STATE OF LOUISIANA NO. 20-KA-258
VERSUS FIFTH CIRCUIT
DARVAL B. LEDET COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-7394, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
January 27, 2021
SUSAN M. CHEHARDY CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED. SMC JGG SJW COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Gail D. Schlosser Douglas E. Rushton
COUNSEL FOR DEFENDANT/APPELLANT, DARVAL B. LEDET Katherine M. Franks
DEFENDANT/APPELLANT, Darval B. Ledet In Proper Person CHEHARDY, C.J.
Defendant, Darval B. Ledet, appeals his convictions and sentences for one
count of attempted second degree murder, two counts of attempted armed robbery,
and one count of possession of a firearm by a convicted felon. For the following
reasons, we affirm defendant’s convictions and sentences on all counts and grant
appellate counsel’s motion to withdraw as counsel of record for defendant.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 28, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Darval Ledet, with attempted armed robbery of
Daisha Patin with a firearm in violation of La. R.S. 14:27, La. R.S. 14:64, and La.
R.S. 14:62.3 (count one); attempted second degree murder of Daisha Patin in
violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two); attempted armed
robbery of Roy A. Cain with a firearm in violation of La. R.S. 14:27, La. R.S.
14:64, and La. R.S. 14:62.3 (count three); attempted second degree murder of Roy
A. Cain in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count four); and,
possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count
five).1 Defendant appeared for arraignment on January 3, 2019, and through
counsel appointed for purposes of the arraignment only, defendant pled not guilty
on all counts.2
On September 12, 2019, the State amended the bill of information to enter a
nolle prosequi on count four pursuant to a negotiated plea agreement. On that
same date, defendant withdrew his not guilty pleas and tendered a plea of guilty as
charged on counts one, two, three, and five. After waiving sentencing delays, and
in accordance with the plea agreement, the trial court sentenced defendant to
1 Defendant was previously convicted of possession of methamphetamine in violation of La. R.S. 40:967(C), in case number 17-450, Division “A,” in the 25th Judicial District Court, Parish of Plaquemines. Further, in the instant matter, defendant was also charged in case number 18-7977 with resisting an officer, a misdemeanor, for which he was sentenced to time served. 2 Following the arraignment, the trial judge appointed counsel for defendant.
20-KA-258 1 imprisonment at hard labor for twenty years on counts one and three—with an
additional five-year consecutive sentence on each count for use of a firearm—
without benefit of parole, probation, or suspension of sentence; imprisonment at
hard labor for twenty-five years on count two, without benefit of parole, probation,
or suspension of sentence; and, imprisonment at hard labor for twenty years on
count five, without benefit of parole, probation, or suspension of sentence.3 In
addition, the trial court assessed fees in the amount of $1,250.00. All of the
sentences were ordered to run concurrently with each other and with defendant’s
sentence issued in case number 18-7977.
Defendant filed his first pro se Uniform Application for Post-Conviction
Relief (APCR) and a memorandum in support on May 11, 2020, raising several
ineffective assistance of counsel claims. The trial court denied defendant’s APCR
on June 1, 2020, as premature, dismissed it without prejudice, and granted him an
out-of-time appeal.4 This appeal followed.
LEGAL ANALYSIS
Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.
App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,5 appointed appellate counsel filed a
brief asserting that she has thoroughly reviewed the trial court record and cannot
find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v.
Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel has
requested permission to withdraw as counsel of record for defendant.
3 As part of the plea agreement, the State also agreed not to file a multiple offender bill. 4 Defendant did not file a motion to reconsider sentences, and he did not file a motion for appeal within thirty days of September 12, 2019. Defendant also did not request an out-of-time appeal. 5 In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).
20-KA-258 2 In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if she finds her case to be
wholly frivolous after a conscientious examination of it.6 The request must be
accompanied by “a brief referring to anything in the record that might arguably
support the appeal” so as to provide the reviewing court “with a basis for
determining whether appointed counsel have fully performed their duty to support
their clients’ appeals to the best of their ability” and to assist the reviewing court
“in making the critical determination whether the appeal is indeed so frivolous that
counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440
(1988) (quotation omitted).
In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an
Anders brief need not tediously catalog every meritless pretrial motion or objection
made at trial with a detailed explanation of why the motions or objections lack
merit. The supreme court explained that an Anders brief must demonstrate by full
discussion and analysis that appellate counsel “has cast an advocate’s eye over the
trial record and considered whether any ruling made by the trial court, subject to
the contemporaneous objection rule, had a significant, adverse impact on shaping
the evidence presented to the jury for its consideration.” Id.
When conducting a review for compliance with Anders, an appellate court
must conduct an independent review of the record to determine whether the appeal
is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review,
the reviewing court determines there are no non-frivolous issues for appeal, it may
grant counsel’s motion to withdraw and affirm the defendant’s conviction and
sentence. However, if the court finds any legal point arguable on the merits, it may
6 The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
20-KA-258 3 either deny the motion and order the court-appointed attorney to file a brief arguing
the legal point(s) identified by the court, or grant the motion and appoint substitute
appellate counsel. Id.
Defendant’s appellate counsel asserts that after a detailed review of the
record, she could find no non-frivolous issues to raise on appeal. Appellate
counsel asserts that before defendant changed his pleas from not guilty to guilty, he
was fully informed of the legal consequences of doing so by both his trial counsel
and the trial court. Further, appellate counsel contends that in addition to the
extensive waiver and plea form completed and signed by both defendant and his
counsel, thereby acknowledging an understanding of the rights being waived and
the sentences to be imposed, an examination of the plea colloquy reveals that the
trial court was thorough in explaining and assuring that defendant understood the
rights he was waiving by pleading guilty. Appellate counsel states that the trial
court informed defendant of his constitutional rights to a trial by jury, to remain
silent, to confront witnesses, and to the presumption of innocence. Defendant was
also informed that the State would be required to prove his guilt beyond a
reasonable doubt. Further, appellate counsel contends that prior to accepting
defendant’s guilty pleas, the trial court advised him of the sentences that would be
imposed on each of the four counts per the plea agreement and obtained a factual
narrative from the State regarding what it intended to prove had the case gone to
trial.
Appellate counsel also asserts that defendant acknowledged the facts as true
and assured the trial judge that the plea was voluntary. She notes that although
defendant asserts that his counsel was ineffective, the allegations made—other than
the fact that defendant’s presence in court was waived on numerous occasions—
cannot be established by the appellate record and should be addressed in a post-
conviction proceeding where a full evidentiary hearing can be held. Appellate
20-KA-258 4 counsel asserts that since defendant cannot appeal or seek review of a sentence that
was imposed in conformity with a plea agreement, which was set forth in the
record at the time of the plea, defendant is restricted from appealing his sentences.
The State responds that appellate counsel has correctly asserted that this case
presents no non-frivolous issues for appellate review. It further responds that
defendant was fully apprised of the legal consequences of changing his pleas from
not guilty to guilty. The State asserts that defendant signed and initialed the waiver
of rights form, thereby waiving his rights. Also, the State avers that during the
colloquy, the trial judge explained to defendant the rights he was waiving,
including the right to a jury trial, the right to confront witnesses, and the right
against self-incrimination. The State notes that the trial judge explained the
sentences it would impose pursuant to the plea agreement. The State agrees with
appellate counsel that defendant is barred from appealing his sentences.
We find appellate counsel’s brief adequately reviews the procedural history
of the case and provides a detailed assessment of whether there are any non-
frivolous issues, thereby satisfying the requirements of Jyles, supra.
Our independent review of the record supports appellate counsel’s assertion
that there are no non-frivolous issues to be raised on appeal. When an Anders brief
is filed, the appellate court reviews: (1) the bill of information to insure the
defendant was properly charged; (2) 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) all pleadings that are in the record; and
(4) all transcripts to determine if any ruling provides an arguable basis for appeal.
State v. Bradford, 676 So.2d at 1110-11.
Because defendant pled guilty, the facts were not fully developed at a trial.
However, during the guilty plea colloquy, the State provided the following factual
basis for the guilty pleas:
20-KA-258 5 Your Honor, had the State proceeded to trial it would have proven beyond a reasonable doubt that on or about November 4th, 2018, the Defendant, Darval Ledet, violated Louisiana Revised Statute 14:27/64.3 and that he did attempt to rob Daisha Patin while armed with a firearm, also on that same date he violated Louisiana Revised Statute 14:27/30.1, and that he attempted to commit a second degree murder of Daisha Patin, on that same date also he violated the second count of 14:27/64.3 and that he did attempt to rob Roy Cain while armed with a firearm. And also that on that same day violated Louisiana Revised Statute 14:95.1 he did have in his possession a firearm, having previously been convicted of possession of methamphetamine, and it’s under case 17-0450, Division A, 25th Judicial District Court, Parish of Plaquemines. All of these offenses occurred in Jefferson Parish.
Once read into the record, defendant acknowledged to the court that the
factual basis was correct. Moreover, the amended bill of information shows that
defendant was properly charged. As required, it plainly and concisely states the
essential facts constituting the offenses charged. It also sufficiently identified
defendant and the crimes charged. See La. C.Cr.P. arts. 462-466.
Additionally, the record reveals that there are no appealable issues involving
defendant’s presence. The minute entries reflect that defendant appeared at all
crucial stages of the proceedings against him, including his arraignment, guilty
plea proceeding, and sentencing. Defense counsel filed a pre-trial motion for
disclosure of impeaching information. Although the motion was not ruled upon,
defendant did not object. Motions are considered waived when a defendant does
not object to the trial court’s failure to hear or rule on a pre-trial motion prior to
pleading guilty. See State v. Kelly, 17-221 (La. App. 5 Cir. 12/29/17), 237 So.3d
1226, 1232, writ denied, 18-153 (La. 11/5/18), 255 So.3d 1051. Further, as there
were no rulings, none were preserved for appeal under the holding in State v.
Crosby, 338 So.2d 584 (La. 1976).
20-KA-258 6 Further, defendant was advised of and waived his Boykin7 rights, then pled
guilty as charged to the offenses in the amended bill of information. Generally, if a
defendant pleads guilty, he normally waives all non-jurisdictional defects in the
proceedings leading up to the guilty plea and precludes review of such defects
either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5
Cir. 7/27/10), 47 So.3d 455, 459. Once a defendant is sentenced, only those guilty
pleas that are constitutionally infirm may be withdrawn by appeal or post-
conviction relief. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d
1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and
voluntarily, if the Boykin colloquy is 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. Id.
Our independent review of the record reveals no constitutional infirmity or
any irregularity in defendant’s guilty pleas that would render them invalid. The
record indicates that defense counsel advised the trial judge that defendant was
going to plead guilty to the amended bill of information, and he submitted the
waiver of rights form to the court. The trial judge stated that defendant was
pleading guilty to one count of attempted second degree murder, two counts of
attempted armed robbery, and one count of possession of a firearm by a convicted
felon. During the colloquy, the trial judge advised defendant that by pleading
guilty, he was giving up numerous rights, including the right to trial by jury, the
right to require the State to prove his guilt beyond a reasonable doubt, the right to
confront his accusers and cross examine witnesses, and the right to remain silent,
as required by Boykin. Defendant indicated that he understood that by pleading
guilty, he was waiving those rights. Further, the waiver of rights form reflects that
defendant was advised of his right to a jury trial, his right to confrontation, and his
7 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
20-KA-258 7 privilege against self-incrimination; that defendant placed his initials next to the
individual advisals of his rights; and, that he placed his signature at the end of the
waiver of rights form, thus indicating that he understood he was waiving those
rights.
Also during the plea colloquy, defendant indicated that no one was forcing
or threatening him to plead guilty, that he was satisfied with his attorney’s
representation, and that he understood his guilty pleas could be used to enhance a
future felony conviction. The trial judge stated that he had been provided with the
waiver of rights form, and defendant indicated that he signed that form, that his
rights were explained to him, that he understood those rights, and that he was
entering into these pleas freely and voluntarily. The State subsequently provided a
factual basis, which defendant indicated was correct. The trial court then accepted
defendant’s guilty pleas, stating that he was satisfied that defendant understood the
consequences of his pleas and that he had entered them freely and voluntarily. The
State represented that pursuant to the plea negotiations, it agreed not to file a
multiple bill.
Additionally, during the plea colloquy, the trial judge advised defendant of
the sentencing ranges for the offenses and the sentences he would receive if the
pleas were accepted, which defendant indicated he understood. We note that the
trial court incorrectly informed defendant of the sentencing ranges on counts two
and five.8 Nevertheless, the trial court advised defendant that he would be
sentenced to twenty-five years at hard labor on count two and twenty years at hard
labor on count five, and defendant was sentenced accordingly. Despite the judge’s
misinformation, we find the advisement of the agreed upon sentences sufficiently
8 The trial court advised defendant that the sentencing range on count two, attempted second degree murder, was zero to fifty years; however, La. R.S. 14:27 and La. R.S. 14:30.1 provide that the sentencing range was ten to fifty years. The trial court also advised defendant that the sentencing range on count five, possession of a firearm by a convicted felon, was ten to twenty years; however, La. R.S. 14:95.1 provides that the sentencing range was five to twenty-five years.
20-KA-258 8 complied with La. C.Cr.P. art. 566.1, as it did not affect the voluntariness of
defendant’s guilty pleas based on the circumstances presented herein. See State v.
Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.
Further, we find that defendant’s sentences on all counts are within the
sentencing ranges prescribed by the relevant statutes. Also, the sentences were
imposed pursuant to, and in conformity with, the plea agreement.9 In this regard,
La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a
sentence that was imposed in conformity with a plea agreement, which was set
forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir.
4/11/07), 958 So.2d 36, 46.
The transcript reflects that the trial judge ordered defendant to pay a fee of
$1,250.00 in connection with count five, possession of a firearm by a convicted
felon.10 The sentencing minute entry also indicates that the trial court ordered
defendant to pay this fee. While the waiver of rights form does not show that
defendant was advised that he would have to pay this fee, the form entitled,
“Felony: Schedule of Fines, Fees, Sentencing Provisions & Probation
Requirements” reflects that defendant agreed to pay the $1,250.00 fee. Also, while
the transcript does not indicate that the trial judge advised defendant during the
colloquy that he would have to pay this fee, the transcript shows that prior to the
colloquy, defense counsel told the trial judge that defendant was going to plead
guilty, after which he stated, “I’d submitted to the Court boykin forms on each sets
of charges and fine, and fees sheets [sic].” La. R.S. 14:95.1 mandates the
9 It is noted that the five-year sentencing enhancements on the attempted armed robbery convictions were properly imposed pursuant to La. R.S. 14:64.3(B), which provides that when the dangerous weapon used in the commission of the crime of attempted robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The statute further provides that this additional penalty shall be served consecutively to the sentence imposed under La. R.S. 14:27 and La. R.S. 14:64. It is also noted that notice of La. R.S. 14:64.3 was properly given by the State in the bill of information. Further, defendant was advised of the five-year enhancements in the waiver of rights form. 10 Specifically, the trial judge stated, “The Court will assess as to count five a fee of $1,250.00 to the Sheriff’s Office which is mandated by statute, it’s a mandatory fee for laboratory work.”
20-KA-258 9 imposition of a fine of not less than $1,000.00 nor more than $5,000.00. Based on
the foregoing, we find that the $1,250.00 “fee” imposed by the trial judge in
connection with count five was actually the mandatory “fine” required by the
statute.
Accordingly, we find the trial court proceedings and defendant’s sentences
do not present any non-frivolous issues to be raised on appeal. Because appellate
counsel’s brief adequately demonstrates by full discussion and analysis that her
review of the trial court proceedings did not identify any basis for a non-frivolous
appeal, and our independent review of the record supports counsel’s assertion, we
grant appellate counsel’s motion to withdraw as attorney of record for defendant.
Pro Se Assignments of Error
Defendant has filed a pro se supplemental brief raising four assignments of
error, to wit: (1) whether the State induced an involuntary guilty plea through
mental coercion by telling defendant that he had twenty-four hours to accept the
offered plea or the agreement would be off the table, and willingly or
inadvertently, avoiding to respond to defendant’s motion for disclosure of
impeaching information filed on behalf of defendant one week prior; (2) whether
defendant entered a knowing and intelligent plea agreement when the trial court
failed to inform him during the court’s acceptance of the plea that defendant would
not be able to withdraw the plea agreement and that defendant had the right to
plead not guilty; (3) whether the trial court erred in allowing a plea agreement
without assuring that the plea was totally voluntary and not the result of promises
when, in fact, defendant’s attorney promised that defendant would not have to
serve the entire sentence because the prosecutor would not seek the multi-bill, but
the Department of Corrections nevertheless ordered defendant to serve the entire
sentence due to his prior convictions; and (4) whether defendant’s attorney
20-KA-258 10 rendered ineffective assistance in allowing defendant to enter an unintelligent plea
agreement that violated the prohibition against double jeopardy.11
In his pro se brief, defendant first argues that the plea colloquy establishes
that the trial court did not mention “a number of rights,” and did not assure that
defendant clearly understood every right he was waiving, during its acceptance of
his guilty plea. While it is unclear from defendant’s brief which “rights” he
contends were omitted from the plea colloquy, it is assumed that he contends that
he was not advised that he would not be able to withdraw his guilty pleas once they
were accepted by the trial court.
As previously discussed, our thorough review of the record reveals no
constitutional infirmity or any irregularity in the trial court’s acceptance of
defendant’s guilty pleas that would render them invalid. The record shows that
defendant was aware that he was pleading guilty as charged to one count of
attempted second degree murder, two counts of attempted armed robbery, and one
count of possession of a firearm by a convicted felon. On the waiver of rights form
signed by defendant, as well as during the Boykin colloquy, defendant was advised
that by pleading guilty he was giving up numerous rights, including his right to
jury trial, his right to confrontation, and his privilege against self-incrimination, as
required by Boykin. Defendant acknowledged that his counsel had reviewed with
him the waiver of rights form and that the form bore his signature. Defendant
placed his initials next to individual advisals of his rights and placed his signature
at the end of the waiver of rights form, indicating that he understood that he was
waiving these rights. Defendant also articulated to the trial court during the
colloquy that he understood he was waiving his rights by pleading guilty.
11 While defendant’s pro se supplemental brief sets forth each of these four individual assignments of error, he does not brief each issue separately, but rather, presents one “argument” to address them all.
20-KA-258 11 Further, the record shows that defendant was informed that his guilty pleas
could be used to enhance penalties for future convictions. Defendant confirmed
that he had not been forced or threatened into entering his guilty pleas.
We find that the record establishes that defendant was properly advised of
his rights, that he understood that by pleading guilty he was waiving those rights,
and that he was sentenced in accordance with the plea agreement. We also note
that defendant received a great benefit from pleading guilty in that the State agreed
not to multiple bill him, and the sentences were ordered to run concurrently. We
find that this pro se assignment of error lacks merit.
In his pro se brief, defendant next argues that his “substantial rights were
systematically neglected,” as is reflected by defense counsel’s repetitive waiver of
defendant’s presence at court hearings without consent. We construe defendant’s
argument as a claim for ineffective assistance of counsel based on defense
counsel’s waiving defendant’s presence at court hearings without his consent.
The Sixth Amendment to the United States Constitution, and Article I, § 13
of the Louisiana Constitution safeguard a defendant’s right to effective assistance
of counsel. State v. Thomas, 12-1410 (La. 9/4/13), 124 So.3d 1049, 1053; State v.
Francois, 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 58, writ denied, 14-431
(La. 9/26/14), 149 So.3d 261. When the issue of ineffective assistance of counsel
is raised, the claim is evaluated under the test set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the defendant must
prove: (1) that his counsel’s performance was deficient, i.e., that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed by
the Sixth Amendment; and (2) that the deficient performance prejudiced the
defense, i.e., that the errors were so serious as to deprive the defendant a fair trial.
Id., 466 U.S. at 687, 104 S.Ct. at 2064. “As a general matter, a defendant alleging
a Sixth Amendment violation must demonstrate a ‘reasonable probability that, but
20-KA-258 12 for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, 30, quoting
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. It is not enough for the accused to
make allegations of ineffectiveness; the accused must couple these allegations with
a specific showing of prejudice. State v. Bell, 02-1127 (La. App. 5 Cir. 2/25/03),
840 So.2d 656, 660.
The Sixth Amendment does not guarantee “errorless” counsel, or counsel
judged ineffective by hindsight. Rather, a defendant is guaranteed an attorney who
is reasonably likely to render effective assistance. State v. LaCaze, 99-584 (La.
1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154
L.Ed.2d 110 (2002). Judicial scrutiny must be highly deferential, and claims of
ineffective assistance are to be assessed on the facts of the particular case as seen
from the counsel’s perspective at the time. The courts, therefore, must indulge a
strong presumption that counsel’s conduct falls within the range of reasonable
professional assistance. Id.
Generally, an ineffective assistance of counsel claim is most appropriately
addressed through an application for post-conviction relief filed in the district
court, where a full evidentiary hearing can be conducted, if necessary, rather than
by direct appeal. State v. Ferrera, 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d
1060, 1066-67. However, when the record contains sufficient evidence to rule on
the merits of the claim and the issue is properly raised in an assignment of error on
appeal, the claim may be addressed in the interest of judicial economy. Id. at
1067; State v. Boston, 14-632 (La. App. 5 Cir. 12/16/14), 167 So.3d 82, 88. If, on
the other hand, “the record does not contain sufficient evidence to fully explore a
claim of ineffective assistance of counsel, the claim should be relegated to post-
conviction proceedings under La. C.Cr.P. art. 924-930.8.” State v. Taylor, 04-346
(La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.
20-KA-258 13 Here, we find the record contains sufficient evidence to address defendant’s
claim that his counsel was ineffective for waiving defendant’s presence at court
hearings without defendant’s consent. The record shows that defendant appeared
in court and was arraigned on January 3, 2019. The record also shows that on
January 24, 2019, defense counsel waived defendant’s presence, and that the State
provided discovery to defense counsel. On February 2, 2019, defense counsel
again waived defendant’s presence at a status hearing; the hearing was held and
marked satisfied. On April 2, 2019, defendant’s presence was waived by defense
counsel; a status hearing was held and marked satisfied, and the trial court set dates
for a “final plea status” hearing and for trial. On May 16, 2019, defendant
appeared in court for the scheduled “plea status” hearing, and defense counsel’s
motion to continue trial without date was granted.
The record also shows that defendant appeared in court on June 13, 2019, for
a status hearing, which was marked satisfied. At that hearing, discovery was
marked satisfied and dates were set for the next hearing and a trial date was set for
September 16, 2019. Additionally, defense counsel was given thirty days to file
motions or they would be considered waived. At the next scheduled status hearing
held on August 8, 2019, defense counsel waived defendant’s presence. The status
hearing was held and marked satisfied, and another status hearing was scheduled
for September 3, 2019; the previously set September 16, 2019 trial date was
maintained. The record shows that defendant appeared for the September 3, 2019
status hearing, which was held and marked satisfied. Again, the September 16,
2019 trial date was maintained. On September 11, 2019, defendant appeared in
court for a status hearing at which time the State placed its plea offer on the record.
Defendant acknowledged that he understood the plea offer and advised the court
20-KA-258 14 that he would discuss his options with his attorney; the September 16, 2019 trial
date was maintained.
La. C.Cr.P. art. 831, which governs the presence of a defendant in felony
prosecutions, provides:
A. Except as may be provided by local rules of court in accordance with Articles 522,12 551,13 and 562,14 a defendant charged with a felony shall be present at all of the following:
(1) At arraignment.
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made.
(3) At the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced.
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.
La. C.Cr.P. art. 831 [internal footnotes added].
La. C.Cr.P. art. 834, which governs when the presence of a defendant is not
necessary, provides:
The defendant has a right to be present, but his presence is not essential to the validity of any of the following proceedings in a criminal prosecution:
12 La. C.Cr.P. art. 522 governs a defendant’s appearance at hearings on motions and audio-visual appearances. 13 La. C.Cr.P. art. 551 governs pleas at the arraignment of defendants. 14 La. C.Cr.P. art. 562 controls the use of simultaneous audio-visual transmission for certain proceedings.
20-KA-258 15 (1) The making, hearing of, or ruling on a preliminary motion or application addressed to the court;
(2) The making, hearing of, or ruling on a motion or application addressed to the court during the trial when the jury is not present; except as provided in Clause (4) of Article 831; and
(3) The making, hearing of, or ruling on a motion or application made after his conviction.
Based upon our review of the record, we do not find that defense counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and therefore, did not provide defendant with ineffective
assistance under Strickland. The minute entries reflect that defendant was present
for both his arraignment and his guilty pleas as required by La. C.Cr.P. art. 831.
Defendant’s presence was not required for the other court proceedings—those
which he attended and those which he did not—and thus, his counsel did not
provide ineffective assistance by waiving defendant’s presence at those hearings.
Accordingly, we find that defendant’s claim regarding the ineffectiveness of his
counsel for waiving defendant’s presence at court proceedings without his consent
lacks merit.
Regarding his next pro se assignments of error, defendant asserts additional
ineffective assistance of counsel claims. Specifically, defendant argues that he
could not have made a knowing, intelligent, and voluntary decision to enter a plea
agreement “if [his] attorney made promises to [him] concerning time that [he]
would serve on sentence because the prosecutor would not seek the multi-bill but
was wrong because of lack of knowledge of pertinent laws [sic].” In essence,
defendant contends his counsel was ineffective for advising him that he would not
have to serve his entire sentence. Defendant also contends that his counsel was
20-KA-258 16 ineffective for failing to advise him that he would not be able to withdraw his
guilty pleas or that he could have pled not guilty and asserted his innocence.
In support of his contention, defendant claims that the motion for disclosure of
impeaching information that was filed at his behest one week prior to the signing
of the plea agreement reflects his desire to go to trial. He claims that he would
have been “undecided” about accepting the plea agreement if his counsel had made
him aware that he would not be able to withdraw his consent to the plea agreement.
Defendant argues that the cumulative effect of the numerous violations regarding
the plea colloquy and his attorney’s ineffectiveness should render his guilty plea
unknowing, unintelligent, involuntary, and invalid.
The United States Supreme Court has held that the two-prong test set forth
in Strickland applies to claims of ineffective assistance of counsel that arise out of
the plea process:
In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 35 L.Ed.2d 235 (1973), and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The second, or “prejudice,” requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)
[internal footnotes omitted].
Of significance, a defendant must prove both the Strickland elements to
establish that his counsel was so ineffective as to require reversal. State v. Hongo,
96-2060 (La. 12/2/97), 706 So.2d 419, 422. As the United States Supreme Court
20-KA-258 17 has set forth, “[j]udicial scrutiny of counsel’s performance must be highly
deferential,” and a reviewing court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of professional assistance.”
Strickland¸ 466 U.S. at 689-690, 104 S.Ct. 2052. Notably, “it is necessary to
‘judge … counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.’” Lockhart v. Fretwell, 506 U.S. 364, 371, 113
S.Ct. 838, 844, 122 L.Ed.2d 180 (1993), quoting Strickland, 466 U.S. at 690, 104
S.Ct. 2052. Furthermore, “[g]eneral statements and conclusory allegations will not
suffice to prove a claim of ineffective assistance of counsel.” State v. Fisher, 19-
488 (La. App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247, quoting State v. Celestine,
11-1403 (La. App. 3 Cir. 5/30/12), 91 So.3d 573, 579.
As to defendant’s allegations herein regarding his counsel’s ineffectiveness
for providing misinformation about the amount of time defendant would be
required to serve, and for failing to make him aware that he could not withdraw his
consent or back out of the plea agreement, we find the record is insufficient to fully
consider these claims. We note that, because defendant’s convictions resulted
from a guilty plea, the only transcripts in the record available for review are that of
a status hearing and the plea hearing. The record does not indicate what advice, if
any, counsel gave to defendant prior to entering his guilty pleas regarding the time
defendant would have to serve or under what conditions and/or circumstances
defendant could withdraw his guilty pleas. (See State v. Granado, 18-485 (La.
App. 3 Cir. 12/6/18), 261 So.3d 51, 57-58, writ denied, 19-48 (La. 9/6/19), 278
So.3d 968, where the defendant alleged his guilty plea was made in reliance on
assertions or promises not found in the record. The appellate court found that
because the record did not contain the evidence about which the defendant
complained, the defendant’s claim of ineffective assistance of counsel was
relegated to post-conviction proceedings.) We find that these ineffective assistance
20-KA-258 18 of counsel claims are more properly raised in an application for post-conviction
relief in the trial court, where a full evidentiary hearing can be conducted, if
necessary, and defendant can present evidence to support his allegations. See State
v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154; and State v. Johnson,
18-294 (La. App. 5 Cir. 1/16/19), 264 So.3d 593.
In his last ineffective assistance of counsel claim, defendant makes a general
allegation that his counsel rendered ineffective assistance by allowing him to
“enter an unintelligent plea agreement that violated the prohibition against double
jeopardy.” As previously stated, “[g]eneral statements and conclusory allegations
will not suffice to prove a claim of ineffective assistance of counsel.” Fisher, 299
So.3d at 1247, quoting Celestine, 91 So.3d at 579. Further, all specifications or
assignments of error must be briefed pursuant to Uniform Rules–Courts of Appeal,
Rule 2–12.4(B)(4), and the appellate court may consider abandoned any
specification or assignment of error that has not been briefed. State v. Caulfield,
10-769 (La. App. 5 Cir. 5/24/11), 67 So.3d 600, 608, writ denied, 11-1395 (La.
3/30/12), 85 So.3d 107. The “Argument” section of defendant’s pro se brief
makes no mention of “double jeopardy.” Consequently, we find that defendant has
effectively failed to brief how the plea agreement at issue violated the prohibition
against double jeopardy and, thus, consider this pro se assignment of error
abandoned.
ERRORS PATENT DISCUSSION
Defendant requests an errors patent review. However, this Court routinely
reviews the record for errors patent in accordance with La. C.Cr.P. art. 920; State
v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La.
App. 5 Cir. 1990), regardless of whether defendant makes such a request. Our
review reveals that there is one error patent, which does not require corrective
action.
20-KA-258 19 During the plea colloquy, the trial court advised defendant that post-
conviction relief applications must be filed within two years of the date that the
sentence becomes final. However, after sentencing, the trial judge advised
defendant that he had two years after the judgment of conviction and sentence
becomes final in which to seek post-conviction relief. We note that the waiver of
rights form reflects that defendant was advised that any post-conviction relief
applications must be filed within two years of the date that “this sentence”
becomes final. Further, the sentencing minute entry indicates that defendant was
advised that he had two years after judgment of conviction and sentence has
become final to seek post-conviction relief.
If a trial court fails to advise, or provides an incomplete advisal, pursuant to
La. C.Cr.P. art. 930.8, this Court may correct this error by informing the defendant
of the applicable prescriptive period for post-conviction relief by means of its
opinion. However, in the instant case, although defendant received conflicting
advice regarding the time period for filing a post-conviction relief application, he
nevertheless timely filed an application for post-conviction relief and, therefore,
the error is moot. See State v. Staggers, 03-655 (La. App. 5 Cir. 10/28/03), 860
So.2d 174, 179 (where this Court found that while it was true that the defendant
was not initially advised of the two-year prescriptive period for filing an
application for post-conviction relief under La. C.Cr.P. art. 930.8, he timely filed
an application for post-conviction relief, and thus, the error was moot.)
DECREE
For the foregoing reasons, we affirm defendant’s convictions and sentences
on all counts. Appellate counsel’s motion to withdraw as counsel of record for
defendant is granted.
CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.
20-KA-258 20 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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