State v. McGarr

• Court: Court of Appeal of Louisiana
• Writing for the Court: BLEICH, J. (Pro Tempore )
• Citation: State v. McGarr, 268 So.3d 1189 (La. App. 2019)
• Decision Date: 10 April 2019
• Docket Number: 52,641-KA,52,642-KA
• Parties: STATE of Louisiana, Appellee v. D'andrae MCGARR, Appellant

268 So.3d 1189

STATE of Louisiana, Appellee

v.D'andrae MCGARR, Appellant

52,641-KA

52,642-KA

Court of Appeal of Louisiana, Second Circuit.

April 10, 2019

LOUISIANA APPELLATE PROJECT By: Douglas L. Harville, Counsel for Appellant

JOHN M. LANCASTER, District Attorney, KENNETH D. WHEELER, AMANDA M. WILKINS, Assistant District Attorneys, Counsel for Appellee

Before STONE, McCALLUM, and BLEICH (Pro Tempore ), JJ.

BLEICH, J. (Pro Tempore )

These consolidated criminal appeals arise from the Fifth Judicial District Court, Richland Parish, the Honorable Stephen G. Dean presiding. Defendant, D'Andrae McGarr, pled guilty to aggravated burglary and was sentenced to 15 years at hard labor ( No. 52,641 -KA); Defendant also pled guilty to simple burglary of an inhabited dwelling and was sentenced to 12 years at hard labor ( No. 52,642 -KA). Defendant has appealed, urging that the trial court erred in finding that his guilty pleas were knowing and voluntary and in denying his motion to withdraw his guilty pleas.¹ For the reasons set forth below, Defendant's sentences are vacated and the case is remanded for further proceedings consistent with this opinion.

FACTS

On February 3, 2017, Defendant was charged by bill of information with Count One: aggravated burglary, Count Two: criminal conspiracy to commit aggravated burglary, Count Three: armed robbery, and Count Four: criminal conspiracy to commit armed robbery. ( No. 52,641 -KA). On March 22, 2017, Defendant was charged with Count One: simple burglary of an inhabited dwelling and Count Two: criminal conspiracy to commit simple burglary of an inhabited dwelling. ( No. 52,642 -KA). All of the alleged crimes occurred in 2016.

Proceedings for Guilty Plea

Defendant negotiated a plea agreement with the State, and on March 9, 2018, he pled guilty to aggravated burglary and simple burglary of an inhabited dwelling; all other counts were dismissed. ( No. 52,641 -KA, R.pp. 52-67.)² Defendant was represented by attorney Micah Hoggatt. At the plea colloquy, the prosecutor stated:

This is our first priority trial case for March 19th. There has been a plea offer on the table for quite some time on Mr. McGarr's case... Mr. Hoggatt got involved pretty quickly. Met with Mr. McGarr. He's met with me. He negotiated over the last couple of weeks and final agreement is as follows: the defendant will be pleading guilty [in the first case] to the charge of aggravated burglary...the state will dismiss counts two, three and four against Dandrae McGarr. He'll also be pleading guilty [in the second case] to simple burglary of an inhabited dwelling... The state will dismiss count two.

A factual basis on the aggravated burglary is that Mr. McGarr, Bolathia Brown, and at least one other person went into a house of the victim in this case, Justin Richardson, and [sic ] with a weapon. So, they entered the residence with a weapon and with the intent to commit a theft or felony therein. Not only was the resident at home, the gun was involved and a battery was committed on the homeowner or the victim in the house. And items were in fact stolen from the residence. With regard to the charge of simple burglary of an inhabited dwelling, the evidence is that Rashad Naylor and Dandrae McGarr went into a residence of Deanna Hanson and Michael Ray Harrison... In Rayville and committed burglary of that residence.

....

And judge, I'll represent to the court that we had a plea in place. Mr. McGarr came here this morning. Counsel, he started rethinking it. He spoke to the attorney. He indicated to his attorney he wanted to speak to me and he did. He asked me some questions. He quite frankly he asked me for a little more leniency. He asked me to consider some additional facts. He asked me a variety of questions which his lawyer said [the prosecutor] is here. He'll answer any questions you have. He'll explain anything you want explained. And did answer all of his questions. Represented to him what we felt like the case was and what we would prove at trial. And he, after some period of time, indicated he did want—accepted the plea. And I did tell him, I said look, this case is a priority case. We're not going to wait until next week. If you're going to accept this plea, then we need to do it because otherwise we're going to be getting ready for trial this coming week. He indicated that he did want to take the plea. But, he said, I want to come back and be sentenced. I said, that's not a problem. Actually under the law he is entitled to do that. So, I told him we'll enter the plea today and you have a written plea agreement on your bench and he asked to come back and be sentenced on...March 14th.

(R.pp. 52-54.)

At the time of Defendant's plea, the trial court then ascertained his age (19), his education level (11^th grade), his understanding of English, whether he had any difficulty communicating with his attorney, his work experience (none), whether he had taken any drugs, alcohol or medication within the past five days, and whether Defendant had any physical, emotional or mental problems that would affect his ability to understand the proceedings. (R.pp. 56-58.) The trial court found Defendant competent to enter his plea and waive his constitutional rights "freely, voluntarily and intelligently." (R.p. 58.)

After being sworn. Defendant affirmed that he had the opportunity to discuss with counsel his case, the charges, his potential defense, and the maximum and minimum sentences he could receive if he did not enter into the plea agreement. (R.p. 58.) Defendant asserted that he did not need additional time with his attorney and was completely satisfied with his services. (R.pp. 58-59.) The trial court then had the following exchange with Defendant:

TRIAL COURT: The charge against you in count one, to which you intend to plead guilty, state [sic ] that on or about December 14, 2016, you committed aggravated burglary of the dwelling belonging to Justin Richardson, located at Jones Street, Rayville, Louisiana, while armed with a dangerous weapon. Do you understand that, that's one of the charges we're talking about today?

DEFENDANT: Yes, sir.

TRIAL COURT: You are charged with committing the crime of simple burglary of an inhabited dwelling in that on or about December 31, 2016, you committed simple burglary of an inhabited dwelling belonging to Deanna Harrison and Michael Ray Harrison located at 308 Morgan Street, Rayville, Louisiana. Do you understand that, that's the other charge we're talking about today?

DEFENDANT: Yes, sir.

PROSECUTOR: Judge, on that, before you go ahead? My understanding is that talking with the witnesses in that case, the simple burglary of an inhabited dwelling, that the facts are that Rashad Naylor went into the house with him and Rashad actually had a weapon with him in that particular case but you didn't. Is that—am I stating that correctly?

DEFENDANT: Yes, sir. But neither of us had a weapon.

PROSECUTOR: Oh, neither one of you did?

DEFENDANT: No, sir.

(R.pp. 59-60.) The trial court then read the statutory provisions for each charge, La. R.S. 14:62.2 and La. R.S. 14:60, including the maximum and minimum sentences, and Defendant stated he understood the charges and the sentencing ranges. (R.pp. 60-61.)

Defendant affirmed his belief that he had been treated fairly with the plea agreement. (R.p. 61.) The trial court asked Defendant if anyone, including his attorney, the district attorney or sheriff's office, had made any threats or promises in order to persuade him to enter the guilty plea as stated by the district attorney. Id. Defendant affirmed that he had not been forced, threatened or tricked into pleading guilty, and that he was pleading guilty voluntarily and of his own free will because he was guilty. Id.

The trial court told Defendant that by pleading guilty, he was giving up certain rights, including the rights not to plead guilty and have a speedy and public trial by jury, to have the assistance of a lawyer that would be appointed if he could not afford one, that the state had the burden to prove his guilt beyond a reasonable doubt at trial, the right to confront his accusers, the right to testify at his trial, the privilege against self-incrimination, and the right to appeal his conviction if found guilty at trial. (R.pp. 61-63.) The court explained that Defendant would be forfeiting these rights by pleading guilty. Defendant stated that he understood he was giving up each of those rights. Id.

Defendant was then given an opportunity to discuss anything he did not understand with his attorney or the trial court, which Defendant declined to do. (R.p. 63.) Defendant stated that he understood that he would not be allowed to appeal or seek review of the length of his sentences, and that the trial court would not be able to amend, modify or reduce his sentences after Defendant had begun serving them. Id. Atty. Hoggatt affirmed that he found Defendant competent, able to discuss his case, and cooperative, and that he was able to advise Defendant of the nature of the charges against him and his constitutional rights, and that those rights had been observed. (R.pp. 63-64.) Atty. Hoggatt affirmed that Defendant understood the consequences of the plea agreement. (R.p. 64.)

The trial court stated that it found that the plea was "entered freely and voluntarily with an understanding of the nature of the charges as well as the consequences of the plea, including the defendant's understanding of the plea agreement, which he has signed in the presence of other witnesses, and signed in open court. It has a factual basis containing the elements of the crimes charged. And the plea is accepted." Id.

Sentencing Proceedings

On March 14, 2018, the trial court held a sentencing hearing. Atty. Hoggatt had a different attorney, John Ellis, stand in for him at the sentencing hearing, with the approval of Defendant and the trial court. (R.pp. 66-67.) Prior to sentencing, the following significant exchange occurred:

ATTY. ELLIS: Mr. McGarr has just

...