only. Crichton, J., concurs for the reasons assigned by Knoll, J. Knoll, J., concurs and assigns reasons. * Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for Clark, J. Retired Justice Jeannette Knoll appointed as Justice ad hoc s

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #024
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of July, 2020 are as follows:
PER CURIAM:
2019-KH-00073 STATE OF LOUISIANA VS. ROBERT E. RICARD, JR. (Parish
of Tangipahoa)
While i t is conceivable that the sentencing range in the molestation jury
instruction (to which counsel did not object) had an effect on the outcome of
the proceeding, defendant must show a reasonable probability that, but for
counsel’s unprofessional erro rs, the result of the proceeding would have
been differe nt. A reasona ble probability is a probability sufficie nt to
undermine confidence in the outcome. It is not enough to show that the errors
had some conceivable effect on the outcome of the proceeding. Counsel’s
errors must be so serious as to deprive the defendant of a fair trial in which
the result is reliable. Defendant, who presents only a conceivable possibility,
has failed to carry his post-conviction burden of establishing a reasonable
probability sufficient to undermine confidence in the verdict. Accordingly,
we affirm the denial of relief on collateral review.
AFFIRMED.
Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for
Justice Clark.
Retired Justice Jeannettte Knoll appointed as Justice ad hoc sitting for
Crain, J., recused in case number 2019-KH-00073 only.
Crichton, J., concurs for the reasons assigned by Knoll, J.
Knoll, J., concurs and assigns reasons.

* Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for Clark, J. Retired Justice
Jeannette Knoll appointed as Justice ad hoc sitting for Crain, J., recused.
07/09/20
SUPREME COURT OF LOUISIANA
No
. 2019-KH-00073
STA
TE OF LOUISIANA
ve
rsus
RO
BERT E. RICARD, JR.
O
N SUPERVISORY WRIT TO THE TWENTY-FIRST
JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
PE
R CURIAM:*
Defendant was indicted with two counts of aggravated rape , La.R.S.
14:42(A)(4) (prior to amendment by 2015 La. Acts No. 184), of his niece, K.M.,
age 12. Defendant regularly babysat K.M. and her siblings in exchange for lodging
in the home of his sister’s family. At trial, defendant’s younger sister (who was not
the mother of K.M.) , age 25, testified that defendant had raped her several times
when she was 10 years old but that she did not reveal the abuse to her older sister,
K.M.’s mother, until she heard the allegations that defendant raped K.M.
With defense counsel’s zealous and skilled advocacy, the jury acquitted
defendant of one count of aggravated rape, and found him guilty of the lesser
offense of molestation of a juvenile, La.R.S. 14:81.2, in response to the second
count of aggravated rape. The cha rged offenses carried a mandatory sentence of
life imprisonment without parole eligibility.
The jury was instructed that 10 of 12 jurors must agree to reach a verdict.
Upon the jury’s return to the courtroom, however, the judge misspoke and asked
whether nine jurors concurred in the responsive verdict, but the jury was not

2
polled. T he jury was also instructed that there are 10 lesser offenses that are
responsive to the charge d crimes: attempted aggravated rape, forcible rape,
attempted forcible rape, simple rape, attempted simple rape, sexual battery,
molestation of a juvenile, attempted molestation of a juvenile, indecent behavior
with a juvenile, and attempted indecent behavior with a juvenile. Despite being
instructed that sentencing is not the function of the jury but rather is the duty and
responsibility of the judge, the jury was also informed of the sentencing range for
each lesser responsive crime . Unfortunately, the court misinformed the jury that
the sentencing range for molestation of a juvenile is five to 20 years imprisonment,
when in f act the correct sentence for that crime is much greater because of the
victim’s age.
1 La.R.S. 14:81.2(D)(1) (“Whoever commits the crime of molestation
of a juvenile when the victim is under the age of thirteen years shall be imprisoned
at hard labor for not less than twenty -five years nor more than ninety -nine years.
At least twenty-five years of the sentence imposed shall be served without benefit
of probation, parole, or suspension of sentence.”).
Defendant did not object to the jury instructions and did not bring the error
to the district court’s attention until sentencing when the State objected to the
leniency of the 20 -year sentence that the court initially imposed. The State
subsequently filed a habitual offender bill of information alleging that the
1 For the other lesser offenses, the jurors were informed of the following sentencing ranges:
attempted aggravated rape, up to 50 years imprisonment; forcible rape, not less than five nor
more than 40 years imprisonment with at least two years without parole; attempted forcible rape,
up to 20 years imprisonment; simple rape, up to 25 years imprisonment without parole;
attempted simple rape, up to 12 1/2 years imprisonment; sexual battery, up to 99 years
imprisonment with at least 25 years without parole; attempted molestation of a juvenile, up to 10
years imprisonment; indecent behavior with a juvenile, up to 25 years imprisonment with at least
two years without parole; and attempted indecent behavior with a juvenile, up to 12 1/2 years
imprisonment.

3
defendant was a third- felony habitual offender.2 Defendant refused at first to enter
a plea to the alleg ations. After negotiations, however, defendant accepted the
State’s offer to waive the mandatory minimum sent ence of 66 years, 3 in
accordance with La.C.Cr.P. art. 890.1(A)(1). Thereafter, defendant admitted the
allegations in the habitual offender bill, and the district court sentenced defendant
to an agreed-upon sentence of 40 years imprisonment at hard labor without parole
eligibility.
The court of appeal affirmed the conviction, habitual offender adjudication,
and sentence. State v. Ricard , 15-1855 (La. App. 1 Cir. 9/16/16) (unpub’ d), writ
denied, 16 -1880 (La. 9/6/17), 224 So.3d 987. The court of appeal rejected
defendant’s claim that the error in i nstructing the jury on the wrong sentencing
range for molestation likely influenced the jury’s return of that responsive verdict
and thereby denied him a fair trial. The court of appeal found that any complaint
about the error was waived by the failure to object to the erroneous instruction. The
court of appeal also found that defendant’ s objection at sentencing was to the
length of the sentence rather than the instructional error, and that defendant did not
protest at sentencing that the jury charge had denied him a fair trial. Finally, the
court of appeal found that defendant admitted the allegations in the habitual
offender bill and agreed to the 40-year sentence as a third -felony offender. While
not stated directly, implicit in this last finding by the court of appeal is that
2 The State alleged the following predicate felonies: (1) March 9, 2004, guilty plea to simple
burglary of an inhabited dwelling, (2) March 9, 2004, guilty plea to attempted simple kidnapping
and illegal possession of stolen thing s; and (3) July 13, 2006, conviction for felon in possession
of a firearm . The State conceded that the 2004 convictions could only be counted as a single
predicate felony.
3 The court of appeal, however, found on direct review that the State erred in this calculation and
that the correct mandatory minimum sentence under the habitual offender law was life
imprisonment because of the nature of the present offense and defendant’s predicate felonies.

4
defendant either waived the claim or that he was not prejudiced by the error.
De
fendant’s timely application for post- conviction relief was denied by the
district court. The court of appeal denied review without comment. State v. Ricard,
18-1315 (La. App. 1 Cir. 11/30/18) (unpub ’d). Defendant contends, as he did on
dir
ect appeal, that he was denied a fair trial because the lesser sentencing range
provided in the erroneous jury instruction lured the jury into finding him guilty of
that offense. Defendant presents that claim again now by projecting it through the
lens of the Sixth Amendment right to counsel and the standard of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), arguing that
counsel’s error in failing to object to the jury instruction is the root cause of the
unfair trial and unreliable verdict here . Defendant also contends that counsel was
ineffective for failing to ask that the jury be polled when the district court
misspoke and asked whether nine (rather than ten) jurors concurred in the verdict.
The latter claim can be quickly dismissed. The jury was correctly instructed,
both verbally from the bench and in written charges that accompanied the jury into
deliberations, that 10 of 12 jurors must concur in the verdict. While nonunanimous
verdicts are no longer authorized in trials for serious offenses, they were authorized
at the time of defendant’ s trial, and jurors were correctly instructed o n what was
necessary to reach a verdict at th at time. Aside from the district court’ s isolated
misstatement, there is nothing to suggest that only nine jurors concurred in the
verdict. On collateral review, the applicant who seeks relief has the burden of
proving entitlement to it. La.C.Cr.P. art. 930.2 (“ The petitioner in an application
for post conviction relief shall have the burden of proving that relief should be
granted.”). Defendant here cannot simply allege that only nine jurors might have
concurred in the verdict, and then shift the burden to the State to prove otherwise.

5
Defendant has failed to ca rry his burden of showing any deficient performance by
counsel in failing to point out the district court’ s brief misstatement, and failed to
show the verdict has been rendered suspect. As the United States Supreme Court
found in Harrington v. Richter, 562 U.S. 86, 111 –12, 131 S.Ct. 770, 791 –92, 178
L.Ed.2d 624 (2011) , “The likelihood of a different result must be substantial, not
just conceivable.” The likelihood of prejudice alleged here is only conceivable.
With regard to defendant’s primary claim, the prejudice defendant claims to
have suffered is also unproved. Furthermore, it is too speculative. An applicant for
post-conviction relief who alleges he received ineffective assistance of counsel has
the burden of establishing that (1) “counsel’s representation fell below an objective
standard of reasonableness;” and (2) “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” See State v. Washington, 491 So.2d 1337, 1339 (La. 1986) (quoting
Strickland v. Washington ). Assuming for the sake of argument that counsel
unprofessionally erred in failing to object to the illegally lenient sentencing range
in the jury charge (although it is conceivable that counsel chose to remain silent in
the hopes the error would persist through sentencing), defendant here fails to carry
his post-conviction burden of showing prejudice under Strickland.
The United States Supreme Court elaborated on the Strickland standard in
Harrington v. Richter , in the context of chastising the federal circuit court for
failing to afford the requisite deference owed the state court. The court stated:
To establish deficient performance, a person challenging a conviction
must show that “counsel’ s representation fell below an objective
standard of reasonableness.” 466 U.S. at 688, 104 S.Ct. 2052. A court
considering a claim of ineffective assistance must apply a “strong
presumption” that counsel ’s representation was within the “wide
range” of reasonable professional assistance. Id., at 689, 104 S.Ct.
2052. The challenger’s burden is to show “that counsel made errors so

6
serious that counsel was not functioning as the ‘c ounsel’ guaranteed
the defendant by the Sixth Amendment.” Id., at 687, 104 S.Ct. 2052.
W
ith respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’ s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that
the errors had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S.Ct. 2052.
“
Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284
(2010). An ineffective -assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not presented at
trial, and so the Strickland standard must be applied with scrupulous
care, lest “intrusi ve post-trial inquiry” threaten the integrity of the
very adversary process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689–690, 104 S.Ct. 2052. Even under de novo
review, the standard for judging counsel ’s representation is a most
deferential one. Unlike a later reviewing court, the attorney observed
the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.
It is “all too tempting” to “second- guess counsel’s assistance after
conviction or adverse sentence.” Id. , at 689, 104 S.Ct. 2052; see also
Bell v. Cone , 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122
L.Ed.2d 180 (1993). The question is whether an attorney’
s
r
epresentation amounted to incompetence under “prevailing
professional norms,” not whether it deviated from best practices or
most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Ri
chter, 562 U.S. at 104–105, 131 S.Ct. at 787–788.
This court also elaborated on the Strickland standard in State v. Curley , 16-
1708 (La. 6/27/18), 250 So.3d 236. This court wrote:
To prevail on a claim of ineffective assistance, a defendant must first
show that “counsel’s representation fel l below an objective standard
of reasonableness.” Strickland, 466 U.S. at 687 –88, 104 S.Ct. 2052.
“An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the
error has no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. See
also Buck v. Davis, — U.S. —, 137 S.Ct. 759, 775 –77, 197 L.Ed.2d 1
(2017) (explaining two prongs of Strickland ). To satisfy the second
prong of Strickland , a litigant must also demonstrate prejudice. “The

7
purpos e of the Sixth Amendment guarantee of counsel is to ensure
that a defendant has the assistance necessary to justify reliance on the
outcome of the proceeding. Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in or der to constitute
ineffective assistance under the Constitution.” Strickland , 466 U.S. at
691–92, 104 S.Ct. 2052. Thus, the “defendant must [also] show that
there is a reasonable probability that, but for counsel’ s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
C
urley, pp. 7–8, 250 So.3d at 241.
Here, defendant contends there is a reasonable probability that the jury
returned the verdict of guilty of molestation because the jury was incorrectly
instructed that the sentencing range for this crime is five to 20 years imprisonment.
The flaw in this assertion is that what role, if any, the sentencing range played in
jury deliberations is unknowable in this case, and it requires this court to speculate.
It is conceivable that the jury ignored their instruction that sentencing is the proper
domain of the judge and that they should decide the case based on the evidence
presented with regard to the elements of each offense unde r the reasonable doubt
standard. There is also a reasonable probability that the jury correctly performed
their duty. There is a reasonable probability that the jury found defendant guilty of
molestation— not because of the sentencing range they believed he would face —
but because the elements of that crime best fit the evidence presented at trial.
Notably, the sentencing ranges for the lesser responsive verdicts do not fall into
any neat and convenient pattern descending from greater to lesser . Instead, the
ranges are scattershot and overlap. D efendant’s claim that the jury likely selected
molestation because of the sentencing range ignores the fact the jury had other
options with similar and overlapping ranges. Defendant’s theory does not explain
why molestation was chosen by the jury rather than, for example, simple rape or

8

indecent behavior.
While it is conceivable that the sentencing range in the molestation jury
instruction (to which counse l did not object) had an effect on the outcome of the
proceeding, defendant must show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. It is not enough to show that the errors had some conceivable effect on
the outcome of the proceeding. Counsel’s errors must be so serious as to deprive
the defendant of a fair trial in which the result is reliable. Defendant, who presents
only a conceivable possibility , has failed to carry his post-conviction burden of
establishing a reasonable probability sufficient to undermine confidence in the
verdict. Accordingly, we affirm the denial of relief on collateral review.
Applicant has now fully litigated his application for post-conviction relief in
state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-
conviction procedure envisions the filing of a second or successive applicat ion
only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within
the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in
2013 La. Acts 251 amended that article to make the procedural bars against
successive filings mandatory. Applicant’s claims have now been fully litigated in
accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can
show that one of the narrow exceptions authorizing the filing of a successive
application applies, applicant has exhausted his right to state collateral review. The
district court is ordered to record a minute entry consistent with this per curiam.
AFFIRMED

07/09/20
S
UPREME COURT OF LOUISIANA
No
. 2019-KH-00073
STA
TE OF LOUISIANA
VS.
ROBERT E. RICARD, JR.
O
n Supervisory Writ to the 21st Judicial District Court, Parish of Tangipahoa
C
RICHTON, J., concurs for the reasons assigned by Knoll, J.

07/09/20
SUPREME COURT OF LOUISIANA
No
. 2019-KH-00073
STA
TE OF LOUISIANA
ve
rsus
RO
BERT E. RICARD, JR.
ON
SUPERVISORY WRIT TO THE TWENTY-FIRST
JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
K
noll, J., concurring
With all due respect, for the following reasons I concur in the result.
The only issue squarely before this Court is whether relator can raise a trial
error in a post-conviction proceeding after he has knowingly pleaded guilty with an
agreed-upon sentence under the habitual offender statute with multiple predicate
felonies and is presently serving that habitual offender sentence. The jurisprudence
is legion that one who pleads guilty with an agreed-upon sentence waives ALL errors
and is not entitled to relief.1
Here, the relator is complaining of an error that sounds like an unfortunate
judicial error from a n otherwise outstanding District Judge. Notwithstanding this
1 The citation of cases here would quickly become repetitive. However, just a few bear mentioning.
A defendant’s unconditional guilty plea generally waives all non- jurisdictional defects in the
proceedings leading to his conviction. State v. McKinney, 406 So.2d 160, 161 (La. 1981); State v.
Crosby, 338 So.2d 584, 586 (La. 1976). In addition, the United States Supreme Court stated in
Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) , that a guilty plea bars
review of many claims, including even “‘antecedent constitutional violations’” related to events
that had “‘occurred prior to the entry of the guilty plea.’” Blackledge, 417 U.S. at 30, 94 S.Ct. at
2103 (quoting Tollett v. Henderson, 411 U.S. 258, 266–267, 93 S. Ct. 1602, 1607, 36 L.Ed.2d 235
(1973)). Finally, this Court has rejected numerous post -conviction applications because habitual
offender adjudications are not cogniz able on state collateral review. See La.C.Cr.P. art. 930.3;
State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-
2397 (La. 10/15/10), 45 So.3d 1030 (“[A] habitual offender adjudication . . . constitutes sentencing
for purposes of Melinie and La.C.Cr.P. art. 930.3, which provides no vehicle for post -conviction
consideration of claims arising out of habitual offender proceedings, as opposed to direc t appeal
of the conviction and sentence.”).

2

judicial error and a lack of objections by relator’s defense counsel and the State,
relator knowingly and voluntarily pleaded guilty to the State’s habitual offender bill
filed against him. The record shows relator was fully aware of the trial error a nd
elected to plead guilty with an agreed- upon 40 -year sentence under the habitual
offender law. Thus, relator waived all preceding trial errors when he pleaded guilty.
The majority per curiam discusses trial error issues raised by relator that are
inappropriate to the disposition of this case. These issues were waived for the reasons
stated above.2 The majority discussion of trial error at this stage in essence gives
relator another bite at the apple where no other similarly-situated defendant has
obtained relief.
Moreover, conspicuously missing from relator’s claims is any allegation he
suffered prejudice that affected his decision to plead guilty to the allegations in the
habitual offender bill. Indeed, relator has not even asked that his habitual off ender
adjudication or sentence be set aside, nor does he show how it prejudiced his plea
under the habitual offender bill.3 Simply stated, all of relator’s complaints arise from
a trial error he waived when he knowingly pleaded guilty to an agreed-upon sentence
under the habitual offender law. Accordingly, relator is not entitled to relief.

2 Indeed, this was essentially what the court of appeal suggested on direct review in the context of
reviewing the sentencing claim when the panel emphasized defendant had admitted the allegations
in the habitual offender bill of information. See State v. Ricard , 15-1855, p. 4 (La. App. 1 Cir.
9/16/16), available at 2016 WL 4942350 *8–9.

3 This demonstrates that relator himself is aware that his habitual offender plea stands as a
formidable obstacle to the a ffording him any relief, let alone his request for a new trial based on
an error that preceded his decision to plead guilty to the allegations in the habitual offender bill.