author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Dwayne WILLIAMS
    NO. 18-KA-112
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Andrea F. Long, Seth W. Shute, Emily E. Booth
    COUNSEL FOR DEFENDANT/APPELLANT, DWAYNE WILLIAMS, Sherry A. Watters, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   CHEHARDY, C.J.

Defendant, Dwayne Williams, appeals his conviction and sentence for second degree murder. For the reasons that follow, we affirm defendant's conviction and sentence and remand the matter for correction of the State of Louisiana Uniform Commitment Order.

FACTUAL AND PROCEDURAL HISTORY

Robert Howard was shot in the carport outside of his home on the evening of April 16, 2009 and died three weeks later on May 10, 2009. His cause of death was a gunshot wound to the neck that transected his spinal cord.

On the night of the shooting, the victim's father, Robert England, was inside when he heard five gunshots. He ran outside to find his son lying on the ground with a gunshot wound to his neck. He was still conscious and stated that he did not know who shot him.

Deputy Ted Raymond of the Jefferson Parish Sheriff's Office ("JPSO") arrived on the scene around 7:50 p.m. The victim was still conscious and advised the officer that he did not know who shot him. After paramedics had transported the victim to the hospital, Detective Jeffrey Rodrigue arrived on the scene and began trying to locate witnesses.

After the victim succumbed to his injuries on May 10, Detective Rodrigue spoke with Adrian "Stank" Haynes and Dagenera Molison. Mr. Haynes later testified at trial that he was close friends with the victim and lived around the corner from him in the Lincolnshire subdivision of Marrero. On April 16, 2009, Mr. Haynes, the victim, and their friend, James Moore, played basketball and headed home around 6:00 p.m. Soon after Mr. Haynes and the victim made it back to the victim's house, Mr. Haynes went home to shower and planned to return so the three friends could shoot pool later that night. But when Mr. Haynes returned, the victim had been shot.

Dagenera Molison later testified at trial that she knew both defendant and the victim and was dating defendant at the time of the shooting. She testified that she spoke with defendant after the shooting and he told her that he did not mean to shoot the victim, but that he intended to shoot James Moore.

Based on his conversations with Mr. Haynes and Ms. Molison, Detective Rodrigue spoke with James Moore and Rickell London. Mr. Moore gave two taped statements. His first statement began at 10:46 p.m. and concluded at 10:55 p.m. on May 13, 2009. Mr. Moore explained that on the day before the shooting, he had an altercation with Angelica Williams, defendant's sister. Then, on the day of the shooting, Mr. Moore, Mr. Haynes, and the victim played basketball. When they finished, Mr. Haynes and the victim went back to the victim's house while Mr. Moore went back to his house. Mr. Moore was walking back over to the victim's house when he noticed a champagne-colored Toyota pass by with a driver and one passenger. When Mr. Moore got to the victim's house, he sat with the victim in his carport and noticed the same car pass two or three times with a female driver and male passenger. He then heard gunshots, saw the victim slumped over, and ran off. Mr. Moore stated that he did not know who shot the victim.

Mr. Moore's second statement began at 12:33 a.m. and concluded at 12:36 a.m. on May 14, 2009. In this statement, he changed his story and stated that he saw defendant shoot the victim. He then identified defendant from a photographic lineup.

At trial, Mr. Moore testified that he had a run-in with defendant's sister the day before the shooting-though Ms. Williams testified at trial and denied any such run-in. Mr. Moore explained that on the day of the shooting he, the victim, and Mr. Haynes had played basketball. Afterwards, he went home, while Mr. Haynes and the victim went to the victim's house. Mr. Moore was walking over to meet them when he observed a vehicle with defendant in the passenger seat and a female in the driver seat. Soon after he met up with his friends, Mr. Haynes left to shower, leaving Mr. Moore and the victim sitting in the carport in front of the victim's garage. While there, Mr. Moore noticed the vehicle circle the block and then heard gunshots. He told the victim he was going home because "something looking funny." As he started to walk away, he heard six gunshots at close range and saw defendant discharging a handgun in the victim's direction. When Mr. Moore noticed the victim slumped over, he ran home.

Mr. Moore also testified about some prior inconsistent statements. He testified about a letter he wrote while incarcerated on February 1, 2010 to a "Mr. Robertson," wherein he asserted that he was "on lockdown" and that he did not see defendant shoot the victim. He explained in the letter that he only said he did in his statement because he was threatened by the detectives. He also testified about an affidavit he signed on November 30, 2010 while incarcerated. In this affidavit, Mr. Moore stated that he did not see defendant shoot the victim and that he only said he did because of threats from the detectives. He further testified about phone calls he made from jail between October 2012 and February 2013 to his grandmother and cousin in which he told them that he did not see who shot the victim. At trial, he recanted his statements in the February 1, 2010 letter, the November 30, 2010 affidavit, and the phone calls, and testified that his testimony at trial was the truth.

Rickell London testified at trial that around 7:30 p.m. on April 16, 2009, defendant asked her to give him a ride to Lincolnshire "to go kill someone." She did not think he was serious, but she noticed that he had a gun in his waistband. Ms. London was driving a champagne and burgundy Toyota Camry and defendant was in the front passenger seat. As they approached Lincolnshire, defendant remarked to Ms. London, "Whatever goes on stays." It was then that she realized defendant's homicidal intent was sincere. Defendant directed her through the subdivision, and they circled one block several times. When Ms. London noticed "three or four boys" in front of a house, defendant instructed her to park two houses down and to turn off her headlights. She complied. Defendant exited the vehicle and pulled the gun from his waistband. Within seconds, Ms. London, who could not see defendant or the other boys, heard several gunshots. Defendant soon returned to the car, put the gun back in his waistband, and told her to "drive off fast." Ms. London testified that she was offered a plea agreement to accessory after the fact to second degree murder in exchange for her testimony.

Ms. London also testified about prior inconsistent statements she had made. She explained that while incarcerated on a charge of principal to second degree murder, she made several phone calls to her friends and family, in which she stated that she did not know anything about the shooting. She acknowledged statements she made to an assistant district attorney in which she said she had nothing to do with the shooting. Ms. London further testified about her statements she gave to Detective Rodrigue in the days after the victim's death. She explained that she lied in her first statement when she said that she did not drive defendant on the day of the shooting. Ms. London recanted her prior inconsistent statements and testified that her testimony at trial was the truth.

Detective Rodrigue obtained an arrest warrant for defendant based on his conversations with Mr. Moore and Ms. London. And on July 16, 2009, a Jefferson Parish Grand Jury returned an indictment charging defendant with the second degree murder of Robert Howard. Defendant entered a plea of not guilty.

The matter proceeded to a trial by jury on March 11, 2013. On March 14, 2013, ten of the twelve jurors returned a verdict of guilty as charged. On April 23, 2013, defendant moved for a new trial, which the court heard and denied on February 18, 2014. Following numerous continuances, defendant was sentenced on November 13, 2017 to life imprisonment at hard labor with the benefit of parole. Defense counsel orally moved for reconsideration of sentence which was denied in open court. On November 14, 2017, defendant filed a written motion for reconsideration and a motion for appeal. His appeal was granted on November 20, 2017.

After the record in this appeal was lodged here, on March 14, 2018, the Clerk of this Court ordered the district court to rule upon defendant's written motion for reconsideration of sentence. The district court denied defendant's motion on March 19, 2018.

ASSIGNMENTS OF ERROR

On appeal, defendant raises four assignments of error:

(1) The State failed to prove defendant guilty of second degree murder beyond a reasonable doubt and, by the trial court's ruling and the State's withholding of evidence, the defendant was denied full cross-examination of the only witness who purported to identify him.
(2) The district court erred in denying the motion for new trial based on trial defect of having a juror decide the case who was not qualified to serve.
(3) The district court erred in denying the motion to declare La. C.Cr.P. art. 782 unconstitutional and in accepting a verdict in this case that was not unanimous.
(4) The district court erred in imposing an illegal sentence, as it violated the ex post facto clause and life imprisonment with parole was unconstitutionally excessive under the circumstances of this offense or the offender.

DISCUSSION

Assignment of Error One

Defendant submits six arguments in support of his first assignment of error:

(a) James Moore was the single witness who identified Dwayne Williams as the shooter. James Moore's purported identification of Dwayne Williams changed three times and does not support the conviction;
(b) Defendant was prevented from cross-examination of James Moore as to his violent history as a juvenile and involvement in other conflicts, in particular a murder, such that other persons may have been out to get him, in addition to reflecting on his credibility and self-interest;
(c) Reasonable hypothesis as to other perpetrators were not excluded; instead the State prevented the defendant from developing them. The day of his death, Robert Howard was hanging out with Stank and James Moore who were known to be involved in drug sales, as each of them had distribution arrests after this incident. Moore had attacked someone in Bridge City and allegedly had killed someone over his brother's drug death. The families and friends of these people were likely seeking retribution.
(d) Dwayne Williams was convicted on a vote of 10-2. If only one more juror was persuaded by the evidence about James Moore's activities, the Brady violation would have effected [sic] the verdict and Mr. Williams would not have been convicted.
(e) Neither Dagenera Molison or Rickell London identified Dwayne Williams. Neither of them were believable as they had their own interests, their claims could not be verified, and London's statements also changed multiple times.
(f) The State offered no corroboration of the identification by forensic evidence.
This opinion addresses these arguments in the following three subsections.

Sufficiency of the Evidence

We first address the sufficiency of the evidence. See State v. Hearold , 603 So.2d 731, 734 (La. 1992) ("When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.").

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002) ;

State v. Mickel , 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied , 10-1357 (La. 1/7/11), 52 So.3d 885.

This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey , 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied , 09-1305 (La. 2/5/10), 27 So.3d 297. This deference to the fact finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones , 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey , supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey , 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied , 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied , 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon , 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied , 08-0987 (La. 1/30/09), 999 So.2d 745.

Defendant was convicted of second degree murder, a violation of La. R.S. 14:30.1. Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. State v. Seals , 09-1089, pp. 13-14 (La. App. 5 Cir. 12/29/11), 83 So.3d 285, 306, writ denied , 12-0293 (La. 10/26/12), 99 So.3d 53, cert. denied , 569 U.S. 1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013) (citing La. R.S. 14:10(1) ). The determination of specific intent is a question of fact. Id. , 09-1089 at 14, 83 So.3d at 306. Specific intent may be inferred from the circumstances and from the defendant's actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim's injuries. Id. Further, a specific intent to kill may be inferred from the intentional use of a deadly weapon such as a knife or gun. State v. Cochran , 09-85 (La. App. 5 Cir. 6/23/09), 19 So.3d 497, 508, writ denied , 09-1742 (La. 3/26/10), 29 So.3d 1249 ; see also State v. Gonzalez , 07-449, p. 8 (La. App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied , 08-0228 (La. 9/19/08), 992 So.2d 949 ("The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.").

In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. State v. Robinson , 14-222 (La. App. 5 Cir. 9/24/14), 150 So.3d 900, 903, writ denied , 14-2267 (La. 8/28/15), 175 So.3d 964. Thus, in order to carry its burden of proof, the State is required to negate any reasonable probability of misidentification. Id. Positive identification by only one witness is sufficient to support a conviction. Id.

In the instant case, James Moore testified that he saw defendant shoot the victim several times. Rickell London testified that she drove defendant to the scene of the shooting at the time of the shooting, and testified that on the way to the shooting, defendant had a gun and told her he wanted to kill someone. Degenera Molison testified that defendant told her after the shooting that he did not intend to shoot the victim.

Defendant argues that these witnesses' testimonies were insufficient to support his conviction due to their prior inconsistent statements. It is well settled that in assessing witness credibility, the trier of fact, may accept or reject, in whole or in part, the testimony of any witness. Here, the jury was made aware of the witnesses' prior inconsistent statements, and in returning a guilty verdict, evidently found their trial testimony credible. This is the jury's prerogative and we will not re-evaluate the credibility of witnesses or re-weigh the evidence on appeal.

Defendant also argues that the evidence was insufficient to support his conviction due to the lack of physical evidence. Physical evidence is not required to support a conviction, as it is well-established that in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. See Dixon , supra ; see , e.g. , State v. Page , 08-531 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, writ denied , 09-2684 (La. 6/4/10), 38 So.3d 299 (affirming defendant's second degree murder conviction obtained on the basis of witness testimony without any physical evidence). Here, three witnesses identified defendant as the perpetrator.

Defendant further argues that the evidence was insufficient to support his conviction because every reasonable hypothesis of innocence was not excluded in that other individuals were not excluded as the perpetrator. The State's burden of proof does not require the exclusion of every reasonable hypothesis of innocence. Such exclusion is only necessary in cases in which the State relies on circumstantial evidence. "The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. Here, the State did not rely on circumstantial evidence, but offered direct evidence in the form of eyewitness testimony to prove defendant's guilt.

Viewing the evidence in the light most favorable to the prosecution under the Jackson standard, we find that the evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt the defendant was guilty of the second degree murder of Robert Howard.

Brady Claim

Defendant argues that the State's withholding of evidence that James Moore was under investigation for a 2012 murder was reversible error under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant submitted this same argument in his motion for new trial, arguing that this evidence, newly-discovered after trial, warranted a new trial. In ruling on defendant's motion for new trial, the district court determined that this evidence was in fact withheld from the defense but found no Brady violation because the court found no reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. Now on appeal, defendant again submits this Brady claim and contends a new trial is warranted.

In Brady , the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87, 83 S.Ct. at 1196-97. Since Brady , the Court has held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs , 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). The Court has also explained that such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682, 105 S.Ct. 3375, 3380 ; see also Kyles v. Whitley , 514 U.S. 419, 433-434, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley , supra at 682, 105 S.Ct. 3375. Moreover, the rule encompasses evidence "known only to police investigators and not to the prosecutor." Kyles , supra at 438, 115 S.Ct. 1555. In order to comply with Brady , therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Id. at 437, 115 S.Ct. 1555.

Synthesizing the Brady jurisprudence, the Court held in 1999 that "[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

It seems defendant presents two arguments in support of his Brady claim. First, James Moore's credibility would have been impeached with this additional bad character evidence. And second, Mr. Moore's credibility would have been impeached with this evidence on the basis that it would call into question whether Mr. Moore was offering his testimony in exchange for leniency on murder charges against him. We address each in turn.

With regard to the first argument, our review of the record indicates that James Moore's credibility was effectively impeached by defense counsel at trial without this evidence. The jury was made aware of Mr. Moore's several prior inconsistent statements and Mr. Moore testified about his own criminal history, detailing his incarceration relative to a second degree battery conviction and his arrest on possession of marijuana in a school zone. We therefore find that this evidence reflecting additional criminal conduct amounts to cumulative impeachment evidence, and that defendant has not demonstrated a reasonable probability that the outcome of the proceeding would have been different had it been disclosed to the defense.

With regard to the second argument, we first observe that whether the prosecution may have leverage over a witness due to that witness's pending criminal charges is a valid area of cross-examination. State v. Wiley , 10-811 (La. App. 5 Cir. 4/26/11), 68 So.3d 583, 592, writ denied , 11-1263 (La. 3/30/12), 85 So.3d 106. A witness's hope or knowledge that he will receive leniency from the state is highly relevant to establish bias or interest. Id. And a witness's bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding the conduct. Id.

At the hearing on the motion for new trial, the evidence established that through the investigation of a murder and attempted murder on May 12, 2012, James Moore was developed as a suspect. Detective Rhonda Goff attested in an affidavit that she submitted an application for a warrant for Mr. Moore's arrest on March 15, 2013, the day after defendant was convicted in the present case. Mr. Moore had testified as a State's witness at defendant's trial on March 13, 2013.

Upon consideration of these facts, we find that defendant cannot "establish[ ] the prejudice necessary to satisfy the 'materiality' inquiry[,]" i.e. , whether there was a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Strickler , supra at 282, 119 S.Ct. 1936, 1948. The warrant for Mr. Moore's arrest was not issued until after defendant's trial had concluded. Thus, not only were no criminal charges pending against him, but the evidence indicates that Mr. Moore was not even aware that he was a suspect or being investigated on the charges. Under these circumstances, there is no possibility that the State had any leverage over Mr. Moore on the basis of the 2012 murder investigation at the time of defendant's trial. Accordingly, there is no reasonable probability that the outcome of the proceeding would have been different had evidence of that investigation been disclosed to the defense.

Confrontation Clause Claim

Defendant argues that the district court's refusal to allow the defense to cross-examine James Moore on his prior juvenile adjudications constitutes reversible error. During defense counsel's cross-examination of James Moore, counsel was questioning Mr. Moore about his criminal background when the State objected and a bench conference was held. Therein, defense counsel noted his intention to question Mr. Moore about his juvenile adjudications, but the court ruled that he could not bring those up and counsel objected.

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to confront witnesses against him. State v. Coleman , 13-942 (La. App. 5 Cir. 05/14/14), 142 So.3d 130, 135-36, writ denied , 14-1224 (La. 1/23/15), 159 So.3d 1056. This right of confrontation is not unlimited, however, and guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. Id. at 136.

The trial court has discretionary power to control the extent of the examination of witnesses, provided that the court does not deprive the defendant of his right to effective cross-examination. State v. Alfaro , 13-39 (La. App. 5 Cir. 10/30/13), 128 So.3d 515, 530, writ denied , 13-2793 (La. 5/16/14), 139 So.3d 1024. A trial court's rulings as to the scope and extent of cross-examination should not be disturbed on appeal absent an abuse of the court's broad discretion. Coleman , supra at 136.

The Louisiana Code of Evidence permits a witness to be cross-examined on any matter relevant to any issue in the case, including credibility. See La. C.E. art. 611(B). Indeed, this Court recognizes that impeaching a witness for bias or interest and exposing a witness' motivation in testifying are proper functions of cross-examination. Coleman , supra.

Evidence of a witness's prior juvenile adjudication is not commonly admissible to attack the witness's credibility. State v. Nguyen , 04-321 (La. App. 5 Cir. 9/28/04), 888 So.2d 900, 911, writ denied , 05-220 (La. 4/29/05), 901 So.2d 1064 (citing La. C.E. 609.1(F) ). But the Louisiana Supreme Court has held:

The extreme importance and constitutional status of the right to confrontation (which includes the reasonable opportunity to impeach the witness' credibility) requires that any statutory right to confidentiality of juvenile proceedings under these circumstances must yield if the discrediting value of a prior juvenile adjudication is such that its disclosure is essential to a fair trial.

State v. Toledano , 391 So.2d 817, 820 (1980).

This standard entails a balancing test to determine whether the impeachment value of the adjudication is outweighed by the State's interest in maintaining the confidentiality of juvenile records. Nguyen , supra.

Counsel did not proffer any court records or other evidence under La. C.E. art. 103, which revealed that further information on this issue was relevant to this case. The record does not therefore reflect how further cross-examination would have helped the defense. Accordingly, we find no abuse of the district court's discretion in refusing to allow the defense to cross-examine James Moore on his prior juvenile adjudications.

In any event, a violation of a defendant's right to confrontation is subject to a harmless error analysis. State v. Lewis , 05-170 (La. App. 5 Cir. 11/29/05), 917 So.2d 583, 593, writ denied , 06-757 (La. 12/15/06), 944 So.2d 1277. An error is harmless when the guilty verdict was surely unattributable to the error. Id. Whether an error is harmless in a particular case depends upon many factors, including the following: 1) the importance of the witness' testimony; 2) whether the testimony was cumulative in nature; 3) whether corroborating or contradictory evidence regarding the major points of the testimony existed; 4) the extent of cross-examination permitted; and 5) the overall strength of the State's case. Id.

Here, we find the evidence of Mr. Moore's juvenile adjudications would have amounted to cumulative impeachment evidence. And in light of the other witness testimony identifying defendant as the shooter, we conclude that even if it was error to disallow defense counsel from cross-examining Mr. Moore on his juvenile adjudications, we find any such error was harmless.

This assignment of error is without merit.

Assignment of Error Two

In defendant's second assignment of error, he argues that the district court erred in denying his motion for new trial on the basis of an unqualified juror. In his motion for new trial, defendant argued that one juror was disqualified on the basis of a prior felony conviction under La. C.Cr.P. art. 401(A)(5), which provides: "In order to qualify to serve as a juror, a person must:...Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor."

At voir dire on March 11, 2013, one prospective juror, R.H., advised the court that she had a prior felony conviction for possession of alprazolam. During a discussion regarding her eligibility to serve, the clerk advised: "I ran her name, and the first offender pardon letter is in the computer."

Based on this, the court determined that she had been pardoned and permitted her to remain on the venire. The parties did not challenge R.H. for cause or exercise peremptory challenges to strike her as a potential juror. In fact, the record reflects that defendant only exercised five of his twelve peremptory challenges. R.H. was ultimately accepted on to the petit jury and was one of the ten jurors who voted for defendant's guilt.

In his motion for new trial, defendant argued that the defense mistakenly believed R.H. was qualified to serve as a juror pursuant to the first-offender pardon. In this mistaken belief, the defense (as well as the State and the court) had relied on the pre-2010 version of La. C.Cr.P. art. 401(A)(5), which provided: "In order to qualify to serve as a juror, a person must:...Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned." But in 2010, the Legislature amended the provision so that it now provides: "...Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor ." (Emphasis added). Therefore, since R.H. had not been pardoned by the governor, she was not qualified to serve as a juror, and the defense did not became aware of the change in the law until after the jury verdict. On this basis, and especially on account of the fact that R.H. was one of the ten jurors who voted for defendant's guilt, defendant argued he was entitled to a new trial.

The decision on a motion for a new trial rests within the sound discretion of the trial court and the ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Speaks , 16-163 (La. App. 5 Cir. 12/7/16), 204 So.3d 1167, 1204-05, writ denied , 17-185 (La. 10/16/17), 228 So.3d 751

In his motion for new trial, defendant submitted his argument under the statutory authority of La. C.Cr.P. art. 851(B)(3), which provides that a new trial shall be granted when "[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty." On appeal, however, defendant now raises this argument under the authority of La. C.Cr.P. art. 851(B)(4), which provides that a new trial shall be granted when "[t]he defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment."

We observe La. C.Cr.P. art. 851(B)(4) is the proper authority here; yet, regardless of the statutory authority, relator was required to show that the claimed defect (or newly discovered evidence) was not discoverable before the verdict through the exercise of reasonable diligence. The Louisiana Supreme Court has further explained a defendant's burden for a new trial on the basis of juror disqualification:

[I]n order for a defendant to avail himself of the lack of qualification of a juror, it must be made to appear that the disqualification of the juror was not known to defendant, or his counsel, when the juror was accepted by him and could not then have been ascertained by due diligence; and it must be made to appear that such diligence was exercised by an examination of the juror, on his voir dire, touching his qualifications, and that he answered falsely.

State v. Baxter , 357 So.2d 271, 274 (La. 1978).

In Baxter , similar to the instant case, ten of twelve jurors convicted the defendant of second degree murder. Baxter , supra at 273. The defendant moved for a new trial on the basis that one of the jurors was not qualified to serve as a convicted felon and was one of the ten jurors who had voted guilty. Id. Neither the defense nor the prosecution was aware of the juror's conviction until after the verdict. Id. The trial court denied the motion for new trial, which the supreme court affirmed on certiorari review. Id. at 275.

During voir dire, in response to the prosecution's question of whether anyone had been convicted of a violent crime, the juror at issue answered in the negative. Baxter , supra at 272. In fact, he had been convicted of the federal crime of presenting false claims, a violation of 18 U.S.C. § 287, and sentenced in 1971 by a federal court in Georgia, to serve three years imprisonment. Id. at 272-73. At the motion for new trial hearing, he explained that his probation officer told him that he would be automatically pardoned by the State of Louisiana after his three-year sentence had expired. Id. at 273. Being so informed, the juror assumed that he had been pardoned and did not consider himself disqualified. Id.

In affirming the denial of defendant's motion for new trial, the supreme court reasoned:

This case is unusual in that [the juror] was apparently entirely honest in answering that he had not been charged with a violent crime, and he was careful to limit his responses to that category. He testified that while imprisoned he was told his was not a violent crime and he was allowed on work details, a privilege not accorded those convicted of violent crimes; hence the reason for his careful distinction between violent and serious crimes. When this distinction was made at the voir dire examination defense counsel should have been alerted to make further inquiry.

Baxter , supra at 275.

The court added: "[T]he defense should not be permitted to sit by during voir dire examination and learn as little as possible about a prospective juror, and then, after an unfavorable verdict, discover or seek out a ground for disqualification and demand a new trial." Baxter , supra at 274.

During voir dire in the present case, R.H. truthfully advised the court that she had a felony conviction and the court determined that she had a first-offender pardon. It was not until after the verdict that the defense claimed to have learned the law provides that only a governor's pardon can qualify a convicted felon for jury service.

In order to obtain a new trial on the basis of juror disqualification, a defendant must show that the grounds for disqualification could not have been ascertained through the exercise of reasonable diligence. Defendant has not made that showing here. We find that counsel could have easily discovered the governing law with minimal diligence. Ignorance of the law, as has often been stated, is no excuse, and defendant may not now avail himself of trial counsel's ignorance. We therefore find no abuse of the district court's discretion in denying defendant's motion for new trial on the basis of juror disqualification.

This assignment of error is without merit.

Assignment of Error Three

In defendant's third assignment of error, he argues that the district court erred in denying his motion to declare La. C.Cr.P. art. 782 unconstitutional and in accepting a verdict in this case that was not unanimous. On August 2, 2010, defendant filed a motion to declare La. C.Cr.P. art. 782(A) unconstitutional, which the district court denied following a hearing on October 5, 2010.

The constitutionality of La. C.Cr.P. art. 782 is settled law. The Louisiana Supreme Court has affirmed its constitutionality repeatedly. See State v. Bertrand , 08-2215 (La. 3/17/09), 6 So.3d 738, 742. As an intermediate appellate court, we are bound by that precedent. State v. Thomas , 10-2 (La. App. 5 Cir. 11/9/10), 54 So.3d 678, 686, writs denied , 10-2752 (La. 5/20/11), 63 So.3d 974 and 10-2758 (La. 4/25/11), 62 So.3d 89.

This assignment of error is without merit.

Assignment of Error Four

In defendant's fourth assignment of error, he challenges his sentence on several grounds, each of which we address in turn.

First, defendant argues that his sentence violates the ex post facto clause. He contends that because the mandatory sentencing provision that was in effect at the time of his offense was ruled unconstitutional in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), he should be resentenced according to the penalties provided for in the lesser responsive verdict of manslaughter. He presents his argument in his brief as follows: "The sentence imposed on Dwayne Williams had to be one that was available in 2009. When the 2009 sentence for second degree murder was declared unconstitutional as applied to juvenile offenders, only 2009 law could fix it and that law required a sentence of no more than forty years." In support of this argument, defendant relies in part on State v. Craig , 340 So.2d 191 (La. 1976), wherein the Louisiana Supreme Court held that the mandatory death sentence for aggravated rape was unconstitutional and that the appropriate remedy to correct this illegal sentence was to remand for resentencing to the most serious penalty for the next lesser responsive verdict.

This Court and other Louisiana courts have repeatedly rejected this argument. See State v. Francis , 17-651 (La. App. 5 Cir. 5/16/18), 247 So.3d 199, 203-204 ; State v. Jones , 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, 719-720 ; State v. Lewis , 17-651 (La. App. 4 Cir. 4/18/18), 244 So.3d 527, 532 ; State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897, 901, writ denied , 17-1190 (La. 5/11/18), 241 So.3d 1013. In accordance with this jurisprudence, we reject defendant's argument here.

Second, defendant argues La. C.Cr.P. art. 878.1(B)(2)(a) and La. R.S. 15:574.4(G) violate the ex post facto clause and the doctrine of separation of powers. Defendant did not raise this separation of powers argument below in his motion to reconsider sentence, and so he is precluded from raising it now on appeal in accordance with La. C.Cr.P. art. 881.1(E), which provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In defendant's ex post facto argument, he argues that La. R.S. 15:574.4(G) violates the ex post facto prohibition because it retroactively changes the penalty by imposing a minimum sentence of twenty-five years that did not exist in 2009.

The Louisiana Supreme Court has observed that "the linchpin inquiry in determining whether a statute violates the state Ex Post Facto Clause is whether the change alters the definition of criminal conduct or increases the penalty." State v. Holloway , 15-1233 (La. 10/19/16), 217 So.3d 343, 348 (citation omitted).

The law in effect at the time of defendant's offense mandated a minimum sentence of life imprisonment without the benefit of parole. The law no longer mandates such a sentence, but now allows for the benefit of parole. This change did not alter the definition of the crime of second degree murder, and certainly did not increase the penalty, but permits a more lenient penalty. Defendant's ex post facto claim is therefore without merit.

Lastly, defendant argues his sentence is unconstitutionally excessive. Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive and cruel punishment. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ denied , 05-0244 (La. 12/9/05), 916 So.2d 1048. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the seriousness of the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice. State v. Payne , 10-46 (La. App. 5 Cir. 1/25/11), 59 So.3d 1287, 1294, writ denied , 11-0387 (La. 9/16/11), 69 So.3d 1141. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry , 08-151 (La. App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied , 08-1660 (La. 4/3/09), 6 So.3d 767.

For those offenders convicted of second degree murder in Louisiana, La. R.S. 14:30.1 mandates a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. In 2012, the United States Supreme Court found unconstitutional state sentencing schemes that mandate life imprisonment without parole for offenders under the age of eighteen at the time they committed a homicide offense. See Miller , supra. This holding does not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders; it simply requires a sentencing court consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. See State v. Williams , 12-1766 (La. 3/8/13), 108 So.3d 1169. As the Miller Court stated: "[W]e require [a sentencing court] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller , supra at 2469.

As a juvenile homicide offender, defendant received the mandatory minimum sentence of life with the benefit of parole. A mandatory minimum sentence may be reviewed for constitutional excessiveness. State v. Tassin , 11-1144 (La. App. 5 Cir. 12/19/13), 129 So.3d 1235, 1265, writ denied , 14-0284 (La. 9/19/14), 148 So.3d 950. While a mandatory minimum sentence is presumed constitutional, this presumption may be rebutted if the defendant can show that he is exceptional. Id. This requires the defendant to demonstrate that because of unusual circumstances he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances. Id.

We do not find that defendant has demonstrated his case is exceptional such that he is entitled to a downward departure from the mandatory minimum sentence. In fact, in other Miller cases involving juvenile defendants convicted of second degree murder, the defendants received the maximum sentence of life without parole. See State v. Davis , 15-118 (La. App. 5 Cir. 6/30/15), 171 So.3d 1223 (defendant convicted of four counts of second degree murder, including two juvenile victims); State v. Smoot , 13-453 (La. App. 5 Cir. 1/15/14), 134 So.3d 1, writ denied , 14-0297 (La. 9/12/14), 147 So.3d 704 (defendant convicted of second degree murder for shooting an elderly, homeless, HIV-positive drug addict, multiple times over a stereo); State v. Wilson , 14-1267 (La. App. 4 Cir. 4/29/15), 165 So.3d 1150 (defendant convicted of second degree murder for shooting the victim multiple times during a carjacking); State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015) (defendant convicted of two counts of second degree murder for shooting both of his parents in their faces); State v. Brooks , 49,033 (La. App. 2 Cir. 5/7/14), 139 So.3d 571, writ denied , 14-1194 (La. 2/13/15), 159 So.3d 459 (defendant convicted of second degree murder for participating in a gunfight which resulted in the death of an innocent juvenile bystander). Although the facts of defendant's crime indicate premeditated murder, defendant nevertheless received the mandatory minimum sentence. We find no abuse of the district court's broad sentencing discretion in imposing this sentence.

This assignment of error is without merit.

ERRORS PATENT

The record has been reviewed 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 , 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals two errors requiring corrective action.

First, the State of Louisiana Uniform Commitment Order reflects that defendant received a life sentence, but does not specify that defendant's sentence includes the benefit of parole. For purposes of maintaining the accuracy and completeness of the record, this matter is remanded to the district court with the instruction to correct the Uniform Commitment Order to reflect that defendant's life sentence is imposed with the benefit of parole. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 41, writ denied , 14-0481 (La. 11/7/14), 152 So.3d 170. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections' legal department. See State v. Stewart , 17-297 (La. App. 5 Cir. 11/29/17), 232 So.3d 1284, 1285, 1290.

And second, the sentencing minute entry provides that defendant was advised that he had two years after his conviction and sentence became final to seek post-conviction relief, yet the sentencing transcript indicates that defendant was incompletely advised that he had two years after only his sentence became final to seek post-conviction relief. This Court has noted this previously on error patent review. See State v. Oliver , 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 978, writ denied , 14-2693 (La. 10/9/15), 178 So.3d 1001.

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. Accordingly, by way of this opinion, defendant is hereby advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

DECREE

For the foregoing reasons, defendant's conviction and sentence are affirmed, and the matter is remand for correction of the State of Louisiana Uniform Commitment Order.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER

      Rickell London gave two taped statements to Detective Rodrigue on May 14, 2009 that were not introduced into evidence.

      Although at sentencing the district court neglected to specify that defendant's sentence was to be served "at hard labor," corrective action is not required as the commitment reflects that defendant's sentence is at hard labor. See State v. Wilson , 15-418 (La. App. 5 Cir. 11/19/15), 179 So.3d 903, 907 n.8 ("[W]hen hard labor is a mandatory requirement of the sentence, the trial judge's failure to impose hard labor on the record is not an error requiring corrective action if the commitment includes the hard labor requirement.").

      By operation of La. C.Cr.P. art. 916(3), the district court retained jurisdiction to rule on relator's motion for reconsideration of sentence.

      Acts 2010, No. 438, § 1.


source: Caselaw Access Project

author: MOLAISON, J.

license: Public Domain

text:
    STATE of Louisiana v. Billy Joe HOWARD
    NO. 18-KA-159
    Court of Appeal of Louisiana, Fifth Circuit.
    November 7, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Lindsay L. Truhe, Zachary Popovich
    COUNSEL FOR DEFENDANT/APPELLANT, BILLY JOE HOWARD, Sherry A. Watters, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant appeals his convictions and sentences for indecent behavior with a juvenile and sexual battery upon a known juvenile. For the reasons that follow, we affirm defendant's convictions and sentences, and we remand for the correction of an error patent on the face of the record.

PROCEDURAL HISTORY

On May 23, 2016, the Jefferson Parish District Attorney's Office charged defendant, Billy Joe Howard, in Count 1, with indecent behavior with a juvenile, in violation of La. R.S. 14:81 and, in Count 2, with sexual battery upon a known juvenile, a violation of La. R.S. 14:43.1. Defendant, in absentia , pled not guilty to both counts through counsel at his arraignment on May 24, 2016. Defendant proceeded to a jury trial on October 3, 2017, at the conclusion of which he was found guilty as charged on both counts. Defendant's motion for new trial, filed October 12, 2017, was denied on that same date. Also, on October 12, 2017, the trial court sentenced defendant to 20 years at hard labor for his conviction on Count 1, and further sentenced him to 40 years at hard labor for his conviction on Count 2. The sentences were ordered to run consecutively and without the benefit of parole, probation or suspension of sentence. Defendant's motion to reconsider sentence was denied. Defendant thereafter filed a timely motion for appeal, which was granted.

FACTS

Count 1: Indecent Behavior With A Juvenile

M.C., the mother of the victim who is the subject of Count 1, M.B., testified that in July of 2015, she lived on the West Bank of Jefferson Parish. During that month she made contact with defendant on a dating website, and he stayed at her home for a few days with her, her two daughters and son. On July 14, 2014, M.B. called M.C. at work and told her that defendant made her feel "uncomfortable." Based on that information, M.C. packed defendant's belongings and asked him to leave her home the following morning, on July 15, 2014, before she went to work. That afternoon, upon returning from work, M.C. was advised by M.B.'s counselor that defendant had sexually assaulted M.B., at which time she called the police to make a report. M.C. spoke with three detectives who responded to the call. Later, M.C. brought M.B. and her son to give an interview at the Jefferson Children's Advocacy Center, and she also brought M.B. to get a medical exam.

Deputy Alvin Farris, of the Jefferson Parish Sheriff's Office, testified that he responded to a call of inappropriate behavior with a juvenile, M.B., on July 15, 2015. During his interview with M.B., she told Deputy Farris that she was "laying on her back on the sofa" watching T.V. when defendant, an acquaintance of her mother, "got on top of her and started rubbing on her legs and on her hips". Defendant then put his hands under M.B.'s shirt and began to rub her back before attempting to "put an unknown object in her pants." M.B.'s brother was present while the incident occurred. Defendant jumped off of M.B. when she told defendant that she needed to stretch, and M.B. went into the bathroom and locked the door until her mother's friend came to babysit. Deputy Farris testified that after he interviewed M.B. and her family, he contacted the Detective Bureau in order to have a detective assigned to the case.

Detective Judd Harris, assigned to the Jefferson Parish Sheriff's Office Personal Violence Section, testified that he investigated an allegation of child sexual abuse on July 15, 2015. In his interview with M.B., she recounted to him that, after her mother had left for work, defendant "began to tickle her, and then pinned her onto the couch putting all his weight on her to where she couldn't move." Defendant then placed his hands underneath M.B.'s shirt, rubbing her back, before trying to remove her pajama bottoms. M.B. told Detective Harris that defendant let her up after she told him that she needed to use the restroom. Detective Harris stated that he did not interview M.B.'s younger sister, as he felt that she was "too young to get a statement from." Although Detective Harris did not interview M.B.'s younger brother at that time, he did set up a forensic interview for M.B.'s brother at a later date. M.B.'s mother provided Detective Harris with a copy of defendant's profile from the online dating website, as well as the make of defendant's vehicle and a partial license plate number. Using that information, Detective Harris was able to obtain defendant's full name. The day after Detective Harris went to M.B.'s forensic interview at the Jefferson Children's Advocacy Center on July 27, 2015, he issued a warrant for defendant's arrest on the charge of indecent behavior with a juvenile. Defendant was eventually arrested on October 29, 2015, in Mississippi.

Forensic nurse practitioner, Anne Troy, was accepted, by stipulation of defendant, as an expert in the field of forensic pediatrics and child abuse. Troy testified that she evaluated M.B. at the Audrey Hepburn Care Center on August 5, 2015 and December 14, 2015. An audio recording of her interview with M.B. was played for the jury, and diagrams that showed where M.B. indicated defendant had touched her body were also introduced into evidence. Troy stated that, based upon the history that M.B. had provided to her, she diagnosed child sexual abuse.

Brittany Bergeron testified that she was employed as the forensic interviewer at the Jefferson Children's Advocacy Center, and conducted an interview with M.B. on July 27, 2015. She also interviewed M.B.'s brother, J.B., on that date. Audio and video of the interview with M.B. were played for the jury.

M.B.'s brother, J.B., was 11 years old at the time of trial. He testified that he knew defendant, his mother's friend, for a short time when he was nine years old. J.B. recalled a time when he saw M.B. reclining on the couch and defendant "laying right in front of her" facing M.B. Defendant lifted up M.B.'s shirt and appeared to be scratching her back. J.B. testified that he did not think, at that time, that anything "wrong" was happening. At some point, M.B. was no longer on the couch, and he later saw M.B. in her room.

The victim, M.B., was 13 years old at the time of trial. She testified that when she was 11, she met defendant after her mother began dating him. On one occasion, defendant was with M.B. and her siblings while her mother was at work. At that time, M.B. was on the couch in her living room watching T.V. after taking a shower. Her brother was on the floor and her younger sister was on an adjoining couch. Defendant was sitting on the couch by M.B. and began to move closer toward her. Defendant began "hugging" M.B. and rubbing her back while she was "kind of laying down". At first he touched outside of M.B.'s shirt, but then he "went in" her shirt. Defendant asked M.B. if it felt good. Defendant kept sliding his hand up M.B.'s back and then he grabbed her leg and positioned it over his waist while he kept "moving into different positions." Defendant got up and "pulled something out of his pants," which he then put into her underwear and tried to move near M.B.'s vagina after he got back on top of her. While M.B. never saw the object, she described it as "round and a little cold or wet." M.B. told defendant that she needed a drink of water, at which time she got up from the couch then went from the kitchen, to the bathroom, to her mother's room. She called her mother after defendant left to tell her that the defendant made her uncomfortable, but she did not tell her mother that night the details of what had happened. The next day, M.B. told her counselor and police about the incident.

On cross-examination, M.B. stated that her mother's friend, Jennifer, was at her home in her mother's room on the day of the incident.

Count 2: Sexual Battery

With respect to Count 2, D.B., the mother of the victim, L.B., testified that from July of 2015 through December of 2015, she lived on the West Bank of Jefferson Parish. Near the end of July in 2015, D.B. met defendant on a dating website and began a relationship with him. Defendant first met D.B.'s children weeks later, at the beginning of August. On one occasion in August, after school had started, defendant agreed to take D.B.'s two older children to the bus stop. D.B. recalled that defendant told her that day that L.B. had kissed him goodbye at the bus stop. When D.B. asked L.B. about it, L.B. became embarrassed.

In October of 2015, defendant called D.B. as he was being arrested. D.B. asked a friend in law enforcement to find out for her what defendant had been arrested for. At that time, D.B. did not know who M.C. and M.B. were. However, defendant had previously driven D.B. past M.C. and M.B.'s house and told D.B. "about how he was staying with this girl for like a week, and she lived right there." After his arrest, defendant claimed that M.C. had him arrested because he "owed her money." On the date of defendant's arrest, after learning about what the criminal allegations against defendant were, D.B. asked her two oldest children if defendant had ever touched them inappropriately, to which both replied "no." D.B. continued a relationship with defendant after his arrest.

In November of 2015, D.B. was notified by L.B.'s second grade teacher about an incident at school during which L.B. had described sex and disclosed that her mother's boyfriend had taken her pants off. When D.B. questioned L.B. about what had happened, L.B. told her that on the day defendant took her and her brother to the bus stop, defendant brought L.B. into the bedroom, "took her pants off and touched her and kissed her." D.B. called the police after the disclosure by L.B. Referring to old text messages between herself and defendant, D.B. was able to determine the time period when the abuse took place. L.B. spoke to police, gave a forensic interview, and underwent a medical evaluation. After L.B. had her forensic interview, D.B. eventually went and spoke to M.B.'s mother, M.C., to tell M.B. that defendant had sexually abused her daughter as well.

Officer Gwen Valence, of the Westwego Police Department, testified that she was dispatched to a complaint of sexual abuse on November 11, 2015. Officer Valence spoke with both L.B. and D.B. at that time, and concluded that inappropriate sexual conduct had occurred between defendant and L.B. at a prior undisclosed date. Following the interview, Officer Valence notified the Detective Bureau. Officer Valence's lieutenant also spoke with L.B., and he asked L.B. to indicate on a stuffed animal where defendant had touched her. At that time, L.B. demonstrated that defendant had touched her vaginal area. The investigation was taken over by Detective Lopez.

Detective Tyler Lopez testified that he was assigned to investigate the allegations of sexual abuse by L.B. on November 17, 2015. He initially spoke with D.B. about the case, but did not interview L.B. because of her young age. However, Detective Lopez attended L.B.'s interview at the Children's Advocacy Center. Following L.B.'s interview at the Children's Advocacy Center, Detective Lopez authored a warrant for defendant's arrest for the charge of sexual battery of a victim under the age of 13. L.B. also had a "medical interview" at the Audrey Hepburn Care Center, which Detective Lopez made part of his report. Defendant was ultimately arrested in February of 2016. On March 29, 2017, L.B. underwent a second forensic interview.

The victim, L.B., who was nine years old at the time of trial, testified regarding defendant's sexual abuse of her. She stated that, one day, defendant was asked to take her and her brother to school in the morning. While her brother was downstairs, L.B. retrieved her clothes from the dryer and went to her room upstairs to put on her school uniform. She then returned downstairs to the laundry area. Meanwhile, defendant was in her mother's bed upstairs and he called to L.B. to come see him. L.B. retrieved her computer tablet from her mother's dresser and sat on the bed with defendant. At that time, defendant kissed L.B. on the mouth. L.B. recalled that defendant also touched her "front private" with his hand. Defendant told L.B. not to tell anyone about what happened.

Defendant took the stand to testify in his own defense. He acknowledged meeting M.C. and D.B. through the same dating website and described meeting their children. Defendant asserted that he had scratched M.B.'s back on one occasion, but he denied that anything inappropriate took place. He stated that M.C. told him to leave her house, but did not provide an explanation as to why. Defendant testified that he took D.B.'s children to school one day, and L.B. gave him a "peck on the cheek." Defendant testified that he turned himself in to the Jefferson Parish Sheriff's Office after he learned that there was a warrant out for his arrest for charges related to L.B. Defendant denied that the incident reported by L.B. took place.

On cross-examination, defendant stated that he did not recall being arrested for rape in Georgia on June 5, 1997. Defendant admitted that, after he made bond in L.B.'s case, an arrest warrant was issued for him in connection with an alleged sexual battery of his 16-year-old niece.

LAW AND ANALYSIS

In his sole assignment of error, defendant contends that his sentences are unconstitutionally excessive, consecutive and disproportionate to the offenses for which he was convicted. Conversely, the State argues that defendant's convictions and sentences resulted from acts committed against two underage victims on two separate dates, and therefore the trial court properly imposed consecutive sentences under La. C.Cr.P. art. 883. The State further argues that the sentences imposed by the trial court are within the statutory ranges of the respective statutes and are individualized to this particular defendant after taking victim impact statements into account.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen , 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied , 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Id. According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. State v. Nguyen, 958 So.2d at 64 ; State v. Taylor , 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied , 06-0859 (La. 6/15/07), 958 So.2d 1179.

In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen , 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy , 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied , 02-2900 (La. 4/4/03), 840 So.2d 1213.

Count 1

Defendant was convicted of indecent behavior with a juvenile under the age of 13 years. The penalty for a conviction for this offense, pursuant to La. R.S. 14:81(H)(2), is imprisonment at hard labor for not less than two nor more than 25 years, with at least two years of the sentence to be imposed without the benefit of parole, probation, or suspension of sentence. The trial court sentenced defendant to 20 years at hard labor, without the benefit of parole, probation or suspension of sentence, which was less than the maximum he could have received.

Count 2

The penalty for a conviction for sexual battery on a juvenile under the age of 13 years, as provided for in La. R.S. 14:43.1(C)(2), is imprisonment at hard labor for not less than 25 years nor more than 99 years, with at least 25 years of the sentence imposed without the benefit of parole, probation, or suspension of sentence. The trial court sentenced defendant to 40 years at hard labor for this count, without the benefit of parole, probation or suspension of sentence, which was less than one-half of the maximum sentence he could have received.

At the sentencing hearing on October 12, 2017, trial judge gave the following reasons for the sentences imposed:

THE COURT:
The Court has taken into consideration the evidence and testimony, which the Court heard at trial, the entire record in this case. The Court has also reviewed and considered the sentencing guidelines provided to the Court by Louisiana Code of Criminal Procedure Article 894.1, including that there is an undue risk that the Defendant will commit another crime, that the offender knew or should have known that the victim of each of these crimes was particularly vulnerable due to their youth, that the seriousness of the crime and the effect these crimes has had on these two young juveniles and their families, including the multiple interviews, examinations, the trauma of having to testify at trial, having to undergo therapy, and the effects it may have on them and the rest of their families for their entire lives.
...
The Court orders, because we had two victims on two separate dates, that these sentences shall run consecutively with each other. The Court gives you credit for time served pursuant to Article 880 of the Code of Criminal Procedure.

After defendant was sentenced, he objected and filed a motion to reconsider sentence, which was taken up by the trial court on that same date. In denying defendant's motion, the court stated, in relevant part:

THE COURT:
The Court outlined the reasons for the sentence of Mr. Howard, and the Court strongly believes that that sentence is appropriate considering what the Court also believes is a concern that Mr. Howard would re-offend if he were not in a custodial environment.

Consecutive Sentences

At the outset, we find no merit in defendant's contention that the trial court erred in ordering his sentences to run consecutively. As recounted in the above stated facts, the offenses for which defendant was convicted were not based on the same act or transaction. Therefore, consecutive sentences were permissible under La. C.Cr.P. art. 883. Accordingly, we find no abuse of discretion in that regard.

The Egregiousness Of The Offenses

In claiming that his sentences are unconstitutionally excessive, defendant argues that "[W]hile [the] charges are serious and involve children, they were not committed in the most heinous or vicious way." Specifically, defendant points out that there were no weapons involved in either offense. To this, defendant adds his personal opinion that the victims of his crimes were not deeply affected by what happened to them:

The sentences are not commensurate with the offenses. Both of the girls went on with their days as if nothing had happened. Their mothers' insult pushed the matters forward. The investigation and trial seemed more traumatic to each of the girls than the actual incident.

In the instant case, the record shows that defendant used his adult 160-pound frame to pin down and trap M.B., an 11-year-old victim, while he groped her and attempted to insert an object into her underwear. Similarly, the second victim, who was seven years old at the time of the offense, was forcibly stripped by the adult male assailant and made to endure his fondling of her. The fact that defendant could accomplish his crimes without the use of weapons does not void the fact that his ability to overpower his victims was made possible through his superior height, weight, and strength. In addition, defendant's assessment of the psychological trauma his crimes caused, and will continue to cause, is directly and emphatically contradicted by the victim impact statements in the record. The record also demonstrates that defendant has consistently denied any misconduct and showed no signs of remorse for his acts.

Further, defendant claims that his sentences are excessive in light of what he categorizes as "no record of violence presented," and "little criminal history." However, the trial court granted the State's motion to introduce La. C.E. art. 404B evidence that defendant had a pending charge of sexual battery/forcible rape of his niece in Hancock County, Mississippi, which allegedly occurred on July 13, 2016, while he was out on bail for the instant offenses. A trial judge is not limited to considering only prior convictions and may review all evidence of prior criminal activity, including evidence of prior arrest records and of uncharged offenses or offenses that were nolle prossed . State v. Mason , 10-284 (La. App. 5 Cir. 1/11/11), 59 So.3d 419, 429, writ denied , 11-306 (La. 6/24/11), 64 So.3d 216.

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey , 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130, writ denied , 08-1649 (La. 4/17/09), 6 So.3d 786. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. While defendant in the instant case received below the maximum sentences on both counts, the "jurisprudence indicates that maximum, or nearly maximum terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile." State v. Badeaux , 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied , 01-2965 (La. 10/14/02), 827 So.2d 414. In the instant case, defendant, as a friend, boyfriend, or acquaintance of the victims' mothers, briefly had a position as trusted authority figure in the homes, which he exploited to commit his crimes.

Finally, our survey of other jurisprudence establishes that similar sentences imposed for similar crimes have been upheld as constitutional by other courts.

Considering the nature of the crimes, the nature and the background of defendant, and the sentences imposed for similar crimes, we find that the 20-year sentence without benefits in connection with defendant's conviction for indecent behavior with a juvenile under thirteen years of age, and the well-below maximum sentence of 40 years without benefits in connection with defendant's conviction for sexual battery of a juvenile under thirteen years of age, are not unconstitutionally excessive, do not constitute a needless infliction of pain and suffering, and do not shock this Court's sense of justice.

This assignment is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). We note that the uniform commitment order (UCO) incorrectly reflects the offense dates for both counts. Accordingly, we remand the matter for correction of the UCO to accurately reflect the date ranges of the respective offenses and direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See, State v. Doucet , 17-200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598.

DECREE

Accordingly, for the foregoing reasons, defendant's convictions and sentences are affirmed, and we remand for correction of the uniform commitment order.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER

      La. R.S. 46:1844(W) prohibits the public disclosure of the names, addresses, or identities of crime victims under the age of eighteen (18) and of all victims of sex offenses, but instead authorizes the use of initials and abbreviations. Accordingly, in this case, the victim and her mother will be referred to by their initials.

      M.C. identified defendant in open court.

      Kristin Hintron, a social worker and family therapist employed by the Jefferson Parish Human Services Authority, testified that she conducted at-home counseling sessions with M.B. and her family. Hintron stated that in her session with M.B., which occurred on July 15, 2014, M.B. disclosed that something "sexual in nature" had occurred with defendant.

      As previously indicated, the victim and her mother will be referred to by their initials to protect the identity of the victim, pursuant to La. R.S. 46:1844(W).

      D.B. identified defendant in open court.

      L.B.'s second grade teacher, Jamie Staes, testified that in November of 2015 she was informed by L.B.'s classmates that L.B. was telling students in the classroom about sex and said that she had a boyfriend "who takes off her clothes and that she takes off his clothes." When Staes asked L.B. about her statements, L.B. began to cry. Staes contacted D.B. to advise her about what L.B. had said at school, and she also advised the school social worker as well.

      The record indicates that the abuse took place in D.B.'s bedroom.

      A tape of that interview was played for the jury.

      Dr. Jamie Jackson, a child abuse pediatrician who is employed by the Audrey Hepburn Care Center at Children's Hospital, who testified at trial, conducted an interview with L.B. and concluded that her account was consistent with sexual abuse.

      While this Court has held that the issue of excessiveness of a consecutive sentence is not included in a bare constitutional review when the issue has not been raised in a motion to reconsider sentence, defendant here objected after sentencing regarding the consecutive nature of the sentences imposed, preserving this issue for appeal. See, State v. Christoff , 00-1823 (La. App. 5 Cir. 5/30/01), 788 So.2d 660.

      Defendant's weight was obtained from a July 28, 2015 arrest warrant in the record.

      It is also noted that, as stated by appellate counsel, 20 years earlier, as a juvenile, defendant had a prior conviction. Further, at trial, defendant was asked by the State whether he had been arrested for rape in Georgia in 1997, which defendant denied.

      See , State v. Modisette , 50,847 (La. App. 2 Cir. 9/28/16), 207 So.3d 1108, (the defendant's 25-year sentence without benefit of parole, probation, or suspension of sentence for indecent behavior with juveniles was not excessive); State v. Sanders , 49,241 (La. App. 2 Cir. 10/22/14), 151 So.3d 160, writ denied , 14-2536 (La. 1/16/15), 157 So.3d 1133, (the defendant's 25-year sentence without benefit of parole, probation, or suspension of sentence for indecent behavior with juveniles was not excessive considering the psychological injury to the victim, the severity of the offense, and the young age of the victim, who was 12 years old at the time the incident occurred); State v. Lilly , 12-0008 (La. App. 1 Cir. 9/21/12), 111 So.3d 45, writ denied , 12-2277 (La. 5/31/13), 118 So.3d 386, (the defendant's 35-year sentence at hard labor without benefit of parole, after being convicted of sexual battery in violation of La. R.S. 14:43.1(C)(2), was not excessive in light of victim's testimony that, when she was four years old, the defendant touched her on her vagina while he was babysitting); State v. Greenberry , 14-335 (La. App. 4 Cir. 11/19/14), 154 So.3d 700, writ denied , 14-2656 (La. 10/9/15), 178 So.3d 1000, (the defendant's sentence of 45 years at hard labor, with the first 25 years to be served without benefit of parole was not excessive when the evidence showed that the defendant committed sexual battery of his live-in girlfriend's ten-year-old daughter by inserting his finger into the victim's vagina. See also , State v. Hubb , 97-304 (La. App. 5 Cir. 9/30/97), 700 So.2d 1103, and the cases cited therein.

      The uniform commitment order reflects the offense dates as July 8, 2015. However, the record reflects that Count 1 occurred on or between July 8-15, 2015, and that Count 2 occurred on or between August 17-21, 2015.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Lawrence WILLIAMS
    NO. 18-KA-197
    Court of Appeal of Louisiana, Fifth Circuit.
    November 7, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA: Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, LAWRENCE WILLIAMS: Prentice L. White
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Lawrence Williams, appeals his convictions and sentences for two counts of armed robbery with a firearm. For the following reasons, we affirm defendant's convictions, vacate his sentences and remand with instructions. We also grant appellate counsel's motion to withdraw as attorney of record for defendant.

FACTUAL AND PROCEDURAL HISTORY

On February 9, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A). On the following date, defendant was arraigned and entered pleas of not guilty. On July 18, 2017, defendant filed an untitled pleading seeking the appointment of a sanity commission to determine his competency to proceed to trial, which the trial court granted that same day.

On July 26, 2017, the trial court found defendant competent to proceed based upon the opinion of the sanity commission. Also on that date, defendant withdrew his pleas of not guilty and entered pleas of guilty as charged. Upon the trial court's request, the State presented a factual basis for the pleas. The State asserted that if it were to proceed to trial, it would prove beyond a reasonable doubt that on or about January 10, 2017, within Jefferson Parish, defendant violated La. R.S. 14:64.3 by robbing James Rigney and Reynolds Rigney while armed with a dangerous weapon, a firearm. After accepting his pleas, the trial court sentenced defendant in accordance with the plea agreement to twenty years at hard labor without the benefit of parole, probation, or suspension of sentence on each count with the sentences to run concurrently. The State agreed not to file a habitual offender bill against defendant.

On March 1, 2018, defendant filed an application for post-conviction relief seeking an out-of-time appeal in accordance with State v. Counterman , 475 So.2d 336 (La. 1985). On March 9, 2018, the trial court dismissed defendant's application for post-conviction relief without prejudice and granted his motion for an out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 and 95-930 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he 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 requests 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) (quotation omitted).

In Jyles , 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 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 , 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. Appellate counsel avers there are no appealable issues that would support a direct appeal in this case. He asserts that the bill of information properly charged defendant, contained the date of the offenses and the signature of the district attorney, and there were no pre-trial hearings held. He states that a competency proceeding was held, and the trial court found defendant competent to proceed. He asserts that after defendant decided to plead guilty, the trial court questioned defendant regarding his mental competency, his education, and his understanding of the sentences he was agreeing to serve. Appellate counsel states that defendant affirmatively answered each of the trial court's questions. He notes that defendant was advised of the constitutional rights he was waiving by entering his pleas of guilty, his waiver of those rights was done freely and voluntarily and defendant was able to confer with trial counsel. Appellate counsel contends the trial court sentenced defendant based on the terms and the conditions of the plea agreement, and the State chose not to file a habitual offender bill.

Appellate counsel filed a motion to withdraw as attorney of record which states that after a conscientious and thorough review of the record, he can find no non-frivolous issues to raise on appeal and no rulings that would arguably support an appeal. Additionally, this Court sent defendant a letter by certified mail informing him that his counsel filed an Anders brief and that he had until June 7, 2018, to file a pro se supplemental brief. On May 21, 2018, defendant filed a Motion for Extension of Time and Use of the Appellate Record with this Court, seeking an extension of time in which to prepare his brief and for this Court's Clerk of Court to furnish him with a copy of the appellate record. On May 22, 2018, this Court's Clerk of Court issued an order for the appellate record to be sent to defendant and granted him until June 25, 2018, to file a pro se supplemental brief. Defendant did not file a supplemental brief with this Court.

The State agrees with appellate counsel that this case presents no non-frivolous issues for appellate review and that his motion to withdraw should be granted. The State argues that appellate counsel complied with the procedures set forth in Anders and Jyles , supra , and that defendant voluntarily and intelligently entered his pleas of guilty and defendant's sentences should be upheld.

An independent review of the record supports appellate counsel's assertion that no non-frivolous issues exist to raise on appeal, except, as discussed more fully below, upon conducting an error patent review, we find defendant received indeterminate sentences, which require us to vacate his sentences and remand for resentencing. Otherwise, the bill of information properly charged defendant, plainly and concisely stated the essential facts constituting the offenses charged, and sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 463 - 466. The minute entries reflect that defendant and his counsel appeared at all crucial stages of the proceedings against him.

In addition, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, which precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects were waived. No rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584, 588 (La. 1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, when the Boykin 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 plea bargain is not kept. The record reveals no irregularities in defendant's guilty pleas.

The trial court properly advised defendant of his Boykin rights. The transcript of the colloquy and the waiver of rights form reflect that defendant was advised of his right to a jury trial, his right to confront and cross-examine his accusers and witnesses against him and to call witnesses on his behalf, his privilege against self-incrimination and his waiver of those rights by pleading guilty. In the waiver of rights form, defendant initialed next to the advisal of each of these rights and indicated his understanding that he was waiving those rights. He agreed that he reviewed the form with his attorney and understood the terms and the conditions of his plea agreement. Defendant also affirmatively indicated during the colloquy his understanding of the rights, his waiver of them and indicated he did not have any questions.

Defendant was advised of his right to appeal a verdict of guilty if one was returned at a trial and indicated that he understood his pleas could be used to enhance penalties for future crimes. He was advised of his right to an attorney. Defendant denied that he suffered any physical or mental impairment affecting his competency to enter his plea and acknowledged his ability to read, write, and understand the English language. He acknowledged his satisfaction with the way his attorney handled his case and denied being forced, coerced, or threatened to enter his pleas.

The trial court advised defendant during the colloquy that he faced a minimum penalty of fifteen years and a maximum penalty of ninety-nine years imprisonment without the benefit of parole, probation, or suspension of sentence. The trial court correctly advised defendant of the minimum penalty he faced under La. R.S. 14:64 and La. R.S. 14:64.3. Defendant was incorrectly advised of the maximum penalty as he faced a maximum term of imprisonment of one hundred and four years, due to the consecutive nature of the sentence required by La. R.S. 14:64.3. 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 nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. State v. Kent , 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied , 15-2119 (La. 12/16/16), 211 So.3d 1165. Further, La. C.Cr.P. art. 556.1(E) provides that: "[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." 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. Kent , supra . In State v. Ott , 12-111 (La. App. 5 Cir. 10/16/12), 102 So.3d 944, 952-53, this Court considered the defendant's argument that he was misinformed of the maximum penalty of one hundred and four years for his guilty pleas to armed robbery with a firearm and found the misinformation did not violate due process or invalidate the plea. Here, defendant does not raise any issues regarding the information he received relating to the maximum penalty nor does the record reflect that this information affected the plea bargaining process.

Furthermore, during the colloquy, the trial court advised defendant that if his pleas were accepted, he would receive sentences of twenty years imprisonment at hard labor on each count without the benefit of parole, probation, or suspension of sentence to be served concurrently. Defendant subsequently received those sentences. The advisement of the agreed upon sentence was sufficient for compliance with La. C.Cr.P. art. 556.1. See State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

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, which 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. Defendant's sentences of twenty years at hard labor without the benefit of probation, parole, or suspension of sentence were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Defendant's sentences fall within the sentencing ranges prescribed by the statutes. See La. R.S. 14:64 ; La. R.S. 14:64.3. Moreover, defendant's plea agreement was beneficial to him in that he received twenty-year sentences for an armed robbery with a firearm conviction, and the State agreed not to file a habitual offender bill against him. However, as discussed in our error patent review, infra , defendant's sentences were indeterminate due to the failure to indicate whether defendant's twenty-year sentences included the additional five-year consecutive sentence required by La. R.S. 14:64.3, when a defendant commits an armed robbery with a firearm.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. 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 , 556 So.2d 175 (La. App. 5th Cir. 1990), regardless of whether defendant makes such a request.

Upon review, we find the trial court imposed indeterminate sentences for defendant's convictions of armed robbery with a firearm. As explained above, La. R.S. 14:64.3 provides for an additional penalty of five years imprisonment without benefits, to be served consecutively to the sentence imposed under La. R.S. 14:64, when a firearm is used in the commission of the crime of armed robbery. The bill of information indicates the State charged defendant with two counts armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3, and defendant pleaded guilty as charged. The trial court sentenced defendant to twenty years at hard labor without the benefit of probation, parole or suspension of sentence, but did not state whether the five-year enhancement penalty was included as part of the twenty-year sentence. The failure to impose a consecutive five-year sentence as required under La. R.S. 14:64.3 renders the sentences indeterminate. See State v. Nelson , 17-650 (La. App. 5 Cir. 5/23/18), 248 So.3d 683, 691 ; State v. Lee , 15-108 (La. App. 5 Cir. 6/30/15), 171 So.3d 1214, 1218-19.

Accordingly, we vacate defendant's sentences and remand this matter for defendant to be resentenced in accordance with the law and his negotiated plea agreement, particularly for clarification of whether defendant's twenty-year sentence of imprisonment included the additional five-year sentence required under La. R.S. 14:64.3. Additionally, in the event the trial court determines that the five-year enhancement was not included in defendant's twenty-year sentence, then we reserve defendant's right to withdraw his guilty plea because the five-year firearm enhancement was evidently part of his negotiated twenty-year plea agreement. See Nelson , 248 So.3d at 691.

CONCLUSION

For the foregoing reasons, defendant's convictions are affirmed. Defendant's sentences are vacated, and the case is remanded to the trial court for resentencing in conformity with this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING

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

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

      La. R.S. 14:64 provides that "[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence." Additionally, the firearm enhancement statute, La. R.S. 14:64.3, provides for an additional penalty of five years imprisonment without benefits, to be served consecutively to the sentence imposed under La. R.S. 14:64, when a dangerous weapon is used in the commission of the crime of armed robbery.

      The State and defense counsel represented to the trial court that defendant could face a triple habitual offender bill exposing him to a minimum penalty of sixty-six years imprisonment.

      We grant the motion to withdraw despite the remand for resentencing because defendant is represented by different counsel at the trial and the appellate levels. Thus, the trial court will appoint counsel to represent defendant at the resentencing hearing. See State v. Anderson , 16-537 (La. App. 5 Cir. 5/17/17), 222 So.3d 935, 948 n.6. Additionally, in State v. Parnell , 17-550 (La. App. 5 Cir. 5/16/18), 247 So.3d 1116, an Anders case, this Court found on error patent review that the defendant's sentence of armed robbery with a firearm was indeterminate and remanded the matter for resentencing but nonetheless noted that the defendant's appellate counsel adequately reviewed and analyzed the record.