As part of a negotiated plea, Victor Leary pled guilty to two counts of armed robbery, two counts of kidnapping, and two counts of possessing a firearm during the commission of a crime and was sentenced to 15 years in jail.1 He moved to withdraw his plea, and the trial court denied the motion. Leary appeals this ruling, arguing that he should have been permitted to withdraw his plea because: 1 the record fails to establish a factual basis for the plea; 2 there is insufficient evidence that his plea was knowingly and intelligently entered; and 3 he received ineffective assistance during the plea hearing. For reasons that follow, we disagree and affirm. 1. According to Leary, the trial court failed to ascertain whether a factual basis existed for his guilty plea. Specifically, he contends that the indictment should have been read into the record. We disagree. A trial court may determine that the requisite factual basis exists for a guilty plea either from facts adduced during the plea hearing or from parts of the record outside the plea hearing, including the indictment, provided that the court makes note of its reliance during the plea hearing and as long as any document upon which the court relies is included in the appellate record.2 And a factual basis is sufficient if it subjectively satisfies the trial court that the defendant ” ‘knows both what he has done and that those acts constitute the crime with which he is charged.’ “ 3
During the plea hearing, the prosecutor reiterated the charges that Leary was facing before providing the following synopsis of the facts: Leary along with a co-defendant, did enter into the apartment belonging to the Brown family. In the apartment at that time was Melvin Brown. The two of them each presented a gun, a firearm, to Mr. Brown. They pushed him into a room. They tied him up. They did strike him. They then took from his immediate presence some sports jerseys by use of this offensive weapon. During the course of that taking place, Melonie Brown arrived home to the apartment. When she entered into the apartment, they then took her by force into a room, tied her up, and had a gun to her head. They then took a variety of items belonging to her from her immediate presence by use of that weapon, including a wallet and ID. The prosecutor also informed the trial court that one of the victims had managed to place a 911 call and that much of the crime had actually been recorded by the 911 operator. Before this factual summary, Leary’s attorney stated on the record that he had discussed the facts of the case with Leary, who understood that there was “more than sufficient evidence to convict him should the case go to trial.” And Leary conceded that he was, in fact, guilty. Under these circumstances, a sufficient factual basis was established for the acceptance of Leary’s guilty plea.4
