State v. Bodine

257 So. 3d 249
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2018
DocketNo. 52,205-KA
StatusPublished
Cited by2 cases

This text of 257 So. 3d 249 (State v. Bodine) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bodine, 257 So. 3d 249 (La. Ct. App. 2018).

Opinion

STONE, J.

The defendant, Steve E. Bodine, was convicted of aggravated rape, in violation of La. R.S. 14:42. He was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence.

Bodine's appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no nonfrivolous issues upon which to base an appeal. For the following reasons, the motion to withdraw is granted, and Bodine's conviction and sentence are affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 9, 2013, Steve Bodine ("Bodine") was charged by bill of indictment for the aggravated rape of M.B., a victim under the age of 13 who is also Bodine's granddaughter. The offense was alleged to have occurred during 2005 and 2007. The defendant pled not guilty. Following a motion in limine , the trial court ruled that four other individuals would be permitted to testify that Bodine sexually assaulted them when they were minors, *252pursuant to La. C.E. art. 412.2. The trial court further ruled that Lois Bodine ("Lois"), Bodine's wife, would have to testify if called because the nature of the charges against Bodine statutorily waived spousal privilege.

A jury trial began on July 27, 2015. The victim, M.B., testified that Bodine forced her to have sex with him on multiple occasions while she visited him at his home when she was between the ages of 8 and 10 years old. Three other women testified that Bodine sexually assaulted them before the age of 10 years old. On July 29, 2015, the jury found the defendant guilty as charged of aggravated rape. Bodine filed a motion for new trial, which was denied by the trial court following a hearing on August 10, 2015. On August 10, 2015, the trial court sentenced the defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

On October 24, 2016, Bodine filed a motion for appeal, which was denied by the trial court as untimely. On May 15, 2017, Bodine filed an application for post-conviction relief, arguing that his trial counsel was ineffective. On August 3, 2017, following an application for supervisory review, this Court remanded Bodine's application for post-conviction relief to the trial court for consideration as a motion for out-of-time appeal. An out-of-time appeal was granted by the trial court on October 17, 2017.

The Louisiana Appellate Project was appointed to represent the defendant on appeal. This appeal followed, and the defendant's appellate counsel has filed an Anders brief and a motion to withdraw, alleging that he could find no nonfrivolous issues to raise on appeal. See Anders v. California , supra ; State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176 ; and State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). Defense counsel also verified that he mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders , Jyles , Mouton , and Benjamin , supra . Additionally, the state filed a brief with this Court agreeing that there are no nonfrivolous issues to raise on appeal.

On April 27, 2018, the defendant requested to review the appellate record and leave to file a pro se brief. On May 23, 2018, this Court issued an order holding the motion to withdraw in abeyance and extended the pro se briefing deadline to June 22, 2018. Because the record is confidential pursuant to La. R.S. 46:1844(W), a redacted version of the record was sent to Bodine on May 23, 2018. Bodine timely filed a pro se brief.

DISCUSSION

The defendant's pro se brief contains no assignments of error, but rather, is merely a listing of alleged errors in, and objections to, the record. Although U.R.C.A. Rule 1-3 states that this Court will review only issues "which are contained in specifications or assignments of error," because Bodine's pro se brief was timely filed, Bodine's complaints have been grouped and briefly reviewed, along with the record, for any discernable arguments.

Preliminary Examination

In one statement, Bodine complains that the trial court ruled that he was not entitled to a preliminary examination. La. C. Cr. P. art. 292 provides that the court shall order a preliminary examination in felony cases "unless the defendant has been indicted by a grand jury." When a grand jury indictment has been returned, a discretionary preliminary examination is limited to the perpetuation of testimony and the fixing of bail.

*253La. C. Cr. P. art. 296. In this case, since Bodine was in fact indicted by grand jury, a preliminary examination was only discretionary. Further, he fails to make a claim that it was necessary to perpetuate anyone's testimony and the record reflects that bail was set. Thus, Bodine was not prejudiced by not having a preliminary examination.

Ineffective Assistance of Counsel

Bodine argues he received ineffective assistance of trial counsel due to a mental defect of his court-appointed attorney, Robert Earle. Bodine cites to no evidence in the record to support his claim. Although Bodine asserts that Attorney Earle attempted to be relieved of the representation due to a mental defect, a review of the record reflects only that Attorney Earle requested such relief after Lois filed a bar complaint against him.

Bodine repeatedly asserts that Attorney Earle failed to call Robert Shoemaker as a witness for the defense. However, he does not provide any indication as to what testimony Shoemaker would have provided or why he was not called to testify.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court rather than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. However, when the record is sufficient, an appellate court may resolve this issue on direct appeal in the interest of judicial economy. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 17-0966 (La. 4/27/18), 239 So.3d 836.

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Cite This Page — Counsel Stack

Bluebook (online)
257 So. 3d 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bodine-lactapp-2018.