Opinion
No. 08-1072.
April 1, 2009. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 114939 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE.
Michael Harson, District Attorney, 15th JDC, Keith A. Stutes, Assistant District Attorney, Lafayette, LA, Counsel for Appellee:, State of Louisiana.
Carey J. Ellis III, Louisiana Appellate Project, Rayville, LA, Counsel for Defendant/ Appellant: Juane Harris.
Juane Harris, Pro Se, Avoyelles Corr Ctr. C1-B1, Cottenport, LA, Defendant Appellant: Juane Harris.
Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
ORDER
After consideration of appellate counsel's request to withdraw as counsel and the appeal pending in the above-captioned matter;
IT IS HEREBY ORDERED that appellate counsel's request to withdraw is denied; he is ordered to file a new appellate brief addressing the first assignment of error in Defendant's pro se brief within twenty-five days of this order.
Appellee's brief shall be filed no later that forty-five days from rendition of this order.
THUS DONE AND SIGNED this ____ day of _______, 2009.
On March 29, 2007, the State filed a bill of information charging Defendant, Juane Harris, with forcible rape, a violation of La.R.S. 14:42.1, and unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:63.3. On March 18, 2008, Defendant appeared with counsel and entered a "best interest plea" pursuant to a plea agreement, which included a twenty-five-year sentencing cap and dismissal of the unauthorized entry charge. Pursuant to his best interest plea, Defendant admitted having sexual relations with a woman but asserted the encounter was consensual. The record does not include details of the incident.
On June 30, 2008, after referring to a pre-sentence investigation (PSI) report, the trial court sentenced Defendant to twenty-five years at hard labor. On July 7, 2008, the trial court granted Defendant's motion for appeal and appointed the Louisiana Appellate Project (LAP) to represent him.
Appellate counsel has filed a brief stating that he could find no errors that would support reversal of the conviction or sentence. In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the court set forth the appropriate framework for such a brief:
When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders [ v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967)] requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Although counsel's brief states he could find no non-frivolous issues to appeal, Defendant's pro se brief suggests that the trial court should not have accepted the plea because he claimed actual innocence in the course of making the plea. At the plea hearing, the following colloquy occurred:
THE COURT: What happened?
MR. JUANE HARRIS:
A We have sex and she said it was not consensual but it was consensual.
THE COURT: All right, sir. Are you afraid if you went to trial, you might lose? Is that one of the reasons why you are pleading guilty today?
MR. JUANE HARRIS:
A Not really.
THE COURT: You don't think you'd lose?
MR. JUANE HARRIS:
A Yes, sir.
THE COURT: I have to feel like you feel like it's in your best interest to enter this plea. Do you feel like it's in your best interest considering the facts that the State would present and the possible charge against you?
MR. JUANE HARRIS:
A Yes, sir.
THE COURT: All right, sir. Under those circumstances I will accept your plea. I find that you made a knowing and intelligent waiver of the rights previously explained to you and that your plea is freely and voluntarily given without threats or inducements whatsoever.
This court has explained:
Generally, a defendant waives the right to question the merits of the State's case or the underlying factual basis by entering a plea of guilt, or plea of nolo contendere. State v. Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724. "When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant's plea." State v. Linear, 600 So.2d 113, 115 (La.App. 2 Cir. 1992); See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). However, this court has held that a plea of nolo contendre alone, unlike a guilty plea accompanied by a claim of innocence, does not put the trial court on notice that a significant factual basis must be obtained. State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, writ denied, 00-1175 (La. 3/16/01), 786 So.2d 745; State v. Guffey, 94-797 (La.App. 3 Cir. 2/1/95), 649 So.2d 1169, writ denied, 95-973 (La. 9/22/95), 660 So.2d 469. Citing Alford, the Louisiana Supreme Court has stated:
Moreover, even assuming that relator had protested his innocence when he entered his guilty plea and further assuming that in all cases involving a bona fide Alford plea the record "before the judge [must] contain [ ] strong evidence of actual guilt," the standard under Alford is not whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea "represents a voluntary and intelligent choice among the alternative[s]."
State v. Orman, 97-2089, pp. 1-2 (La. 1/9/98), 704 So.2d 245, 245 (citations omitted).
State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950-51.
The colloquy cited above clearly included a claim of factual innocence by Defendant. Further, the record appears to lack a significant factual basis to support the plea. Defendant's brief exculpatory account of the matter is the only factual basis presented. The record does not show any pretrial hearings that would provide further information. Thus, there may be merit to Defendant's first pro se assignment of error. Louisiana Appellate Project counsel's brief does not address the plea proceeding; therefore, he will not be allowed to withdraw. By separate order this date, counsel is instructed to file a brief addressing Defendant's first pro se assignment of error. See State in Interest of L.D.L., 97-1634 (La.App. 3 Cir. 4/29/98), 714 So.2d 780.