State of Louisiana Versus Carlos Miranda Fernandez ( 2023 )

STATE OF LOUISIANA NO. 22-KA-584
VERSUS FIFTH CIRCUIT
CARLOS MIRANDA FERNANDEZ COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-248, DIVISION "H"
HONORABLE DONALD L. FORET, JUDGE PRESIDING
April 26, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED
SMC
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Eric Cusimano
Brittany Beckner
COUNSEL FOR DEFENDANT/APPELLANT,
CARLOS MIRANDA FERNANDEZ
Katherine M. Franks
CHEHARDY, C.J.
Appellant, Carlos Fernandez, seeks review of the trial court’s June 27, 2022
judgment denying his motion to withdraw his guilty plea. For the reasons set forth
more fully below, we affirm the trial court’s judgment and grant appellate
counsel’s motion to withdraw as counsel of record for Mr. Fernandez.
FACTS AND PROCEDURAL HISTORY
In this case, because Mr. Fernandez’s conviction resulted from a guilty plea,
the circumstances surrounding his offenses were not fully developed at trial. Here,
the record reflects that Mr. Fernandez had numerous sexual encounters with a
juvenile under the age of 13. The young juvenile disclosed the sexual encounters
when she discovered that she was pregnant. Additionally, another juvenile
contended that Mr. Fernandez showed her a video of himself dancing naked, and
“of how to have sex.” A “dump” of Mr. Fernandez’s cell phone revealed the
described video.
On May 9, 2019, a Jefferson Parish Grand Jury indicted Mr. Fernandez with
one count of first degree rape, a violation of La. R.S. 14:42 (count one); one count
of sexual battery against a juvenile under the age of 13, a violation of La. R.S.
14:43.1 (count two); and, one count of indecent behavior with a juvenile under the
age of 13, a violation of La. R.S. 14:81 (count three). At his arraignment, Mr.
Fernandez pled not guilty. Mr. Fernandez filed the usual discovery motions, none
of which are at issue on this appeal.
The matter ultimately proceeded to trial on May 16, 2022. After jury
selection, Mr. Fernandez entered a plea, and the jury was dismissed. On this date,
in accordance with a plea agreement entered into with the State, the State amended
count one to the lesser offense of second degree rape upon a known juvenile under
the age of 13, committed between September 29, 2018, and December 31, 2018, a
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violation of La. R.S. 14:42.1, and entered a nolle prosequi as to counts two and
three. Mr. Fernandez then withdrew his not guilty plea, and pled guilty to the
amended charge of second degree rape. Following a Boykin examination
conducted by the district court judge, Mr. Fernandez was sentenced to hard labor
for 40 years, without benefit of parole, probation, or suspension of sentence.
On June 13, 2022, Mr. Fernandez filed a pro se motion to withdraw his
guilty plea claiming that his appointed counsel was ineffective and “influenced”
his decision to plead guilty, telling him he was going to lose at trial and receive
“life” if he did not take the State’s plea deal. On June 27, 2022, the trial court
denied Mr. Fernandez’s motion to withdraw his guilty plea, with written reasons.
Subsequently, Mr. Fernandez filed an application for post-conviction relief seeking
an out-of-time appeal, which the trial court granted.
This timely appeal followed.
LAW AND ARGUMENT
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 counsel herein filed a
brief asserting that she has thoroughly reviewed the trial court record and cannot
find any non-frivolous issues to raise on appeal.1 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
requests permission to withdraw as counsel of record.
In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if she finds her client’s case
to be wholly frivolous after a conscientious examination of the record. The request
must be accompanied by “a brief referring to anything in the record that might
1
In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d
528, 530 (La. App. 4th 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).
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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).
In Jyles, 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. Jyles, 704 So.2d
at 241. 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
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.Mr. Fernandez’s appellate counsel asserts that after a detailed review of the
trial court record, she could find no non-frivolous issues to raise on appeal. She
states that she has read the record, examined the plea proceedings, and researched
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the conditions under which a guilty plea can be withdrawn. Appellate counsel also
states that after a complete review of the record and appellate jurisprudence, the
trial judge did not err in denying Mr. Fernandez’s motion to withdraw his guilty
plea. As a result, she asks to withdraw from representing Mr. Fernandez.
Appellate counsel provides that the record reveals that during the colloquy, Mr.
Fernandez was advised of his Boykin2 trilogy of rights in both English and Spanish.
She states that the trial judge explained the sentence to be imposed and reiterated
several times that it was to be served without benefit of parole, probation, or
suspension of sentence, even though the plea form only stated the sentence was to
be forty years.
Appellate counsel avers that Mr. Fernandez acknowledged that he was
pleading guilty because he was guilty of the offense. She asserts that even though
the State did not provide a factual basis for the plea, there was a preliminary
hearing and a suppression hearing which provided a factual basis. Additionally,
counsel maintains that the sex offender registration form was explained to Mr.
Fernandez in Spanish by co-counsel, a native Spanish speaker. She maintains that
during the colloquy, Mr. Fernandez stated that the plea was not coerced. Appellate
counsel notes that Mr. Fernandez complained in his motion to withdraw his guilty
plea that his trial counsel was ineffective because she advised him that he was
going to lose the case and receive a life sentence. Appellate counsel further notes
that considering the young juvenile victim’s pregnancy, and Mr. Fernandez’s
admission to having sexual intercourse with her on several occasions, trial
counsel’s conclusion was correct. She states that Mr. Fernandez complained that
his trial counsel would not appeal the plea proceeding wherein he acknowledged
his guilt and agreed to the sentence imposed; however, she asserts that trial counsel
could not appeal the sentence pursuant to La. C.Cr.P. art. 881.2(A), which provides
2
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
22-KA-584 4
that a “defendant cannot appeal or seek review of a sentence imposed in
conformity with a plea agreement which was set forth in the record at the time of
the plea.”
Appellate counsel contends that Mr. Fernandez benefitted substantially from
the plea, as he was potentially exposed to sentences of life on count one, ten years
on count two, and twenty-five years on count three. Counsel maintains that by
having the first degree rape charge reduced and the two remaining charges
dismissed, Mr. Fernandez substantially reduced his sentencing exposure. She
contends the fact that he benefitted substantially from the plea bargain was a factor
that should be considered in evaluating a request to withdraw a guilty plea, citing
State v. Green, 03-410 (La. App. 5 Cir. 10/28/03), 860 So.2d 237, 243, writ denied,
03-3228 (La. 3/26/04), 871 So.2d 346. Lastly, appellate counsel asserts that the
plea agreement was not breached, count one was reduced to second degree rape,
the remaining counts were dismissed, and the sentence imposed was the sentence
to which Mr. Fernandez agreed.
Appellate counsel has filed a motion to withdraw as attorney of record
stating that she prepared an Anders brief and has notified Mr. Fernandez of his
right to file a pro se brief in this appeal. Additionally, this Court sent Mr.
Fernandez a certified letter informing him that an Anders brief had been filed and
that he had until February 22, 2023, to file a pro se supplemental brief. Mr.
Fernandez did not file a pro se supplemental brief.
In response, the State contends that appellate counsel’s brief complies with
the procedures for filing an Anders brief, and it agrees with counsel that as shown
by the record, there are no non-frivolous issues for appeal. The State further
contends that Mr. Fernandez was advised of his rights during the colloquy, after
which he indicated that he understood them and wished to waive them. The State
asserts that the colloquy and the waiver both confirm that the plea was entered into
22-KA-584 5
freely and voluntarily, and that Mr. Fernandez had not been forced, coerced, or
threatened to enter his plea. The State claims that the plea agreement was set forth
in the record and maintains that the sentence imposed falls within the sentencing
range prescribed by the statute. The State concludes that because appellate
counsel’s brief demonstrates by full discussion and analysis that she has complied
with the requirements of Anders, the motion to withdraw should be granted.
Our independent review of the district court record supports appellate
counsel’s assertion that there are no non-frivolous issues to be raised on appeal.
The amended indictment properly charged Mr. Fernandez, and plainly and
concisely stated the essential facts constituting the charged offense. It sufficiently
identified Mr. Fernandez and the crime charged. See generally La. C.Cr.P. arts.
464-466. As reflected by the minute entries, Mr. Fernandez and his counsel
appeared at all crucial stages of the proceedings against him, including his
arraignment, guilty plea proceedings, and sentencing. As such, Mr. Fernandez’s
presence did not present any issues that would support an appeal.
The record also indicates that Mr. Fernandez filed omnibus motions, some of
which were not ruled upon prior to the time he entered his guilty plea. However,
Mr. Fernandez did not object to the trial court’s failure to do so. 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, the motion is considered waived. See State v. Corzo, 04-791
(La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Additionally, Mr. Fernandez did
not preserve for appeal any rulings under the holding in State v. Crosby, 338 So.2d
584 (La. 1976).
Mr. Fernandez pled guilty as charged to the amended indictment. If a
defendant pleads guilty, he normally waives all non-jurisdictional defects in the
proceedings leading up to the guilty plea, which precludes review of such defects
either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5
22-KA-584 6
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.An independent review of the record reveals no constitutional infirmity or
any irregularity in Mr. Fernandez’s guilty plea that would render it invalid. The
record reflects that on May 16, 2022, defense counsel advised the trial judge that
Mr. Fernandez was going to plead guilty that day to the amended charge of second
degree rape. The prosecutor added that he amended count 1 to second degree rape
and would enter a nolle prosequi as to counts 2 and 3. Mr. Fernandez indicated
that he was familiar with the “paperwork” and had gone over it with his counsel.
During the colloquy, with the assistance of an interpreter, Mr. Fernandez
indicated that he was pleading guilty to second degree rape. The trial judge
advised Mr. Fernandez that by pleading guilty, he was giving up his right to a trial
by judge or jury; to be presumed innocent until the district attorney proved his guilt
beyond a reasonable doubt; to force the district attorney to call witnesses who,
under oath, would have to testify against him at trial; to have his attorney ask
questions of those witnesses; to confront his accusers at trial; to testify or to remain
silent and not have his silence held against him; to present witnesses to testify for
him; and, to appeal any verdict of guilty that might be returned against him. Mr.
Fernandez indicated that he understood the rights he was waiving.
Further, the waiver of rights form reflects that Mr. Fernandez was advised of
his right to a jury trial, his right to confrontation, and his privilege against self-
incrimination; that Mr. Fernandez placed his initials next to the individual advisals
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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. The waiver
of rights form also reflects that Mr. Fernandez understood that he was pleading
guilty to second degree rape.
During the colloquy, the district court judge also advised Mr. Fernandez that
the sentencing range for this offense was five to forty years and that his sentence
would be forty years at hard labor without benefit of parole, probation, or
suspension of sentence, which Mr. Fernandez indicated that he understood. Mr.
Fernandez thereafter indicated that he had not been forced, coerced, or threatened
to enter a guilty plea. He indicated that he understood he had two years to file for
post-conviction relief after the judgment of conviction and sentence became final
and that he had thirty days to appeal his sentence. The district court judge asked
Mr. Fernandez if he understood that his guilty plea could be used to enhance a
penalty for any future conviction, and Mr. Fernandez responded affirmatively. The
district court judge questioned Mr. Fernandez as to whether he understood that a
guilty plea may subject him to deportation from this country if he was not a citizen
of the United States of America, to which Mr. Fernandez indicated that he
understood. Mr. Fernandez further indicated that he understood all of the possible
legal consequences of pleading guilty and that he desired to plead guilty.
Defense counsel acknowledged that Mr. Fernandez was not able to read,
write, and completely understand the English language, but advised the court that
he went over the form with Mr. Fernandez in Spanish. The district court judge
confirmed that the form had been explained to Mr. Fernandez by his counsel. He
asked if Mr. Fernandez understood that the consequences of a guilty plea may
include potential restrictions on due process and equal protection regarding the
right to vote and possess a fire arm, as well as in public housing, financial aid,
college admissions, licensing, and employment. Mr. Fernandez responded that he
22-KA-584 8
understood. The district court judge advised Mr. Fernandez of his obligation to
register as a sex offender, and asserted that Mr. Fernandez was provided with a sex
offender notification form. Defense counsel confirmed that he had explained the
requirements of the form to Mr. Fernandez in Spanish. The district court judge
also explained to Mr. Fernandez that the pertinent statute required twenty-five
years of registration and notification, and Mr. Fernandez indicated that he
understood.
Mr. Fernandez then waived sentencing delays, and the district court judge
sentenced him to forty years imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence. The district court judge reminded Mr.
Fernandez that counts two and three had been dismissed. Additionally, the plea
agreement shows that Mr. Fernandez’s guilty plea was accepted by the district
court as having been knowingly, intelligently, freely, and voluntarily made by Mr.
Fernandez, and that the district court had informed Mr. Fernandez of the nature of
the charge.
The record reflects that the State did not provide a factual basis for the crime
which Mr. Fernandez was charged; however, Louisiana law does not require that a
guilty plea be accompanied by a recitation of the factual basis for the crime. State
v. Autin, 09-995 (La. App. 5 Cir. 4/27/10), 40 So.3d 193, 196, writ denied, 10-1154
(La. 12/10/10), 51 So.3d 725. Due process requires a finding of a significant
factual basis for a defendant’s guilty plea only when a defendant proclaims his
innocence or when the trial court is otherwise put on notice that there is a need for
an inquiry into the factual basis. Id., 40 So.3d at 196-97.3 Although the State did
not provide a factual basis for the crime of second degree rape during the guilty
plea colloquy herein, Mr. Fernandez did not proclaim his innocence, and he did not
3
A plea accompanied by a claim of innocence is an Alford plea and puts the trial court on notice
that it must ascertain a factual basis to support the plea. State v. Orman, 97-2089 (La. 1/9/98), 704 So.2d
245 (per curiam). See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
22-KA-584 9
enter an Alford plea. Consequently, the lack of a factual basis by the State does not
present an issue that should have been raised on appeal.
As previously stated, the district court sentenced Mr. Fernandez to
imprisonment at hard labor for forty years without benefit of parole, probation, or
suspension of sentence, which is within the sentencing range prescribed by the
applicable statute. Also, the sentence was imposed pursuant to, and in conformity
with, the plea agreement. 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. Although the plea
agreement does not reflect that the sentence was to be served without benefit of
parole, probation, or suspension of sentence, the district court judge did advise Mr.
Fernandez during the colloquy that his sentence would be served without those
benefits.
The record shows that Mr. Fernandez sought to withdraw his guilty plea.
However, as stated, his guilty plea was not constitutionally infirm. Additionally,
Mr. Fernandez received a substantial benefit by pleading guilty to the reduced
charge of second degree rape and dismissal of the other two counts. Mr.
Fernandez was sentenced to forty years on the reduced charge rather than a life
sentence on count one. His sentencing exposure on counts two and three,
respectively, had they not been dismissed, was twenty-five to ninety-nine years on
count two, and two to twenty-five years on count three. As such, we find that the
motion to withdraw the guilty plea does not present an issue that should have been
raised on appeal. (See Green, supra, “Further, Green benefitted substantially from
the plea bargain, a factor that should be considered in evaluating a request to
withdraw a plea.”)
22-KA-584 10
Because we find that appellate counsel’s brief adequately demonstrates by
full discussion and analysis that she has reviewed the trial court proceedings and
could not identify any basis for a non-frivolous appeal, and an independent review
of the record supports counsel’s assertion, her motion to withdraw as attorney of
record is granted.
ERROR PATENT DISCUSSION
The record was reviewed 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. 5th Cir. 1990). Our review of the record revealed no errors patent.
CONCLUSION
For the foregoing reasons, the district court’s denial of Mr. Fernandez’s
motion to withdraw his guilty plea is affirmed. Appellate counsel’s motion to
withdraw as attorney of record is granted.
AFFIRMED
22-KA-584 11
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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
APRIL 26, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-584
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD L. FORET (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
BRITTANY BECKNER (APPELLEE)
ERIC CUSIMANO (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053