State of Louisiana Versus Tamika N. Gotch A.K.A. "Amoure A. Bey" ( 2020 )

STATE OF LOUISIANA NO. 19-KA-580
VERSUS FIFTH CIRCUIT
TAMIKA N. GOTCH COURT OF APPEAL
A.K.A. "AMOURE A. BEY"
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-6126, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
June 24, 2020
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois
CONVICTIONS AFFIRMED; SENTENCES VACATED AND
REMANDED; MOTION TO WITHDRAW GRANTED
FHW
SMC
JGG
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
COUNSEL FOR DEFENDANT/APPELLANT,
TAMIKA N. GOTCH A.K.A. "AMOURE A. BEY"
Bertha M. Hillman
WICKER, J.
Defendant, Tamika N. Gotch a/k/a “Amoure A. Bey”, along with her co-
defendant, was charged with and pled guilty to one count of money laundering, one
count of theft, and two counts of conspiracy. She was sentenced on each count to
five years imprisonment at hard labor, suspended, with three years of active
probation, with the sentences to run concurrently. The trial court also ordered
defendant to pay $31,344.48 in restitution in connection with count three “jointly
and in solido” with her co-defendant.
Appointed counsel for defendant filed an appellate brief 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), seeking to withdraw as
attorney of record for defendant, asserting that after thoroughly reviewing the
district court record, she could find no non-frivolous issues to raise on appeal.
For the following reasons, we affirm defendant’s convictions, vacate her
sentences and remand for resentencing consistent with this opinion, and grant
appellate counsel’s motion to withdraw as counsel of record for defendant.
PROCEDURAL HISTORY
On September 24, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Tamika N. Gotch a/k/a “Amoure A. Bey” with
conspiracy to commit money laundering between $20,000 and $100,000 in
violation of La. R.S. 14:26 and La. R.S. 14:230(E)(3) (count one), money
laundering between $3,000 and $20,000 in violation of La. R.S. 14:230(E)(2)
(count two), theft greater than $25,000 in violation of La. R.S. 14:67 (count three),
and conspiracy to commit theft greater than $25,000 in violation of La. R.S. 14:26
and La. R.S. 14:67 (count four). Defendant was arraigned on September 25, 2018,
and a not guilty plea was entered.
19-KA-580 1
On May 16, 2019, defendant withdrew her not guilty pleas and pled guilty as
charged on all counts. Afterwards, on that same date, the trial court sentenced
defendant to imprisonment at hard labor for five years on each count, suspended
the sentences, and placed defendant on active probation for three years. The trial
court also ordered defendant to pay restitution in the amount of $31,344.48,
“jointly and in solido” with her co-defendant, Mr. Hunter.
On July 9, 2019, defendant filed Motion to Stay Final Ruling Pending
Appeal with this Court. On July 30, 2019, this Court denied defendant’s request
for relief, finding that defendant failed to obtain a ruling from the trial court. On
August 14, 2019, defendant filed Motion to Stay Final Ruling Pending Appeal in
the trial court, which it denied on August 29, 2019.1 This appeal followed.
FACTS
Because defendant pled guilty, the underlying facts were not fully developed
at a trial. Nevertheless, the State alleged in the bill of information that defendant,
on or between January 1, 2015 and December 31, 2015, in Jefferson Parish,
violated La. R.S. 14:26 and La. R.S. 14:230(E)(3) in that she and Kyron J. Hunter
a/k/a “Khara Bey” did conspire to acquire or maintain an interest in, received,
concealed, possessed, transferred, or transported the proceeds from criminal
activity, to wit: between $20,000 and $100,000 (count one); violated La. R.S.
14:230(E)(2) in that she and Hunter acquired or maintained an interest in, received,
concealed, possessed, transferred, or transported the proceeds from criminal
activity, to wit: between $3,000 and $20,000 (count two); violated La. R.S. 14:67
in that she and Hunter did commit theft of U.S. currency valued at greater than
$25,000 from Dimitra Johnson, Catina Carter, Gelender Harrison, Karen Dorsey,
1
Co-defendant, Kyron J. Hunter a/k/a “Khara Bey”, also appealed from his convictions and sentences,
and judgment was rendered by this Court. See State v. Hunter, 19 579 (La. App. 5 Cir. 6/?/20), ___ So.3d
___.
19-KA-580 2
Odile Johnson, Margie Lamartz, Kristian Porter, Jonathan Priar, and/or Laketha
Bailey (count three); and violated La. R.S. 14:26 and La. R.S. 14:67 in that she and
Hunter did conspire to commit theft of U.S. currency valued at greater than
$25,000 (count four).
ANDERS BRIEF
Defendant’s appointed counsel has filed a brief pursuant to Anders, supra
and Jyles, supra, asserting that she has thoroughly reviewed the district court
record and can find no non-frivolous issues to raise on appeal. Accordingly,
appointed counsel requests permission to withdraw as counsel of record for
defendant.
In Anders, supra, the United States Supreme Court held that appointed
appellate counsel may request permission to withdraw if she finds her case to be
wholly frivolous after a conscientious examination of it. In State v. Smith, 18-142
(La. App. 5 Cir. 8/29/18), this Court further held that 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,” (citing 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)).
In Jyles, 704 So.2d at 241, the Louisiana Supreme Court explained 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, however the brief must demonstrate by full discussion and analysis that
appellate counsel “has cast an advocate’s eye over the trial record and considered
19-KA-580 3
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, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108.
Thus, “when counsel files an Anders brief, an appellate court reviews several
items: a) the Bill of Information to ensure the charge is proper, b) all minute entries
to ensure that defendant was present at all critical stages of the prosecution, c) all
pleadings in the record, and d) all transcripts to determine whether any ruling of
the trial court provides a basis for appeal.” State v. Chirlow, 18-359 (La. App. 5
Cir. 12/12/18), 260 So.2d 1282, 1286 (citing State v. Dufrene, 07-823 (La. App. 5
Cir. 2/19/08), 980 So.2d 31, 35. If, after an independent review, the reviewing
court determines there are no non-frivolous issues for appeal, the court 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 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.ANALYSIS
Appellate counsel indicates that she has prepared a brief in accordance with
Anders, supra and Jyles, supra, and after a conscientious and thorough review of
the record, she could find no non-frivolous issues to raise on appeal, nor could she
find a ruling of the district court which arguably supports an appeal. The State
responds that appellate counsel has “cast an advocate’s eye” over the record in
accordance with Anders and Jyles and determined there were no non-frivolous
19-KA-580 4
issues to raise on appeal. The State asks this Court to affirm defendant’s
convictions and sentences.
Appellate counsel has filed a motion to withdraw as attorney of record
which states that she has reviewed the record and cannot find any non-frivolous
issues to raise on appeal and that she has filed an Anders brief. Additionally, this
Court sent defendant a letter by certified mail informing her that an Anders brief
had been filed and that she had until March 23, 2020 to file a pro se supplemental
brief. As of the date of this case’s submission, defendant has not filed a brief with
this Court.
This Court’s independent review of the record supports appellate counsel’s
assertion that there are no non-frivolous issues to be raised on appeal. First, the
bill of information properly charged defendant and plainly and concisely stated the
essential facts constituting the charged offenses. It also sufficiently identified
defendant and the crimes charged. See La. C.Cr.P. arts. 464-466.
Second, the record shows that there are no appealable issues surrounding
defendant’s presence. The minute entries reflect that defendant appeared at each
stage of the proceedings against her, including her arraignment, guilty plea
proceeding, and sentencing. Defense counsel filed omnibus motions, including
motions to suppress the evidence, statements, and identification. Although the
motions were ruled upon, defendant did not object. The motions are considered
waived when a defendant does not object to the trial court’s failure to hear or rule
on a pretrial 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, 18-0153 (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).
Third, defendant pled guilty as charged to the offenses in the bill of
information. If a defendant pleads guilty, he normally waives all non-jurisdictional
19-KA-580 5
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 Boykin2 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.A review of the record reveals no constitutional infirmity or any irregularity
in defendant’s guilty pleas that would render them invalid. The record shows that
the trial judge had the waiver of rights form in front of him and that defendant
indicated she was familiar with it and had signed it. The record shows that
defendant was aware that she was pleading guilty to conspiracy to commit money
laundering, money laundering, theft, and conspiracy to commit theft. On the
waiver of rights form and during the guilty plea colloquy, defendant was advised
of her right to a jury trial, her right to confrontation, and her privilege against self-
incrimination, as required by Boykin, supra. Defendant placed her initials next to
individual advisals of her rights and placed her signature at the end of the waiver of
rights form, thus indicating that she understood she was waiving these rights. She
also articulated to the trial court during the colloquy that she understood she was
waiving her rights by pleading guilty. Additionally, defendant was informed that
her guilty pleas could be used to enhance penalties for future convictions.
Defendant confirmed that she had not been forced, coerced, or intimidated into
entering her guilty pleas. After her colloquy with defendant, the trial judge
2
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
19-KA-580 6
accepted defendant’s guilty pleas as knowingly, intelligently, freely, and
voluntarily made.
Fourth, defendant was informed of the sentencing ranges for the offenses
and of the sentences she would receive if the trial court accepted her pleas. We
note that the trial court incorrectly informed defendant of the sentencing ranges on
counts one and four.3 Nevertheless, the trial court advised defendant that she
would be sentenced to five years in the Department of Corrections, suspended, on
each count and that she would be placed on active probation for three years, and
defendant was sentenced accordingly. We find that the advisement of the agreed
upon sentences was sufficient for compliance with La. C.Cr.P. art. 556.1. See
State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.
The transcript does not show that the trial judge ordered the four sentences
to run concurrently; however, the sentencing minute entry shows that he did. The
transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Nevertheless,
La. C.Cr.P. art. 883 provides in pertinent part:
If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently.
Although the trial court did not state that defendant’s sentences had to be
served at hard labor, “a sentence committing a prisoner to the Department of
3
The trial court informed defendant that the sentencing range on count one was zero to ten years at hard
labor; however, the statutes in effect at the time of the offense reflect that the sentencing range on count
one was actually one to ten years at hard labor. See La. R.S. 14:26; La. R.S. 14:230(E)(3). The trial court
correctly informed defendant of the sentencing ranges on counts two and three; however, the trial court
stated that the sentences on counts two and three had to be served in the Department of Corrections
whereas the statutes in effect at the time of the offense indicate that the sentences on those counts could
be served with or without hard labor. See La. R.S. 14:230(E)(2); La. R.S. 14:67. The trial court informed
defendant that the sentencing range on count four was zero to ten years in the Department of Corrections;
however, the statute in effect at the time of the offense reflects that the sentencing range on count four
was actually two and one-half to ten years with or without hard labor. See La. R.S. 14:26; La. R.S. 14:67.
19-KA-580 7
Corrections is necessarily at hard labor.” State v. Lawson, 04-334 (La. App. 5 Cir.
9/28/04), 885 So.2d 618, 621 n.2.
Because the offenses in the instant case constitute parts of a common
scheme or plan, we find that the sentences shall be served concurrently since the
trial court did not direct that they be served consecutively. No corrective action
need be taken.
In addition, defendant’s five-year sentences on each count are within the
sentencing ranges prescribed by the relevant statutes. Also the sentences were
imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art.
881.2(A)(2) precludes a defendant from seeking review of his 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.
Upon a review of the record, we find no non-frivolous issues for appeal.
Appellate counsel has adequately shown her review and analysis of the record in
this case. Our independent review of the record confirms counsel’s assertions set
forth in the Anders brief. Accordingly, we grant appellate counsel’s motion to
withdraw as attorney of record for defendant.
ERRORS PATENT DISCUSSION
We have reviewed the record for errors patent, according to 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) and find the following issue for review.
The transcript reflects that the trial judge ordered defendant to pay
$31,344.48 in restitution in connection with count three “jointly and in solido”
with her co-defendant, Mr. Hunter. The sentencing minute entry indicates that the
restitution was payable through “court collections” within three years. The waiver
of rights form simply reflects that the total restitution in connection with count
19-KA-580 8
three was $31,344.48. The form entitled, “Felony: Schedule of Fines, Fees,
Sentencing Provisions & Probation Requirements” shows that defendant was to
make restitution within thirty-six months in equal installments through the
collections office in the amount of $31,344.48, and it cites La. C.Cr.P. art. 895.1.
The Collections Office form in the record, filed on May 17, 2019, shows that
defendant owes $31,344.48, with a monthly payment of $875. However, the entire
form is not in the record.
We find that the amount of restitution is indeterminate. Instead of ordering
defendant to pay restitution “jointly and in solido,” the trial court should have
ordered each defendant to pay a specific amount.
In State v. Hall, 03-1384 (La. App. 5 Cir. 3/30/04), 871 So.2d 558, in an
errors patent review, this Court found that the trial judge did not set a specific
amount to be paid in restitution. Instead, the trial judge stated that total restitution
would be $154.03 at a minimum or as determined by the Department of Probation
and Parole. The trial judge also stated that the restitution would be joint, several,
and in solido and that while each of the three defendants would be required to pay
her fair share, each would also be responsible if the other did not pay. This Court
found that the trial judge erred by not advising each defendant of the exact amount
of restitution they were required to pay; by not clarifying what he meant by joint,
several, and in solido liability, which were civil terms that lay persons probably
would not understand; and by not stating whether restitution was being ordered as
a condition of probation under La. C.Cr.P. arts. 893 and 895(7) or as part of the
sentence under La. C.Cr.P. art. 883.2. Accordingly, this Court vacated the
sentences and remanded for resentencing for the trial court to set a determinate
amount of restitution.
As in Hall, the trial court in this case did not advise defendant of the exact
amount of restitution she was required to pay and did not clarify what it meant by
19-KA-580 9
“jointly and in solido,” which are civil terms that lay persons probably would not
understand. Accordingly, we vacate the sentences and remand for resentencing for
the trial court to set a determinate amount of restitution.
Also, we cannot determine from the record whether the trial court
considered defendant’s earning capacity and assets in ordering defendant to pay
restitution, as required by La. C.Cr.P. art. 895.1(A)(1), which provides that “[t]he
restitution payment shall be made, in discretion of the court, either in a lump sum
or in monthly installments based on the earning capacity and assets of the
defendant.” Therefore, on remand, the trial court is to determine the manner of
restitution payments after considering the earning capacity and assets of defendant.
See State v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154, 1159.
For the above discussed reasons, we affirm defendant’s convictions, vacate
defendant’s sentences and remand for resentencing in accordance with our findings
on the errors patent review, and grant appellate counsel’s motion to withdraw as
counsel of record for defendant.
CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED;
MOTION TO WITHDRAW GRANTED
19-KA-580 10
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
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
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 24, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-580
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053