State v. McCulloughState v. McCullough
On January 5, 1991, defendant, Wanetta Jo McCullough, was arrested and charged by bills of information with one count of possession with intent to distribute marijuana “within three hundred feet” [sic] of school property,
On April 6, 1992, defendant was sentenced to five years at hard labor on each count. On the possession with intent to distribute marijuana, the sentence was to be served without the benefit of parole, probation or suspension of sentence because of the requirements under
Defendant now appeals her sentence and conviction, alleging that there is no factual basis in the record to support a guilty plea to a violation of
A. Any person who violates a felony provision of
R.S. 40:966 throughR.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus shall, upon conviction, be punished in accordance with Subsection E.* * * * * *
E(1) On a first conviction, whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and not less than one-half nor more than the maximum term of imprisonment authorized by the applicable provisions of R.S. 40:966 throughR.S. 40:970 , with the minimum mandatory term of imprisonment being served without benefit of parole, probation, or suspension of sentence, provided in no case shall the term of imprisonment be less than the minimum term provided inR.S. 40:966 throughR.S. 40:970 .
Defendant contends that a significant factual basis for finding guilt must appear during the “Boykin” colloquy, State v. Linear, 600 So.2d 113 (La.App. 2d Cir.1992), or some other evidentiary hearing. State v. McCarty, 499 So.2d 292 (La.App. 1st Cir. 1986).
Both of these cases can be distinguished from the instant case. In Linear, supra, the defendant‘s statements at the Boykin hearing put the trial court on notice that there was a need to ascertain a factual basis for the guilty plea to determine if the plea was voluntarily entered under the standards of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In McCarty, supra, the defendant declined to acknowledge his guilt during the Boykin examination.
When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for the plea unless the accused protests his guilt or for some other reason the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant‘s plea. Alford, supra; Linear, supra. However, the absence of a factual basis when entering a guilty plea does not render the plea constitutionally infirm, if the plea is determined to be made knowingly and intelligently. State v. Perry, 515 So.2d 654 (La.App. 3d Cir.1987).
In the present case, the defendant pled guilty to the charge in the bill of information,
AFFIRMED.
Notes
[1] The Plea of Guilty and Waiver of Rights form misstated the penalty. Rather than the first conviction being
“... punished by the imposition of the maximum term of imprisonment authorized by the applicable provisions of R.S. 40:966 through R.S. 40:970, with the minimum mandatory term of imprisonment being served without benefit of parole, probation, or suspension of sentence, provided in no case shall the term of imprisonment be less than the minimum term provided in R.S. 40:966 through 40:970,” the penalty provision contained in LSA-R.S. 40:981.3 E(1) provides:
E(1) On a first conviction, whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and not less than one-half nor more than the maximum term of imprisonment authorized by the applicable provisions of R.S. 40:966 through R.S. 40:970, with the minimum mandatory term of imprisonment being served without benefit of parole, probation, or suspension of sentence, provided in no case shall the term of imprisonment be less than the minimum term provided in R.S. 40:966 through R.S. 40:970.