State v. Gros
State v. Gros
Opinion of the Court
|2In this case, defendant’s appointed appellate counsel has filed an Anders
Facts and Procedural History
In this case, the conviction resulted from a guilty plea so the circumstances surrounding the offense were not fully developed at trial. Here, the record reflects that, on or about February 27 and 28, 2010, defendant lured the victim to a residence in St. Charles Parish, forcibly removed her to another location, then raped her at gunpoint.
On March 17, 2010, the St. Charles Parish Grand Jury issued a four count true bill of indictment charging Eric Gros with two counts of aggravated rape, in violation of La. R.S. 14:42 (Counts 1 and 2); one count of aggravated kidnapping, in violation of La. R.S. 14:44 (Count 3); and one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (Count 4).
1,-iOn June 13, 2013, the State amended the indictment to charge defendant with one count of forcible rape, a violation of La. R.S. 14:42.1, and nolle prosequied the three remaining counts. Pursuant to the plea agreement set forth in the record, defendant withdrew his not guilty plea and pled guilty as charged. That same day, the trial judge, also pursuant to the plea agreement, sentenced defendant to 15 years in the Department of Corrections and notified defendant of the sex offender registration requirements. On June 26 and July 10, 2013, defendant filed timely pro se motions for reconsideration of sentence, which were heard and denied on August 13, 2013. The trial judge subsequently granted defendant’s motion for appeal.
Under the procedure adopted by this Court in State v. Bradford,
In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it.
In State v. Jyles
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.
In his brief, defendant’s appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal and can find no ruling of the trial court that arguably supports the appeal. In his brief, counsel
Appellate counsel notified defendant that he had filed an Anders brief and that defendant had a right to file a pro se brief in this case. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 22, 2013, to file a supplemental brief. As of the date of this opinion, appellant has not filed a supplemental brief.
Although counsel’s brief is not very detailed, an independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.
The indictment sufficiently identified defendant and properly charged him, plainly and concisely stating the essential facts constituting the offenses charged. See, La.C.Cr.P. arts. 462-66. Further, the minute entries reflect that defendant, who was represented by counsel, appeared at all critical stages of the proceedings 16against him, including his arraignment, guilty plea, and sentencing. As such, there are no appealable issues surrounding defendant’s presence.
In this case, defendant pled guilty. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal. State v. Johnson, 08-449 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-787 (La.12/18/09), 23 So.3d 932. Here, defendant entered an unqualified guilty plea and, therefore, it appears that all non-jurisdictional defects are waived. Further, several pre-trial motions were heard and ruled upon in this case but not preserved for appeal under State v. Crosby, 338 So.2d 584 (La. 1976).
Next, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin
Our review of the record reveals no constitutional infirmity in defendant’s guilty plea. The record shows that defendant was aware that he was charged with and pleading guilty to the amended bill of indictment of one count of forcible rape. Defendant was informed during the colloquy and in the waiver of rights form of the sentencing range that he faced, and of the actual sentence that would be imposed, if his guilty plea was accepted.
During the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination 17as required by Boykin.
During his guilty plea colloquy, defendant also indicated that he had not been forced, coerced, or threatened into entering his guilty plea. Defendant stated that he understood that his guilty plea could be used to enhance penalties for any future convictions.
Further, the waiver of rights form was signed by defendant, his counsel, and the trial judge. Defendant acknowledged on the record that he had gone over the form with his counsel and understood it. After a thorough examination, the trial court accepted defendant’s plea as knowingly, intelligently, and voluntarily made.
With regard to defendant’s sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1178. Here, defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea.
Even if defendant could seek review of his sentence, we would find no merit. Here, defendant pled guilty to forcible rape, which is a violation of La. R.S. 14:42.1, which reads that, “[wjhoever commits ... forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years ... [a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” The trial judge imposed a sentence of “15 | «years with the Department of Corrections” falls within the sentencing range delineated in La. R.S. 14:42.1.
Moreover, defendant’s plea agreement was greatly beneficial to him. Prior to the plea agreement, defendant was facing three counts — two counts of aggravated rape
Based on the foregoing, we find that defendant’s guilty plea and sentence imposed pursuant to a plea agreement do not present any non-frivolous issues for appeal.
Errors Patent
Finally, pursuant to La.C.Cr.P. art. 920, we have reviewed the record and discovered an error that requires correction. La. R.S. 14:42.1 provides that “[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” Defendant was advised in the guilty plea form and during the colloquy that at least two years of his sentence had to be served without benefit of probation, parole, or suspension of sentence. However, the transcript reflects that the trial judge failed to impose any statutory restrictions when sentencing defendant.
AFFIRMED; REMANDED FOR AMENDMENT OF SENTENCE.
. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. Defendant’s motion for appeal, which was filed on September 17, 2013, was untimely under La.C.Cr.P. art. 914(B)(2), which provides in pertinent part that, "[t]he motion for an appeal must be made no later than ... [tjhirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1...." However, to avoid "further useless delay,” we will address defendant’s appeal. See, State v. Babineaux, 08-705 (La. App. 5 Cir. 1/13/09), 8 So.3d 621; State v. Watson, 08-214 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 782.
. The Bradford Court adopted its procedure from that of the Fourth Circuit, set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam).
. 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).
. Id.
. Id.
. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
. La. R.S. 14:42.
. La. R.S. 14:44.
. La. R.S. 14:95.1.
. State v. Williams, 00-1725 (La.l 1/28/01), 800 So.2d 790, 801.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.