Case Number: 17-KA-612

Judge: Hans J. Liljeberg

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney: Paul D. Connick, Jr.
Terry M. Boudreaux
Anne M. Wallis

Defendant's Attorney: Prentice L. White

Description: On July 31, 2015, the Jefferson Parish District Attorney filed a bill of
information charging defendant with attempted second degree murder in violation
of La. R.S. 14:27 and La. R.S. 14:30.1. On August 17, 2015, defendant pleaded
not guilty at his arraignment. On November 30, 2015, defendant filed a pro se
motion for substitution of counsel complaining his court-appointed counsel was
withholding evidence which could be used to “free” him. The trial court heard and
denied this motion on April 28, 2016.
On June 16, 2016, the State amended the attempted second degree murder
charge to aggravated battery in violation of La. R.S. 14:34. On that same day,
defendant withdrew his plea of not guilty and pleaded guilty under North Carolina
v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the aggravated
battery charge. The State agreed not to file a multiple offender bill of information
with respect to this charge. After accepting defendant’s guilty plea under Alford,
the trial court sentenced defendant in accordance with the plea agreement to ten
years at hard labor.1
On July 5, 2017, defendant filed a Uniform Application for Post-Conviction
Relief alleging ineffective assistance of counsel and violations of due process. In

1 On that same day, defendant also pleaded guilty under Alford in Case No. 15-1608 to possession of cocaine, and stipulated to a habitual offender bill on that charge. The trial court found defendant to be a second felony offender and sentenced him to 30 months at hard labor without the benefit of probation or suspension of sentence. The trial court ran the sentence concurrent with the sentence imposed in the instant matter. The conviction and sentence in Case No. 15-1608 are not before this Court on appeal.


17-KA-612 2
support of his application, defendant attached excerpts of alleged statements from
the victim and the victim’s brother which he claimed as proof he did not commit
the alleged crime. On July 13, 2017, the trial court dismissed the application for
post-conviction relief without prejudice on the basis that it was premature. On
August 10, 2017, defendant filed a pro se motion for an out-of-time appeal, which
was granted on August 22, 2017. This appeal follows.
DISCUSSION
Defendant’s appointed appellate counsel filed an Anders2 brief on
defendant’s behalf, asserting there is no basis for a non-frivolous appeal. Counsel
also filed a motion to withdraw as attorney of record. Defendant filed a pro se
supplemental appellate brief alleging his guilty plea was coerced. Defendant also
references alleged favorable statements from the victim and other witnesses, and
complains he did not have the opportunity to present this information in the lower
court proceedings.
The “best interest” or Alford plea is one in which the defendant pleads guilty
while maintaining his innocence. In Alford, the United States Supreme Court ruled
that a defendant may plead guilty, without foregoing 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.” Alford, 400 U.S. at 31, 91 S.Ct. at 164.
An Alford plea accompanied by a claim of innocence puts the trial court on
notice that it must ascertain a factual basis to support the plea. State v. Orman, 97
2089 (La. 1/9/98), 704 So.2d 245 (per curium); State v. Villarreal, 99-827 (La.
App. 5 Cir. 2/16/00), 759 So.2d 126, 129-30, writ denied, 00-1175 (La. 3/16/01),
786 So.2d 745. In a case involving a bona fide Alford plea, the record must

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


17-KA-612 3
contain “strong evidence of actual guilt.” Alford, 400 U.S. at 38, 91 S.Ct. at
167. This Court has recognized that when a defendant enters an Alford
plea, “constitutional due process requires that the record contain strong evidence of
actual guilt.” State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60.
On review of the record for errors patent, we find the defendant maintained
his innocence and entered a guilty plea under Alford. However, the State did not
provide a factual basis for the plea during the guilty plea colloquy and the record
does not otherwise establish that strong evidence of actual guilt exists sufficient to
convict defendant of aggravated battery. In the absence of a showing in the record
that strong evidence of actual guilt exists, we find that defendant’s guilty plea to
aggravated battery under Alford should not have been accepted and must be
declared invalid. See State v. Ables, 15-720 (La. App. 5 Cir. 2/24/16), 186 So.3d
1274, 1276.

Outcome: For the reasons stated above, we vacate the guilty plea, set aside defendant’s
conviction and sentence, and remand for further proceedings. We also grant the
motion to withdraw as counsel of record filed by defendant’s appellate counsel.

Plaintiff's Experts:

Defendant's Experts:

Comments: