State of Louisiana Versus John E. Carriere

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