Judgment rendered May 10, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,019-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
PATRICK N. ELDRIDGE Appellant
Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 2020316F
Honorable Will Barham, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
PENNY WISE DOUCIERE Counsel for Appellee District Attorney
AMANDA MICHELE WILKINS SHIRLEY GUILLORY GEE Assistant District Attorneys
Before ROBINSON, HUNTER, and MARCOTTE, JJ. ROBINSON, J.
Patrick Eldridge pled guilty to two sex offenses involving victims
under the age of 13 and was sentenced under the terms of the plea
agreement. Appellate counsel has filed a brief in compliance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); State v.
Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241; and State v. Benjamin, 573
So. 2d 528 (La. App. 4 Cir. 1990). Appellate counsel has also filed a motion
to withdraw as counsel of record.
We grant the motion to withdraw, affirm Eldridge’s convictions and
sentences, and remand for the trial court to correct an error in the minutes
and Uniform Sentencing Commitment Order (“USCO”).
FACTS
Eldridge was indicted by a grand jury in Franklin Parish on two
counts of first degree rape (victim under 13) and two counts of sexual
battery (victim under 13). One rape and both sexual batteries involved the
same victim, who was not older than eight years old at the time of the
offenses. The victim of the other rape was six years old at the time of the
offense.
On March 15, 2022, Eldridge pled guilty to two amended counts of
attempted first degree rape. The remaining counts of sexual battery were
dismissed. A sexual battery charge under a different docket number was
also dismissed. There was an agreed-upon sentence cap of 50 years on each
conviction, with the sentences to be served concurrently. The State waived
any habitual offender billing, and the parties stipulated that the trial court
would disregard the mandatory minimum sentence. Various motions which had been filed by Eldridge’s trial counsel were withdrawn. The trial court
ordered a presentence investigation (“PSI”) report.
A felony plea bargain agreement in accord with the plea terms was
signed by Eldridge, his trial counsel, and the assistant district attorney on
March 15, 2022.
At the beginning of the sentencing hearing held on May 17, 2022,
Eldridge’s trial counsel complained that the plea agreement was for a 25-
year sentence cap and that was what he had discussed with Eldridge. The
court then ordered a brief recess to examine the minutes from the plea
hearing. When the court went back on the record, the assistant district
attorney stated that a 50-year cap was in the minutes and in the written plea
agreement. Eldridge’s trial counsel then explained that his confusion
stemmed from a counter-offer during plea negotiations, and he could not
dispute that the record showed that the sentencing range faced by Eldridge
was 0-50 years.
At sentencing, the trial court read from the PSI, which included a
statement of remorse from Eldridge and a statement from the mother of the
victims. The court also noted Eldridge’s convictions for simple burglary in
2005 and drug possession in 2009. The court considered Eldridge’s personal
history as set forth in the PSI. After the court read a victim impact letter
from the ex-wife of Eldridge’s brother, defense counsel objected that the
letter concerned a charge which had been dismissed. The court responded
that it would not consider that letter, and then moved on to letters written in
support of Eldridge. Finally, after considering the La. C. Cr. P. art. 894.1
sentencing guidelines, the court sentenced Eldridge to 50 years at hard labor
without benefits on each count of attempted first degree rape. The sentences 2 were to run concurrently. The court denied defense counsel’s oral motion to
reconsider the sentences as excessive.
On May 26, 2022, Eldridge’s trial counsel filed a written motion to
reconsider the sentences. Counsel argued in the motion against the trial
court’s use of the word “appetite” at sentencing even though Eldridge had no
prior arrests for any sex crimes. He averred that it placed Eldridge in a bad
light without any factual basis, and it implied that Eldridge was a predator
and a future danger to the public. Counsel also maintained that the trial
court should not have read the letter which he had objected to at the hearing.
The motion was denied.
Trial counsel filed a motion to appeal and a motion to appoint
appellate counsel. Upon reviewing the record and finding no nonfrivolous
issues to be reviewed on appeal under Anders v. California, supra, appellate
counsel subsequently filed a motion to withdraw as counsel of record.
On December 16, 2022, this Court entered an order holding the
motion in abeyance and rescinding the pro se briefing deadline that had
already been fixed. Eldridge was notified that he had 10 days from the date
of the order to file a written request to view the appellate record, and 30 days
to file a brief in this appeal. Eldridge has not filed a pro se brief.
DISCUSSION
Review of this record reveals no nonfrivolous errors regarding either
the guilty plea or the imposed sentences. Eldridge voluntarily and
knowingly pled guilty to the two amended counts. The guilty plea colloquy
was valid under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.
2d 274 (1969). His guilty plea waived all nonjurisdictional defects in the
proceedings prior to the plea. State v. McGarr, 52,641, 52,642 (La. App. 2 3 Cir. 4/10/19), 268 So. 3d 1189; State v. Stephan, 38,612 (La. App. 2 Cir.
8/18/04), 880 So. 2d 201.
La. C. Cr. P. art. 881.2(A)(2) states that a “defendant cannot appeal or
seek review of a sentence imposed in conformity with a plea agreement
which was set forth in the record at the time of the plea.” It applies to plea
agreements involving both specific sentences and sentencing caps. State v.
Young, 96-0195 (La. 10/15/96), 680 So. 2d 1171. Thus, as a general matter,
sentences imposed in accordance with plea agreements are unreviewable.
State v. Kennon, 19-00998 (La. 9/1/20), 340 So. 3d 881. When the right to
appeal has been mentioned by the district court during the plea colloquy,
even though there is an agreed sentence or sentence cap, the defendant’s
sentence may be reviewed. State v. Thomas, 51,364 (La. App. 2 Cir.
5/17/17), 223 So. 3d 125, writ denied, 17-1049 (La. 3/9/18), 238 So. 3d 450.
In Kennon, supra, the Louisiana Supreme Court noted that the record
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Judgment rendered May 10, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,019-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
PATRICK N. ELDRIDGE Appellant
Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 2020316F
Honorable Will Barham, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
PENNY WISE DOUCIERE Counsel for Appellee District Attorney
AMANDA MICHELE WILKINS SHIRLEY GUILLORY GEE Assistant District Attorneys
Before ROBINSON, HUNTER, and MARCOTTE, JJ. ROBINSON, J.
Patrick Eldridge pled guilty to two sex offenses involving victims
under the age of 13 and was sentenced under the terms of the plea
agreement. Appellate counsel has filed a brief in compliance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); State v.
Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241; and State v. Benjamin, 573
So. 2d 528 (La. App. 4 Cir. 1990). Appellate counsel has also filed a motion
to withdraw as counsel of record.
We grant the motion to withdraw, affirm Eldridge’s convictions and
sentences, and remand for the trial court to correct an error in the minutes
and Uniform Sentencing Commitment Order (“USCO”).
FACTS
Eldridge was indicted by a grand jury in Franklin Parish on two
counts of first degree rape (victim under 13) and two counts of sexual
battery (victim under 13). One rape and both sexual batteries involved the
same victim, who was not older than eight years old at the time of the
offenses. The victim of the other rape was six years old at the time of the
offense.
On March 15, 2022, Eldridge pled guilty to two amended counts of
attempted first degree rape. The remaining counts of sexual battery were
dismissed. A sexual battery charge under a different docket number was
also dismissed. There was an agreed-upon sentence cap of 50 years on each
conviction, with the sentences to be served concurrently. The State waived
any habitual offender billing, and the parties stipulated that the trial court
would disregard the mandatory minimum sentence. Various motions which had been filed by Eldridge’s trial counsel were withdrawn. The trial court
ordered a presentence investigation (“PSI”) report.
A felony plea bargain agreement in accord with the plea terms was
signed by Eldridge, his trial counsel, and the assistant district attorney on
March 15, 2022.
At the beginning of the sentencing hearing held on May 17, 2022,
Eldridge’s trial counsel complained that the plea agreement was for a 25-
year sentence cap and that was what he had discussed with Eldridge. The
court then ordered a brief recess to examine the minutes from the plea
hearing. When the court went back on the record, the assistant district
attorney stated that a 50-year cap was in the minutes and in the written plea
agreement. Eldridge’s trial counsel then explained that his confusion
stemmed from a counter-offer during plea negotiations, and he could not
dispute that the record showed that the sentencing range faced by Eldridge
was 0-50 years.
At sentencing, the trial court read from the PSI, which included a
statement of remorse from Eldridge and a statement from the mother of the
victims. The court also noted Eldridge’s convictions for simple burglary in
2005 and drug possession in 2009. The court considered Eldridge’s personal
history as set forth in the PSI. After the court read a victim impact letter
from the ex-wife of Eldridge’s brother, defense counsel objected that the
letter concerned a charge which had been dismissed. The court responded
that it would not consider that letter, and then moved on to letters written in
support of Eldridge. Finally, after considering the La. C. Cr. P. art. 894.1
sentencing guidelines, the court sentenced Eldridge to 50 years at hard labor
without benefits on each count of attempted first degree rape. The sentences 2 were to run concurrently. The court denied defense counsel’s oral motion to
reconsider the sentences as excessive.
On May 26, 2022, Eldridge’s trial counsel filed a written motion to
reconsider the sentences. Counsel argued in the motion against the trial
court’s use of the word “appetite” at sentencing even though Eldridge had no
prior arrests for any sex crimes. He averred that it placed Eldridge in a bad
light without any factual basis, and it implied that Eldridge was a predator
and a future danger to the public. Counsel also maintained that the trial
court should not have read the letter which he had objected to at the hearing.
The motion was denied.
Trial counsel filed a motion to appeal and a motion to appoint
appellate counsel. Upon reviewing the record and finding no nonfrivolous
issues to be reviewed on appeal under Anders v. California, supra, appellate
counsel subsequently filed a motion to withdraw as counsel of record.
On December 16, 2022, this Court entered an order holding the
motion in abeyance and rescinding the pro se briefing deadline that had
already been fixed. Eldridge was notified that he had 10 days from the date
of the order to file a written request to view the appellate record, and 30 days
to file a brief in this appeal. Eldridge has not filed a pro se brief.
DISCUSSION
Review of this record reveals no nonfrivolous errors regarding either
the guilty plea or the imposed sentences. Eldridge voluntarily and
knowingly pled guilty to the two amended counts. The guilty plea colloquy
was valid under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.
2d 274 (1969). His guilty plea waived all nonjurisdictional defects in the
proceedings prior to the plea. State v. McGarr, 52,641, 52,642 (La. App. 2 3 Cir. 4/10/19), 268 So. 3d 1189; State v. Stephan, 38,612 (La. App. 2 Cir.
8/18/04), 880 So. 2d 201.
La. C. Cr. P. art. 881.2(A)(2) states that a “defendant cannot appeal or
seek review of a sentence imposed in conformity with a plea agreement
which was set forth in the record at the time of the plea.” It applies to plea
agreements involving both specific sentences and sentencing caps. State v.
Young, 96-0195 (La. 10/15/96), 680 So. 2d 1171. Thus, as a general matter,
sentences imposed in accordance with plea agreements are unreviewable.
State v. Kennon, 19-00998 (La. 9/1/20), 340 So. 3d 881. When the right to
appeal has been mentioned by the district court during the plea colloquy,
even though there is an agreed sentence or sentence cap, the defendant’s
sentence may be reviewed. State v. Thomas, 51,364 (La. App. 2 Cir.
5/17/17), 223 So. 3d 125, writ denied, 17-1049 (La. 3/9/18), 238 So. 3d 450.
In Kennon, supra, the Louisiana Supreme Court noted that the record
indicated that the parties and the court intended for Kennon to be able to
seek appellate review of the sentence. In this matter, Eldridge was told by
the trial court before accepting the guilty plea that he would not be allowed
to appeal or seek review of the length or severity of the sentence.
As part of Eldridge’s plea agreement, there was a sentencing cap and
no mandatory minimum, and both sentences were to be served concurrently.
The sentences were imposed in conformity with the plea agreement as set
forth in the record at the time of his plea. Thus, under art. 881.2(A)(2),
Eldridge is barred from seeking appellate review of his sentence.
Error Patent
Our error patent review of this record reveals that the court minutes
and the USCO fail to state that the sentences were to be served without 4 benefits. When there is a discrepancy between the minutes and the
transcript, the transcript prevails. State v. Burns, 53,250 (La. App. 2 Cir.
1/15/20), 290 So. 3d 721. This matter is remanded to the trial court with
instructions to amend the minutes and the USCO to state that the sentences
are to be served without benefit of parole, probation, or suspension of
sentence.
CONCLUSION
For the foregoing reasons, we grant the motion to withdraw, affirm
the convictions and sentences, and remand this matter for the trial court to
amend the minutes and the USCO.
MOTION TO WITHDRAW GRANTED; CONVICTIONS AND
SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.