Opinion
2022 KA 0569
11-04-2022
STATE OF LOUISIANA v. TRENIQUE C. FACIANE
Warren L. Montgomery Matthew Caplan Covington, LA Counsel for Appellee, State of Louisiana Aubrey Harris New Orleans, LA Counsel for Defendant/Appellant, Trenique C. Faciane
NOT FOR PUBLICATION
Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 566118 Honorable Richard A. Swartz, Judge Presiding
Warren L. Montgomery Matthew Caplan Covington, LA Counsel for Appellee, State of Louisiana
Aubrey Harris New Orleans, LA Counsel for Defendant/Appellant, Trenique C. Faciane
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
The defendant, Trenique C. Faciane, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. She initially pled not guilty. The defendant later withdrew her not guilty plea and pled guilty to an amended charge of manslaughter, a violation of LSA- R.S. 14:31, under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). No rulings were preserved for appeal pursuant to State v. Crosby. 338 So.2d 584, 590-591 (La. 1976). The defendant was sentenced to thirty years imprisonment at hard labor. The trial court later denied her motion to reconsider sentence. The defendant now appeals, assigning error to the constitutionality of her guilty plea, ineffective assistance of counsel, and the denial of her motion to reconsider sentence. For the following reasons, we affirm the defendant's conviction and sentence.
STATEMENT OF FACTS
As the defendant pled guilty, the facts were not fully developed at a trial. The grand jury indictment states that the offense occurred on or about May 22, 2015, and it identifies the victim as a one-year-old child, M.P., born on July 12, 2013. According to the narrative stated in the arrest affidavit, on May 21, 2015, deputies of the St. Tammany Parish Sherriff s Office (STPSO) were dispatched to the Louisiana Heart Hospital after receiving a report of a female child in critical condition with visible signs of possible physical abuse. Prior to being taken to the hospital, the victim was under the care of the defendant, her foster mother. The victim was transported to the hospital from her home in Lacombe, was placed on life support, and was relocated to the Children's Hospital in New Orleans.
herein, we will refer to the victim by initials only. See LSA-R.S. 46:1844(W).
Detective Matt Vasquez with the STPSO met the defendant at the Major Crimes Office where she was advised of her Miranda rights and participated in a recorded police interview. During the interview, the defendant admitted to striking M.P. on the side of her head with her fist and shaking her hard after becoming angry with her for putting diaper rash cream all over herself. The defendant stated that M.P. hit her head when she put her in the bathtub, and that M.P.'s head shook back and forth as the defendant vigorously scrubbed her head and body. The defendant further admitted to striking the victim on the head, shoulders, and buttocks with a large hairbrush. The victim suffered severe trauma to her head and body, causing her to have significant brain damage, which ultimately proved to be fatal.
Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues that her plea was constitutionally infirm. The defendant contends the State did not offer a factual basis for the plea, no details of the basis for the plea were "enumerated" on the record, and the trial court failed to address if there was a factual basis in support of the plea. The defendant notes that while motions were heard in this case prior to the plea, the defense strenuously objected to the assertion that she confessed to murder. The defendant further notes the trial court made references to discussions with the State and defense counsel that are not contained in the record and that it is unknown if she was privy to those discussions. Quoting State v. Jackson. 2017-612 (La.App. 5th Cir. 4/11/18), 245 So.3d 1250, 1252 and the case relied upon therein, State v. Craig, 2010-854 (La.App. 5th Cir. 5/24/11), 66 So.3d 60, 65, the defendant contends that when a defendant enters an Alford plea, "constitutional due process requires that the record contain strong evidence of actual guilt." The defendant asserts that as the record is deficient in demonstrating that there was an established factual basis for the Alford plea, the acceptance of the plea denied her due process and did not comport with LSA-C.Cr.P. art. 556.1.
The State counters that the trial court, in expressly finding that there is a factual basis for the plea, stated it reviewed the record of this matter in addition to having discussions with the State and defense counsel. The State notes that at the time of the plea, the record included a copy of the nearly five hundred pages of discovery materials disclosed to defense counsel and filed into the record by defense counsel as an attachment to the defendant's receipt for discovery. Further, the State cites State v. Castaneda, 94-1118 (La.App. 1st Cir. 6/23/95), 658 So.2d 297, 303, in arguing that while the Fifth Circuit Court of Appeal has held that constitutional due process requires that the record contain strong evidence of actual guilt to support an Alford plea, that is not an accurate statement of the law in the First Circuit Court of Appeal. Relying on Castaneda, the State argues the factual basis for the instant plea meets this court's requirement that there be "some factual basis" for the plea. The State further maintains that the factual basis is also sufficient under the more demanding standard advocated by the defendant, as the record contains "strong evidence of actual guilt."
A guilty plea is a conviction and, therefore, should be afforded a great measure of finality. State v. Tingle, 2012-1928 (La.App. 1st Cir. 6/7/13), 2013 WL 2484316, at *2 (unpublished). An unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto and precludes their review by either appeal or post-conviction relief. State v. Curry. 2017-0793 (La. 4/20/18), 240 So.3d 909 (per curiam); Crosby, 338 So.2d at 588; State v. West, 2018-0868 (La.App. 1st Cir. 5/31/19), 277 So.3d 1213, 1216. A trial court may permit the withdrawal of a guilty plea after sentencing only if it finds that the guilty plea is constitutionally infirm. A guilty plea is constitutionally infirm if it was not entered freely and voluntarily, if the Boykin colloquy is inadequate, or if the defendant was induced to plead guilty by a plea bargain that was not kept. Tingle. 2013 WL 2484316 at *2.
Bovkin v. Alabama. 395 U.S. 238,243, 89 S.Ct. 1709,1712,23 L.Ed.2d 274 (1969).
It is well settled that an express admission of guilt is not a constitutional requirement for the imposition of a criminal penalty. 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. Collins. 2006-1826 (La.App. 1st Cir. 3/23/07), 2007 WL 866473, *3; State v. McCartv. 499 So.2d 292, 293-94 (La.App. 1st Cir. 1986), writ denied. 505 So.2d 56 (La. 1987). As the United States Supreme Court indicated in Alford, "[a]n individual accused of crime may voluntarily, knowingly, and understanding 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, 400 U.S. at 37, 91 S.Ct. at 167. Because of the importance of protecting the innocent and of ensuring that guilty pleas are a product of free and intelligent choice, pleas coupled with claims of innocence should not be accepted "unless there is a factual basis for the plea" and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence. Alford. 400 U.S. at 38 n. 10, 91 S.Ct. at 167 n. 10; Castaneda, 65 8 So.2d at 303.
In Alford, the defendant had been indicted for first degree murder. Faced with strong evidence of guilt and no substantial evidentiary support of his innocence, the defendant entered a plea of guilty to a reduced charge of second degree murder. Alford. 400 U.S. at 26-27, 91 S.Ct. at 162. Although the defendant denied he committed the offense, he stated to the trial court that he was pleading guilty and indicated that he was doing so to avoid the death penalty for first-degree murder. The trial court accepted the defendant's guilty plea and imposed sentence. Alford. 400 U.S. at 29, 91 S.Ct. at 163. On appeal, the United States Supreme Court held that the trial court did not err in accepting the plea in view of the strong factual basis for the plea and the defendant's clearly expressed desire to enter the plea despite his professed belief in his innocence. Alford, 400 U.S. at 37-38, 91 S.Ct. at 168.
The United States Supreme Court has not specified the type of "factual basis" that is sufficient to make the showing required by Alford. Relying on statements in Alford that there was "strong evidence of actual guilt," "overwhelming" evidence, and a "strong factual basis" for the plea that occurred in that case, Alford. 400 U.S. at 37-38, 91 S.Ct. at 167-168, other courts of appeal in Louisiana have often required that there be "strong evidence of actual guilt" or a "significant factual basis" to support a plea which is entered under Alford. See State v. Rachal, 53,398 (La.App. 2d Cir. 7/22/20), 300 So.3d 483, 493, writs denied, 2020-01249, 2020-01198 (La. 1/12/21), 308 So.3d 713, 715; State v. Jennings, 2020-97 (La.App. 3d Cir. 7/15/20), 304 So.3d 494, 502-03, writ denied, 2020-01251 (La. 3/9/21), 312 So.3d 586, cert denied, ____ U.S. ____, 142 S.Ct. 146, 211 L.Ed.2d 53 (2021); State v. Bowman, 2018-517 (La.App. 5th Cir. 12/19/18), 262 So.3d 1075, 1078.
However, in Castenada. this court held that while such a factual basis would be considered sufficient (under Alford) to support a plea in which the defendant professes his innocence, a factual basis of that degree is not essential. Castaneda, 658 So.2d at 303. In Castaneda, the defendant, Ramiro Casteneda, was driving a truck pulling an empty car trailer when the police pulled him over. Concealed in the trailer were 27 packages of marijuana. Castaneda told the officer he and a codefendant, Ralph Reyes, were on their way to Florida, but Reyes told the same officer they were headed to Mississippi. Castaneda, 658 So.2d at 300. According to the affidavit of probable cause, Castaneda appeared "highly nervous." This court noted that despite Castaneda's protestation that he "really did not know anything," he repeatedly told the court he wanted to plead guilty. While we recognized that the facts supporting the charge against Castaneda were not as strong as the facts against the co-perpetrator, after reviewing the record, we found a sufficient factual basis to support a finding that it was likely Castaneda knew about the marijuana. Thus, this court found that the evidence supported the trial court's determination that Castaneda's plea was entered voluntarily. Castaneda, 658 So.2d at 304.
Subsequently, in State v. Orman, 97-2089 (La. 1/9/98), 704 So.2d 245 (per curiam), the Louisiana Supreme Court stated:
[A]ssuming that in all cases involving a bona fide Alford plea the record "before the judge [must] contain[ ] strong evidence of actual guilt," id, 400 U.S. at 38, 91 S.Ct. at 167, the standard under Alford is not whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea "represents a voluntary and intelligent choice among the alternative[]." 14, 400 U.S. at 31, 91 S.Ct. at 164.
The Supreme Court noted that while the trial court therein did not conduct an inquiry into the factual basis of the State's prosecution at the plea colloquy itself, the trial court had previously conducted a preliminary examination during which the State presented extensive testimony detailing an eyewitness account of relator's commission of the murder, the physical evidence corroborating that account, and the statements made by relator to his girlfriend after the offense in which he confessed to the crime. Noting that the trial court found probable cause to hold relator on a charge of capital murder, the supreme court held that in that context, the court had before it "a sufficient record for evaluating the statements of relator's counsel at the subsequent plea colloquy." Orman, 704 So.2d at 245-46.
In State v. Scroggins, 2018-1943 (La. 6/26/19), 276 So.3d 131, 132 (per curiam), the defendant pled guilty under Alford, but the appellate court vacated the plea agreement because it found as error patent that the record of the guilty plea proceedings did not contain a factual basis as required by Alford. The Louisiana Supreme Court found that the record, including the pre-sentence investigation, police reports, and transcript of the sentencing hearing, provided a factual basis for the defendant's plea and that the appellate court had erred in setting the plea aside sua sponte when the defendant's sole complaint on appeal pertained to the sentence imposed. Therefore, the Supreme Court reversed the ruling of the appellate court, reinstated the defendant's guilty plea, and remanded the case to the appellate court with instructions to consider the pretermitted assignment of error.
In the instant case, we agree with the trial court's assertion that the record contains an adequate factual basis to support the defendant's guilty plea under Alford. Pretermitting whether the defendant's statements constituted a full-blown confession, her statements and admissions alone were enough to establish "strong evidence of actual guilt" or a "significant factual basis" and certainly provide an adequate factual basis for the offense. Specifically, the defendant admitted to angrily inflicting the injuries that resulted in the victim's death. At the hearing on the motion to suppress the defendant's statement and evidence, the trial court listened to testimony by witnesses, including the interviewing officer, Supervisor Special Agent (former detective) Vasquez. In denying the motion to suppress, the trial court noted that it listened closely to the testimony, considered the exhibits filed into evidence, and found the defendant's statement was made freely and voluntarily.
At the Alford proceeding, the trial court informed the defendant of her rights. Specifically, the trial court informed the defendant of her Boykin rights (right to trial by jury, right against compulsory self-incrimination, and right of confrontation), her right to an appeal, and that by pleading no contest, she would be waiving those rights. The defendant indicated that she understood those rights and further indicated that she understood that she was waiving those rights. Considering the foregoing, we find no merit in assignment of error number one.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE
In assignment of error number two, the defendant argues that she received ineffective assistance of counsel based on five grounds: (1) failing to establish a sentencing cap or set sentence; (2) presenting evidence after the Alford plea was accepted; (3) presenting an expert witness who was not prepared to testify; (4) presenting a less qualified expert witness at the sentencing hearing; and (5) failing to object when the State improperly argued the defendant pled guilty and was in fact guilty. As each of the ineffective assistance of counsel claims are related to the defendant's sentence and/or are a basis for a claim by the defendant on appeal that her counsel's performance resulted in an excessive sentence, we have combined our consideration of these claims with the defendant's excessive sentence claim raised in assignment of error number three. In assignment of error number three, the defendant contends there were no discussions in pre-plea negotiations suggesting a sentence over ten years. She contends that she is not a violent woman, that she maintained her innocence, and that, given the totality of the circumstances, a sentence of thirty years is excessive and should be revised to reflect all of the facts of her case.
Regarding the defendant's ineffective assistance of counsel claims, the State argues the defendant failed to show deficient performance and/or prejudice. In arguing that the trial court did not abuse its discretion in imposing a thirty-year sentence in this case, the State quotes the trial court's lengthy reasons for sentencing. The State contends the trial court complied with LSA-C.Cr.P. art. 894.1 by stating for the record both the considerations taken into account and the factual basis for the sentence.
The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979); State v. Honea, 2018-0018 (La.App. 1st Cir. 12/21/18), 268 So.3d 1117, 1120, writ not considered, 2019-00598 (La. 08/12/19), 279 So.3d 915. A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hurst, 99-2868 (La.App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Brown, 2002-2231 (La.App. 1st Cir. 05/9/03), 849 So.2d 566, 569. Remand is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos. 419 So.2d 475, 478 (La. 1982); State v. Graham, 2002-1492 (La.App. 1st Cir. 2/14/03), 845 So.2d 416,422.
As noted, the defendant challenges her counsel1 s performance in regard to her sentencing. A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. To show "prejudice" as required in order to establish ineffective assistance of counsel, the defendant must demonstrate that, but for counsel's unprofessional conduct, the outcome of the trial would have been different. A failure to demonstrate either deficiency in performance or prejudice to the defense from that deficiency will defeat a claim of ineffective assistance of counsel. See Strickland v. Washington. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Thus, we need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La. 1983). There is a strong presumption that counsel was acting professionally and that his decisions were strategic in nature. State ex rel. Scales v. State. 98-2119, 98-2178 (La. 8/14/98), 718 So.2d 402 (per curiam).
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Claims "alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id. at 693, 104 S.Ct. at 2067. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
"A claim of ineffective assistance of counsel generally is more properly raised in an application for post-conviction relief than on appeal." State v. Brumfield 96-2667 (La. 10/20/98), 737 So.2d 660, 668, cert denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999). In post-conviction proceedings, the trial judge can conduct a full evidentiary hearing on the issue. Id. However, if the appellate record contains evidence sufficient to decide the issue, the appellate court may consider the issue in the interests of judicial economy. Id. at 668-69.
Pursuant to LSA-R.S. 14:31(B), "[w]hoever commits manslaughter ... [when] the victim killed was under the age of ten years ... shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years." The victim in this case was only one year old. Therefore, the sentencing range for the instant offense is ten to forty years imprisonment at hard labor. Although the thirty-year sentence imposed herein is at the higher end of the sentencing range, the sentence imposed is not a maximum or even near maximum sentence.
At the sentencing hearing, the defendant testified that she did not indicate that she was angry at the time of the offense, suggesting that the detective put words in her mouth. She explained that she was only trying to clean the diaper rash cream off of the victim and "she was just sliding back and forth." She stated the victim had the cream in her hair, on her face, and on her arms, legs, and stomach. The defendant stated that when she put the victim in the tub, she did not know that it would be "so slippery." She claimed the victim came forward and slipped and hit her head on the faucet of the tub. She stated she only tapped the victim with the hairbrush, "to stop her from thrashing around" as the victim "continued to have a fit." The defendant stated that after she bathed the victim, gave her something to eat (of which she only took a bite or two), and told her to take a nap, the victim started vomiting. The defendant testified that she then began hitting the victim on her back "to get the vomiting out." When asked how hard she was hitting the victim on the back, the defendant testified, "I'm not sure.... I don't know." The defendant stated that the victim, covered in vomit, slipped out of her arms when she tried to put her in the tub again. The defendant stated that the victim became unresponsive and that she tried "to get her to ... wake up" by calling her name and attempting "I believe CPR." The defendant further stated she called 911 and that when emergency assistance arrived, she stumbled while picking up the victim and running to the door, at which point "maybe the side" of the victim hit the door frame.
Prior to imposing the sentence, the trial court noted that it considered the record. The court noted that the most compelling consideration was the death of a 22-month-old child who will never be able to experience life. The court stated that the foster care system failed the victim miserably. The court further noted that the defendant's testimony at the hearing was inconsistent with her recorded statement to the police, wherein she made no mention of falling into the front door with the child when emergency assistance arrived. The trial court found that the defendant repeatedly attempted to minimize her culpability and deny responsibility for the victim's death. The trial court considered the testimony of Dr. Jeanette Lopez, noting that she testified about a possible preexisting condition that may have contributed to the victim's death, but had no factual basis for her conclusion. The trial court further noted Dr. Scott Benton's testimony that in his opinion, the victim suffered from trauma that was not self-inflicted or accidental.
A trial court has wide, although not unbridled, discretion in imposing a sentence within statutory limits. State v. Trahan. 93-1116 (La.App. 1st Cir. 5/20/94), 637 So.2d 694, 708. The sentence imposed by the trial court will not be set aside absent a showing of manifest abuse of the trial court's wide discretion. State v. Andrews. 94-0842 (La.App. 1st Cir. 5/5/95), 655 So.2d 448, 454. Based on the trial court's thorough reasons for sentencing after presiding over a two-day sentencing hearing, we find no abuse of discretion in this case. Considering the nature of the offense and the trauma suffered by the extremely young victim in this case, we find that the sentence imposed does not shock the sense of justice. Thus, the trial court did not err in denying the defendant's motion to reconsider sentence.
Accordingly, the defendant's ineffective assistance of counsel claims raised in assignment of error number two fail on the prong of prejudice. Even assuming any deficiency in performance, because we find the sentence imposed in this case was appropriate, there was no showing that any such deficiency caused the imposition of an excessive sentence. Thus, we reiterate that the defendant has failed to show any prejudice regarding her sentence. Considering the foregoing, we find no merit in assignments of error numbers two and three.
This court is also not persuaded by the defendant's attempt to show deficiency in performance. As to the first claim, failing to set a cap or an agreed-upon set sentence, the State notes that there is no reason to believe that the prosecution would have accepted a proposed modification of the plea agreement. Counsel is not required to engage in efforts of futility. See State v. Lawson. 2018-0382 (La.App. 1st Cir. 11/8/18), 2018 WL 5876815, *18 (unpublished), writ denied, 2018-2048 (La. 5/20/19), 271 So.3d 1272. The second, third, and fourth claims challenge defense counsel's presentation of evidence at the sentencing hearing, specifically claiming that the defense's expert witness was ill-prepared and less qualified than the State's witness. The final claim challenges defense counsel's failure to object when the State argued the defendant pled guilty and was guilty, despite her plea under Alford. We note that the trial court was aware of the nature of the defendant's plea. Further, if an alleged error falls within the ambit of trial strategy, it does not establish ineffective assistance of counsel. State v. Ockman, 2016-1615 (La.App. 1st Cir. 9/15/17), 2017 WL 5643546, * 9 (unpublished), writ denied, 2017-1739 (La. 5/11/18), 241 So.3d 1014. The vast array of trial decisions, strategic and tactical, which must be made before and during trial, rest with an accused and his attorney, and the fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. Lawson. 2018 WL 5876815 at *18
CONVICTION AND SENTENCE AFFIRMED.