State of Louisiana v. Donald Anthony Crosby

• Court: Louisiana Court of Appeal
• Decided: September 9, 2024
• Docket: 2024-KA-0155
• Status: Published

Opinion

STATE OF LOUISIANA * NO. 2024-KA-0155

VERSUS * COURT OF APPEAL DONALD ANTHONY CROSBY * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 19-1098, DIVISION “A” Honorable Kevin D. Conner, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Nakisha Ervin-Knott)

Charles Joseph Ballay District Attorney Mary Slavich Touzet Assistant District Attorney DISTRICY ATTORNEY’S OFFICE 25TH JDC, PLAQUEMINES PARISH 333 F. Edward Hebert Blvd., #201 Belle Chasse, LA 70037

COUNSEL FOR STATE/APPELLEE

Sherry Watters LOUISIANA APPELLATE PROJECT P. O. Box 58769 New Orleans, LA 70158

COUNSEL FOR DEFENDANT/APPELLANT

CONVICTIONS AND SENTENCES AFFIRMED

SEPTEMBER 9, 2024 DLD In this criminal appeal, the defendant, Donald Anthony Crosby, requests a RML NEK review of the record in this case for errors patent. Finding no errors patent, we

affirm.

BACKGROUND

In a bill of information dated July 18, 2019, defendant was charged with one

count of simple burglary, in violation of La. R.S. 14:62, and two counts of illegal

possession of stolen goods with a value of one thousand dollars or more, but less

than five thousand dollars, in violation of La. R.S. 14:69(B)(3). On July 29, 2019,

defendant appeared for arraignment and pled not guilty to the charges.

On February 3, 2020, defendant pled guilty to the charges, acknowledging

that he was subject to a maximum sentence of twelve years imprisonment. In

exchange for the plea of guilty, the state agreed not to file a multiple bill.

On May 19, 2020, defendant was sentenced in connection with his burglary

conviction to twelve years imprisonment and he was sentenced to four years

imprisonment on each of his possession of stolen property convictions, with all

sentences to be served concurrently, with credit for time served.

1 On November 20, 2020, the trial court denied defendant’s pro se motion for

reconsideration of his sentences but granted his pro se rule for clarification of his

sentences, ordering that to the extent defendant was serving time with respect to

prior convictions in “in Case No. 16-1064, Case No. 18-0654, or Case No. 18-

0359, the Court will amend the sentences in the instant case to run them

concurrently with the sentences in those cases.”

On May 18, 2021, this Court ordered the district court to consider

defendant’s pro se pleading (in which he complained that his twelve-year sentence

did not conform with the plea agreement he entered into with the state) as a motion

for an out-of-time appeal as follows:

The Relator, Donald Anthony Crosby, represents that he pleaded guilty to a charge of simple burglary on February 3, 2020. In a pleading styled as an appeal, Relator seeks review of the district court’s sentence on his simple burglary charge and represents that the district court imposed a sentence which did not conform to a plea agreement between Relator and the State. Relator’s pleading filed with this Court does not reflect that Relator filed a motion in the district court for an out-of-time appeal. Relator’s writ is therefore granted for the sole purpose of transferring Relator’s pleading to the district court. The district court is ordered to consider the pleading as a motion for out-of-time appeal.

State v. Crosby, 2021-0269 (La. App. 4 Cir. 5/18/21) (unpub’d order).

On August 23, 2021, the district court granted defendant an out-of-time

appeal and appointed the Louisiana Appellate Project to represent defendant on

appeal.

On March 27, 2024, the Louisiana Appellate Project filed an errors patent

brief on defendant’s behalf. On May 2, 2024, the state filed its appellee brief.

When defendant pled guilty, the only agreement made by the state was that

it would not file a multiple bill against him. It was further acknowledged that no

agreement was reached as to the sentence that would be imposed as a result of

2 defendant’s guilty plea. Defendant acknowledged that the maximum sentence he

could receive would be “12 years DOC.”

At sentencing, defendant’s prior convictions were discussed as defendant

had numerous domestic abuse-related misdemeanor convictions. Specifically, on

July 15, 2008, defendant pled guilty to two counts of domestic abuse battery first

offense and to violation of a protective order. On January 21, 2009, defendant pled

guilty to domestic abuse battery first offense, false imprisonment, simple criminal

damage to property, simple assault and simple battery. On June 6, 2016, defendant

pled guilty to domestic abuse battery second offense, which was a felony.1 Further,

the pre-sentence investigation (PSI) reflected that defendant was a fifth felony

offender.

ERRORS PATENT

By his sole assignment of error, defendant requests a review of the record

for errors patent. Defendant’s counsel complied with the procedures outlined by

Anders v. California, 386 U.S. 738 (1967), as interpreted by this Court in State v.

Benjamin, 573 So.2d 528 (La. App. 4th Cir. 1990). Counsel filed a brief complying

with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam) following

her review of the record. Counsel then moved to withdraw because following a

diligent review of the record, she found no non-frivolous issues for appeal existed.

As per State v. Benjamin, we have conducted an independent review of the

appellate record; and it does not appear that any non-frivolous grounds for appeal

exist. The trial court conducted a Boykin colloquy with defendant and explained to

1 These crimes were recited by the prosecutor because some of them were not included in the

pre-sentence investigation (PSI).

3 him the rights he was waiving by pleading guilty. Defendant also executed a

Boykin form.

As reflected in his Boykin transcript, defendant did not preserve any issues

for appeal under State v. Crosby, 338 So.2d 584 (La. 1976), and he entered a plea

of guilty to the charges lodged against him in the bill of information in exchange

for the state agreeing not to file an habitual offender bill of information. “A

validly entered guilty plea waives any right a defendant might have had to question

the merits of the state’s case and the factual basis underlying the conviction.” State

v. Davis, 2015-1325, p. 8 (La. App. 4 Cir. 10/5/16), (unpub.) 2016 WL 5819245,

*4 (citing State v. Bourgeois, 406 So.2d 550 (La. 1981). In this case, defendant

was advised that he was relinquishing his right to appeal and acknowledged that he

understood he was waiving that right. Thus, with regard to defendant’s

convictions, there are no matters at issue for this Court to review.

Regarding defendant’s twelve-year sentence, which is not challenged as

excessive or otherwise in this appeal, the trial court explained to defendant the

possible sentences to which he was subject by virtue of his guilty plea. Further,

defendant, in his Boykin form, acknowledged that he could receive the maximum

sentence of “12 years DOC.” As such, there exists no basis to contest the sentence

that defendant received. It was also asserted at the sentencing hearing that

defendant was a fifth felony offender. Accordingly, if not for the favorable plea

deal that was negotiated on his behalf, defendant faced a much longer minimum

sentence as a recidivist than the twelve-year sentence he received as a first

offender. Thus, even though the imposed twelve-year sentence was greater than

the ten-year sentence recommended in the PSI, counsel exercised reasonable

judgment in not claiming that the twelve-year sentence imposed was excessive.

4 CONCLUSION

Following our review of the appellate record, we have not found that any

non-frivolous grounds for appeal exist. Accordingly, defendant’s convictions and

concurrently-running sentences are affirmed.