NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
Wei 11 - ta IEll I ;" IW
FIRST CIRCUIT
NO. 2024 KA 0377
C2 will 0 DKIME1111 L11
VERSUS
KODY BYERS
Judgment Rendered. DEC 13 2024
Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No. 1900511, Division E
The Honorable Brenda Bedsole Ricks, Judge Presiding
Bertha M. Hillman Counsel for Defendant/Appellant Covington, Louisiana Kody Byers
Scott M. Perrilloux Counsel for Appellee District Attorney State of Louisiana Brett Sommer
Assistant District Attorney Livingston, Louisiana
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
C' tz ), a, C- 0 (1 (- "- f 5 f I C !a 14 THERIOT, J.
The defendant, Kody Byers, was charged by bill of information with
molestation of a juvenile where the victim is under the age of thirteen ( count one),
a violation of La. R.S. 14: 81. 2( D)( 1); oral sexual battery (count two), a violation of
La. R.S. 14: 43. 3; sexual battery ( count three), a violation of La. R.S. 14: 43. 1; and
domestic abuse battery with child endangerment ( count four), a violation of La.
R.S. 14: 35. 3( A)&( I). He initially entered a plea of not guilty but later pled guilty
as charged as to each count. The trial court sentenced the defendant in accordance
with a plea agreement to twenty- five years at hard labor, without benefit of parole,
probation, or suspension of sentence on count one, ten years at hard labor on
counts two and three, and two years at hard labor on count four. The trial court
ordered the sentences to run concurrent with one another. The defendant now
appeals, challenging the voluntariness of his guilty pleas. For the following
reasons, we affirm the defendant' s convictions and sentences.
FACTS
As the defendant pled guilty, the facts in this matter were not fully
developed. Discovery filed into the record was accepted as a factual basis for the
plea. On Christmas night in 2018, Harleigh Byers, the defendant' s wife, observed
the defendant perfonning oral sex on K.B.,' her seven- year- old stepdaughter.
Having been caught, the defendant got up from the bed, grabbed Harleigh' s ann,
and pushed her down on the bed. The defendant threatened Harleigh not to tell
anyone about the incident. Harleigh was able to break free and called the police.
VOLUNTARINESS OF PLEAS
In his sole assignment of error, the defendant alleges his guilty pleas were
not knowing, voluntary, and freely given because he was misinformed regarding
1 Herein, we reference the victim only by her initials. See La. R.S. 46: 1844( W). the sentencing range for molestation of a juvenile and regarding his ability to plead
no contest via Zoom.
A guilty plea is a conviction and should be afforded a great measure of
finality. An unqualified plea of guilty waives all nonjurisdictional defects
occurring prior thereto and precludes their review by either appeal or post-
conviction relief. State v. Emerson, 2023- 0120 ( La. App. 1st Cir. 9/ 15/ 23), 375
So. 3d 1027, 1029.
For a guilty plea to be found valid, there must be a showing that the
defendant was informed of and waived his constitutionally guaranteed right to trial
by jury, right of confrontation, and right against compulsory self-incrimination.
See Boykin v. Alabama, 395 U. S. 238, 243, 89 S. Ct. 1709, 1712, 23 L.Ed.2d 274
1969); State v. Sheppard, 2018- 1412 ( La. App. 1st Cir. 6/ 27/ 19), 2019 WL
26356781 * 2 ( unpublished). A guilty plea must be entered into knowingly and
voluntarily. In determining whether the defendant' s plea is knowing and voluntary,
the court must not only look to the colloquy concerning the waiver of rights, but
also other factors that may have a bearing on the decision. See Sheppard, 2019
WL 2635678 at * 2. What the accused understood is determined in teens of the
entire record and not just certain " magic words" used by the trial court. Everything
that appears in the record concerning the offense, as well as the trial court' s
opportunity to observe the defendant' s appearance, demeanor, and responses in
court should be considered in determining whether or not a knowing and intelligent
waiver of rights occurred. Id.
A guilty plea is constitutionally infinn when it is not entered freely and
voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced
to enter the plea by a plea bargain or what he justifiably believes was a plea
bargain and that bargain is not kept. See State v. Lewis, 421 So.2d 224, 226 ( La.
1982); State v. MeCoil, 2005- 658 ( La. App. 5th Cir. 2/ 27/ 06), 924 So. 2d 1120, 1124. The Louisiana Supreme Court has held a defendant' s failure to make a
formal motion to withdraw a guilty plea does not prohibit a constitutionally infirm
guilty plea from being set aside either by means of appeal or post -conviction relief
State v. Dixon, 449 So. 2d 463, 464 ( La. 1984).
On appeal, the defendant first challenges the voluntariness of his pleas
because the minimum sentence for the charge of molestation of a juvenile under
the age of thirteen was misstated. In a felony case, the court shall not accept a plea
of guilty or nolo contendere without first addressing the defendant personally in
open court and informing him of the nature of the charge to which the plea is
offered, any mandatory minimum penalty provided by law, and the maximum
possible penalty provided by law. See La. Code Crim. P. art. 556. 1( A)( 1).
Whoever commits the crime of molestation of a juvenile when the victim is under
the age of thirteen years shall be imprisoned at hard labor for not less than twenty-
five years nor more than ninety- nine years. At least twenty- five years of the
sentence imposed shall be served without benefit of probation, parole, or
suspension of sentence. La. R.S. 14: 81. 2( D)( 1). However, the transcript of the
Boykin hearing in the instant matter reflects that the State incorrectly stated that
a] t leastfive years of the sentence shall be imposed without benefit of probation,
parole, or suspension of sentence." ( Emphasis added).
While the sentencing range for this offense appears to have been misstated,
that does not negate the voluntariness of the defendant' s plea. A review of the plea
colloquy shows the defendant agreed to a sentence of "25 years without benefit"
for the crime of molestation of a juvenile. The trial court then asked whether the
defendant was fully advised of the nature of the charges against him and all of his
legal and constitutional rights, to which defense counsel replied that he and the
defendant " discussed all of [the defendant' s] legal and constitutional rights and all
of the requirements related to registration following his release." The trial court
4 then sentenced the defendant in accordance with the plea agreement without
objection. Thus, the record indicates the defendant knowingly and voluntarily
agreed to the minimum sentence of twenty- five years imprisonment at hard labor
without benefit of probation, parole, or suspension of sentence on count one. See
State v. Prestenbach, 2021- 528 ( La. App. 5th Cir.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
Wei 11 - ta IEll I ;" IW
FIRST CIRCUIT
NO. 2024 KA 0377
C2 will 0 DKIME1111 L11
VERSUS
KODY BYERS
Judgment Rendered. DEC 13 2024
Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No. 1900511, Division E
The Honorable Brenda Bedsole Ricks, Judge Presiding
Bertha M. Hillman Counsel for Defendant/Appellant Covington, Louisiana Kody Byers
Scott M. Perrilloux Counsel for Appellee District Attorney State of Louisiana Brett Sommer
Assistant District Attorney Livingston, Louisiana
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
C' tz ), a, C- 0 (1 (- "- f 5 f I C !a 14 THERIOT, J.
The defendant, Kody Byers, was charged by bill of information with
molestation of a juvenile where the victim is under the age of thirteen ( count one),
a violation of La. R.S. 14: 81. 2( D)( 1); oral sexual battery (count two), a violation of
La. R.S. 14: 43. 3; sexual battery ( count three), a violation of La. R.S. 14: 43. 1; and
domestic abuse battery with child endangerment ( count four), a violation of La.
R.S. 14: 35. 3( A)&( I). He initially entered a plea of not guilty but later pled guilty
as charged as to each count. The trial court sentenced the defendant in accordance
with a plea agreement to twenty- five years at hard labor, without benefit of parole,
probation, or suspension of sentence on count one, ten years at hard labor on
counts two and three, and two years at hard labor on count four. The trial court
ordered the sentences to run concurrent with one another. The defendant now
appeals, challenging the voluntariness of his guilty pleas. For the following
reasons, we affirm the defendant' s convictions and sentences.
FACTS
As the defendant pled guilty, the facts in this matter were not fully
developed. Discovery filed into the record was accepted as a factual basis for the
plea. On Christmas night in 2018, Harleigh Byers, the defendant' s wife, observed
the defendant perfonning oral sex on K.B.,' her seven- year- old stepdaughter.
Having been caught, the defendant got up from the bed, grabbed Harleigh' s ann,
and pushed her down on the bed. The defendant threatened Harleigh not to tell
anyone about the incident. Harleigh was able to break free and called the police.
VOLUNTARINESS OF PLEAS
In his sole assignment of error, the defendant alleges his guilty pleas were
not knowing, voluntary, and freely given because he was misinformed regarding
1 Herein, we reference the victim only by her initials. See La. R.S. 46: 1844( W). the sentencing range for molestation of a juvenile and regarding his ability to plead
no contest via Zoom.
A guilty plea is a conviction and should be afforded a great measure of
finality. An unqualified plea of guilty waives all nonjurisdictional defects
occurring prior thereto and precludes their review by either appeal or post-
conviction relief. State v. Emerson, 2023- 0120 ( La. App. 1st Cir. 9/ 15/ 23), 375
So. 3d 1027, 1029.
For a guilty plea to be found valid, there must be a showing that the
defendant was informed of and waived his constitutionally guaranteed right to trial
by jury, right of confrontation, and right against compulsory self-incrimination.
See Boykin v. Alabama, 395 U. S. 238, 243, 89 S. Ct. 1709, 1712, 23 L.Ed.2d 274
1969); State v. Sheppard, 2018- 1412 ( La. App. 1st Cir. 6/ 27/ 19), 2019 WL
26356781 * 2 ( unpublished). A guilty plea must be entered into knowingly and
voluntarily. In determining whether the defendant' s plea is knowing and voluntary,
the court must not only look to the colloquy concerning the waiver of rights, but
also other factors that may have a bearing on the decision. See Sheppard, 2019
WL 2635678 at * 2. What the accused understood is determined in teens of the
entire record and not just certain " magic words" used by the trial court. Everything
that appears in the record concerning the offense, as well as the trial court' s
opportunity to observe the defendant' s appearance, demeanor, and responses in
court should be considered in determining whether or not a knowing and intelligent
waiver of rights occurred. Id.
A guilty plea is constitutionally infinn when it is not entered freely and
voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced
to enter the plea by a plea bargain or what he justifiably believes was a plea
bargain and that bargain is not kept. See State v. Lewis, 421 So.2d 224, 226 ( La.
1982); State v. MeCoil, 2005- 658 ( La. App. 5th Cir. 2/ 27/ 06), 924 So. 2d 1120, 1124. The Louisiana Supreme Court has held a defendant' s failure to make a
formal motion to withdraw a guilty plea does not prohibit a constitutionally infirm
guilty plea from being set aside either by means of appeal or post -conviction relief
State v. Dixon, 449 So. 2d 463, 464 ( La. 1984).
On appeal, the defendant first challenges the voluntariness of his pleas
because the minimum sentence for the charge of molestation of a juvenile under
the age of thirteen was misstated. In a felony case, the court shall not accept a plea
of guilty or nolo contendere without first addressing the defendant personally in
open court and informing him of the nature of the charge to which the plea is
offered, any mandatory minimum penalty provided by law, and the maximum
possible penalty provided by law. See La. Code Crim. P. art. 556. 1( A)( 1).
Whoever commits the crime of molestation of a juvenile when the victim is under
the age of thirteen years shall be imprisoned at hard labor for not less than twenty-
five years nor more than ninety- nine years. At least twenty- five years of the
sentence imposed shall be served without benefit of probation, parole, or
suspension of sentence. La. R.S. 14: 81. 2( D)( 1). However, the transcript of the
Boykin hearing in the instant matter reflects that the State incorrectly stated that
a] t leastfive years of the sentence shall be imposed without benefit of probation,
parole, or suspension of sentence." ( Emphasis added).
While the sentencing range for this offense appears to have been misstated,
that does not negate the voluntariness of the defendant' s plea. A review of the plea
colloquy shows the defendant agreed to a sentence of "25 years without benefit"
for the crime of molestation of a juvenile. The trial court then asked whether the
defendant was fully advised of the nature of the charges against him and all of his
legal and constitutional rights, to which defense counsel replied that he and the
defendant " discussed all of [the defendant' s] legal and constitutional rights and all
of the requirements related to registration following his release." The trial court
4 then sentenced the defendant in accordance with the plea agreement without
objection. Thus, the record indicates the defendant knowingly and voluntarily
agreed to the minimum sentence of twenty- five years imprisonment at hard labor
without benefit of probation, parole, or suspension of sentence on count one. See
State v. Prestenbach, 2021- 528 ( La. App. 5th Cir. 11/ 24/ 21), 347 So. 3d 1087,
1094 n. 7 ( finding advisement of agreed- upon sentence sufficient for compliance
with statute requiring court to inform defendant of sentencing range prior to
accepting a guilty plea).
The defendant next challenges the voluntariness of his plea where the trial
court incorrectly informed him that he could not enter a plea of no contest via
audio -video transmission. A plea of no contest is equivalent to an admission of
guilt and is treated as a guilty plea. See State v. Oliver, 2020- 0190 ( La. App. I st Cir. 2/ 24/ 21), 321 So -3d 1033, 1037 n. 5. Louisiana Code of Criminal Procedure
article 556. 1 sets forth each party' s duty when a defendant enters a plea of guilty or
no contest and provides, in pertinent part, that "[ n] othing in this Article prohibits
the court, by local rule, from providing for a defendant' s appearance at the entry of
his plea of guilty or nolo contendere by simultaneous audio-visual transmission in
accordance with the provisions of Article 562." La. Code Crim. P. art. 556. 1( F)
emphasis added).
Article 562, which governs the use of simultaneous audio- visual
transmission for certain court proceedings, provides, in pertinent part, that an
incarcerated defendant charged with a noncapital felony may " appear at the entry
of his plea ofguilty, at any revocation hearing for a probation violation, including
any hearing for a contempt of court, and at sentencing by simultaneous audio- visual transmission[.]" La. Code Crim. P. art. 562( A) ( emphasis added). Thus,
while Article 556. 1( F) specifically allows a defendant to plead guilty or no contest
via audio- visual transmission, Article 562( A) refers only to guilty pleas.
5 The following exchange took place between the trial court and the defendant
during the plea colloquy, which occurred via Zoom in December of 2020, during
the COVID pandemic:
Q: Sir, we' re still operating under COVID restrictions. You' re at the jail. Your attorney is in the courtroom. At some point in the future with — if COVID restrictions lift, you may be able to be back in the courtroom. Do you want to put this off until a day you can be in a courtroom, or, after discussions with your attorney, do you want to go forward with the plea today?
A: Yes, ma' am.
Q: And you want to do that even though you' re [ Z] oomed in from the jail; is that correct?
Q: Sir, do you wish to enter a plea to this —all of these charges? And, if so, what will your plea be in connection with each?
A: I plead no contest.
Q: No, sir, because we' re operating on Zoom you have to do a guilty plea if you want to enter a guilty plea.
A: Guilty.
The record reflects the trial court offered the defendant the opportunity to
postpone his plea until he could be present in court, which the defendant declined.
Moreover, when the trial court informed the defendant he could not enter a no
contest plea via Zoom, the defendant immediately entered a plea of guilty without
objection. Finally, to the extent the trial court' s reffisal to accept the defendant' s no
contest plea via Zoom was unsupported by Article 556. 1( F), any error is subject to
a harmless error analysis. See State v. Phillips, 99- 1629 ( La. App. 1st Cir.
5/ 12/ 00), 762 So.2d 172, 174; State v. Wells, 54, 890 ( La. App. 2d Cir. 12/ 14/ 22),
352 So.3d 584, 588, writ denied, 2023- 00037 ( La. 9/ 6/ 23), 369 So. 3d 1270; State
v. Thomas, 2020- 97 ( La. App. 5th Cir. 11/ 4/ 20), 306 So. 3d 568, 575. Herein, the
defendant failed to demonstrate how the trial court' s refusal to accept his no
contest plea via Zoom caused him prejudice. If the defendant wanted to enter a no
IJ11 contest plea, the trial court gave him the opportunity to do so by simply postponing
the hearing until he was able to appear before the court in person. The defendant
made no attempt to postpone the hearing and instead voluntarily entered a plea of
guilty. Thus, any error on behalf of the trial court was han-nless and this
assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.