State of Louisiana v. Frank Allen Fregia, Jr.

• Court: Louisiana Court of Appeal
• Decided: October 9, 2013
• Docket: KA-0013-0079
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-79

STATE OF LOUISIANA

VERSUS

FRANK ALLEN FREGIA, JR.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 26126-10 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED. MOTION TO WITHDRAW GRANTED.

John F. DeRosier District Attorney Karen C. McLellan Assistant District Attorney Post Office Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana

Edward J. Marquet Louisiana Appellate Project Post Office Box 53733 Lafayette, LA 70505-3733 (337) 237-6841 COUNSEL FOR DEFENDANT/APPELLANT: Frank Allen Fregia, Jr. AMY, Judge.

The defendant entered an Alford plea to one count of indecent behavior with

a juvenile, a violation of La.R.S. 14:81. On appeal, the defendant‟s sentence was

affirmed, but the matter was remanded with instructions that the trial court conduct

another Boykin hearing in order to determine if there was a sufficient factual basis

for the plea. After conducting that hearing, the trial court found that there was a

sufficient factual basis. The defendant appeals. His counsel has filed a brief

pursuant to Anders and has filed a motion to withdraw. For the following reasons,

we affirm the defendant‟s conviction. Further, we grant his appellate counsel‟s

motion to withdraw.

Factual and Procedural Background

The defendant, Frank Allen Fregia, Jr., entered a plea of guilty to one count

of indecent behavior with a juvenile, a violation of La.R.S. 14:81, pursuant to

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). In exchange for this

guilty plea, the State reduced the charge against the defendant, nolle prossed a

second charge involving another victim, and agreed not to institute habitual

offender proceedings. Thereafter, the trial court sentenced the defendant to

twenty-five years in the custody of the Department of Corrections, with credit for

time served. The defendant appealed. A panel of this court affirmed the

defendant‟s sentence but found that there was not a sufficient factual basis in the

record to support his Alford plea. See State v. Fregia, 12-646 (La.App. 3 Cir.

12/5/12), 105 So.3d 999. Thus, the panel remanded the matter with instructions

that “the district court is ordered to conduct an additional Boykin hearing allowing

the State an opportunity to present other evidence of Defendant‟s guilt at said

hearing[.]” Id. at 1007. In accordance with those instructions, the trial court conducted an additional

Boykin hearing whereat the State offered additional evidence concerning the

factual basis for the defendant‟s guilty plea. More specifically, the State detailed

the facts germane to the offense and offered photographs which were intended to

corroborate the minor victim‟s statements. The trial court also re-Boykinized the

defendant and questioned him concerning the voluntariness of his plea. See Boykin

v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). The trial court found that there

was a sufficient factual basis to support the defendant‟s plea and that the plea was a

voluntary and intelligent choice among the defendant‟s alternatives.

The defendant appeals. His appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). Further, his appellate

counsel has filed a motion to withdraw.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent on the face of the record. Such a review was performed in State v.

Fregia, 105 So.3d 999, and we note no additional errors patent here.

Anders Brief and Motion to Withdraw

The defendant‟s appellate counsel has filed a brief pursuant to Anders,

alleging that there are no non-frivolous issues upon which to base an appeal.

Further, he has also filed a motion to withdraw as the defendant‟s appellate

counsel.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit addressed the appellate review of briefs filed pursuant to Anders, stating:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were

2 found after a conscientious review of the record, Anders requires that 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.

The supreme court later sanctioned this procedure. See, e.g., State v. Mouton, 95-

981 (La. 4/28/95), 653 So.2d 1176.

Further, we observe that “[a]n Anders brief need not catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit.” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241. Thus, appellate counsel must review “not only the

procedural history of the case and the evidence presented at trial but must also

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.‟” Id. at

242 (quoting Mouton, 653 So.2d 1176).

The defendant‟s counsel has filed such a brief in this matter. Appellate

counsel observes that the State introduced evidence at the second Boykin hearing

that corroborated the statements of the victims.1 Further, appellate counsel notes

that the trial court advised the defendant of his Boykin rights, including the right to

counsel, his right to a trial where the State would be required to prove his guilt

beyond a reasonable doubt, his right to confront the witnesses against him, and his

right to remain silent. Further, the defendant acknowledged that his plea was free

1 According to the record, the initial charges against the defendant encompassed allegations concerning two minor victims. However, the defendant eventually pled guilty to charges concerning only one of the minor victims.

3 and voluntary and that he had not been pressured or threatened to plead guilty. In

this context, appellate counsel notes that the defendant acknowledged that his

potential sentencing exposure, including the potential to be sentenced to life

imprisonment as a habitual offender, influenced his decision to enter a guilty plea

pursuant to Alford.

We observe that the defendant‟s appeal in this matter is limited to the issues

not resolved in his previous appeal. See Fregia, 105 So.3d 999. In keeping with

that observation, this court has performed an independent review of the record,

including the pleadings, minute entries, the bill of information, and the transcripts.

The defendant was provided an opportunity to file his own brief, but did not do so.

Our review of the record reveals that the defendant was present and

represented by counsel at all crucial stages of the proceedings. Further, the record

indicates that the defendant entered a free and voluntary guilty plea pursuant to

Alford, after properly being advised of his rights in accordance with Boykin.

Thus, our review of the record has not revealed any issues which would

support an assignment of error on appeal. Accordingly, appellate counsel‟s motion

to withdraw is granted.

DECREE

The conviction of the defendant, Frank Allen Fregia, Jr., for indecent

behavior with a juvenile is affirmed. Appellate counsel‟s motion to withdraw is

granted.