State of Louisiana Versus John E. Carriere ( 2019 )

STATE OF LOUISIANA NO. 19-KA-366
VERSUS FIFTH CIRCUIT
JOHN E. CARRIERE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 11-4837, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
December 26, 2019
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg
AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM
COMMITMENT ORDER; MOTION TO WITHDRAW GRANTED
SJW
JGG
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
COUNSEL FOR DEFENDANT/APPELLANT,
JOHN E. CARRIERE
Katherine M. Franks
WINDHORST, J.
Defendant, John Carriere, appeals his conviction and sentence for indecent
behavior with a juvenile under the age of thirteen. For the reasons that follow, we
affirm defendant’s conviction and sentence and remand this matter with instructions.
We also grant appellate counsel’s motion to withdraw as attorney of record for
defendant.
PROCEDURAL HISTORY
On September 27, 2011, the Jefferson Parish District Attorney filed a bill of
information charging defendant, John E. Carriere, with sexual battery of a juvenile
under the age of thirteen in violation of La. R.S. 14:43.1. On December 19, 2011,
defendant pled not guilty at his arraignment. Trial was scheduled for March 10,
2014, but defendant failed to appear and was at large for over four years before he
was eventually apprehended.
Following defendant’s apprehension, on March 15, 2019, the trial court
granted the State’s notice of intent to introduce evidence of defendant’s flight. Jury
selection occurred on April 15, 2019. Then, on April 17, 2019, the State amended
the bill of information to charge defendant with indecent behavior with a juvenile
under the age of thirteen in violation of La. R.S. 14:81(H)(2). On that same date,
defendant withdrew his plea of not guilty, and after being advised of his Boykin1
rights, pled guilty to the amended charge. In accordance with the plea agreement,
the trial court sentenced defendant to fifteen years at hard labor with two years to be
served without the benefit of parole, probation, or suspension of sentence. The trial
court also advised defendant that he must comply with the sex offender registration
and notification requirements.
1 Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).
19-KA-366 1
Because defendant pled guilty, the facts underlying his conviction are not
fully developed in the record. Nevertheless, the amended bill of information
provides that on or between October 4, 2008 and October 28, 2009, in Jefferson
Parish, defendant violated La. R.S. 14:81(H)(2) by committing the crime of indecent
behavior with a juvenile under the age of thirteen (D.O.B. 7-29-1996). During the
colloquy, the State set forth the following factual basis:
Your Honor, with regard to our Bill as amended in case number
11- 4837, had this matter proceeded to trial, the State’s evidence would
have proven beyond a reasonable doubt, with competent witnesses and
admissible evidence, that on or between October 4th the year 2008, and
October 28th of the year 2009, in Jefferson Parish, Mr. Carriere
committed a violation of Louisiana Revised Statute 14:81, and
specifically, 14:81H(2); in that, he with the intention of arousing or
gratifying the sexual desires of either party, committed a lewd and/or
lacivious [sic] act upon the person or in the presence of a child who was
under age seventeen, where the age difference between the two was
greater than two years. We would specifically note that the victim in
this case was younger than thirteen years of age at the time of the
commission of that offense. And, as I indicated, Your Honor, that
occurred in Jefferson Parish.
On May 10, 2019, defendant filed a timely motion for appeal, which was
granted.
ANDERS BRIEF
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, appointed appellate counsel has 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 appellate counsel
requests permission to withdraw as attorney of record for defendant.
When conducting an Anders review, an appellate court must conduct an
independent review of the record to determine whether the appeal is wholly
frivolous. If, after an independent review, the reviewing court determines there are
19-KA-366 2
no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and
affirm the defendant’s conviction and sentence. State v. Bradford, 676 So.2d at
1110.
In this case, defendant’s appellate counsel has complied with the procedures
for filing an Anders brief. She sets forth the procedural history, the limited facts,
and the circumstances surrounding defendant’s guilty pleas and sentencing. Defense
counsel notes that defendant was thoroughly advised of his rights and the
consequences of his guilty pleas during the guilty plea hearing and in the waiver of
rights form, and that the record supports the trial court’s conclusion that defendant’s
guilty pleas were knowingly, intelligently, and voluntarily made. In addition,
defense counsel states that defendant was sentenced in accordance with the plea
agreement, including a recommendation that he be allowed to participate in any self-
help programs available.
In response, the State agrees with defense counsel that there are no non-
frivolous issues for appellate review and that defense counsel’s brief shows a
conscientious and thorough review of the procedural history of the case.
Accordingly, the State concludes that defense counsel has conformed with and
followed the procedures set forth in Anders and Jyles, supra, and the motion to
withdraw should be granted.
This Court has performed an independent, thorough review of the pleadings,
minute entries, bill of information, and transcripts in the appellate record. Our
review of the record supports appellate counsel’s assertion that there are no non-
frivolous issues to be raised on appeal.
The amended bill of information properly charged defendant and plainly and
concisely stated the essential facts constituting the charged offense. It also
sufficiently identified defendant and the crimes charged. La. C.Cr.P. arts. 464-466.
19-KA-366 3
The record reveals no constitutional infirmities or irregularities in defendant’s
guilty pleas that would render them invalid. The transcript of the guilty plea
proceedings and the acknowledgment and waiver of rights form show that defendant
was aware of the nature of the charges against him, that he was properly advised of
his Boykin rights, including the right to a jury trial, the right to confrontation, and
the privilege against self-incrimination, and that he understood he was waiving these
rights by pleading guilty. Further, defendant denied being forced, threatened, or
coerced into entering his pleas.
With regard to his sentencing exposure, defendant was informed during the
colloquy and in the waiver of rights form that a maximum sentence of twenty-five
years at hard labor could be imposed, and that upon acceptance of his guilty pleas,
he would be sentenced to fifteen years in the Department of Corrections without
benefit of parole, probation, or suspension of sentence for at least two years. We
acknowledge that defendant was not advised of the mandatory minimum penalty.
However, the trial court’s failure to advise defendant of the mandatory minimum
sentence does not affect the validity of defendant’s guilty pleas because defendant
was in fact advised of the actual sentences he would receive pursuant to the plea
agreement. This Court has held that an advisement of the agreed upon sentence is
sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Craig, 10-854 (La.
App. 5 Cir. 5/24/11), 66 So.3d 60, 64; State v. Faggard, 15-585 (La. App. 5 Cir.
1/13/16), 184 So.3d 837, 847, writ denied, 16-338 (La. 2/10/17), 215 So.3d 701.
Defendant also received a copy of the sex offender notification and registration
statutes and acknowledged receipt thereof and of the fifteen-year term for which he
was required to register.
With regard to defendant’s sentences, 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.
19-KA-366 4
Augustine, 14-747 (La. App. 5 Cir. 5/14/15), 170 So.3d 1123, 1128. The trial court
sentenced defendant, in conformity with the plea agreement that was set forth in the
record, to fifteen years at hard labor with two years to be served without benefit of
probation, parole, or suspension of sentence. Defendant’s sentences fall within
the prescribed statutory sentencing range and do not present any non-frivolous issues
for appeal.
As is our routine practice, we have reviewed the record for errors patent
pursuant 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. 5th Cir. 1990). A review of the
record in this case reveals an error in the “State of Louisiana Uniform Commitment
Order.” The State of Louisiana Uniform Commitment Order (UCO) does not
include as a “Sentence Condition” on the form that defendant shall comply with the
Sex Offender Registration statute under La. C.Cr.P. art. 895 and La. R.S. 15:541, et
seq. The trial court informed defendant that he was required to comply with the sex
offender notification and registration requirements, and a written copy is included
with the record. To ensure accuracy in the record, we remand this matter to the trial
court to correct the UCO to reflect that defendant shall comply with the Sex Offender
Registration statute. We further direct the Clerk of Court for the Twenty-Fourth
Judicial District Court to transmit the original of the corrected UCO to the
appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the
Department of Corrections’ legal department. See State v. Long, 12-184 (La. App.
5 Cir. 12/11/12), 106 So.3d 1136, 1142.
DECREE
Because appellate counsel’s brief adequately demonstrates by full discussion
and analysis that she has reviewed the trial court proceedings and cannot identify
any basis for a non-frivolous appeal, and an independent review of the record
supports counsel’s assertion, we affirm defendant’s conviction and sentence.
19-KA-366 5
We also remand this matter for correction of the UCO as set forth above, and grant
appellate counsel’s motion to withdraw as attorney of record for defendant.
AFFIRMED; REMANDED FOR CORRECTION OF THE
UNIFORM COMMITMENT ORDER; MOTION TO
WITHDRAW GRANTED
19-KA-366 6
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
DECEMBER 26, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-366
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) KATHERINE M. FRANKS (APPELLANT) THOMAS J. BUTLER (APPELLEE)
DARREN A. ALLEMAND (APPELLEE)
MAILED
HON. PAUL D. CONNICK, JR. (APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053