Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,467-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DOMINIC DEWANE HARRIS Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 228,679
Honorable R. Lane Pittard, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman
J. SCHUYLER MARVIN Counsel for Appellee District Attorney
RICHARD R. RAY Assistant District Attorney
Before PITMAN, THOMPSON, and ELLENDER, JJ. PITMAN, C. J.
Pursuant to a plea agreement, Defendant Dominic Dewane Harris pled
guilty to attempted sexual battery, and the district court sentenced him to
serve five years at hard labor. Defendant filed a motion to withdraw his
guilty plea, and the district court denied this motion. Defendant appeals.
For the following reasons, we affirm.
FACTS
On August 17, 2018, the state filed a bill of information charging
Defendant with one count of third degree rape, in violation of La.
R.S. 14:43(A)(1).
In court on January 3, 2022, the state noted for the record that there
was a tentative agreement that Defendant would plead guilty to an amended
charge of attempted sexual battery, in violation of La. R.S. 14:43.1 and
14:27, for an agreed-upon sentence of five years at hard labor and that a
separate charge would be dismissed. Defendant, through his retained
counsel, asked that the district court recommend or approve any programs
that could reduce his time in jail. The district court responded that the only
program he was aware of was for substance abuse. The district court asked
about the Steve Hoyle Program, and the state explained that it is a local
program and that there are other programs in the Department of Corrections
(the “DOC”). The district court stated that it would recommend the DOC
program.
A guilty plea and sentencing hearing was held on January 4, 2022.
The state explained that Defendant was going to plead guilty to the amended
charge of attempted sexual battery for an agreed-upon sentence of five years
at hard labor and that an unrelated charge of unauthorized entry of an inhabited dwelling would be dismissed. Defense counsel agreed and added
that the court would make any recommendations regarding substance abuse
programs that would reduce his sentence. The district court replied that it
would refer Defendant to a substance abuse program and asked if the Steve
Hoyle Program was the correct program; defense counsel responded that it
was, and the district court referred Defendant to the Steve Hoyle Program.
Defense counsel stated that Defendant asked him if he would receive any
good time, and defense counsel responded that it is “not a calculator of the
DOC.” The district court responded that it is “not a DOC calculator either”
and that it would be speculating if it answered that question. The district
court noted that the best way to receive an answer was to ask a probation
officer, explained that it is a “moving target” and stated that “what the DOC
does, the DOC does.” Defendant then withdrew his plea of not guilty and
entered a plea of guilty. A Boykin colloquy followed, and the district court
accepted the guilty plea. The district court then sentenced Defendant to five
years at hard labor and referred him to the Steve Hoyle Program.
On January 11, 2022, Defendant filed a motion to withdraw the guilty
plea. He stated that he pled guilty with the understanding that he was
eligible for a reduction in sentence through good time and the Steve Hoyle
Program. He noted that after the guilty plea, his counsel spoke with a DOC
representative and learned that sex offenses are served day-for-day without
exception, including programs that may reduce time. He claimed that his
counsel called the DOC prior to his guilty plea, but that no one answered.
He alleged that the state said it would withdraw the five-year-sentence offer
unless it was accepted on January 4, 2022, so Defendant accepted the offer
2 without speaking to the DOC. He requested that he be allowed to withdraw
his guilty plea because of the misunderstanding of his expected sentence.
A hearing on the motion to withdraw the guilty plea was held on
February 14, 2022. The district court reviewed the transcripts and the
minutes from the guilty plea hearing and determined that it was not an
essential part of the plea that Defendant be accepted into the Steve Hoyle
Program. The court emphasized that it is not the arbiter of the Steve Hoyle
Program or the DOC—it can refer someone to a program, but the DOC has
its own criteria for determining time. The district court denied the motion.
Defendant appeals.
DISCUSSION
In his sole assignment of error, Defendant argues that the district court
erred in denying his motion to withdraw his guilty plea. He states that his
plea was not knowingly or voluntarily made due to his mistaken belief that
he would be eligible for a reduction of his sentence for taking part in the
Steve Hoyle Program. He contends that as his sentence was not what was
agreed upon, he should have the opportunity to withdraw his guilty plea.
The state argues that the district court did not abuse its discretion in
denying Defendant’s motion to withdraw his guilty plea. It states that
Defendant knowingly, voluntarily and intelligently pled guilty and was
sentenced pursuant to the plea agreement. It contends that Defendant was
aware he was not guaranteed any type of reduction in time served based
upon his participation in a substance abuse program or any good time
calculation. It assumes that Defendant sought to withdraw his guilty plea in
an attempt to bargain for a better deal or a better good time calculation. The
state notes that in exchange for Defendant’s guilty plea, it amended and 3 dismissed felony charges that reduced his sentencing exposure from 31 years
at hard labor to 5 years at hard labor.
Upon motion of a defendant and after a contradictory hearing, which
may be waived by the state in writing, the court may permit a plea of guilty
to be withdrawn at any time before sentence. La. C. Cr. P. art. 559(A). The
withdrawal of a guilty plea after sentencing is discretionary with the trial
court. State v. Bates, 29,252 (La. App. 2 Cir. 1/22/97), 711 So. 2d 281.
Such discretion cannot be disturbed on appeal unless an abuse or arbitrary
exercise of that discretion is shown. State v. McGarr, 52,641 (La. App.
2 Cir. 4/10/19), 268 So. 3d 1189. A defendant has no absolute right to
withdraw a guilty plea. Id.
When the record establishes that an accused was informed of and
waived his right to a trial by jury, to confront his accusers and against self-
incrimination, the burden shifts to the accused to prove that despite this
record, his guilty plea was involuntary. State v. McGarr, supra. An express
and knowing waiver of those rights must appear on the record, and an
unequivocal showing of a free and voluntary waiver cannot be presumed.
Id. When ruling on a motion to withdraw a guilty plea, the trial court should
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Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,467-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DOMINIC DEWANE HARRIS Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 228,679
Honorable R. Lane Pittard, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman
J. SCHUYLER MARVIN Counsel for Appellee District Attorney
RICHARD R. RAY Assistant District Attorney
Before PITMAN, THOMPSON, and ELLENDER, JJ. PITMAN, C. J.
Pursuant to a plea agreement, Defendant Dominic Dewane Harris pled
guilty to attempted sexual battery, and the district court sentenced him to
serve five years at hard labor. Defendant filed a motion to withdraw his
guilty plea, and the district court denied this motion. Defendant appeals.
For the following reasons, we affirm.
FACTS
On August 17, 2018, the state filed a bill of information charging
Defendant with one count of third degree rape, in violation of La.
R.S. 14:43(A)(1).
In court on January 3, 2022, the state noted for the record that there
was a tentative agreement that Defendant would plead guilty to an amended
charge of attempted sexual battery, in violation of La. R.S. 14:43.1 and
14:27, for an agreed-upon sentence of five years at hard labor and that a
separate charge would be dismissed. Defendant, through his retained
counsel, asked that the district court recommend or approve any programs
that could reduce his time in jail. The district court responded that the only
program he was aware of was for substance abuse. The district court asked
about the Steve Hoyle Program, and the state explained that it is a local
program and that there are other programs in the Department of Corrections
(the “DOC”). The district court stated that it would recommend the DOC
program.
A guilty plea and sentencing hearing was held on January 4, 2022.
The state explained that Defendant was going to plead guilty to the amended
charge of attempted sexual battery for an agreed-upon sentence of five years
at hard labor and that an unrelated charge of unauthorized entry of an inhabited dwelling would be dismissed. Defense counsel agreed and added
that the court would make any recommendations regarding substance abuse
programs that would reduce his sentence. The district court replied that it
would refer Defendant to a substance abuse program and asked if the Steve
Hoyle Program was the correct program; defense counsel responded that it
was, and the district court referred Defendant to the Steve Hoyle Program.
Defense counsel stated that Defendant asked him if he would receive any
good time, and defense counsel responded that it is “not a calculator of the
DOC.” The district court responded that it is “not a DOC calculator either”
and that it would be speculating if it answered that question. The district
court noted that the best way to receive an answer was to ask a probation
officer, explained that it is a “moving target” and stated that “what the DOC
does, the DOC does.” Defendant then withdrew his plea of not guilty and
entered a plea of guilty. A Boykin colloquy followed, and the district court
accepted the guilty plea. The district court then sentenced Defendant to five
years at hard labor and referred him to the Steve Hoyle Program.
On January 11, 2022, Defendant filed a motion to withdraw the guilty
plea. He stated that he pled guilty with the understanding that he was
eligible for a reduction in sentence through good time and the Steve Hoyle
Program. He noted that after the guilty plea, his counsel spoke with a DOC
representative and learned that sex offenses are served day-for-day without
exception, including programs that may reduce time. He claimed that his
counsel called the DOC prior to his guilty plea, but that no one answered.
He alleged that the state said it would withdraw the five-year-sentence offer
unless it was accepted on January 4, 2022, so Defendant accepted the offer
2 without speaking to the DOC. He requested that he be allowed to withdraw
his guilty plea because of the misunderstanding of his expected sentence.
A hearing on the motion to withdraw the guilty plea was held on
February 14, 2022. The district court reviewed the transcripts and the
minutes from the guilty plea hearing and determined that it was not an
essential part of the plea that Defendant be accepted into the Steve Hoyle
Program. The court emphasized that it is not the arbiter of the Steve Hoyle
Program or the DOC—it can refer someone to a program, but the DOC has
its own criteria for determining time. The district court denied the motion.
Defendant appeals.
DISCUSSION
In his sole assignment of error, Defendant argues that the district court
erred in denying his motion to withdraw his guilty plea. He states that his
plea was not knowingly or voluntarily made due to his mistaken belief that
he would be eligible for a reduction of his sentence for taking part in the
Steve Hoyle Program. He contends that as his sentence was not what was
agreed upon, he should have the opportunity to withdraw his guilty plea.
The state argues that the district court did not abuse its discretion in
denying Defendant’s motion to withdraw his guilty plea. It states that
Defendant knowingly, voluntarily and intelligently pled guilty and was
sentenced pursuant to the plea agreement. It contends that Defendant was
aware he was not guaranteed any type of reduction in time served based
upon his participation in a substance abuse program or any good time
calculation. It assumes that Defendant sought to withdraw his guilty plea in
an attempt to bargain for a better deal or a better good time calculation. The
state notes that in exchange for Defendant’s guilty plea, it amended and 3 dismissed felony charges that reduced his sentencing exposure from 31 years
at hard labor to 5 years at hard labor.
Upon motion of a defendant and after a contradictory hearing, which
may be waived by the state in writing, the court may permit a plea of guilty
to be withdrawn at any time before sentence. La. C. Cr. P. art. 559(A). The
withdrawal of a guilty plea after sentencing is discretionary with the trial
court. State v. Bates, 29,252 (La. App. 2 Cir. 1/22/97), 711 So. 2d 281.
Such discretion cannot be disturbed on appeal unless an abuse or arbitrary
exercise of that discretion is shown. State v. McGarr, 52,641 (La. App.
2 Cir. 4/10/19), 268 So. 3d 1189. A defendant has no absolute right to
withdraw a guilty plea. Id.
When the record establishes that an accused was informed of and
waived his right to a trial by jury, to confront his accusers and against self-
incrimination, the burden shifts to the accused to prove that despite this
record, his guilty plea was involuntary. State v. McGarr, supra. An express
and knowing waiver of those rights must appear on the record, and an
unequivocal showing of a free and voluntary waiver cannot be presumed.
Id. When ruling on a motion to withdraw a guilty plea, the trial court should
look beyond the Boykin colloquy and consider all relevant factors. Id. In
order to properly exercise its discretion and for the appellate court to review
the exercise of that discretion, the trial court should conduct a hearing on the
motion to withdraw a guilty plea. Id.
Reasons supporting withdrawal of a guilty plea ordinarily include
factors bearing on whether the guilty plea was voluntarily and intelligently
made, such as breach of a plea bargain, inducement, misleading advice of
counsel, strength of the evidence of actual guilt or the like. State v. McGarr, 4 supra. A mere change of heart or mind by the defendant as to whether he
made a good bargain does not ordinarily support allowing the withdrawal of
a bargained guilty plea. Id.
Unless otherwise prohibited, every offender in the custody of the
DOC who has been convicted of a felony may earn, in lieu of incentive
wages, a diminution of sentence by good behavior and performance of work
or self-improvement activities, or both, to be known as “good time.” La.
R.S. 15:571.3(B)(1)(a). These provisions do not apply to offenders who are
serving a sentence for a sex offense, as defined in La. R.S. 15:541, which
includes a conviction for the attempted perpetration of sexual battery. La.
R.S. 15:571.3(B)(1)(b).
As detailed above, the state noted the plea offer on the record,
Defendant agreed and requested that the district court recommend any
program that would reduce his sentence, the district court stated that it would
recommend a DOC program and the state did not object. As a result of the
plea agreement, Defendant received the significant benefits of pleading to
the reduced charge of attempted sexual battery rather than third degree rape,
having an unrelated charge of unauthorized entry of an inhabited dwelling
dismissed and reducing his sentence exposure from 31 years for third degree
rape and unauthorized entry of an inhabited dwelling to an agreed-upon
5 years. Defendant received an additional benefit of the district court
agreeing to recommend him for possible consideration for a substance abuse
treatment program with the DOC and any resulting benefits affecting his
sentence.
A review of the record confirms that the district court informed
Defendant of his rights at the guilty plea hearing. Defendant has not met his 5 burden of proving that despite this record, his plea was involuntary. At a
hearing on the motion to withdraw, the district court reviewed the transcript
of the Boykin colloquy and considered other relevant factors. The district
court differentiated its ability to recommend someone for a program and the
DOC’s role in accepting persons into a program and calculating time.
The district court did not abuse or arbitrarily exercise its discretion
when it denied Defendant’s motion to withdraw his guilty plea. The
circumstances contemplated in jurisprudence that might support a
withdrawal by showing that the plea was not voluntarily and intelligently
made are not present in this case. Defendant has not shown a breach of the
plea bargain, inducement by the state, misleading advice of counsel or the
lack of evidence of actual guilt. To the contrary, the record demonstrates a
detailed discussion of the plea agreement, including Defendant’s request that
the district court recommend a DOC program, and that the district court
agreed to that request with no objection from the state. The record suggests
that Defendant’s retained counsel provided sound advice to Defendant and
presented Defendant’s requests to the district court. The record also
demonstrates the strength of the state’s case against Defendant, including
evidence of bruises and bite marks on the victim’s body and Defendant’s
DNA on her legs near her vaginal area.
Defendant’s argument of an alleged misunderstanding of his expected
sentence does not support allowing the withdrawal of his guilty plea. The
transcripts from the hearings on January 3 and 4, 2022, demonstrate that the
agreement was only for a “recommendation” from the district court. The
agreement did not guarantee that the DOC would accept Defendant into a
6 program. Defendant received everything he requested and benefited
significantly from the plea agreement.
Accordingly, this assignment of error lacks merit.
ERROR PATENT
The district court imposed an illegally lenient sentence by failing to
order that Defendant’s sentence be served without benefit of parole,
probation or suspension of sentence, as required by La. R.S. 14:43.1(C)(1)
and 14:27(D)(3). However, these required restrictions are self-activating by
operation of La. R.S. 15:301.1, and there is no need to remand for
correction. State v. Green, 54,955 (La. App. 2 Cir. 4/5/23), 361 So. 3d 546.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence of
Defendant Dominic Dewane Harris.
AFFIRMED.