearing. . . . In the absence of such an appeal, this court will

affirm the conviction.” Id.

Similarly, this court in State v. G.T., Jr., 10-1469 (La.App. 3 Cir. 6/15/11),

71 So.3d 394, 406, remanded the case for an evidentiary hearing on the

voluntariness of Defendant’s no contest plea to rape and “to allow him to withdraw

his plea if the trial court determines it was involuntary or otherwise infirm.” The

trial court was ordered “to determine if the inaccurate advice Defendant received

regarding a majority verdict and/or the untimely notification of the sex offender

registration and notification requirements and/or the court’s failure to correctly

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advise Defendant regarding the length of time he would have to register vitiated

the voluntariness of his plea.” Id. at 407.

As in Fregia, the transcript in G.T. was to be lodged with the appellate court

and both parties permitted to raise any issues arising from the hearing. Judge

Thibodeaux also concurred to recognize his reliance “on the procedure utilized in

this case based on State v. Clark, 97–1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738

and State v. Fuslier, 06–1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866.” Id. at 407

(Thibodeaux, Chief J., concurring). Judge Thibodeaux notes that those cases

“mandate a remand to the trial court to conduct an evidentiary hearing to determine

the voluntariness of a plea without conditionally affirming the defendant’s

conviction and sentence.” Id.

Based on the facts of this case and in accordance with Fregia and G.T., we

remand this case to the trial court with instructions to conduct an evidentiary

hearing within thirty days of the date of this opinion to allow the State the

opportunity to present a sufficient factual basis for the offenses. The trial court is

also instructed to explain to Defendant the life sentence for second degree murder,

including that it must be served at hard labor. Thereafter, the trial court is

instructed to determine whether Defendant’s pleas were entered knowingly,

intelligently, and voluntarily based on the circumstances. Then, the trial court is

ordered to prepare and lodge an appellate record with this court that contains the

transcript of the above-referenced evidentiary hearing within ten days of the

hearing. Once the 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 issue

arising from the hearing.

21

ASSIGNMENT OF ERROR TWO:

In this assignment, Defendant asserts that the trial court erred in ordering

one year of his sentence for aggravated battery to be served without benefit of

parole, probation, or suspension of sentence because the condition triggering the

application of the requirement, that at least one year of the sentence be served

without benefits, is not present in this case. See La.R.S. 14:34(B). The State also

concedes the error in Defendant’s sentence for aggravated battery. However,

because this court remands the case for an evidentiary hearing, the sentencing error

is pretermitted.

PRO SE ASSIGNMENT OF ERROR TWO:

In this assignment, Defendant alleges that his trial counsel was ineffective

for failing to adequately investigate the charges against him and for failing to

interview witnesses. Because we remand this case for an evidentiary hearing, a

discussion of this assignment of error is pretermitted and may be addressed when

the case returns to this court.

CONCLUSION:

Based on the foregoing, we remand this case to the trial court with

instructions to conduct an evidentiary hearing within thirty days of the date of this

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

the offenses. The trial court is also instructed to explain to Defendant the life

sentence for second degree murder, including that it must be served at hard labor.

Thereafter, the trial court is instructed to determine whether Defendant’s pleas

were entered knowingly, intelligently, and voluntarily based on the circumstances.

Then, the trial court is ordered to prepare and lodge an appellate record with this

court that contains the transcript of the above-referenced evidentiary hearing

22

within ten days of the hearing. Once the 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 issue arising from the hearing. Defendant’s additional assignments of

error are pretermitted.

REMANDED WITH INSTRUCTIONS.

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

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