State Ex Rel. Halvorsen v. BlackburnState Ex Rel. Halvorsen v. Blackburn
Relator Richard S. Halvorsen was charged by bill of information with fifteen counts of aggravated crime against nature,
Subsequently, by petition for a writ of habeas corpus, relator urged the district
The indictment at issue charged unnatural carnal copulation with a juvenile, committed by relator‘s “plac[ing] his penis in the area of the [juvenile‘s] anus ...” (emphasis supplied). Omitted from the express terms of the indictment was any allegation that there had occurred penetration, an essential element of anal-genital crime against nature. See, State v. Phillips, 365 So.2d 1304 (La.1978). Without notice of that element, relator asserted, he was inadequately informed of the nature of the charge to which he pleaded guilty.
We have said that a defendant may not complain of the insufficiency of the indictment after conviction if the offense charged has actually been identified and no prejudice has resulted from a lack of notice. State v. Gainey, 376 So.2d 1240 (La.1979); State v. Murray, 357 So.2d 1121 (La.1978); State v. Pichler, 355 So.2d 1302 (La.1978); State v. James, 305 So.2d 514 (La.1974). In determining whether the defense has been unduly surprised or prejudiced, we have looked to the availability of pretrial discovery procedures that permit the clarification of a vague indictment and to a degree, we have held the defense responsible for seeking clarification. Id. That approach has only been taken, however, in the review of post-trial attacks on the sufficiency of an indictment, where our concern has been for the ability of the defense to prepare for trial on the notice provided for the admission at trial of evidence pertinent to the charge and for the compilation of a record that protects the defendant against double jeopardy. See, State v. Gainey, supra, and State v. James, supra.
A challenge to the sufficiency of an indictment following conviction by a plea of guilty stands on a far different footing: there has been no determination of the accused‘s guilt by a judge or jury; rather, the accused stands convicted by his admission of guilt. If that admission did not encompass every element of the crime, the guilty plea cannot be considered voluntary in the constitutional sense. As the United States Supreme Court declared in Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-2258, 49 L.Ed.2d 108 (1976), “[a]nd clearly [a plea cannot] be voluntary in the sense that it constitute[s] an intelligent admission that he committed the offense unless the defendant receive[s] `real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.‘” (citation omitted).
Notice was not adequately provided here by the bill of information that omitted an essential element of the crime, penetration. Nor was the gap filled in the recorded plea colloquy, during which relator was simply asked, “Do you know what you are pleading guilty to,” and “Are you familiar with the allegations and charges in the bill of information?” Nor did relator recite or acquiesce in any statement of facts necessarily implying that penetration had occurred. On the present record, then, we cannot conclude that relator‘s plea was entered with complete understanding of the charge, i. e., voluntarily.
We are not prepared, however, to set aside the plea solely on the lack of an affirmative record regarding notice of the nature of the crime. Although the preferred procedure would be for the trial judge to explain the elements of the crime before accepting the plea, the due process requirement of notice may be satisfied by an explanation from another source, e. g., defense counsel. Accordingly, we remand the case to the district court for an evidentiary hearing in which relator will bear the burden of proving that he did not receive actual notice of the nature of the crime to which he pleaded guilty.
Should relator satisfy that burden, the plea must be set aside. We do not at this
REMANDED.