author: LEBLANC, J.

text:
    STATE of Louisiana v. Eric C. FONTENELLE
    NO. 17-KA-103
    Court of Appeal of Louisiana, Fifth Circuit.
    September 13, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, ERIC C. FONTENELLE, Prentice L. White
    DEFENDANT/APPELLANT, ERIC C. FONTENELLE, In Proper Person
    Panel composed of Judges Marc E. Johnson, Robert A, Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore
   LEBLANC, J.

| T Defendant, Eric C. Fontenelle, appeals his convictions of two counts of indecent behavior with a juvenile under thirteen. Defendant’s appointed counsel has filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and has filed a motion to withdraw as counsel of record. Further, defendant has filed a pro se supplemental brief assigning one error. For the following reasons, we affirm defendant’s convictions and sentences and grant counsel’s motion to withdraw. We remand the matter for a correction as noted herein.

STATEMENT OF THE CASE

On May 4, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of indecent behavior with a juvenile under thirteen in violation of La. R.S. 14:81. Qn May 12, 2016, defendant pled not guilty at his arraignment.

Prior to trial, the trial court heard the State’s oral motion in limine regarding the admissibility of recorded jail calls made by defendant. The parties stipulated that certain statements would be played to the jury but that a portion pertaining to a plea offer made to defendant would be muted. During presentation of the State’s case-in-chief on August 10, 2016, defendant made an oral motion for mistrial after the portion of the recorded jail call pertaining to the State’s offer was inadvertently played to the jury.

■' On the next day, defendant withdrew his motion for mistrial and tendered a plea of guilty as charged. After being advised of his Boykin rights- and the reading of a victim impact statement, defendant was sentenced to ten years in the Department of Corrections on each count,. The trial court ordered that the first Istwo years were to be served without the benefit of probation, parole, or suspension of sentence. Defendant was informed of his obligation to register as a sex offender for life.

On August 23, 2016, a letter written by defendant and dated August 12, 2016, was filed into the record, wherein defendant argued that he was under duress' at the time he entered his guilty pleas, his decision was not' rationally made, and he requested to'be brought before the trial judge. That same date, the trial court denied the relief requested iri defendant’s letter, after finding defendant was informed of the constitutional rights he was waiving and of the possible sentences he faced. On September 2, 2016, a subsequent letter by defendant dated August 29, 2016, was filed into the record, where he again argued that,he was under duress and he received ineffective assistance of counsel. Defendant also sought an appeal of his convictions. On September 6, 2016, the trial court granted defendant an appeal.

On April 19, 2017, defendant filed a pro se motion to supplement the instant appellate record, which bears district court number 16-2702, with certain “materials” filed under district court number 15-5939 that defendant averred were: missing from the instant record. That-same date,, this Court issued an Order for the 24th Judicial District Clerk of Court to supplement this appellate record with the.record of district court number 15-5939 as an .exhibit to the instant appeal. The supplemental exhibits were filed on .April 20, 2017. Defendant’s appeal follows.

FACTS

Because defendant’s convictions were the result of guilty pleas, the facts underlying the crimes of which he was convicted are not fully developed in the I ¡/record-Nevertheless, the bill of information provides that on or about October 5,2015, and on October 6, 2015, defendant violated La. R.S. 14:81 in that he, being over the age of seventeen, and there being an age difference of greater than two years between the two persons, did commit a lewd and lascivious act upon, or in the presence of, a known juvenile (D.O.B. 3/27/2008), wherein the victim was under the age of thirteen, with the intention of arousing or gratifying the sexual desires of either person.

ANDERS BRIEfr

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel réquests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to. be wholly frivolous after a conscientious examination of it. The request must be accompanied by .“ ‘a brief referring to anything in the record. that might arguably support the appeal’” so'as to. provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for* its consideration.” Id, ■

When conducting a review for compliance with Anders, an appellate court' must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are.no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the, legal point(s) identified by,the court, or grant the motion and appoint substitute appellate counsel. Id.

DISCUSSION

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal and could find no rulings that would arguably support an appeal. He avers that defendant intentionally waived his rights to a jury trial, to questioning and cross-examining the State’s witnesses, to remain silent during a trial, and to appeal his convictions and sentences. He suggests that defendant was informed of the sentences he would |fireceive upon the trial court’s acceptance of the pleas, and defendant is prohibited from appealing his sentences before this Court. Defense counsel notes that the trial court failed to inform defendant that he had two years from the time that his convictions and sentences become final to-file an application for post-conviction relief. Defense counsel states that although defendant filed a timely pro se motion for appeal, he has moved to withdraw as attorney since he has reviewed the case to the best of his ability and has adequately protected defendant’s constitutional rights.

Appellate counsel has filed a motion to withdraw as attorney of record which states that he has notified defendant of the filing of this motion and has advised him of his right to file a pro se brief in this matter. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief. Defendant requested an extension of time to file his pro se brief, which was granted by this Court, allowing him until May 5, 2017, to submit his filing.

In response, the State agrees with defense counsel that there are no non-frivolous issues for appellate review and that defense counsel’s brief shows a conscientious and thorough review of the procedural history of the case. Accordingly, the State concludes that defense counsel has conformed with and followed the procedures set forth in Anders and Jyles, supra, and the motion to withdraw should be granted.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offenses. It also sufficiently identified defendant and the crimes charged. See generally La. C.Cr.P. arts. 464-466. As reflected by the minute entries and the commitment, defendant | ^appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceeding, and his sentencing. As such, defendant’s presence does not present any issues that would support an appeal.

Further, defendant pled guilty as charged to two counts of indecent behavior with a juvenile under thirteen. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Kent, 15-323, p. 8 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 226, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165; State v. Wingerter, 05-697, p. 5 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived. No rulings were preserved for appeal under the' holding in State v. Crosby, 338 So.2d 584 (La. 1976).

Additionally, a review of the record reveals no irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).

Article 1, § 13 of the Louisiana Constitution provides that an accused in a criminal prosecution has a right to be informed of the nature and cause of the accusation against him. That constitutional requirement is codified in La. C.CrJP. art. 464, which provides:

|7The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

This requirement is also codified in La. C.Cr.P. art. 556.1(A)(1), which provides, in part, that the court shall not accept a guilty plea without first determining that defendant understands the nature of the charge against him. However, violations of Article 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. Id. To determine whether a violation of Article 556.1 is harmless, the proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. State v. Howard, 11-1155, pp. 8-9 (La. App. 5 Cir. 5/22/12), 91 So.3d 564, 570, writ denied, 12-1826 (La. 3/1/13), 108 So.3d 787.

The test for the validity of a guilty plea does not depend on whether the trial court specifically informed defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. Howard, supra. This Court has found that “[w]hen a defendant is represented by counsel, the trial court accepting his guilty plea may presume that counsel has explained the nature of the charge in sufficient detail that the defendant has notice of what his plea asks him to admit.” State v. Dadney, 14-511, pp. 6-8 (La. App. 5 Cir. 12/16/14), 167 So.3d 55, 59-60, writ denied, 15-90 (La. 10/30/15), 179 So.3d 614.

The record indicates that defendant was aware that he was pleading guilty as charged to two counts of indecent behavior with a juvenile under thirteen rather |sthan merely indecent behavior with a juvenile. The top of the waiver of rights form references that defendant was pleading guilty to two counts of indecent behavior with a juvenile in violation of La. R.S. 14:81. During the colloquy and at the time the sentences were imposed, the trial judge referred to the charge as indecent behavior with a juvenile. Thus, at those times, defendant was not apprised that he was pleading guilty to indecent behavior of a juvenile under thirteen, a violation of La. R.S. 14:81(H)(2), which carries a harsher penalty than indecent behavior with a juvenile under La. R.S. 14:81(H)(1). However, the bill of information charging defendant clearly stated in both counts that the known juvenile was under the age of thirteen. In addition, when informing defendant of the possible sentencing range for the offenses, the trial court advised defendant that he faced the penalty carried by La. R.S. 14:81(H)(2),

Further, before the colloquy began and in the presence of defendant, the trial court asked defense counsel whether defendant wished to change his plea from not guilty to guilty as charged, and defense counsel provided that he had “spent the better part of the morning” with defendant and believed his' decision was knowing, intelligent, and voluntary. After imposition of defendant’s sentences, the State noted that defendant was required to register as' a sex offender for life since the victim was under the age of thirteen, and the State asked defense counsel if defendant understood this,, to which defense counsel responded that he had so advised his client. Defendant did not comment at that time to indicate he was | ^unaware the offenses involved a juvenile under the age of thirteen. Further, the transcript fails to show that defendant asked any questions or made any statements during the colloquy as to the nature of the charges or to indicate a lack of undérstanding of the charges or the elements of the offenses in violation of La. Const. art. I, § 13 or La. C.Cr.P. art. 556.1.

Further, defendant was properly advised of his Boykin rights. During the colloquy and in the waiver of rights form, defendant was advised he was “giving up” his rights' to a jury trial, the right to confront his accusers at trial, and his privilege against self-incrimination, which defendant indicated that he understood. Defendant provided that he had conferred with his attorney, was satisfied with the way his attorney and the court had handled his case, and denied that he was forced, coerced, or threatened in any way to- take the pleas, Defendant was further advised of his right to appeal any verdict of guilty that may be returned at a trial and that a plea could be used to enhance a penalty of a future conviction.

Therefore, although the trial court erred in not specifically advising defendant during the colloquy or on the waiver of rights form that he was pleading guilty to indecent behavior with a juvenile under thirteen, we find that any error was harmless. The record fails to show that defendant’s knowledge and comprehension of the full information at those times would have likely affected his willingness to plead guilty. Further, under the circumstances of this case, defendant was informed of and made aware of' the essential nature of the charges against him and the sentences he would receive.

As. previously-stated, La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the 11nnature of the charge to which the plea is offered and in addition, any mandatory minimum penalty arid the maximum possible penalty. “Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” La. C.Cr.P. art. 556.1(E). Again, violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are. subject to a harmless error analysis. State v. Craig, 10-854, p. 7 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64. An advisement of an agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. See Craig, supra; State v. Broadway, 40,569, p. 7 (La. App. 2 Cir. 1/25/06), 920 So.2d 960, 963. The core Boykin requirements have never been extended to include advice with respect to sentencing. Id.

Here, defendant was informed via the waiver of rights form and during the colloquy that the sentencing range- for the offenses were two to twenty-five years on each count with the first two years to be served without benefit of probation, parole, or suspension of sentence. Defendant was advised in the waiver of rights form and during the colloquy that his sentences would be ten years on each count with the first two years to be served without benefits and the sentences were to ruii concurrently. He was informed that the State would not file a multiple bill. The trial court then accepted his pleas of guilty as having been knowingly, intelligently, freely, and voluntarily made on defendant’s part.

With regard to defendant’s sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. The record shows' that defendant’s sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Defendant’s 1 n sentences fall within the sentencing range set forth in the statute. See La. R.S. 14:81(H)(2).

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant’s appointed appellate counsel has adequately demonstrated his review and analysis of the record in this case. An independent review of the record supports counsel’s assertions set forth in his Anders brief. Therefore, we grant counsel’s request to withdraw as counsel of record.

PRO SE ASSSIGNMENT OF ERROR

In his sole pro se assignment óf error, defendant asserts that his trial counsel" was ineffective for several reasons. Defendant avers that trial counsel failed to investigate or review discovery with defendant prior to trial, to effectively cross-examine the State’s witnesses, to adequately lodge objections to thé witnesses’ testimony, and to further investigate additional defense witnesses and call them to testify at trial. He contends that trial counsel was ineffective by not filing and arguing the motion for mistrial and re-trying his case, but rather, trial counsel pressured him into accepting a plea to crimes he did not commit.

Defendant also briefly .mentions that a motion for a preliminary hearing was never argued and a motion for bond reduction was “riddled with errors” when it was filed and argued. He states that a “conflict of interest” existed with trial counsel’s representation of him because defendant stole pills from family members of trial counsel several years before. He concludes that if not for trial counsel’s deception, errors, and ineffectiveness, he would not have pled guilty to crimes he did not commit. Thus, he alleges that his pleas are constitutionally infirm due to the ineffectiveness of his trial counsel.

| iaAn ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Crochet, 10-387, pp. 4-5 (La. App. 5 Cir. 2/15/11), 61 So.3d 725, 728-79, writ denied, 12-1158 (La. 11/21/12), 102 So.3d 52; State v. Cambre, 05-888, pp. 25-26 (La. App. 5 Cir. 7/25/06), 939 So.2d 446, 461, writ denied, 06-2121 (La. 4/20/07), 954 So.2d 158. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. However, when there is sufficient evidence to consider some, but not all, of the allegations of ineffectiveness of counsel before it, this Court has declined to address any of the claims on grounds that they should be addressed in their entirety by the district court on post-conviction relief at an evidentiary hearing. Crochet, 10-387 at 4-5, 61 So.3d at 728-29; State v. Allen, 06-778, pp. 9-12 (La. App. 5 Cir. 4/24/07), 955 So.2d 742, 750-52, writ denied, 08-2432 (La. 1/30/09), 999 So.2d 754.

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. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Crochet, supra; Allen, supra. The error is prejudicial if it is so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, supra; Crochet, supra. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the case would have been different! Id.

In order to prevail, the accused must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. At 2065. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel, because “opinions may differ on the.advisability of such a tactic.” State v. Singleton, 05-634, p. 11 (La. App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writ denied, 06-1208 (La. 11/17/06), 942 So.2d 532.

A court must indulge' a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. State v. Griffin, 14-450, pp. 23-25 (La. App. 5 Cir. 12/16/14), 167 So.3d 31, 48, writ denied, 15-148 (La. 11/20/15), 180 So.3d 315. Therefore, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, supra; Griffin, supra. There is no precise definition of reasonably effective assistance of counsel. Accordingly, any inquiry into the effectiveness of counsel must be specific to the facts of the case and must take into consideration the counsel’s perspective at the time. Id. The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. Id.

We find that the record is sufficient to rule on the merits of defendant’s claim and address it in the interest of judicial economy. As previously discussed, a review of the record reveals no constitutional infirmity in defendant’s guilty pleas. Defense counsel withdrew the motion for mistrial, and defendant thereafter pled guilty. Importantly, during his guilty plea colloquy, defendant indicated that his guilty pleas were knowing, intelligent, free, and voluntary, and no promises or threats were made to encourage him to plead guilty. Nothing in the record supports defendant’s claims that his trial counsel was ineffective in his trial strategy or that his plea was constitutionally infirm. Rather, defendant merely makes conclusory and non-specific assertions regarding trial counsel’s alleged failure to effectively cross-examine witnesses, lodge objections, investigate | uPotential defense witnesses, and file and argue motions. Thus, .these conclusory and non-specific assertions do not appear sufficient to meet either prong under Strickland, supra.

Further, as to defendant’s alleged conflict of interest with trial counsel, in brief, defendant claims that a defense witness was informed by trial counsel that defendant would go to jail regardless of whether he was convicted of these charges because defendant was a drug addict. He contends that during plea negotiations and when asking trial counsel’s advice as to whether he should plead guilty when innocent, defense counsel told defendant that the trial judge would impose a life sentence if he did not “take” the deal. Defendant further averred that defense counsel informed defendant he received $250.00 to attend defendant’s court appearances and that he had previously forgiven defendant for stealing pills from his family.

Every criminal defendant is entitled, not only to counsel, but also to conflict-free counsel. U.S. Const. Amend. 6 and 14; La. Const. Art. I, § 13; State v. Franklin, 400 So.2d 616, 620 (La. 1981); State v. Olivieri, 10-1064, pp. 3-4 (La. App. 5 Cir. 9/13/11), 74 So.3d 1191, 1193, writ denied, 11-2227 (La. 2/17/12), 82 So.3d 283. After the trial court has been alerted that a conflict of interest exists, the judge must take the proper steps to assure that the defendant’s Sixth Amendmént right to effective assistance of counsel is not violated. State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, 132, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004).

The time at which a conflict of interest issue is raised is determinative of the standard to be applied in evaluating the claim. Where a defendant raises the issue prior' to trial, the district court judge is required either to appoint separate counsel or to take adequate steps to ascertain whether the risk of a conflict of interest was too remote to warrant separate counsel. State v. Wille, 595 So.2d 1149, 1153 (La. 1992), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992); State v. Shabazz, 14-431, p. 10 (La. App. 1 Cir. 11/7/14), 167 So.3d 725, 733. However, where a defendant does not'raise the issue of conflict of interest until after the trial, the defendant is required to show that “an actual conflict of interest adversely affected his lawyer’s performance” in order to establish a Sixth Amendment violation. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Shabazz, supra. In other words, “if the objection is made to the claimed conflict after trial, the defendant must also show he was actually prejudiced.” State v. George, 12-204, p. 6 (La. App. 4 Cir. 1/9/13), 108 So.3d 269, 274, writ denied, 13-317 (La. 9/13/13), 120 So.3d 279. (emphasis as found in original).

“An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties.” State v. Gorman, 11-491, p. 12 (La. App. 5 Cir. 2/14/12), 88 So.3d 590, 598-99. A conflict can also arise when a defense attorney is required to cross-examine a current or former client on behalf of a current defendant. A defendant’s mere dissatisfaction with his appointed counsel does not create an actual conflict of interest that requires appointment of other counsel. Id. Although most conflict of interest cases involve representation of multiple defendants, a conflict of interest may arise between a single defendant and his attorney. Wille, 595 So.2d at 1153.

After review of the record, we find that no actual conflict of interest existed that adversely affected counsel’s performance. Defendant’s .bare assertions in his brief do not prove that counsel was placed in a situation inherently conducive to divided loyalties or that an actual conflict of interest arose between defendant and his attorney. Even if defendant’s allegations of the statements made by trial counsel are true, they still fail to prove that trial counsel’s performance was adversely affected since defendant did not allege specifically that he was prejudiced during the plea negotiations or the taking of his pleas. Quite oppositely, Imthe transcript of the colloquy indicates that defendant answered affirmatively when questioned by the trial judge whether he was satisfied with his attorney and whether he was pleading guilty because he was in fact guilty. As stated, the record shows that defendant’s pleas were knowingly, intelligently, freely, and voluntarily made. Accordingly, defendant has failed to show that an actual conflict of interest existed which adversely affected his counsel’s performance, and this assignment of error is without merit.

ERRORS PATENT REVIEW

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 566 So.2d 175 (La. App. 5th Cir. 1990) regardless of whether defendant makes such a request.

The transcript reflects that the trial judge was silent as to the concurrent nature of defendant’s sentences. Yet, the Uniform Commitment Order reflects: “This sentence shall be concurrent with any or every sentence the offender is now serving!.]” The transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983). Therefore, it is ordered that the trial court correct the commitment to delete the comment that the sentence be served concurrently with any or every sentence defendant is now serving. We further order the trial court to direct the clerk of court for the 24th Judicial District to transmit the original of the corrected commitment to the appropriate authorities in. accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’ legal department. State ex rel. Roland v. State, 06-0244 (La. 9/1/5/06), 937 So.2d 846 (per curiam); State v. Suggs, 11-64, p. 22 (La. App. 5 Cir. 12/13/11), 81 So.3d 815, 830, writ denied, 12-0054 (La. 4/20/12), 85 So.3d 1269.

[¡-DECREE

For the aforementioned reasons, defendant’s convictions and sentences are affirmed, the matter is remanded for correction of the commitment, and the motion to withdraw is granted.

AFFIRMED AND REMANDED FOR CORRECTION OF COMMITMENT; MOTION TO WITHDRAW GRANTED

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),

      . In State v. Baptiste, 16-316 (La. App. 5 Cir. 12/14/16), 209 So.3d 321, 324 n.2, this Court held; "Though the trial judge sentenced defendant to imprisonment in the Department of Corrections, rather than to imprisonment at hard labor as required by the pertinent penalty statutes, this Court deems such a sentence necessarily at hard labor.”

      . Before the institution of this matter, the State charged defendant with two counts of indecent behavior with a juvenile under district court case number 15—5939. On May 4, 2016, the State nolle prossed the two charges with.a notation on the-bill that new-charges had been filed.

      . The record does not indicate that a factual basis was’ given during the colloquy. .

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . At the time of the offense, La, R.S. 14:81(H)(1) provided the penalty for indecent behavior with juveniles, a sentence of which was punishable by a fine of not more than five thousand dollars, or imprisonment with or without hard labor for not more than seven years, or both. La. R.S. 14:81(H)(2) provided the penalty for indecent behavior with juveniles under the age of thirteen, when the offender is seventeen years of age or older, which carried a penalty of imprisonment at hard labor for not less than two nor more than twenty-five years with at least two years of the sentence to be served without benefit of parole, probation, or suspension of sentence.

      . The transcript does not indicate that the bill was read aloud' during the colloquy. However, at the beginning of trial, the clerk read the bill of information out loud to the jury in defendant’s presence.
      The bill of information fails to state the specific subsection under which defendant was charged. In State v. Favors, 09-413, pp. 11-12 (La. App. 5 Cir. 11/10/09), 28 So.3d 433, 440-41, tills Court found on error patent review that the specific section under which the defendant was charged with was omitted in the bill of information. This Court held that the misstatement in the bill was not a grounds for reversal of the conviction since no prejudice or surprise to the defendant was found, and it was sufficiently clear to inform the defendant of the charge.

      . Also, defendant was present at his trial, where the victim testified that she was eight years old and her date of birth was March 27, 2008.

      . Defendant indicated that he understood that by pleading guilty to sex offenses, he would be required to comply with the registration and notification requirements and acknowledged written receipt of copies of the registration and notification requirements.

      . The instant record does not reveal that a motion for a preliminary hearing was filed in the instant matter, but a motion for a preliminary examination was filed on February 8, 2016, in district court case number 15-5939.

      . After defendant pled guilty on August 11, 2016, defendant wrote a letter to the trial court dated August 29, 2016, wherein defendant alleged he received ineffective assistance and had a "conflict of interest” with trial counsel, though he did not state any grounds for the alleged conflict. In response to defendant’s letter, the trial court granted defendant an appeal.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF T.E.
    NO. 2017 CJ 0598
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered September 15, 2017
    HILLAR C. MOORE, III, DISTRICT ATTORNEY, JERNE’ C. THERIOT, ASSISTANT DISTRICT ATTORNEY, BATON ROUGE, LA, ATTORNEYS FOR STATE OF LOUISIANA
    NINA S. HUNTER, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE T.E.
    BEFORE: GUIDRY, PETTIGREW, AND.CRAIN, JJ. ■
   PETTIGREW, J.

lain this case, the State'challenges the juvenile court’s dismissal of its petition pursuant to Children’s Code Title VII, art. 730. For the reasons that follow, we find the judgment of dismissal in this matter is not an-appealable judgment and dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

According to the record, the State filed a petition requesting that T.E. be adjudicated a child of a Family In Need of Services based on T.E. being a truant and ungovernable. The matter proceeded to trial on October 13, 2016, at which time evidence was introduced and the case was submitted for consideration. The juvenile court found that the State failed to prove its case by a preponderance of the evidence and dismissed the State’s petition with prejudice. The State appealed. .

When the instant appeal was lodged, a show cause order was issued by this court, noting that there was no written judgment in the record regarding the October 13, 2016 ruling. Counsel for T.E. subsequently filed a motion to dismiss the appeal as untimely because the State failed to timely seek an extension of the return date. On June 7, 2017, the record was supplemented with • a written judgment signed by the juvenile court on May 16, 2017, which dismissed the petition with prejudice. On July 10, 2017, another panel of this court handed down two separate actions in this matter.

First, the motion to dismiss the appeal was denied. We note that had this motion been referred to the merits, our decision would have been the same. This court has consistently recognized that appeals are favored in the law. Moreover, the Louisiana Code of Civil Procedure mandates that “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” Petroleum Treaters, Inc. v. Houma Land & Offshore Co., 545 So.2d 1300, 1301 (La. App. 1 Cir. 1989), citing La. Code Civ. P. art. 5051. Louisiana Code of Civil Procedure article 2161 provides, in part, that an appeal shall not be dismissed because of an irregularity, error, or defect unless it is imputable to the appellant. In a separate action, this court maintained the appeal, but preserved for the merits panel the final determination as to whether the appeal should be maintained. Thus, we turn to the merits of the appeal.

DISCUSSION

On appeal, the State argues that the juvenile court erred as a matter of law in ruling that the State failed to meet its burden of proof. The State contends it was only required to prove the allegations of the petition by a preponderance of the evidence, ie., prove that the allegations of fact are more probable than not. Thus, the State avers this question of law should be reviewed by this court de novo, showing no deference to the findings and reasoning of the juvenile court. In response, T.E. argues this matter is not appealable and the dismissal should be affirmed. Directing this court’s attention to Articles 330 and 331 of the Louisiana Children’s Code, T.E. maintains that black letter law is controlling in this case. We agree with T.E. that this matter is not appealable.

Article 330, entitled “Judgments, appeal-able,” provides:

A. An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
B. In delinquency proceedings pursuant to Title VIII, child in need of care proceedings pursuant to Title VI, and families in need of services proceedings pursuant to Title VII, an appeal may be taken only after a judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition.

Moreover, Article 331(B) provides, “The state may not appeal from a judgment refusing to adjudicate a child to be delinquent or from a judgment of acquittal.”

Pursuant to Article 330, families in need of services matters are only appealable after a judgment of disposition. As previously indicated, the State’s petition in this matter was dismissed, with prejudice, by the juvenile court. Thus, there was no disposition in this case, and, as set forth in Article 330, there can be no appeal. T.E. further posits that the dismissal in this case is akin to a judgment of acquittal, which, according to Article 331(B), is also not an appealable judgment. T.E. asserts that any other interpretation would lead to absurd consequences and a violation of the protection against double jeopardy. See U.S. Const. amend. V; La. Const. art. I, § 15; La. Code Crim. P. art. 591; State v. Staden, 2014-0459, p. 3 (La. App. 1 Cir. 9/24/14), 154 So.3d 579, 582, writ denied, 2014-2254 (La. 6/5/15), 171 So.3d 945.

The interpretation of any statutory provision starts with the language of the statute itself. Oubre v. Louisiana Citizens Fair Plan, 2011-0097, p. 11 (La. 12/16/11), 79 So.3d 987, 997, cert. denied, 567 U.S. 935, 133 S.Ct. 30, 183 L.Ed.2d 677 (2012). When the provision is clear and unambiguous and its application does not lead to absurd consequences, the language must be given effect, and the provision must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. Civ. Code art. 9; La. R.S. L4. We agree with T.E. that when considering Articles 330 and 331 together, there is no other interpretation that may be attributed to these laws but that in a case such as this, where there is a dismissal of a petition filed pursuant to Title VII of the Louisiana Children’s Code, no appeal lies from said judgment of dismissal.

DECREE

For the above and foregoing reasons, we dismiss the State’s appeal and assess $426.50 in appeal costs against the State.

APPEAL DISMISSED.

      . According to La. Civ. Code art. 9, "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” Louisiana Revised Statutes 1:4 provides, "When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.”


author: BEAM, JUSTICE, DICKINSON, PRESIDING JUSTICE, KING, JUSTICE,

text:
    Janice Michelle WILCHER a/k/a Janice Wilcher v. STATE of Mississippi
    NO. 2015-KA-01008-SCT
    Supreme Court of Mississippi.
    03/23/2017
    Rehearing Denied May 25, 2017

      ATTORNEYS FOR APPELLANT: JERRY L. BUSTIN, RICHARD POOLE NOEL, III
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
   BEAM, JUSTICE,

FOR THE COURT:

¶1. Janice Wilcher appeals her conviction in the Scott County Circuit Court for retaliation against a public servant in violation of Mississippi Code Section 97-9-127, for making a false representation of rape against Deputy Michael Townsend of the Scott County Sheriffs Department. Wilcher claims Section 97-9-127 is unconstitutionally vague. Wilcher further claims the State failed to prove that Deputy Townsend suffered any actual harm, as alleged in the indictment. Finding no merit in either issue, we affirm.

FACTS

¶2. Wilcher was indicted by the Scott County grand jury as follows:

Janice Michelle Wilcher ... did willfully, intentionally, knowingly and feloniously commit the offense of retaliation against a public servant, to-wit: Deputy Michael Townsend, ... by making false allegations of rape against Deputy Michael Townsend, said false allegations that served to harm the professional reputation or standing as a law enforcement officer ..., and which false allegations were made in retaliation against Deputy Michael Townsend for his having caused Janice Michelle Wilcher to have been previously cited, charged or arrested for crimes or law violations which were brought against Janice Michelle Wilcher in his capacity as a lawful public servant, contrary to and in violation of Section 97-9-127, Miss. Code Ann. (1972) ....

¶3. Wilcher’s trial adduced the following facts. On May 20, 2014, around 5:00 in the afternoon, Deputy Townsend was on patrol on Hillsboro Road in Morton, Mississippi. He observed a blue SUV speeding and about to run off the highway. Deputy Townsend turned on his blue lights, turned around in the road, and followed the SUV. The SUV fled, and Deputy Townsend pursued the SUV until it ran off the road and stopped in a wooded area. When Deputy Townsend arrived on the scene, he ordered Wilcher out of her vehicle, placed her under arrest, and put her in the back of his patrol car. This was Deputy Townsend’s third encounter with Wilcher within the past six months, while working in a law-enforcement capacity.

¶4. Larry Meeks lived in a house near where Wilcher came to a stop. Meeks was outside mowing his yard at the time and saw Wilcher drive up the road at a high rate of speed. Meeks testified that Wilcher had attempted to make a right turn off the road but was forced to stop by a “big pile” of dirt sitting just off the road. Meeks walked over to where Wilcher and Deputy Townsend were located, which Meeks said was approximately one minute from the time Wilcher’s vehicle came to a stop. When Meeks arrived, Wilcher was sitting in the back of the patrol car. Meeks testified that he knew Deputy Townsend, having met him for the first time about a month prior to the incident. Deputy Townsend and Meeks’s niece were engaged to be married at the time of the incident. They married on May 24, 2014. Meeks also recognized Wilcher, having seen her around town a few times.

¶5. When Meeks arrived, Deputy Townsend asked Meeks to stay until the tow truck showed up, which Deputy Townsend had just requested with his police radio. Meeks left after the tow truck arrived on the scene.

¶6. Once the tow track left with Wil-cher’s vehicle, Deputy Townsend transported Wilcher directly to jail, where she was booked for “possession of paraphernalia” and “failure to yield to blue lights.”

¶7. While at the jail, Wilcher started yelling to the jailers that Deputy Townsend had raped her. Deputy Townsend released Wilcher to the booking officers and did not have any further contact with her. Wilcher was booked into the facility and stayed overnight.

¶8. The next morning, Wilcher was belligerent, loud, and shaking the jail bars. Wilcher told the booking supervisor, Sergeant India Walker, that she was pregnant by “Polecat” (Deputy Townsend’s nickname) for a month and a half and she was miscarrying. Wilcher’s family bonded her out that day.

¶9. After her release from jail, Wilcher drove to Scott County Regional Hospital and reported she had been raped. Because the hospital did not have a sexual assault nurse examiner on staff at the time, Wil-cher was advised to go to Lackey Hospital in Forest, Mississippi. Wilcher declined to go to Lackey Hospital because she said did not trust that hospital for personal reasons. She later went to the University of Mississippi Medical Center instead.

¶10. Before leaving Scott County Regional Hospital, Wilcher spoke to Investigator Donald Simpson with the Scott County Sheriffs Office. Investigator Simpson and another deputy were dispatched to Scott County Hospital to interview Wilcher about the reported rape. Wil-cher reported to Investigator Simpson that when she had pulled over for Deputy Townsend, he had gotten her out of the vehicle, pushed her shirt and bra up and began sucking and pinching her breasts. Wilcher stated that someone across the road had noticed a commotion and had come over, so Deputy Townsend placed her in the back of the patrol car while he talked to the man. She said, after the man left, Deputy Townsend pulled her out of the patrol car and she struggled with him, so Deputy Townsend turned her around and placed handcuffs on her so she could not resist. Wilcher said Deputy Townsend then moved her to the back seat of the patrol car and took off her belt, pulled down her pants, and raped, her. After he finished, Wilcher got dressed; the. tow truck pulled up a few minutes later.

¶11. Investigator Simpson recovered all the clothes Wilcher was wearing at the time of her arrest and alleged rape and sent them to the state crime lab. Later that same day, Deputy Townsend received a phone call from Investigator • Simpson, informing him that he was being investigated for Wilcher’s allegations of rape. Detective Townsend voluntarily submitted a blood sample and wrote a report regarding Wilcher’s arrest and the surrounding circumstances. Investigator Simpson interviewed Deputy Townsend twice regarding the rape allegations. The results of the crime lab analysis were negative for Deputy Townsend’s DNA and seminal fluid on any of Wilcher’s clothing.

¶12. On June 17, 2014, Wilcher came to Investigator Simpson’s office and said she no longer wished to pursue charges against Deputy Townsend because she had been raped before and she was too tired to press the issue. Investigator Simpson then advised Wilcher there was ample evidence to move forward against her with a charge for retaliation against a public servant.

¶13. Shortly thereafter (the record does not specify when), Wilcher was charged with retaliation against a public servant. On July 9, 2014, Investigator Simpson and another deputy interviewed Wilcher again while she was in custody for the instant offense. Wilcher was advised of her rights and signed a'waiver of-those rights.-Wil-cher gave a written statement recanting her allegation of rape against Deputy Townsend;.In her statement, Wilcher apologized for making the allegations- and stated she was on drugs and had been off her medications.

¶14. During the course of his investigation, Investigator Simpson received several letters written by Wilcher to different people apologizing and asking for forgiveness for the rape allegations against Deputy Townsend. These letters were submitted to the jury at trial.

¶15. Wilcher testified in her own defense at trial. She told the jury Deputy Townsend had put her in jail a -total of seven or eight times, and she did not know why. She testified he had called her bad names in front of her children and had sai,d she was a drug dealer. She testified that one time when he had stopped her, he had put her in the back of his patrol car and shone his flashlight between, her legs. She admitted that Deputy Townsend had found an open container of vodka and a bag of marijuana in her car.

.■ ¶16. Wilcher told the jury that, on. the date in question, Townsend pulled her over and removed her from her car. She claimed Townsend lifted up her shirt and fondled her. She' said Deputy Townsend then asked her what kind of sexual favors she performs for drugs, and she told him she does not do those things. She said when Meeks came down, she was screaming and banging on the window glass.

¶17. Wilcher testified that, once she arrived at the station, she screamed for days that she had been raped and officers placed her in lock-down in a suicide room. Wilcher told the jury she had recanted her claim of rape against Deputy Townsend because she had been in a cell for five months with a hole in the floor where, she had to smell her own feces and she had developed scabies. Wilcher said she had recanted the rape allegation because she was tired and they would not let her out of jail unless she did so.

¶18. After the close of evidence, the jury found Wilcher guilty of retaliation against a public servant. This appeal followed, -with the claims' that (1) Section 97-9-127' is unconstitutionally vague, and (2) the State failed to prove that Deputy' Townsend suffered actual harm. Additional facts, as necessary, will be related in the analysis.

ANALYSIS

I. Whether. Section 97-9-127 is unconstitutionally vague.
■¶19. Section 97-9-127 states, as follows:
(1) A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant.
(2) Retaliation is a Class 2 felony.

Miss. Code Ann, § 97-9-127 (Rev. 2014).

¶20. Wilcher claims Section 97-9-127 is unconstitutionally vague and should be struck. Wilcher contends the term “harm” as contained in the statute is vague because it is not defined with sufficient definiteness so that ordinary people can understand what conduct is prohibited and it encourages arbitrary and discriminatory enforcement.

¶21, In making her argument that the statute is vague, Wilcher contrasts Young v. State, 119 So.3d 309 (Miss. 2013), in which this Court upheld a retaliation conviction based on the charge that a defendant arrested for driving under the influence (DUI) thereafter threatened the arresting officer with physical violence in retaliation for the defendant’s DUI arrest. Wilcher contends Young is distinguishable because the “harm” threatened there was real; but here, Wilcher made a claim of rape, which neither harmed nor threatened to harm Deputy Townsend.

¶22. Wilcher contends that damaging the professional reputation and standing of a law enforcement officer is a civil cause of action, not a criminal one. If Deputy Townsend believed he had been damaged because of an unsubstantiated rape claim against him, then he should have sued in a private capacity for libel or slander.

¶23. Wilcher also contends that a false allegation of rape is protected speech under the First Amendment.

1124. At the outset, Wilcher simply points to the First Amendment. She cites no legal authority and provides no argument in support of her assertion that Section 97-9-127 infringes upon it.

¶25. “It is the duty of counsel to make more than an assertion, they should state reasons for their propositions, and cite authorities in their support.” Clark v. State, 503 So.2d. 277, 280 (Miss. 1987) (quoting Johnson v. State, 154 Miss. 512, 122 So. 529 (1929)). “Numerous cases support the position that an unsupported assignment of error will not be considered.” Id. (citing Hunter v. State, 489 So.2d 1086, 1090 (Miss. 1986); Kelly v. State, 463 So.2d 1070, 1072 (Miss. 1985); Redmond v. State, 457 So.2d 1344, 1346 (Miss. 1984)).

¶26. Facial challenges to a statute on First Amendment grounds generally implicate the “overbreadth doctrine,” a legal concept formulated by the United States Supreme Court which allows a challenge to a statute on its face as unconstitutionally overbroad if it “does not aim specifically at evils within the allowable area of State control but, on the contrary sweeps within its-ambit other‘activities” protected by the First Amendment. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). This doctrine is “ ‘strong medicine’ ” and should be “employed ,... with hesitation, and then ‘only as a last resort.’ ” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Therefore, courts “vigorously enforce[] the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Consequently, the petitioner must demonstrate from the text of the statute and actual fact that the statute’s overbreadth is both real and substantial and there are a number of instances where the law cannot be applied constitutionally. New York State Club Ass’n v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1 (1988) (citing Broadrick, 413 U.S. 601, 93 S.Ct. 2908)

¶27. Wilcher fails to do so. Accordingly, we decline to address a First Amendment overbreadth claim.

¶28. As to Wilcher’s unconstitutional-vagueness claim, we reiterate that the power to create and define criminal offenses résts exclusively within the authority of the Legislature. State v. Russell, 358 So.2d 409, 411 (Miss. 1978). The Legislature has the power to define and punish any act as criminal unless limited by constitutional provisions. Brawner v. State, 947 So.2d 254, 268 (Miss. 2006). This Court will not strike down a statute on constitutional grounds unless it appears-beyond all reasonable doubt the statute violates the Constitution. James v. State, 731 So.2d 1135, 1136 (Miss. 1999). The party challenging the statute’s constitutionality bears the burden of proving its unconstitutionality. Jones v. State, 710 So.2d 870, 877 (Miss. 1998). And even if the party succeeds, it is this Court’s duty to uphold the statute, if possible, by placing a reasonable construction on it which would render it constitutional. Thompson v. Box, 147 Miss. 1, 112 So. 597, 599 (1927).

¶29. Due process requires a reasonable degree of certainty in legislation. Cline v. Frink Dairy Co., 274 U.S. 445, 463-64, 47 S.Ct. 681, 71 L.Ed. 1146 (1927). This Court has spoken to vagueness issues in a number of contexts and has said that all due process requires is that “the law give sufficient warning that [people] may conform their conduct so as to avoid that which is forbidden.” State v. Mays, 329 So.2d 65, 66 (Miss. 1976). A statute that either forbids or requires the doing of an act in terms so vague that persons of “common intelligence must guess at its meaning and differ as to its application violates the first essential of due process.” State v. Roderick, 704 So.2d 49, 53 (Miss. 1997) (quoting Meeks v. Tallahatchie Cty., 513 So.2d 563 (Miss. 1987)). “Likewise, a statute so indefinite that it ‘encourages arbitrary and erratic arrests and convictions’ is void for vagueness.” Roberson v. State, 501 So.2d 398, 400 (Miss. 1987) (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972)).

¶30. Section 97-9-127 is a fairly new statute, contained in the obstruction-of-justice chapter in Mississippi’s criminal code. By its elements, a person commits the offense of retaliation if he or she (1) intentionally or knowingly; (2) harms or threatens to harm another; (3) by an unlawful act; (4) in retaliation for anything lawfully done; (5) in the capacity of public servant, witness, prospective witness or informant. Miss. Code Ann. § 97-9-127.

¶31. The term “harm” as used in Section 97-9-127 is defined in the same chapter by Section 97-9-101(d), as follows:

“Harm” means, loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person or entity in whose welfare he is interested.

Miss. Code Ann. § 97-9-101(d).

¶32. While broad, this definition is not vague. Each word and phrase that comprises it is readily understandable to any reasonable person of ordinary intelligence. Indeed, Wilcher does not actually argue otherwise. Rather, Wilcher contends that the term “harm” should be limited to more tangible interests, such as physical harm, which was at issue in Young, or pecuniary harm such as loss of income or employment, which Deputy Townsend did not suffer.

¶33. Certainly, the Legislature could have limited this definition to such types of harm by expressly delineating its intentions, but it did not do so. And we find that the term “harm” as used in the retaliation statute encompasses more than just physical or pecuniary harm.

¶34. Texas, which has a retaliation statute very similar to Mississippi’s (see Tex. Penal Code Ann. § 36.06), likewise defines the term “harm” as used in its retaliation statute as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person is interested.” See id. at § 1.07(a)(25). Texas courts have held that this definition does not require that the harm contemplated be pecuniary or physical. Halay v. State, 2008 WL 5424095 (Tex. App.-Austin Dec. 31, 2008). Emotional harm, aggravation, and even loss of time have been held to constitute loss, disadvantage, or injury under this definition. Taylor v. State, 2012 WL 955383, *7 (Tex. App.-Fort Worth Mar. 22, 2012.)

¶35. While we have found no Texas case that addresses whether its definition encompasses reputational harm, we are certain Section 97-9-101(d) contemplates it.

¶36. Again, Wilcher acknowledges that such harm is perceivable and cognizable and may be remedied by a civil cause of action. But Wilcher contends it should be dealt with by civil remedy only, not criminal sanctions. However, Wilcher fails to explain why.

¶37. If the Legislature deems it necessary to protect against such harm by criminalizing certain conduct likely to cause it, the Legislature has the power to do so, as long as the law does not run afoul of constitutional protections. Brawner, 947 So.2d at 268; see also Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (“The States’ core police-powers have always included authority to define criminal law and to protect the health, safety and welfare of their citizens.”).

¶38. While the retaliation statute provides for a liberal definition of “harm,” it cannot be said the statute as a whole is either vague, or too overly broad or indefinite so as to encourage arbitrary and erratic arrests and convictions. The statute’s first element is a scienter requirement, which applies to every other element in the statute and narrows the statute’s applicability considerably. Its applicability is narrowed even further by the statue’s third element, which requires that the harm caused pr threatened must be by an unlawful act. Mississippi Code Section 97-35-47 makes it a criminal offense in Mississippi to report a crime to any law enforcement agency or any officer of any court “knowing that such report is false.”

¶39. The dissent, however, finds, the statutory definition of “harm” is unconstitutionally vague because the language contained therein which says that harm is “anything ... regarded [as a loss, disadvantage or injury] by the person affected,” is completely subjective and relies solely on the sensibilities of the alleged victim. Thus, the statute fails to provide any indication as to what sort of conduct is to be proscribed and provides no standards to law enforcement officials, which allows enforcement of the statute to be based upon whims or personal predilections. The dissent cites Nichols v. City of Gulfport, 589 So.2d 1280 (Miss. 1991), in which this Court said, “[a] statute is unconstitutionally vague when the standard of conduct it specifies is dependent upon the individualized sensitivity of each complainant[,]” and noted that “penalties of the law cannot rest upon subjective guidelines[.]” Nichols, 589 So.2d at 1284.

¶40. Respectfully, the dissent’s reliance on Nichols is misplaced. First, the question there concerned an antinoise ordinance passed by the City of Gulfport, the regulation of which the Nichols Court recognized “poses special problems of draftsmanship and enforcement” because “[t]he nature of sound makes resort to broadly stated definitions and prohibitions not only common but difficult to avoid.” Id. at 1283 (quoting People v. New York Trap Rock Corp., 57 N.Y.2d 371, 456 N.Y.S.2d 711, 442 N.E.2d 1222, 1226 (1982)). In Nichols, “Section 1” of the Gulfport ordinance prohibited the making of “unnecessary or unusual noises” which either “annoys, injures or endangers the comfort, repose, health or safety of others.” As noted by the dissent, Nichols found the words “unnecessary,” “unusual,” and “annoying” as contained in the ordinance unconstitutionally vague because the words themselves are “inherently vague'and elastic and require-men of common .intelligence to guess at their meaning.” Id. at 1283. The Nichols Court said it could find “no setting here from which these three vague words could take;on a reasonable , degree of definitiveness.” Id. “If beauty is in the eye of the beholder, whether a noise is ‘unnecessary,’ ‘unusual’ or ‘annoying’ certainly depends upon the ear of the listener.” Id. at 1284. But Nichols qualified its holding, stating:

In finding that Section 1[ ] of Gulfport’s noise control ordinance is unconstitutionally vague, we are by no means condoning interference with the tranquility and inviolability of one’s home by loud noise. We are simply persuaded that Section 1[ ] can be more clearly worded .and more narrowly drawn while still achieving the legitimate objectives of the municipality in the protection of its citi-. zens from noises which may affect their comfort, repose, health or safety.

Id. at 1284.

¶41. Unlike the words found in-the Gulf-port ordinance, the word, “loss, disadvantage or injury” are not inherently vague and elastic so as to require guesswork, at. their meaning. Each is a quantifiable concept that does not readily lend itself to the whims or personal predilections .of reasonable people. Indeed, other states provide the same definition of “harm” in their respective criminal codes.

¶42. Second, the fact that this definition contains a subjective element does not render it unconstitutionally vague. Numerous offenses throughout our criminal code are comprised of subjective elements. Robbery, for example, consists of the application- of fear to obtain property of another. See, e.g., Clayton v. State, 759 So.2d 1169, 1170-71 (Miss. 1999) (reversing defendant’s robbery conviction because State failed to prove theft was “effectuated through fear of immediate injury to the victim”).: The reason for the subjective component to the “harm” definition is that what might be considered a loss, disadvantage, or injury for one person, might not be so considered by another. Implicit in the “harm” definition here is reasonableness; meaning whether the loss, disadvantage, or injury as regarded by the victim was reasonable under the circumstances. The terms loss, disadvantage, or injury- and the victim’s regard thereof-each can be considered objectively under a reasonable-person standard. The terms “unnecessary,” “unusual,” or “annoying,” as used in the Gulfport ordinance at issue in Nichols, could not, according to the Nichols Court.

¶43. The dissent contends that we are redrafting the Legislature’s definition of harm by “adding the word ‘reasonable’ into the statute in an attempt to render it constitutional.” Not so. We are simply looking at the Legislature’s intent,

¶44. “The purpose and object of all construction of legislative acts is to get at the intent and purpose of the Legislature.” Bobo v. Board of Levee Comm’rs for Yazoo-Mississippi Delta, 92 Miss. 792, 46 So. 819 (1908). While “the general rule is that penal statutes must be strictly construed[,]” courts also are “required to take a reasonable and common-sense view of the evil at which a statute is directed and the protection which it is designed to afford, and when these are within the letter of the statute, the enactment is to be construed in accordance with its purpose, although its letter would admit a narrower interpretation.” Nelson v. City of Natchez, 197 Miss. 26, 19 So.2d 747 (1944) (citing Bobo, 92 Miss. 792, 46 So. 819). In Bobo, this Court said, “[w]e do not think we have ever seen this principle more correctly and sanely stated than in the case of Bryant v. United States, 105 Fed. 941, [943 (5th Cir. 1901) ], where the court said:

While it is true that penal statutes should be strictly construed, it is undoubtedly the duty of the courts to look to the mischief intended to be prevented, and to take into consideration the character of the remedy proposed to be applied, in doing which the mere letter must yield to the manifest spirit, and give to the provisions that measure of restriction or expansion which a sound, reasonable reading of the whole requires of each particular.

Bobo, 46 So. at 823 (quoting Bryant v. United States, 105 Fed. 941, [943 (5th Cir 1901) ]).

¶45. Also, this Court explained in State v. Ware, that, while “[criminal statutes must be strictly construed, and the courts have no power to add to or take from them, ... this does not mean that such statutes are to be construed with such technical strictness as to defeat the purpose of ascertaining the true meaning thereof.” State v. Ware, 102 Miss. 634, 59 So, 854, 855 (1912) (quoting State v. Traylor, 100 Miss. 544, 56 So. 521 (1911) (Smith, J. dissenting)).

¶46. The purpose behind Section 97-9-127 is to encourage individuals to perform public duties without fear of retribution. Such services are vital to the- essential operations of government, and the State has a compelling interest in protecting those individuals from harm in the performance of those services. The Legislature, which is presumed to know the law, clearly did not intend to imperil this statute and its purpose constitutionally by deliberately excluding from the statute’s accompanying “harm” definition an objective-reasonableness .standard in favor of a “completely subjective” one. An interpretation to the contrary by this Court would be unreasonable and unsound, particularly given the other (above-mentioned) necessary elements prescribed by Section 97-9-127, which obviously are intended, to narrow the application of this statute.

¶47. Here, based on the aforementioned facts and Wilcher’s accompanying argument(s), we do not find that the retaliation statute and the accompanying statutory “harm” definition will likely encourage arbitrary law enforcement or provide inadequate notice to potential offenders as to what conduct is prohibited. Accordingly, we find no merit in Wilcher’s claim that Section 97-9-127 is unconstitutionally vague. This issue is without merit. ■'

II. Whether the State failed to prove that Deputy Townsend suffered actual harm.

¶48. Wilcher contends the State failed to prove its allegation that Deputy Townsend suffered actual harm to his professional reputation and standing as .a law-enforcement officer. Wilcher maintains that Wilcher did not face work consequences; was never suspended or placed on leave from work; and never lost .any wages or income. Thus, her retaliation conviction is based on insufficient evidence.

¶49. In deciding.whether, sufficient evidence was presented in support of a jury’s guilty verdict, this Court must determine whether, when viewing the evidence in the light most favorable to the State, any rational juror could have found the State proved the required element or elements of the crime charged beyond a reasonable doubt. Galloway v. State, 122 So.3d 614, 665 (Miss. 2013). “Under this inquiry, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be drawn from the evidence.” Id.

¶50. The record illustrates that the State presented sufficient evidence for the jury to conclude that Deputy Townsend did suffer actual harm to his reputation as a result of Wilcher’s knowingly false accusation of rape. Deputy Townsend testified that Wilcher’s accusation was known throughout the community where he lived, and Deputy Townsend believed his professional reputation had been harmed as a result. Deputy Townsend’s testimony alone was enough to create a question for the jury as to whether Deputy Townsend had suffered actual harm to his professional reputation and standing as a law-enforcement officer. As noted, “[hjarm means, loss, disadvantage or injury, or anything so regarded by the person affected .... ” Miss. Code Ann. § 97-9-101(d) (emphasis added).

¶51. The record further illustrates that an investigation of Deputy Townsend ensued due to Wilcher’s rape claim. This necessitated Deputy Townsend submitting to a blood test to negate the claim. In addition to the investigation, Wilcher called WLBT News and reported that she had been raped by a Scott County sheriffs deputy named Michael Townsend.

¶52. Given Section 97-9-101(d)’s definition of “harm” as used in the retaliation statute, the aforementioned evidence sufficed to create a jury question as to whether Deputy Townsend suffered harm to his professional reputation and standing as a law-enforcement officer. Accordingly, we find no merit in Wilcher’s claim that her conviction for retaliation is based on insufficient evidence.

CONCLUSION

¶53. For these reasons, we affirm the circuit court’s judgment of conviction and sentence.

¶54. CONVICTION OF RETALIATION AGAINST A PUBLIC SERVANT AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. APPELLANT SHALL PAY THE CLERK’S FILING AND PROCESS FEES IN MONTHLY INSTALLMENTS OF $150 WITH THE FIRST PAYMENT DUE NINETY (90) DAYS FOLLOWING RELEASE FROM CONFINEMENT.

WALLER, C.J., RANDOLPH, P.J., MAXWELL AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.; DICKINSON, P.J., AND COLEMAN, J., JOIN IN PART.

DICKINSON, PRESIDING JUSTICE,

CONCURRING IN PART AND IN RESULT:

¶55. Justice King correctly concludes that Mississippi Code Section 97-9-101 is unconstitutionally vague insofar as it includes a purely subjective standard—“anything so regarded by the person affected”—in its definition of harm. But I do not find this case is about subjective harm. Rather, I agree with the majority that Mississippi Code Section 97-9-101 and Mississippi Code Section 97-9-127 include reputational harm, and that sufficient evidence was produced to support the jury's verdict on that basis.

COLEMAN, J., JOINS THIS OPINION.

KING, JUSTICE,

DISSENTING:

¶56. While I agree that, under certain circumstances, the “harm” contemplated by Section 97-9-127 may include reputa-tional harm, I believe that the statute at issue is unconstitutionally vague and that the State failed to present sufficient evidence to prove the element of “harm” in this case. I therefore respectfully dissent.

¶57. Section 97-9-127 provides that retaliation against a public servant or witness is committed if a person “intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant.” Miss. Code Ann. § 97-9-127 (Rev. 2014). “Harm” is defined as “loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person or entity in whose welfare he is interested.” Miss. Code Ann. 97-9-101(d) (Rev. 2014).

¶58. “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). While “[impossible standards of specificity are not required[,]” the statutory language must convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. De George, 341 U.S. 223, 231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1951). However, without minimal guidelines for' law enforcement, “a criminal statute may permit a ‘standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’” Kolender, 461 U.S. at 357, 103 S.Ct. 1855. Furthermore, this Court recognizes, in the context of a void-for-vagueness analysis, that where a statute, by its terms, is applicable to speech and thus “is capable of reaching First Amendment rights, the statute ... should be subjected to heightened scrutiny.” Nichols v. City of Gulfport, 589 So.2d 1280, 1283 (Miss. 1991); see also Keyishian v. Bd. of Regents, 385 U.S. 589, 604, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

¶59. The statutory definition of harm in this case is unconstitutionally vague. It includes “loss, disadvantage or injury, or anything so regarded by the person affected.” And the majority relies on the “anything so regarded by the person affected” definition of harm in this case. “A statute is unconstitutionally vague when the standard of conduct it specifies is dependent upon the individualized sensitivity of each complainant.” Nichols, 589 So.2d at 1284. In Nichols, this Court found that the words “unnecessary,” “unusual,” or “annoying” in a noise ordinance were unconstitutionally vague. Id. The Court noted that “[t]he penalities of the law cannot rest upon subjective guidelines!.]” Id. The portion of the definition of harm in Section 97-9-101(d) stating that harm is “anything ... regarded [as a loss, disadvantage or injury] by the person affected” is completely subjective and relies solely on the sensibilities of the alleged victim in a case. It gives absolutely no indication as to what sort of conduct is to be proscribed. Indeed, the majority says it well, admitting that “what might be considered a loss, disadvantage or injury for one person, might not be so considered by another” and adding the word “reasonable” into the statute in an attempt to render it constitutional. Maj. Op. ¶ 43. Yet, it is the province of the Legislature, not the courts, to draft statutes, and the plain language of this statute is unambiguous in its broad nature. Nor does the definition of harm give any guidance whatsoever to law enforcement officers, subjecting enforcement of the statute to ’ the risk of enforcement" based upon whims or personal predilections.

¶60. In addition to the statute being unconstitutionally vague, insufficient evidence was adduced that Deputy Townsend suffered any harm. Deputy Townsend testified that it had become known in the community that Wilcher had made these allegations because he heard “people just talking” for “probably a good week.” Yet, this is not evidence sufficient of harm, reputational or otherwise. Deputy Townsend never testified as to what people were saying or that the allegations had harmed him or his reputation in some way. Indeed, for all this Court knows, people could have been saying “that Wilcher lady made crazy allegations against Deputy Townsend. Poor Deputy Townsend, we know they are false.” The State in no way demonstrated that any of the “talk” was in any way negative with regard to Deputy Townsend. “Talk,” which the‘State failed to adduce was even negative talk with regard to Deputy Townsend, is simply not sufficient evidence of the- element of “harm,” reputa-tional or otherwise.

¶61. Because the statutory definition of harm is unconstitutionally vague, and because the State also failed to introduce sufficient evidence of harm, I believe that Wilcher’s conviction should be reversed and rendered,‘and I therefore respectfully dissent.

KITCHENS, J., JOINS THIS OPINION. DICKINSON, P. J., AND COLEMAN, J., JOIN THIS OPINION IN PART.

      , The constitutionality of Section 97-9-127 was not challenged in Young.

      . See Miss. Code Ann. § 97-9-127 (Rev. 2014) (enacted in 2006).

      . Delaware, in its definitions relating to bribery and improper influence, defines, "harm” to mean “loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person in whoso welfare the person is interested.” Del. Code § 1209(1); see also Haw. Rev. Stat. § 710-1000 (same); Ind. Code 35-31.5-2-149 (same); Mont. Code Ann. 45-2-101(27) (same); N.J.S.A. 2C127-1(c) (same); 18 Pa. Stat. and Cons. Stat. Ann. § 4501 (same).

      . I agree with the majority that Wilcher did not properly assert a direct facial challenge to the statute based solely on First Amendment grounds. However, that does not prevent this Court from considering in the context of a void-for-vagueness analysis that the statute is capable of infringing on First Amendment rights.

      . "The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be intrenching on the power of the Legislature.” Wallace v. Town of Raleigh, 815 So.2d 1203, 1208 (Miss. 2002) (quoting Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 490 (1911)). Moreover, the courts have no "authority to write into the statute something which the Legislature did not itself write therein, nor can they ingraft upon it any exception not done by the lawmaking department of the government.” Id.

      . The majority attempts to equate the complete subjectivity of the definition of harm with the slight subjectivity encased in the robbery statute; The robbery statute proscribes a taking "by putting such person in fear of some immediate injury to his person.” Miss. Code Ann. § 97-3-73 (Rev. 201"4). "Fear” is defined as "[t]he strong, negative feeling that a person experiences when anticipating danger or harm.” Fear, Black’s Law Dictionary (10th ed. 2014). While a slight subjective component may be inherent in the word fear, the definition is not dependent completely’on the sensibilities of the victim. Such a definition 'may lend itself to a finding that an ordinary person would. understand what conduct is proscribed, in other words, an ordinary person can generally understand how not to place another person in fear of immediate injury to the person. The same cannot be said for the guessing game inherent in determining what another person regards as loss, disadvantage, or injury.