NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 23-569
STATE OF LOUISIANA
VERSUS
EMETERIO L. RIVERA
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 18-1485 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE
GUY E. BRADBERRY JUDGE
Court composed of D. Kent Savoie, Guy E. Bradberry, and Wilbur L. Stiles, Judges.
SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED. M. Bofill Duhe Iberia Parish District Attorney W. Claire Howington Iberia Parish Assistant District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR: State of Louisiana
Chad M. Ikerd Louisiana Appellate Project 600 Jefferson Street, Suite 903 Lafayette, LA 70501 (225) 806-2930 COUNSEL FOR DEFENDANT/APPELLANT: Emeterio L. Rivera
Emeterio L. Rivera Louisiana State Penitentiary MPEY/Cypress-4 Angola, LA 70712 DEFENDANT/APPELLANT: Emeterio L. Rivera BRADBERRY, Judge.
On December 4, 2018, Defendant, Emeterio L. Rivera, was charged by bill of
indictment with two counts of first degree rape of a juvenile under the age of thirteen,
in violation of La.R.S. 14:42, and one count of sexual battery of a juvenile under the
age of thirteen, in violation of La.R.S. 14:43.1. On April 9, 2021, Defendant was
unanimously convicted as charged following a four-day jury trial. On December 15,
2021, the trial court sentenced Defendant to life imprisonment without the benefit of
parole, probation, or suspension of sentence for both counts of first degree rape and
thirty years at hard labor with twenty-five years to be served without the benefit of
parole, probation, or suspension of sentence for sexual battery. The sentences were
ordered to be served concurrently with one another. On appeal, this court affirmed
Defendant’s convictions but vacated the single sentence imposed for both of his first
degree rape convictions. State v. Rivera, 22-365 (La.App. 3 Cir. 11/9/22)
(unpublished opinion), writ denied, 22-1707 (La. 3/14/23), 357 So.3d 825.
On January 19, 2023, Defendant was resentenced to two concurrent terms of
life imprisonment at hard labor without the benefit of parole, probation, or
suspension of sentence for his two counts of first degree rape. No motion to
reconsider sentence or motion for appeal was filed. On June 5, 2023, Defendant
filed a pro se application for post-conviction relief seeking an out-of-time appeal of
his convictions and sentences. The trial court granted Defendant an appeal of his
first degree rape sentences only, after finding his convictions and sexual battery
sentence were final judgments, and the trial court appointed appellate counsel.
Defendant’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no non-
frivolous issues for appeal and requests this court grant his accompanying motion to withdraw. Defendant was advised, via certified mail, that counsel filed an Anders
brief, and he was given until November 20, 2023, to file a pro se brief. No such brief
was filed by Defendant. For the following reasons, we affirm the first degree rape
sentences and grant appellate counsel’s motion to withdraw.
FACTS
Defendant was the live-in boyfriend of Cheryl Tovar; Ms. Tovar’s young
granddaughter, A.H., lived with the pair off and on from the ages of eight months to
five years old.1 Ms. Tovar developed significant medical problems which led to one
of her legs being amputated. Defendant then asked Ms. Tovar’s daughter (A.H.’s
mother) to move in with them to assist him in caring for Ms. Tovar. On the day of
the move, twelve-year-old A.H. told her mother that Defendant had sexually
assaulted her. Defendant denied the allegations, but subsequent DNA testing linked
him to the offenses.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there are
no errors patent.
ANDERS ANALYSIS
Pursuant to Anders, 386 U.S. 738, Defendant’s appellate counsel filed a brief
stating he could find no non-frivolous issues upon which to base an appeal. Thus,
counsel seeks to withdraw. In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4
Cir. 1990), the fourth circuit explained the Anders analysis:
When appointed counsel has filed a brief indicating that no non- frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that
1 Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect her identity.
2 counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Appellate counsel’s Anders brief must “‘assure the court that the indigent
defendant’s constitutional rights have not been violated.’” State v. Jyles, 96-2669,
p. 2 (La. 12/12/97), 704 So.2d 241, 241 (per curiam) (quoting McCoy v. Court of
Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903 (1988)). Hence, the
Anders brief must provide “a detailed and reviewable assessment for both the
defendant and the appellate court of whether the appeal is worth pursuing in the first
place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177 (per
curiam).
Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, Defendant’s
appellate counsel filed a brief outlining his assessment of the appellate record.
Appellate counsel discusses the facts and procedural history of the case, including
Defendant’s first appeal wherein we affirmed his convictions and sexual battery
sentence. Because the current appeal is before this court after remand for
resentencing on the two counts of first degree rape, the only portion of the record
now subject to review is the resentencing.
Appellate counsel asserts that after a review of the record, specifically the
resentencing transcript, there were no non-frivolous issues to raise on appeal. In his
3 Anders brief, appellate counsel stated that the trial court corrected the errors patent
discussed by this court in Defendant’s first appeal.2 Rivera, 22-365. He notes that
first degree rape carries a mandatory sentence of life imprisonment at hard labor
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 23-569
STATE OF LOUISIANA
VERSUS
EMETERIO L. RIVERA
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 18-1485 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE
GUY E. BRADBERRY JUDGE
Court composed of D. Kent Savoie, Guy E. Bradberry, and Wilbur L. Stiles, Judges.
SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED. M. Bofill Duhe Iberia Parish District Attorney W. Claire Howington Iberia Parish Assistant District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR: State of Louisiana
Chad M. Ikerd Louisiana Appellate Project 600 Jefferson Street, Suite 903 Lafayette, LA 70501 (225) 806-2930 COUNSEL FOR DEFENDANT/APPELLANT: Emeterio L. Rivera
Emeterio L. Rivera Louisiana State Penitentiary MPEY/Cypress-4 Angola, LA 70712 DEFENDANT/APPELLANT: Emeterio L. Rivera BRADBERRY, Judge.
On December 4, 2018, Defendant, Emeterio L. Rivera, was charged by bill of
indictment with two counts of first degree rape of a juvenile under the age of thirteen,
in violation of La.R.S. 14:42, and one count of sexual battery of a juvenile under the
age of thirteen, in violation of La.R.S. 14:43.1. On April 9, 2021, Defendant was
unanimously convicted as charged following a four-day jury trial. On December 15,
2021, the trial court sentenced Defendant to life imprisonment without the benefit of
parole, probation, or suspension of sentence for both counts of first degree rape and
thirty years at hard labor with twenty-five years to be served without the benefit of
parole, probation, or suspension of sentence for sexual battery. The sentences were
ordered to be served concurrently with one another. On appeal, this court affirmed
Defendant’s convictions but vacated the single sentence imposed for both of his first
degree rape convictions. State v. Rivera, 22-365 (La.App. 3 Cir. 11/9/22)
(unpublished opinion), writ denied, 22-1707 (La. 3/14/23), 357 So.3d 825.
On January 19, 2023, Defendant was resentenced to two concurrent terms of
life imprisonment at hard labor without the benefit of parole, probation, or
suspension of sentence for his two counts of first degree rape. No motion to
reconsider sentence or motion for appeal was filed. On June 5, 2023, Defendant
filed a pro se application for post-conviction relief seeking an out-of-time appeal of
his convictions and sentences. The trial court granted Defendant an appeal of his
first degree rape sentences only, after finding his convictions and sexual battery
sentence were final judgments, and the trial court appointed appellate counsel.
Defendant’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no non-
frivolous issues for appeal and requests this court grant his accompanying motion to withdraw. Defendant was advised, via certified mail, that counsel filed an Anders
brief, and he was given until November 20, 2023, to file a pro se brief. No such brief
was filed by Defendant. For the following reasons, we affirm the first degree rape
sentences and grant appellate counsel’s motion to withdraw.
FACTS
Defendant was the live-in boyfriend of Cheryl Tovar; Ms. Tovar’s young
granddaughter, A.H., lived with the pair off and on from the ages of eight months to
five years old.1 Ms. Tovar developed significant medical problems which led to one
of her legs being amputated. Defendant then asked Ms. Tovar’s daughter (A.H.’s
mother) to move in with them to assist him in caring for Ms. Tovar. On the day of
the move, twelve-year-old A.H. told her mother that Defendant had sexually
assaulted her. Defendant denied the allegations, but subsequent DNA testing linked
him to the offenses.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there are
no errors patent.
ANDERS ANALYSIS
Pursuant to Anders, 386 U.S. 738, Defendant’s appellate counsel filed a brief
stating he could find no non-frivolous issues upon which to base an appeal. Thus,
counsel seeks to withdraw. In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4
Cir. 1990), the fourth circuit explained the Anders analysis:
When appointed counsel has filed a brief indicating that no non- frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that
1 Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect her identity.
2 counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Appellate counsel’s Anders brief must “‘assure the court that the indigent
defendant’s constitutional rights have not been violated.’” State v. Jyles, 96-2669,
p. 2 (La. 12/12/97), 704 So.2d 241, 241 (per curiam) (quoting McCoy v. Court of
Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903 (1988)). Hence, the
Anders brief must provide “a detailed and reviewable assessment for both the
defendant and the appellate court of whether the appeal is worth pursuing in the first
place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177 (per
curiam).
Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, Defendant’s
appellate counsel filed a brief outlining his assessment of the appellate record.
Appellate counsel discusses the facts and procedural history of the case, including
Defendant’s first appeal wherein we affirmed his convictions and sexual battery
sentence. Because the current appeal is before this court after remand for
resentencing on the two counts of first degree rape, the only portion of the record
now subject to review is the resentencing.
Appellate counsel asserts that after a review of the record, specifically the
resentencing transcript, there were no non-frivolous issues to raise on appeal. In his
3 Anders brief, appellate counsel stated that the trial court corrected the errors patent
discussed by this court in Defendant’s first appeal.2 Rivera, 22-365. He notes that
first degree rape carries a mandatory sentence of life imprisonment at hard labor
without the benefit of parole, probation, or suspension of sentence; therefore,
Defendant received the mandatory sentence for each of his first degree rape
convictions. La.R.S. 14:42(D)(2). Defendant was also advised of the time limitation
for filing an application for post-conviction relief.
Appellate counsel discusses defense counsel’s perfunctory objection
following the imposition of his sentences but claims “counsel did not state what
specifically was being objected to: excessiveness, failure of the trial court to state
aggravating or mitigating facts to justify two life sentences, failure to give Mr.
Rivera an opportunity to speak, etc.” Counsel observes the failure to object to the
sentences or to file a motion to reconsider sentence alleging specific grounds
precludes review of those specific grounds on appeal, citing La.Code Crim.P. art.
881.1(E), and State v. Meaux, 21-522 (La.App. 3 Cir. 2/23/22), 335 So.3d 309. Thus,
appellate counsel states that a bare excessiveness review would be performed by this
court, but he notes that Defendant was sentenced to the mandatory minimum
sentences. In State v. Thomas, 50,898, p. 22 (La.App. 2 Cir. 11/16/16), 209 So.3d
234, 247−48, the second circuit discussed a downward departure from the mandatory
minimum sentence as follows:
[T]he downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to
2 We determined there were two errors patent which warranted vacatur of the sentence. First, the single sentence imposed for two counts of first degree rape rendered the sentence indeterminate. Second, the trial court failed to order the sentences be served at hard labor despite La.R.S. 14:42(D)(2) requiring a first degree rape sentence to be served at hard labor.
4 assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case.
. . . . The “rare circumstances” in which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. State v. Chandler, [41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, writ denied, 06-2554 (La. 5/11/07), 955 So.2d 1277]. In such crimes, unlike the mandatory minimum sentence under the habitual offender law, the “tailoring” of the sentence by the legislature was for life because the culpability of offenders and the gravity of the offense are so great. Id.
Because it was Defendant’s burden of showing the trial court that he was
entitled to a downward departure from the mandatory life sentences, his failure to
argue for a downward departure prior to sentencing and his failure to file a motion
to reconsider the sentences precludes him from arguing his mandatory sentences are
excessive on appeal.
In the present case, the appeal is limited to resentencing. In accordance with
Anders and Jyles, we have performed a thorough review of the record, including the
minute entry of resentencing and the resentencing transcript. Defendant was present
and represented by counsel at the resentencing proceeding, and he received legal
sentences for his convictions. We have found no issues which would support an
assignment of error on appeal. Accordingly, Defendant’s sentences are affirmed and
appellate counsel’s motion to withdraw is granted.
SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules―Courts of Appeal, Rule 2–16.3.