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627 So. 2d 766

State v. Romano

Louisiana Court of Appeal

Decided December 1, 1993

Louisiana Court of Appeal · decided 1993-12-01

Cited by 4 later decisions — most recently June 2011

4 state decisions

Key passage — most relied on by later courts

“In the instant case, the trial court first explained to the defendant his Boykin rights and instructed the district attorney to recite the factual basis for the guilty plea. At the conclusion of this recitation, the trial court asked the defendant if the facts were correct. The defendant said they were not, and the trial court allowed him to tell his version of the facts. While the defendant did not affirmatively state that he was innocent of the offense to which he was pleading, he basically asserted that he had not intended to kill the victim and that he had acted in self-defense. The defendant’s statements were sufficient to place the trial court on notice that a judicial finding of a significant factual basis for the plea was required. Our examination of the Boykin transcript demonstrates that the trial court was obviously concerned by the defendant’s denial of key facts and his assertion of self-defense. However, the court heard no testimony other than the defendant’s statements, and no evidence was taken. Also, the trial judge’s comments do not demonstrate a familiarity with the defendant’s statements to the police. (Copies of these statements are found in the appellate record only as attachments to the state’s response to discovery.) Nor were there any references to statements made by the victim or pertaining to the victim’s condition from which the trial court could have properly determined that the defendant had the specific intent to kill when the incident occurred.”

quoted by 2 later decisions, including 71 So. 3d 1020 - State v. Guilbeau, 71 So. 3d 1010 - State v. Guilbeau

Relies on North Carolina v. Alford · 600 So. 2d 113 - State v. Linear · 499 So. 2d 292 - State v. McCarty

Good law ✅— No negative treatment on recordhow we know

Decided 1993-12-01

View the full empirical analysis of this case →

MARVIN, Chief Judge.

¶1Being charged with two counts of molestation of his step-granddaughter (LRS 14:81.2) and yet protesting his innocence, Romano was allowed to enter an Alford plea to attempted sexual battery. LRS 14:27, 14:43.1. *767He appeals, as excessive, his sentence to 28-months at hard labor. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

¶2Because the record of the guilty plea proceedings does not contain the required factual basis for Romano’s plea as required by Alfordand its progeny, we pretermit consideration of the excessive sentence claim, conditionally vacate the plea, and remand the case for further proceedings. A strong, or significant, or substantial, factual basis is required for a valid Alfordplea.

¶3ALFORD PLEA

¶4An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Alford, supra.

¶5An express admission of guilt is not a constitutional requirement for the imposition of a criminal penalty. State v. Pitre, 506 So.2d 930 (La.App. 1st Cir.1987), writ denied. 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. State v. Linear, 600 So.2d 113 (La.App. 2d Cir.1992).

¶6To support an Alfordplea, however, constitutional due process requires the trial court record to contain “strong evidence of actual guilt” or, as this court has paraphrased Alford, “a significant [substantial] factual basis” for the plea. State v. Jordan, 619 So.2d 648 (La.App. 2d Cir.1993), citing Linear, supra, and State v. Powell, 584 So.2d 1252 (La.App. 2d Cir.1991).

¶7The record shows that during the guilty plea proceedings and while protesting his innocence, Romano stated that he did not recollect the offense that formed the basis of this prosecution because he was drinking heavily at that time. He entered the Alfordplea to avoid exposure to the more serious crimes if he went to trial and was convicted. Romano’s statement about his recollection of the offense was sufficient to place the trial court on notice that a strong, or significant, or substantial, factual basis for the plea had to placed of record and judicially accepted for the plea to meet the Alfordrequirements.

¶8This record shows that the trial court ascertained that Romano was aware of the charge against him and that the victim was his step-granddaughter. The record does not contain proof of any other element of the charged offense. See State v. McLemore, 619 So.2d 210 (La.App. 2d Cir.1993).

¶9The trial court apparently discussed the facts of the case in chambers with counsel, but whatever facts were discussed were not made a matter of record when the court accepted the guilty plea. On- the authorities cited, we must find on this record that the plea to attempted sexual battery was not intelligently and voluntarily entered. Jordan, supra;Linear, supra;State v. McCarty, 499 So.2d 292 (La.App. 1st Cir.1986), writ denied. We shall conditionally vacate the plea and remand for further proceedings.

¶10DECREE

¶11The guilty plea is conditionally vacated and the case is REMANDED for further proceedings and resentencing after conviction, whether by trial or by a valid Alfordplea.

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