State of Louisiana v. Jermaine Epps

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-681

STATE OF LOUISIANA

VERSUS

JERMAINE EPPS

**********

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 79112
HONORABLE CRAIG O. MARCOTTE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Ledricka J.
Thierry, Judges.

REMANDED WITH INSTRUCTIONS.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Jermaine Epps

D. Scott Kendrick
Attorney at Law
215 Williams Avenue
Natchitoches, LA 71457
(318) 354-9146
COUNSEL FOR DEFENDANT/APPELLANT:
Jermaine Epps

Don M. Burkett
District Attorney, Eleventh Judicial District
Anna Louise Garcie
Assistant District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

On April 22, 2019, the State filed a true bill of indictment charging Defendant,

Jermaine Epps, with first degree rape, a violation of La.R.S. 14:42(A)(6). Defendant

pled not guilty on May 29, 2019. However, on July 17, 2023, to the amended charge

of second-degree rape, a violation of La.R.S. 14:42.1, Defendant changed his plea

to guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, (1970).

Defendant was convicted of raping his stepdaughter, A.H.1 between 2016 and 2018.

The court then imposed an agreed-upon sentence of twenty years at hard labor

without benefit of probation, parole, or suspension of sentence.

Defendant now appeals and asserts only one assignment of error: The trial

court erred in accepting his guilty plea since it failed to find an adequate factual basis

to support the guilty plea and therefore violated his right to due process. We find

there is no factual basis in the record, and remand for an evidentiary hearing.

ASSIGNMENT OF ERROR

During Defendant’s guilty plea hearing, the State offered the following as the

factual basis for the plea:

Your Honor, that between the dates of April 6, 2016, through
April 30, 2018, he did commit rape of “A.H.” who was his stepdaughter
at the time. She is now 18 years old. She gave specifics about where it
had occurred, specifics about what had occurred during that time frame.
And I realize he is entering a best-interest plea, but those are the facts
regarding that case, Your Honor.

The following conversation took place between the trial court, Defendant,

Defendant’s counsel, and State’s counsel:

MR. KENDRICK [Defendant’s Counsel]:

And just to reiterate, Your Honor, this is an Alford -

1
Pursuant to La.R.S. 46:1844(W), the victims’ initials are used to protect their identities.

THE COURT:

Okay.

MR. KENDRICK:

- or a best-interest plea. And Mr. Epps would stipulate that there
are - that this is in his best interest to resolve this matter as we’ve
previously discussed that a “guilty as charged” verdict from the jury
would be a mandatory life sentence without possibility of parole.

THE COURT:

Right. Correct. Okay. So, Mr. Epps, you understand what could
happen to you if you went to trial. You’re doing the plea under Alford,
is that correct?

DEFENDANT EPPS:

Yes, sir.

THE COURT:

Okay. And you want to plead guilty today.

DEFENDANT EPPS:

Yes, sir.

THE COURT:

Without anyone forcing, coercing, or making you do so.

DEFENDANT EPPS:

Yes, sir.

....

THE COURT:

And you are pleading guilty voluntarily, correct?

DEFENDANT EPPS:

Yes, sir. Yes, sir.

2

THE COURT:

Based upon everything involved, correct?

DEFENDANT EPPS:

Yes, sir.

THE COURT:

Now, you understand it’s basically an agreed sentence, correct?

DEFENDANT EPPS:

Yes, sir.

THE COURT:

And you agree to that as well?

DEFENDANT EPPS:

Yes, sir.

....

THE COURT:

All right. Do you have any questions thus far?

DEFENDANT EPPS:

No, sir.

THE COURT:

The Court finds that there’s a basis for the guilty plea. The Court
finds that the defendant has freely and voluntarily plead guilty without
anyone having forced, coerced, or made him do so.

The Court finds that the defendant understands the nature of the
charges against him, as well as the ramifications of his plea and accepts
this guilty plea from Mr. Epps.

All right. Mr. Epps, do you want to waive any and all sentencing
delays, correct?

3

DEFENDANT EPPS:

Yes, sir.

THE COURT:

All right. All right. With regard to the second degree rape charge,
you are hereby sentenced to 20 years at hard labor, said 20 years is
without benefit of probation, parole, or suspension of sentence. You
will receive credit for time served. In addition, you understand that you
have - and I believe you signed -

DEFENDANT EPPS:

Without probation?

MR. KENDRICK:

I’m sorry, Your Honor.

THE COURT:

What’s that?

DEFENDANT EPPS:

It’s without parole?

MR. KENDRICK:

Well, that’s part of the way it’s worded.

THE COURT:

That’s the statute.

DEFENDANT EPPS:

Oh, okay.

MR. KENDRICK:

It’s just the way the statute is worded.

THE COURT:

The statute reads that way.

4

DEFENDANT EPPS:

Yes, sir.

THE COURT:

You have to get a sentence without benefit.

DEFENDANT EPPS:

Yes, sir.

THE COURT:

It’s called “without benefit of probation, parole, or suspension of
sentence,” otherwise, it would be an illegal sentence, okay?

DEFENDANT EPPS:

Yes, sir. I understand. I’m just -

THE COURT:

So it’s 20 years at hard labor without benefit of probation, parole,
or suspension of sentence. You will receive credit for time served, as I
told you before.

....

THE COURT:

…It is 20 without benefit, okay, at hard labor. Do you have any
questions?

DEFENDANT EPPS:

(Incomprehensible word).

THE COURT:

What’s that?

DEFENDANT EPPS:

No, sir. I think -

THE COURT:

Speak now or forever hold your peace, man.

5

DEFENDANT EPPS:

Yes, sir. I’m fixing to ask it. I thought it was going to be
molestation or whatever.

MR. KENDRICK:

What’s your question?

DEFENDANT EPPS:

I thought you - you want me to talk right here? I thought he said
it was going to be a molestation.

MR. KENDRICK:

Well, it was. I looked up the statute - well, Ms. Garcie and I
looked up the statute, and it’s a 25 minimum on molestation.

DEFENDANT EPPS:

Um-hm (Responding audibly and affirmatively).

MR. KENDRICK:

That’s when I told you that we’re going to have to do second
degree.

DEFENDANT EPPS:

Okay. I was just - I was just wondering –

MR. KENDRICK:

No. That’s fine. That’s why we’re here.

THE COURT:

Yeah. I mean, if you want to plead to that, we’ll plead you to that.

MR. KENDRICK:

No. That’s more time.

DEFENDANT EPPS:

No. I was just –

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MR. KENDRICK:

No. No. And that’s fair. I told you that originally, and that’s what
I thought. But then when Ms. Garcie and I looked at it, -

THE COURT:

Molestation is a mandatory minimum of 25. If you want to do it
that way, that’s fine with me.

DEFENDANT EPPS:

No, sir. I was just asking, you know -

MR. KENDRICK:

And I came back, remember, I told you it would be second
degree.

DEFENDANT EPPS:

No, sir.

THE COURT:

All right. You’re cool?

DEFENDANT EPPS:

Yes, sir. I was just -

THE COURT:

You’re good.

....

THE COURT:

All right. Do you understand the sentence, sir?

DEFENDANT EPPS:

Yes, sir.

THE COURT:

Do you have any questions about this sentence, sir?

7

DEFENDANT EPPS:

No, sir.

Here, there is no dispute that Defendant entered an Alford plea. In State v.

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

this court explained the function and parameter of the “best interest,” or Alford plea

as follows:

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, 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 (emphasis added).

8

Defendant notes that the court did state that it “finds there’s a basis for the

guilty plea,” that “the defendant has freely and voluntarily pled guilty without

anyone having forced, coerced, or made him do so,” and that “the defendant

understands the natures of the charges against him, as well as the ramifications of

his plea.” However, the court did not state its consideration of the facts of the case,

nor did it elaborate or specify the factual basis it found.

Notwithstanding that the State’s offering of the factual basis provided little

“specifics” of the offense, the actual discovery contained in the record did not

include the offense reports or other documents which might have provided them

either. Additionally, although Defendant sought one, a preliminary examination

hearing regarding his charge of first-degree rape was not held as it was determined

he was not entitled to it since a bill of indictment had been returned. The facts

provided during the hearing on the motion in limine found in the record concerned

another act which defense counsel questioned was even an offense. This “act” did

not involve A.H. and did not involve any rape or attempted rape, and the hearing

was presided over by a judge other than the one who accepted the plea in this case.

Lastly, Defendant proposes that the reference to “a basis for the guilty plea” could

have been a reference to something other than the facts of the alleged crime.

Consequently, Defendant concludes the trial court made no finding that there

was a significant factual basis supporting Defendant’s guilty plea, and the trial court

therefore erred in accepting Defendant’s guilty plea in violation of Defendant’s right

to due process. Defendant asks that the plea should be set aside.

The State asserts that a thorough reading of the guilty plea and sentencing

transcript shows that the court, after it considered the facts given by the State and

the responses given by Defendant, had an adequate basis to find Defendant was

9

entering his guilty plea knowingly and freely. Regardless, if this court holds the

facts given were insufficient, the State requests the matter be remanded for

resentencing.

Was a Significant Factual Basis Established?

After reviewing the record and the transcript of Defendant’s guilty plea, we

agree with Defendant that there was a lack of a significant factual basis entered into

the record supporting the guilty plea.

In State v. Craig, 10-854 (La.App. 5 Cir. 5/24/11), 66 So.3d 60, 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.

In State v. Stevenson, 41 So.3d 1273, no facts were given to support any of

the necessary elements for the charge of criminal damage to property with the intent

to defraud. The trial court did not go over the elements of the offense to which the

defendant was pleading, and instead, merely asked the defendant if he understood

he was pleading guilty to that crime. Reviewing the transcript in light of Alford, the

second circuit held that there was not enough evidence that the defendant’s guilty

plea, coupled with the protestation of innocence, was based on a significant factual

basis and was knowing and voluntary. The conviction was reversed, and the matter

remanded to give the defendant the opportunity to withdraw his guilty plea to the

felony offense.

Also, in State v. Cooper, 52,408, p. 7 (La.App. 2 Cir. 11/8/18), 261 So.3d 975,

979, when the state entered its factual basis on the record, it said the following:

10

Judge, the facts in this case if we went to trial would be that on
the date set forth in the bill of information, this defendant entered the
house of where the victim was ultimately was located, he came in
contact with he[r], during the course of that contact – contact, he made
physical contact with a – in a way with her which would fall within the
definition of lewd and lascivious acts under the Statute.

During the recitation of the facts, the defendant repeatedly maintained his innocence.

The trial court did not find a significant factual basis as it was required to. The

second circuit vacated defendant’s sentence and remanded the case for further

proceedings because, although the defendant was advised of and waived his Boykin

rights and stated his desire to plead guilty, he maintained his innocence.

In Defendant’s case, the State did not provide any specifics when it offered its

factual basis. Moreover, Defendant is correct that the record does not provide any

specifics pertaining to the offense Defendant had pled to, other than that he lived at

the residence of the victim. Nevertheless, despite a significant factual basis not being

established in the record, when the other circumstances regarding Defendant’s plea

are considered, they show Defendant freely and knowingly entered his guilty plea.

True, Defendant was confused for a moment, thinking he was going to plead to

molestation of a juvenile, but his attorney and the court explained molestation

required a harsher sentence than second-degree rape. Defendant also did not know

whether the sentence was without parole, but the court informed him that his

sentence was statutorily mandated to be imposed without benefits. Ultimately, any

confusion Defendant had was clarified, and he acknowledged he understood his

sentence. However, an establishment of a significant factual basis is still required.

In State v. Murray, 12-378, 12-379 (La.App. 3 Cir. 4/3/13), 117 So.3d 130,

the defendant alleged that he should be allowed to withdraw his Alford plea because

11

the state failed to establish a factual basis for the plea. This court addressed the

allegation as follows:

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, 23 L.Ed.2d 274 (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., 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.

Id. at 133–34 (alteration in original).

In Fregia, 12-646 (La.App. 3 Cir. 12/5/12),105 So.3d 999, this court likewise

followed Guilbeau, 71 So.3d 1020, and remanded the case for an evidentiary

hearing. Fregia did not allege that his plea was involuntary or request that his plea

be withdrawn but asserted only that the trial court failed to ascertain a significant

factual basis for the plea:

12

As noted above, Defendant makes no statement that his guilty
plea was not intelligently or knowingly made nor does he state that he
desires to withdraw the guilty plea. Also, as noted above, the 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. The State argues that “the definition of indecent behavior
with a juvenile is ‘fairly straightforward’” and that there “was
tremendous evidence of guilt in the record,” referring to the two minor
victims’ statements made to the police which were attached to a
discovery response in the record. The State argues “[t]hus, the
defendant was put on notice of the charges and the precise allegations
raised against him prior to pleading guilty.”

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. An indictment is not evidence of a defendant’s guilt. It
is, instead, a means to inform the defendant of the charges against him
so that he may prepare for his defense. State v. Galindo, 06–1090
(La.App. 4 Cir. 10/3/07), 968 So.2d 1102, writ denied, 07–2145
(La.3/24/08), 977 So.2d 952. The State further argues Defendant was
put on notice of the charges and precise allegations when he
acknowledged receipt of discovery. The acknowledgement occurred
on November 19, 2010, at a pre-trial hearing concerning several
motions filed by Defendant, wherein the State advised the trial court it
had complied with Defendant's discovery request, and Defendant
agreed he had received the documents.

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 Guilbeau, 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.

....

13

DECREE

This case is hereby remanded to the district court and the district
court is ordered to conduct an additional Boykin hearing allowing the
State an opportunity to present other evidence of Defendant’s guilt at
said hearing to be held within thirty days of the date of this opinion.
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. Defendant may appeal from any adverse
ruling on the issue of whether the factual basis is sufficient to support
the plea. In the absence of such an appeal, this court will affirm the
conviction.

Fregia, 105 So.3d at 1004–05, 1007.

In State v. Bowie, 95-795, p. 6-8 (La.App. 3 Cir. 11/13/96), 684 So.2d 68, 72-

73, writ granted, 96-2987 (La. 1/31/97), 687 So.2d 369, this court recognized as

error patent the lack of a legally sufficient factual basis to support Bowie’s Alford

plea and stated:

The trial judge accepted the investigative reports as evidencing a
factual basis for the plea without making any inquiry or articulating the
findings he deemed significant to adjudge defendant “guilty” of the
offense charged. On review, we must find the Boykin records do not
contain a substantial factual basis to support defendant’s plea to
negligent homicide as required by North Carolina v. Alford, 400 U.S.
25, 91 S.Ct. 160, 27 L.Ed.2d 162. The State failed to prove beyond a
reasonable doubt that the homicide was not committed in self-defense.
State v. Makar, 578 So.2d 564 (La.App. 3 Cir.1991). We cannot affirm
a conviction where proof in the record of an essential element of the
crime charged is lacking or the record reasonably reveals facts tending
to establish legal justification for the commission of the homicide. The
State is entitled to correct this deficiency however, if possible, at an
additional Boykin hearing. [State v.] Linear, 600 So.2d 113[(La.App. 2
Cir. 1992)].

Moreover, we cannot say Bowie’s “no contest” plea was
intelligently and voluntarily entered. State v. Fletcher, 624 So.2d 470
(La.App. 2 Cir.1993); State v. Jordan, 619 So.2d 648 (La.App. 2
Cir.1993); Linear, 600 So.2d 113. A defendant may knowingly,
understandingly and voluntarily consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in
the acts constituted a crime. Alford, 400 U.S. 25, 91 S.Ct. 160, 27

14

L.Ed.2d 162. An express admission of guilt is not a constitutional
requirement for the imposition of criminal penalties, and the fact that a
defendant believes he is innocent, and makes such belief known to the
court, does not preclude him from entering a guilty plea. Id.; Linear,
600 So.2d 113. Although the United States Supreme Court has
recognized a defendant need not admit guilt before criminal penalties
may be imposed, the Supreme Court also recognized a need for the
record to contain “strong evidence of actual guilt,” i.e,., a sufficient
factual basis to enable the judge to test whether the plea was
intelligently entered. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162;
State v. Schexnayder, 93–1673 (La.App. 3 Cir. 4/20/94); 640 So.2d
426.
Additionally, the trial judge imposed the maximum statutory
sentence in this case for defendant’s alleged offense. Generally, a
maximum sentence is appropriate only for the worst kind of offender
and the most egregious violation. Bowie has no prior record; and, at the
time of sentencing, he was a university student. As discussed, the record
as it stands, strongly suggests that Bowie's conduct, though tragic in
result, was not without provocation or imbued with premeditation. The
trial judge discounted these mitigating factors finding Bowie’s initial
act of firing a weapon in the air to ward off the approaching group
evidenced his intent to use the weapon. Bowie’s ultimate intent or
actual use of the firearm, if legally justified, does not “zero out” the
mitigating impact of his initial conduct or convert it to an aggravating
factor. As mentioned, the use of a firearm in Louisiana is lawful if a
person reasonably believes he is in imminent danger of losing his life
or receiving great bodily harm and such force is necessary to save him
from the danger.

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. If at the conclusion of this hearing and
after granting the State opportunity to present other evidence, the trial
judge finds a legally sufficient factual basis exists to support the
charged offense, he is instructed further to re-examine the sentence
imposed in this case particularly considering the observation of this
court and the Louisiana Sentencing Guidelines, in effect at the time of
original sentencing, to determine whether the sentence imposed is
appropriate and not excessive.

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

15

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.

The supreme court granted writs in Bowie and stated the following:

Writ Granted. The decision of the Third Circuit to remand this
case to the district court for further Boykin proceedings directed toward
insuring the voluntariness of the defendant’s no contest plea does not
at this time require the exercise of our supervisory authority. The state
need not, however, conduct a mini-trial to negate defenses which may
reasonably be inferred from the circumstances of the offense but which
have not been asserted by the defendant, apart from the plea bargaining
process which resulted in a reduction of the charged offense, and which
are, in any event, more properly decided at a trial both sides have agreed
to forego by resolving their differences in the present plea. Cf. United
States v. Allard, 926 F.2d 1237, 1242 (1st Cir.1991). The potential
strength of the state’s case and of any defenses reasonably suggested
by the evidence may represent significant factors for the district court
to weigh in accepting a proffered guilty plea which does not constitute
an express admission of guilt, North Carolina v. Alford, 400 U.S. 25,
37–38, 91 S.Ct. 160, 167–68, 27 L.Ed.2d 162 (1970), but the court does
not necessarily commit constitutional error by accepting a guilty plea
in a case in which the “evidence before the judge indicate[s] that there
[is] a valid defense.” Id., 400 U.S. at 31, 91 S.Ct. at 166 (parsing Lynch
v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962)). It
is enough in this case that the trial court satisfy itself that a factual basis
exists for charging the defendant with an unjustified homicide; that the
defendant has entered and maintains his no contest plea to the reduced
charge; and, that that plea represents a knowing, voluntary and
intelligent choice among the alternatives open to him. Alford, supra;
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969).

Bowie, 687 So.2d 369 (per curiam) (alterations in original).

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

granted and remanded, 98-1180 (La. 9/25/98), 726 So.2d 2, a panel of this court set

forth the procedure utilized on remand to conduct an evidentiary hearing:

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

16

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.

Pursuant to Clark, this case is remanded for the trial court to conduct an

evidentiary hearing within forty-five days of the date of this opinion to allow the

State the opportunity to present a sufficient factual basis for the offenses to which

Defendant is pleading. The trial court is ordered to determine if a sufficient factual

basis exists; if it does not, the trial court must vacate Defendant’s plea and sentence.

If it finds a significant factual basis exists, the trial court must then determine

whether Defendant’s plea is knowing, intelligent, and voluntary based upon the

circumstances. Within fifteen days of the hearing, the appellate record containing

the transcript of the evidentiary hearing is to be re-lodged with this court. 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 issue arising from the

hearing.

CONCLUSION

The trial court is instructed to conduct an evidentiary hearing to determine if

a sufficient factual basis exists for the guilty plea and if Defendant’s plea is knowing,

intelligent, and voluntary. The record, including a transcript of the hearing, shall be

relodged with this court within fifteen days of the date of the hearing. Both the State

and Defendant shall be allowed to file supplemental briefs, should either wish to

raise issues arising from the hearing.

REMANDED WITH INSTRUCTIONS.

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