State of Louisiana Versus Darval B. Ledet

STATE OF LOUISIANA NO. 20-KA-258

VERSUS FIFTH CIRCUIT

DARVAL B. LEDET COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-7394, DIVISION "F"
HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

January 27, 2021

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Stephen J. Windhorst

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO
WITHDRAW GRANTED.
SMC
JGG
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Gail D. Schlosser
Douglas E. Rushton

COUNSEL FOR DEFENDANT/APPELLANT,
DARVAL B. LEDET
Katherine M. Franks

DEFENDANT/APPELLANT,
Darval B. Ledet
In Proper Person

CHEHARDY, C.J.

Defendant, Darval B. Ledet, appeals his convictions and sentences for one

count of attempted second degree murder, two counts of attempted armed robbery,

and one count of possession of a firearm by a convicted felon. For the following

reasons, we affirm defendant’s convictions and sentences on all counts and grant

appellate counsel’s motion to withdraw as counsel of record for defendant.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 28, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Darval Ledet, with attempted armed robbery of

Daisha Patin with a firearm in violation of La. R.S. 14:27, La. R.S. 14:64, and La.

R.S. 14:62.3 (count one); attempted second degree murder of Daisha Patin in

violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count two); attempted armed

robbery of Roy A. Cain with a firearm in violation of La. R.S. 14:27, La. R.S.

14:64, and La. R.S. 14:62.3 (count three); attempted second degree murder of Roy

A. Cain in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count four); and,

possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count

five).1 Defendant appeared for arraignment on January 3, 2019, and through

counsel appointed for purposes of the arraignment only, defendant pled not guilty

on all counts.2

On September 12, 2019, the State amended the bill of information to enter a

nolle prosequi on count four pursuant to a negotiated plea agreement. On that

same date, defendant withdrew his not guilty pleas and tendered a plea of guilty as

charged on counts one, two, three, and five. After waiving sentencing delays, and

in accordance with the plea agreement, the trial court sentenced defendant to

1
Defendant was previously convicted of possession of methamphetamine in violation of La. R.S.
40:967(C), in case number 17-450, Division “A,” in the 25th Judicial District Court, Parish of
Plaquemines. Further, in the instant matter, defendant was also charged in case number 18-7977 with
resisting an officer, a misdemeanor, for which he was sentenced to time served.
2
Following the arraignment, the trial judge appointed counsel for defendant.

20-KA-258 1

imprisonment at hard labor for twenty years on counts one and three—with an

additional five-year consecutive sentence on each count for use of a firearm—

without benefit of parole, probation, or suspension of sentence; imprisonment at

hard labor for twenty-five years on count two, without benefit of parole, probation,

or suspension of sentence; and, imprisonment at hard labor for twenty years on

count five, without benefit of parole, probation, or suspension of sentence.3 In

addition, the trial court assessed fees in the amount of $1,250.00. All of the

sentences were ordered to run concurrently with each other and with defendant’s

sentence issued in case number 18-7977.

Defendant filed his first pro se Uniform Application for Post-Conviction

Relief (APCR) and a memorandum in support on May 11, 2020, raising several

ineffective assistance of counsel claims. The trial court denied defendant’s APCR

on June 1, 2020, as premature, dismissed it without prejudice, and granted him an

out-of-time appeal.4 This appeal followed.

LEGAL ANALYSIS

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.

App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,5 appointed appellate counsel 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 counsel has

requested permission to withdraw as counsel of record for defendant.

3
As part of the plea agreement, the State also agreed not to file a multiple offender bill.
4
Defendant did not file a motion to reconsider sentences, and he did not file a motion for appeal
within thirty days of September 12, 2019. Defendant also did not request an out-of-time appeal.
5
In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d
528, 530 (La. App. 4 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).

20-KA-258 2

In Anders, supra, the United States Supreme Court stated that appointed

appellate counsel may request permission to withdraw if she finds her case to be

wholly frivolous after a conscientious examination of it.6 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.” 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) (quotation omitted).

In Jyles, 704 So.2d at 241, 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. 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

6
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).

20-KA-258 3

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.

Defendant’s appellate counsel asserts that after a detailed review of the

record, she could find no non-frivolous issues to raise on appeal. Appellate

counsel asserts that before defendant changed his pleas from not guilty to guilty, he

was fully informed of the legal consequences of doing so by both his trial counsel

and the trial court. Further, appellate counsel contends that in addition to the

extensive waiver and plea form completed and signed by both defendant and his

counsel, thereby acknowledging an understanding of the rights being waived and

the sentences to be imposed, an examination of the plea colloquy reveals that the

trial court was thorough in explaining and assuring that defendant understood the

rights he was waiving by pleading guilty. Appellate counsel states that the trial

court informed defendant of his constitutional rights to a trial by jury, to remain

silent, to confront witnesses, and to the presumption of innocence. Defendant was

also informed that the State would be required to prove his guilt beyond a

reasonable doubt. Further, appellate counsel contends that prior to accepting

defendant’s guilty pleas, the trial court advised him of the sentences that would be

imposed on each of the four counts per the plea agreement and obtained a factual

narrative from the State regarding what it intended to prove had the case gone to

trial.

Appellate counsel also asserts that defendant acknowledged the facts as true

and assured the trial judge that the plea was voluntary. She notes that although

defendant asserts that his counsel was ineffective, the allegations made—other than

the fact that defendant’s presence in court was waived on numerous occasions—

cannot be established by the appellate record and should be addressed in a post-

conviction proceeding where a full evidentiary hearing can be held. Appellate

20-KA-258 4

counsel asserts that since defendant cannot appeal or seek 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, defendant is restricted from appealing his sentences.

The State responds that appellate counsel has correctly asserted that this case

presents no non-frivolous issues for appellate review. It further responds that

defendant was fully apprised of the legal consequences of changing his pleas from

not guilty to guilty. The State asserts that defendant signed and initialed the waiver

of rights form, thereby waiving his rights. Also, the State avers that during the

colloquy, the trial judge explained to defendant the rights he was waiving,

including the right to a jury trial, the right to confront witnesses, and the right

against self-incrimination. The State notes that the trial judge explained the

sentences it would impose pursuant to the plea agreement. The State agrees with

appellate counsel that defendant is barred from appealing his sentences.

We find appellate counsel’s brief adequately reviews the procedural history

of the case and provides a detailed assessment of whether there are any non-

frivolous issues, thereby satisfying the requirements of Jyles, supra.

Our independent review of the record supports appellate counsel’s assertion

that there are no non-frivolous issues to be raised on appeal. When an Anders brief

is filed, the appellate court reviews: (1) the bill of information to insure the

defendant was properly charged; (2) all minute entries to insure the defendant was

present at all crucial stages of the proceedings, the jury composition and verdict

were correct, and the sentence is legal; (3) all pleadings that are in the record; and

(4) all transcripts to determine if any ruling provides an arguable basis for appeal.

State v. Bradford, 676 So.2d at 1110-11.

Because defendant pled guilty, the facts were not fully developed at a trial.

However, during the guilty plea colloquy, the State provided the following factual

basis for the guilty pleas:

20-KA-258 5

Your Honor, had the State proceeded to trial it would
have proven beyond a reasonable doubt that on or about
November 4th, 2018, the Defendant, Darval Ledet,
violated Louisiana Revised Statute 14:27/64.3 and that he
did attempt to rob Daisha Patin while armed with a
firearm, also on that same date he violated Louisiana
Revised Statute 14:27/30.1, and that he attempted to
commit a second degree murder of Daisha Patin, on that
same date also he violated the second count of 14:27/64.3
and that he did attempt to rob Roy Cain while armed with
a firearm. And also that on that same day violated
Louisiana Revised Statute 14:95.1 he did have in his
possession a firearm, having previously been convicted
of possession of methamphetamine, and it’s under case
17-0450, Division A, 25th Judicial District Court, Parish
of Plaquemines. All of these offenses occurred in
Jefferson Parish.

Once read into the record, defendant acknowledged to the court that the

factual basis was correct. Moreover, the amended bill of information shows that

defendant was properly charged. As required, it plainly and concisely states the

essential facts constituting the offenses charged. It also sufficiently identified

defendant and the crimes charged. See La. C.Cr.P. arts. 462-466.

Additionally, the record reveals that there are no appealable issues involving

defendant’s presence. The minute entries reflect that defendant appeared at all

crucial stages of the proceedings against him, including his arraignment, guilty

plea proceeding, and sentencing. Defense counsel filed a pre-trial motion for

disclosure of impeaching information. Although the motion was not ruled upon,

defendant did not object. Motions are considered waived 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. See State v. Kelly, 17-221 (La. App. 5 Cir. 12/29/17), 237 So.3d

1226, 1232, writ denied, 18-153 (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).

20-KA-258 6

Further, defendant was advised of and waived his Boykin7 rights, then pled

guilty as charged to the offenses in the amended bill of information. Generally, if a

defendant pleads guilty, he normally waives all non-jurisdictional 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 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.

Our independent review of the record reveals no constitutional infirmity or

any irregularity in defendant’s guilty pleas that would render them invalid. The

record indicates that defense counsel advised the trial judge that defendant was

going to plead guilty to the amended bill of information, and he submitted the

waiver of rights form to the court. The trial judge stated that defendant was

pleading guilty to one count of attempted second degree murder, two counts of

attempted armed robbery, and one count of possession of a firearm by a convicted

felon. During the colloquy, the trial judge advised defendant that by pleading

guilty, he was giving up numerous rights, including the right to trial by jury, the

right to require the State to prove his guilt beyond a reasonable doubt, the right to

confront his accusers and cross examine witnesses, and the right to remain silent,

as required by Boykin. Defendant indicated that he understood that by pleading

guilty, he was waiving those rights. Further, the waiver of rights form reflects that

defendant was advised of his right to a jury trial, his right to confrontation, and his

7
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

20-KA-258 7

privilege against self-incrimination; that defendant placed his initials next to the

individual advisals 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.

Also during the plea colloquy, defendant indicated that no one was forcing

or threatening him to plead guilty, that he was satisfied with his attorney’s

representation, and that he understood his guilty pleas could be used to enhance a

future felony conviction. The trial judge stated that he had been provided with the

waiver of rights form, and defendant indicated that he signed that form, that his

rights were explained to him, that he understood those rights, and that he was

entering into these pleas freely and voluntarily. The State subsequently provided a

factual basis, which defendant indicated was correct. The trial court then accepted

defendant’s guilty pleas, stating that he was satisfied that defendant understood the

consequences of his pleas and that he had entered them freely and voluntarily. The

State represented that pursuant to the plea negotiations, it agreed not to file a

multiple bill.

Additionally, during the plea colloquy, the trial judge advised defendant of

the sentencing ranges for the offenses and the sentences he would receive if the

pleas were accepted, which defendant indicated he understood. We note that the

trial court incorrectly informed defendant of the sentencing ranges on counts two

and five.8 Nevertheless, the trial court advised defendant that he would be

sentenced to twenty-five years at hard labor on count two and twenty years at hard

labor on count five, and defendant was sentenced accordingly. Despite the judge’s

misinformation, we find the advisement of the agreed upon sentences sufficiently

8
The trial court advised defendant that the sentencing range on count two, attempted second
degree murder, was zero to fifty years; however, La. R.S. 14:27 and La. R.S. 14:30.1 provide that the
sentencing range was ten to fifty years. The trial court also advised defendant that the sentencing range
on count five, possession of a firearm by a convicted felon, was ten to twenty years; however, La. R.S.
14:95.1 provides that the sentencing range was five to twenty-five years.

20-KA-258 8

complied with La. C.Cr.P. art. 566.1, as it did not affect the voluntariness of

defendant’s guilty pleas based on the circumstances presented herein. See State v.

Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

Further, we find that defendant’s sentences on all counts are within the

sentencing ranges prescribed by the relevant statutes. Also, the sentences were

imposed pursuant to, and in conformity with, the plea agreement.9 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.

The transcript reflects that the trial judge ordered defendant to pay a fee of

$1,250.00 in connection with count five, possession of a firearm by a convicted

felon.10 The sentencing minute entry also indicates that the trial court ordered

defendant to pay this fee. While the waiver of rights form does not show that

defendant was advised that he would have to pay this fee, the form entitled,

“Felony: Schedule of Fines, Fees, Sentencing Provisions & Probation

Requirements” reflects that defendant agreed to pay the $1,250.00 fee. Also, while

the transcript does not indicate that the trial judge advised defendant during the

colloquy that he would have to pay this fee, the transcript shows that prior to the

colloquy, defense counsel told the trial judge that defendant was going to plead

guilty, after which he stated, “I’d submitted to the Court boykin forms on each sets

of charges and fine, and fees sheets [sic].” La. R.S. 14:95.1 mandates the

9
It is noted that the five-year sentencing enhancements on the attempted armed robbery
convictions were properly imposed pursuant to La. R.S. 14:64.3(B), which provides that when the
dangerous weapon used in the commission of the crime of attempted robbery is a firearm, the offender
shall be imprisoned at hard labor for an additional period of five years without benefit of parole,
probation, or suspension of sentence. The statute further provides that this additional penalty shall be
served consecutively to the sentence imposed under La. R.S. 14:27 and La. R.S. 14:64. It is also noted
that notice of La. R.S. 14:64.3 was properly given by the State in the bill of information. Further,
defendant was advised of the five-year enhancements in the waiver of rights form.
10
Specifically, the trial judge stated, “The Court will assess as to count five a fee of $1,250.00 to
the Sheriff’s Office which is mandated by statute, it’s a mandatory fee for laboratory work.”

20-KA-258 9

imposition of a fine of not less than $1,000.00 nor more than $5,000.00. Based on

the foregoing, we find that the $1,250.00 “fee” imposed by the trial judge in

connection with count five was actually the mandatory “fine” required by the

statute.

Accordingly, we find the trial court proceedings and defendant’s sentences

do not present any non-frivolous issues to be raised on appeal. Because appellate

counsel’s brief adequately demonstrates by full discussion and analysis that her

review of the trial court proceedings did not identify any basis for a non-frivolous

appeal, and our independent review of the record supports counsel’s assertion, we

grant appellate counsel’s motion to withdraw as attorney of record for defendant.

Pro Se Assignments of Error

Defendant has filed a pro se supplemental brief raising four assignments of

error, to wit: (1) whether the State induced an involuntary guilty plea through

mental coercion by telling defendant that he had twenty-four hours to accept the

offered plea or the agreement would be off the table, and willingly or

inadvertently, avoiding to respond to defendant’s motion for disclosure of

impeaching information filed on behalf of defendant one week prior; (2) whether

defendant entered a knowing and intelligent plea agreement when the trial court

failed to inform him during the court’s acceptance of the plea that defendant would

not be able to withdraw the plea agreement and that defendant had the right to

plead not guilty; (3) whether the trial court erred in allowing a plea agreement

without assuring that the plea was totally voluntary and not the result of promises

when, in fact, defendant’s attorney promised that defendant would not have to

serve the entire sentence because the prosecutor would not seek the multi-bill, but

the Department of Corrections nevertheless ordered defendant to serve the entire

sentence due to his prior convictions; and (4) whether defendant’s attorney

20-KA-258 10

rendered ineffective assistance in allowing defendant to enter an unintelligent plea

agreement that violated the prohibition against double jeopardy.11

In his pro se brief, defendant first argues that the plea colloquy establishes

that the trial court did not mention “a number of rights,” and did not assure that

defendant clearly understood every right he was waiving, during its acceptance of

his guilty plea. While it is unclear from defendant’s brief which “rights” he

contends were omitted from the plea colloquy, it is assumed that he contends that

he was not advised that he would not be able to withdraw his guilty pleas once they

were accepted by the trial court.

As previously discussed, our thorough review of the record reveals no

constitutional infirmity or any irregularity in the trial court’s acceptance of

defendant’s guilty pleas that would render them invalid. The record shows that

defendant was aware that he was pleading guilty as charged to one count of

attempted second degree murder, two counts of attempted armed robbery, and one

count of possession of a firearm by a convicted felon. On the waiver of rights form

signed by defendant, as well as during the Boykin colloquy, defendant was advised

that by pleading guilty he was giving up numerous rights, including his right to

jury trial, his right to confrontation, and his privilege against self-incrimination, as

required by Boykin. Defendant acknowledged that his counsel had reviewed with

him the waiver of rights form and that the form bore his signature. Defendant

placed his initials next to individual advisals of his rights and placed his signature

at the end of the waiver of rights form, indicating that he understood that he was

waiving these rights. Defendant also articulated to the trial court during the

colloquy that he understood he was waiving his rights by pleading guilty.

11
While defendant’s pro se supplemental brief sets forth each of these four individual assignments
of error, he does not brief each issue separately, but rather, presents one “argument” to address them all.

20-KA-258 11

Further, the record shows that defendant was informed that his guilty pleas

could be used to enhance penalties for future convictions. Defendant confirmed

that he had not been forced or threatened into entering his guilty pleas.

We find that the record establishes that defendant was properly advised of

his rights, that he understood that by pleading guilty he was waiving those rights,

and that he was sentenced in accordance with the plea agreement. We also note

that defendant received a great benefit from pleading guilty in that the State agreed

not to multiple bill him, and the sentences were ordered to run concurrently. We

find that this pro se assignment of error lacks merit.

In his pro se brief, defendant next argues that his “substantial rights were

systematically neglected,” as is reflected by defense counsel’s repetitive waiver of

defendant’s presence at court hearings without consent. We construe defendant’s

argument as a claim for ineffective assistance of counsel based on defense

counsel’s waiving defendant’s presence at court hearings without his consent.

The Sixth Amendment to the United States Constitution, and Article I, § 13

of the Louisiana Constitution safeguard a defendant’s right to effective assistance

of counsel. State v. Thomas, 12-1410 (La. 9/4/13), 124 So.3d 1049, 1053; State v.

Francois, 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 58, writ denied, 14-431

(La. 9/26/14), 149 So.3d 261. When the issue of ineffective assistance of counsel

is raised, the claim is evaluated under the test set forth in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the defendant must

prove: (1) that his counsel’s performance was deficient, i.e., that counsel made

errors so serious that counsel was not functioning as the “counsel” guaranteed by

the Sixth Amendment; and (2) that the deficient performance prejudiced the

defense, i.e., that the errors were so serious as to deprive the defendant a fair trial.

Id., 466 U.S. at 687, 104 S.Ct. at 2064. “As a general matter, a defendant alleging

a Sixth Amendment violation must demonstrate a ‘reasonable probability that, but

20-KA-258 12

for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, 30, quoting

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. It is not enough for the accused to

make allegations of ineffectiveness; the accused must couple these allegations with

a specific showing of prejudice. State v. Bell, 02-1127 (La. App. 5 Cir. 2/25/03),

840 So.2d 656, 660.

The Sixth Amendment does not guarantee “errorless” counsel, or counsel

judged ineffective by hindsight. Rather, a defendant is guaranteed an attorney who

is reasonably likely to render effective assistance. State v. LaCaze, 99-584 (La.

1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154

L.Ed.2d 110 (2002). Judicial scrutiny must be highly deferential, and claims of

ineffective assistance are to be assessed on the facts of the particular case as seen

from the counsel’s perspective at the time. The courts, therefore, must indulge a

strong presumption that counsel’s conduct falls within the range of reasonable

professional assistance. Id.

Generally, an ineffective assistance of counsel claim is most appropriately

addressed through an application for post-conviction relief filed in the district

court, where a full evidentiary hearing can be conducted, if necessary, rather than

by direct appeal. State v. Ferrera, 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d

1060, 1066-67. However, when the record contains sufficient evidence to rule on

the merits of the claim and the issue is properly raised in an assignment of error on

appeal, the claim may be addressed in the interest of judicial economy. Id. at

1067; State v. Boston, 14-632 (La. App. 5 Cir. 12/16/14), 167 So.3d 82, 88. If, on

the other hand, “the record does not contain sufficient evidence to fully explore a

claim of ineffective assistance of counsel, the claim should be relegated to post-

conviction proceedings under La. C.Cr.P. art. 924-930.8.” State v. Taylor, 04-346

(La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

20-KA-258 13

Here, we find the record contains sufficient evidence to address defendant’s

claim that his counsel was ineffective for waiving defendant’s presence at court

hearings without defendant’s consent. The record shows that defendant appeared

in court and was arraigned on January 3, 2019. The record also shows that on

January 24, 2019, defense counsel waived defendant’s presence, and that the State

provided discovery to defense counsel. On February 2, 2019, defense counsel

again waived defendant’s presence at a status hearing; the hearing was held and

marked satisfied. On April 2, 2019, defendant’s presence was waived by defense

counsel; a status hearing was held and marked satisfied, and the trial court set dates

for a “final plea status” hearing and for trial. On May 16, 2019, defendant

appeared in court for the scheduled “plea status” hearing, and defense counsel’s

motion to continue trial without date was granted.

The record also shows that defendant appeared in court on June 13, 2019, for

a status hearing, which was marked satisfied. At that hearing, discovery was

marked satisfied and dates were set for the next hearing and a trial date was set for

September 16, 2019. Additionally, defense counsel was given thirty days to file

motions or they would be considered waived. At the next scheduled status hearing

held on August 8, 2019, defense counsel waived defendant’s presence. The status

hearing was held and marked satisfied, and another status hearing was scheduled

for September 3, 2019; the previously set September 16, 2019 trial date was

maintained. The record shows that defendant appeared for the September 3, 2019

status hearing, which was held and marked satisfied. Again, the September 16,

2019 trial date was maintained. On September 11, 2019, defendant appeared in

court for a status hearing at which time the State placed its plea offer on the record.

Defendant acknowledged that he understood the plea offer and advised the court

20-KA-258 14

that he would discuss his options with his attorney; the September 16, 2019 trial

date was maintained.

La. C.Cr.P. art. 831, which governs the presence of a defendant in felony

prosecutions, provides:

A. Except as may be provided by local rules of court in
accordance with Articles 522,12 551,13 and 562,14 a
defendant charged with a felony shall be present at all
of the following:

(1) At arraignment.

(2) When a plea of guilty, not guilty, or not guilty and
not guilty by reason of insanity is made.

(3) At the calling, examination, challenging,
impaneling, and swearing of the jury, and at any
subsequent proceedings for the discharge of the
jury or of a juror.

(4) At all times during the trial when the court is
determining and ruling on the admissibility of
evidence;

(5) In trials by jury, at all proceedings when the jury is
present, and in trials without a jury, at all times
when evidence is being adduced.

(6) At the rendition of the verdict or judgment, unless
he voluntarily absents himself.

La. C.Cr.P. art. 831 [internal footnotes added].

La. C.Cr.P. art. 834, which governs when the presence of a defendant is not

necessary, provides:

The defendant has a right to be present, but his presence
is not essential to the validity of any of the following
proceedings in a criminal prosecution:

12
La. C.Cr.P. art. 522 governs a defendant’s appearance at hearings on motions and audio-visual
appearances.
13
La. C.Cr.P. art. 551 governs pleas at the arraignment of defendants.
14
La. C.Cr.P. art. 562 controls the use of simultaneous audio-visual transmission for certain
proceedings.

20-KA-258 15

(1) The making, hearing of, or ruling on a preliminary
motion or application addressed to the court;

(2) The making, hearing of, or ruling on a motion or
application addressed to the court during the trial
when the jury is not present; except as provided in
Clause (4) of Article 831; and

(3) The making, hearing of, or ruling on a motion or
application made after his conviction.

Based upon our review of the record, we do not find that defense counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms, and therefore, did not provide defendant with ineffective

assistance under Strickland. The minute entries reflect that defendant was present

for both his arraignment and his guilty pleas as required by La. C.Cr.P. art. 831.

Defendant’s presence was not required for the other court proceedings—those

which he attended and those which he did not—and thus, his counsel did not

provide ineffective assistance by waiving defendant’s presence at those hearings.

Accordingly, we find that defendant’s claim regarding the ineffectiveness of his

counsel for waiving defendant’s presence at court proceedings without his consent

lacks merit.

Regarding his next pro se assignments of error, defendant asserts additional

ineffective assistance of counsel claims. Specifically, defendant argues that he

could not have made a knowing, intelligent, and voluntary decision to enter a plea

agreement “if [his] attorney made promises to [him] concerning time that [he]

would serve on sentence because the prosecutor would not seek the multi-bill but

was wrong because of lack of knowledge of pertinent laws [sic].” In essence,

defendant contends his counsel was ineffective for advising him that he would not

have to serve his entire sentence. Defendant also contends that his counsel was

20-KA-258 16

ineffective for failing to advise him that he would not be able to withdraw his

guilty pleas or that he could have pled not guilty and asserted his innocence.

In support of his contention, defendant claims that the motion for disclosure of

impeaching information that was filed at his behest one week prior to the signing

of the plea agreement reflects his desire to go to trial. He claims that he would

have been “undecided” about accepting the plea agreement if his counsel had made

him aware that he would not be able to withdraw his consent to the plea agreement.

Defendant argues that the cumulative effect of the numerous violations regarding

the plea colloquy and his attorney’s ineffectiveness should render his guilty plea

unknowing, unintelligent, involuntary, and invalid.

The United States Supreme Court has held that the two-prong test set forth

in Strickland applies to claims of ineffective assistance of counsel that arise out of

the plea process:

In the context of guilty pleas, the first half of the
Strickland v. Washington test is nothing more than a
restatement of the standard of attorney competence
already set forth in Tollett v. Henderson, 411 U.S. 258,
93 S.Ct. 1602, 35 L.Ed.2d 235 (1973), and McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763
(1970). The second, or “prejudice,” requirement, on the
other hand, focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the
“prejudice” requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)

[internal footnotes omitted].

Of significance, a defendant must prove both the Strickland elements to

establish that his counsel was so ineffective as to require reversal. State v. Hongo,

96-2060 (La. 12/2/97), 706 So.2d 419, 422. As the United States Supreme Court

20-KA-258 17

has set forth, “[j]udicial scrutiny of counsel’s performance must be highly

deferential,” and a reviewing court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of professional assistance.”

Strickland¸ 466 U.S. at 689-690, 104 S.Ct. 2052. Notably, “it is necessary to

‘judge … counsel’s challenged conduct on the facts of the particular case, viewed

as of the time of counsel’s conduct.’” Lockhart v. Fretwell, 506 U.S. 364, 371, 113

S.Ct. 838, 844, 122 L.Ed.2d 180 (1993), quoting Strickland, 466 U.S. at 690, 104

S.Ct. 2052. Furthermore, “[g]eneral statements and conclusory allegations will not

suffice to prove a claim of ineffective assistance of counsel.” State v. Fisher, 19-

488 (La. App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247, quoting State v. Celestine,

11-1403 (La. App. 3 Cir. 5/30/12), 91 So.3d 573, 579.

As to defendant’s allegations herein regarding his counsel’s ineffectiveness

for providing misinformation about the amount of time defendant would be

required to serve, and for failing to make him aware that he could not withdraw his

consent or back out of the plea agreement, we find the record is insufficient to fully

consider these claims. We note that, because defendant’s convictions resulted

from a guilty plea, the only transcripts in the record available for review are that of

a status hearing and the plea hearing. The record does not indicate what advice, if

any, counsel gave to defendant prior to entering his guilty pleas regarding the time

defendant would have to serve or under what conditions and/or circumstances

defendant could withdraw his guilty pleas. (See State v. Granado, 18-485 (La.

App. 3 Cir. 12/6/18), 261 So.3d 51, 57-58, writ denied, 19-48 (La. 9/6/19), 278

So.3d 968, where the defendant alleged his guilty plea was made in reliance on

assertions or promises not found in the record. The appellate court found that

because the record did not contain the evidence about which the defendant

complained, the defendant’s claim of ineffective assistance of counsel was

relegated to post-conviction proceedings.) We find that these ineffective assistance

20-KA-258 18

of counsel claims are more properly raised in an application for post-conviction

relief in the trial court, where a full evidentiary hearing can be conducted, if

necessary, and defendant can present evidence to support his allegations. See State

v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154; and State v. Johnson,

18-294 (La. App. 5 Cir. 1/16/19), 264 So.3d 593.

In his last ineffective assistance of counsel claim, defendant makes a general

allegation that his counsel rendered ineffective assistance by allowing him to

“enter an unintelligent plea agreement that violated the prohibition against double

jeopardy.” As previously stated, “[g]eneral statements and conclusory allegations

will not suffice to prove a claim of ineffective assistance of counsel.” Fisher, 299

So.3d at 1247, quoting Celestine, 91 So.3d at 579. Further, all specifications or

assignments of error must be briefed pursuant to Uniform Rules–Courts of Appeal,

Rule 2–12.4(B)(4), and the appellate court may consider abandoned any

specification or assignment of error that has not been briefed. State v. Caulfield,

10-769 (La. App. 5 Cir. 5/24/11), 67 So.3d 600, 608, writ denied, 11-1395 (La.

3/30/12), 85 So.3d 107. The “Argument” section of defendant’s pro se brief

makes no mention of “double jeopardy.” Consequently, we find that defendant has

effectively failed to brief how the plea agreement at issue violated the prohibition

against double jeopardy and, thus, consider this pro se assignment of error

abandoned.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely

reviews the record for errors patent in accordance with 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), regardless of whether defendant makes such a request. Our

review reveals that there is one error patent, which does not require corrective

action.

20-KA-258 19

During the plea colloquy, the trial court advised defendant that post-

conviction relief applications must be filed within two years of the date that the

sentence becomes final. However, after sentencing, the trial judge advised

defendant that he had two years after the judgment of conviction and sentence

becomes final in which to seek post-conviction relief. We note that the waiver of

rights form reflects that defendant was advised that any post-conviction relief

applications must be filed within two years of the date that “this sentence”

becomes final. Further, the sentencing minute entry indicates that defendant was

advised that he had two years after judgment of conviction and sentence has

become final to seek post-conviction relief.

If a trial court fails to advise, or provides an incomplete advisal, pursuant to

La. C.Cr.P. art. 930.8, this Court may correct this error by informing the defendant

of the applicable prescriptive period for post-conviction relief by means of its

opinion. However, in the instant case, although defendant received conflicting

advice regarding the time period for filing a post-conviction relief application, he

nevertheless timely filed an application for post-conviction relief and, therefore,

the error is moot. See State v. Staggers, 03-655 (La. App. 5 Cir. 10/28/03), 860

So.2d 174, 179 (where this Court found that while it was true that the defendant

was not initially advised of the two-year prescriptive period for filing an

application for post-conviction relief under La. C.Cr.P. art. 930.8, he timely filed

an application for post-conviction relief, and thus, the error was moot.)

DECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences

on all counts. Appellate counsel’s motion to withdraw as counsel of record for

defendant is granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO
WITHDRAW GRANTED.

20-KA-258 20

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
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
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JUDGES 101 DERBIGNY STREET (70053)
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20-KA-258
E-NOTIFIED
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HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
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