Appealed from the Fifth Judicial District Court for the
Parish of Richland, Louisiana Trial Court Nos. F201720;
F201750 Honorable Stephen G. Dean, Judge
LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel
M. LANCASTER, District Attorney, KENNETH D. WHEELER, AMANDA
M. WILKINS, Assistant District Attorneys, Counsel for
STONE, McCALLUM, and BLEICH (Pro Tempore), JJ.
BLEICH, J. (PRO TEMPORE)
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. For the reasons set forth below,
Defendant's sentences are vacated and the case is
remanded for further proceedings consistent with this
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.
for Guilty Plea
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.) 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
time of Defendant's plea, the trial court then
ascertained his age (19), his education level
(11th 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."
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 ...