State Of Louisiana v. Shawn Becnel

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 KA 0587

STATE OF LOUISIANA

VERSUS

SHAWN J. BECNEL

Judgment Rendered: APR 1 6 2021

On Appeal from the Twenty -Second Judicial Trial Court
In and for the Parish of Washington
State of Louisiana
Docket No. 14 CR4 125300

Honorable Martin E. Coady, Judge Presiding

Warren L. Montgomery Counsel for Appellee
Trial Attorney State of Louisiana
J. Bryant Clark, Jr.
Matthew Caplan
Assistant District Attorney
Covington, LA
John Alford
Assistant District Attorney
Franklinton, LA

Mary Constance Hanes Counsel for Defendant/ Appellant
Louisiana Appellate Project Shawn J. Becnel
New Orleans, LA

BEFORE: GUIDRY, MCCLENDON, AND LANIER, JJ.

MCCLENDON, 3.

The defendant, Shawn J. Becnel, was charged by an amended bill of

information with two counts of indecent behavior with a juvenile victim under the

age of thirteen, violations of LSA- R. S. 14: 81( H)( 2) ( counts one and two),' and

initially pled not guilty. The defendant filed a motion for preliminary examination,

a motion to suppress evidence, a motion to suppress statement, and a motion to

suppress identification. After a combined hearing on the motion for preliminary

examination and motion to suppress evidence, the trial court found probable

cause, denied the defendant' s motion to suppress evidence, and held open the

motion to suppress identification. 2 The defendant subsequently withdrew his

former not guilty pleas and pled guilty as charged on both counts pursuant to

State v. Crosby, 338 So. 2d 584 ( La. 1976). 3 The trial court sentenced the

defendant to seven years imprisonment at hard labor on each count, to run

concurrently, with two years to be served without the benefit of probation, parole,

or suspension of sentence. The defendant was notified of the requirement to

register as a sex offender.

The defendant now appeals, asserting as error that the trial court failed to

rule on his motion to suppress identification and that the police employed a

suggestive identification procedure. In assignment of error number one, the

defendant specifically contends that the case must be remanded for a hearing on

the motion to suppress identification. Alternatively, in the event that this court

treats the trial court's lack of a ruling as a denial of the motion, in assignment of

error number two, the defendant argues that the motion to suppress identification

1 The defendant was also charged with one count of possession of pornography involving juveniles
count three as amended). Count three was severed from counts one and two, and the defendant
proceeded to trial by jury on count three only. The jury found the defendant guilty of the lesser
offense of attempted possession of pornography involving juveniles. He appealed, and this court
affirmed the conviction and sentence on count three. State v. Becnel, 2016- 1297 ( La. App. 1 Cir.
4/ 20/ 17), 220 So. 3d 27, writ denied, 2017- 1023 ( La. 3/ 9/ 18), 238 So. 3d 451.

2 There was no mention of the motion to suppress statement in the minutes or transcript of the
hearing.
3 The defendant did not state the adverse ruling he wished to appeal. This issue will be further
discussed herein, in addressing assignment of error number one.

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should have been granted on its merits. For the following reasons, we remand for

further proceedings.

STATEMENT OF FACTS

Since the defendant pled guilty as charged on both counts, the facts were

not fully developed in this case. At the BoykiW hearing, the defense attorney,

the State, and the trial court agreed to adopt the facts adduced at the motion to

suppress hearing as a factual basis. In accordance with the bill of information and

testimony presented at the motion to suppress evidence hearing, the following

took place. Detective David Miller of the Bogalusa Police Department ( BPD)

participated in the investigation and arrest of the defendant. The investigation

began after the BPD received a complaint regarding a male subject exposing

himself to young children in front of a church. Detective Miller noted that early on

in the investigation, the defendant was questioned by officers in the area, as he

fit the description provided by the children. The defendant was later brought in

for questioning, line- ups were conducted, and the defendant was positively

identified as the person who exposed himself to the children.

Regarding the line- ups, Detective Miller confirmed that he assembled a

photographic array consisting of six photos of white male subjects, including the

defendant, and emailed it to the parents of all four victims and to detectives in

Meridian and Houma, where three of the children lived. The parents were

instructed to print the email and show the line- up to the children. Two of the

children, both female, positively identified the defendant as the perpetrator, while

the two male children were unable to make an identification. One of the children

who made a positive identification lived in Meridian and the other lived in Bogalusa.

The child from Meridian made an additional identification of the defendant from

the photographic line- up assembled by Detective Miller at the police station in

Meridian, in the presence of a detective, though Detective Miller testified he was

unsure of the order in which she made the two identifications.

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

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ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues that the case

must be remanded to the trial court for a ruling on his motion to suppress

identification. The defendant notes that at the conclusion of the motions hearing,

the trial court denied his motion to suppress evidence but made no ruling on his

separate motion to suppress identification, stating the motion was " ongoing." The

defendant claims that he made an objection to what he calls the trial court's

refusal" to rule on the motion to suppress. He notes that as far as can be

determined, the trial court never ruled on the motion to suppress identification.

Citing several cases that were remanded for a ruling on a motion to suppress, the

defendant contends that "[ i] n cases where appeal is taken on a suppression issue,

it is axiomatic that appellate review is not possible in the absence of a district

court's ruling on the motion to suppress." The defendant asks this court to follow

the procedure taken in State v. Ruffin, 2011- 1698 ( La. App. 1 Cir. 5/ 3/ 12), 2012

WL 1564610, at * 2 ( unpublished), and specifically limit the trial court to a period

of thirty days in which to rule on the motion to suppress identification or hold a

new hearing on the matter. In response, the State filed an appellee brief arguing

that the motion to suppress identification was abandoned by the defendant.

It is well settled that a plea of guilty normally waives all non -jurisdictional

defects in the proceedings prior to the plea. Crosby, 338 So. 2d at 586. However,

the defendant is allowed to condition his guilty plea upon the appellate review of

specified pre -plea errors. The defendant must specifically reserve the right for

appellate review of any rulings of the trial court prior to entering his guilty plea.

State v. Williams, 2013- 1788 ( La. App. 1 Cir. 5/ 2/ 14), 2014 WL 1778362, at * 1

unpublished); see also State v. Aguillard, 357 So. 2d 535, 537 ( La. 1978);

Crosby, 338 So. 2d at 588.

However, the Louisiana Supreme Court has held that "[ a] defendant's

failure to specify which pre-trial rulings he desires to reserve for appeal as part of

a guilty plea entered pursuant to [ Crosby], may limit the scope of appellate review

but should not preclude review altogether." State v. Joseph, 2003- 315 ( La.

5/ 16/ 03), 847 So. 2d 1196 ( per curiam). Absent a detailed specification of which

adverse pretrial rulings the defendant reserved for appellate review as part of his

guilty plea, an appellate court should presume that the trial court permitted a

Crosby reservation no broader than necessary to effectuate the underlying

purpose of conditional guilty pleas, i. e., to preserve review of evidentiary rulings

that " go to the heart of the prosecution' s case" that a defendant would otherwise

waive by entering an unqualified guilty plea. Such rulings typically include denial

of a motion to suppress evidence or a confession and exclude rulings that may

affect the conduct of trial but which do not substantially relate to guilt, such as the

denial of a continuance or severance. Joseph, 847 So. 2d at 1196- 97.

Thus, in this case, because the defendant failed, at the time that he entered

his plea pursuant to Crosby, to specify which pretrial ruling he desired to preserve

for appeal, this court is limited to a review of evidentiary rulings that " go to the

heart of the prosecution' s case." Joseph, 847 So. 2d at 1196- 97; Williams, 2014

WL 1778362, at * 1. However, while the issue raised in the instant appeal goes to

the heart of the prosecution' s case, as defendant concedes, the record shows there

was no ruling on the motion. 5

In asking this court to remand for a ruling on his motion to suppress

identification, the defendant cites State v. Walton, 2006- 2553 ( La. 6/ 1/ 07), 957

So. 2d 133 ( per curiam) and Ruffin. In Walton, the defendant entered his guilty

plea under Crosby, specifically reserving his right to appeal the issue of whether

the police lawfully seized the evidence against him. Walton, 957 So. 2d at 134.

In the underlying appellate opinion, because the trial court did not conduct a

motion to suppress, nor did it rule on the
hearing on the defendant's

5 As aforementioned, the record shows that on April 8, 2015, the trial court conducted a hearing
on the motion to suppress evidence and the motion for preliminary examination but held open the
motion to suppress identification for a later, unspecified date. After denying the motion to suppress
evidence, the trial court expressly stated that it was not ruling on the motion to suppress
Note our
identification, noting that it was ongoing. At that point, the defense attorney stated, "
objection, please." The trial court then ruled on the motion for preliminary examination, finding
probable cause. At that point, the defense attorney stated, " Note our objection on the motion to
suppress identification." The trial court noted the objection. As indicated, the defendant
subsequently pled guilty under Crosby, without seeking a ruling on the motion or specifying the
pre -plea ruling being reserved.

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constitutionality of the seizure, this court determined there was nothing before us

to review on the Crosby reservation. Thus, this court determined that a material

condition of the guilty plea had failed, set the plea aside, and remanded the case

for further proceedings, although the defendant had not asked for that result.

State v. Walton, 2005- 2175 ( La. App. 1 Cir. 9/ 20/ 06), 937 So. 2d 936

unpublished).

In a subsequent writ application to the Louisiana Supreme Court, the

defendant in Walton argued that a nunc pro tunc hearing on the motion to

suppress and a ruling by the trial court on the validity of the search and seizure

might cure any defect in the guilty plea proceedings and thereby avoid vacating

the guilty plea. The Louisiana Supreme Court agreed, and remanded the case to

the trial court to conduct a hearing on the motion to suppress and for a ruling on

the merits of the search issue. The Louisiana Supreme Court further noted, " In

the event of an adverse ruling on his motion, the trial court shall maintain the

guilty plea and defendant may again appeal his conviction and sentence to the

court of appeal on the basis of his original Crosby reservation." Walton, 957

So. 2d at 134; State v. Guillory, 2006- 2544 ( La. 6/ 1/ 07), 957 So. 2d 132- 33 ( per

curiam). 6

The defendant also cites State v. Floyd, 2007- 0216 ( La. 10/ 5/ 07), 965

So. 2d 865 ( per curiam) on appeal. The underlying appellate decision reveals that

similar to the instant case, the defendant therein pled guilty under Crosby and

North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970),

without specifying what pre -plea ruling was being reserved. On appeal, however,

defense counsel argued that the defendant's plea was conditioned on his ability to

obtain appellate review of the motion to suppress, on which the trial court did not

6 In Guillory, the defendant therein failed to file a motion to suppress, but nonetheless reserved
the right to appeal the issue of whether police lawfully seized evidence against him. On appeal,
this Court affirmed the defendant's conviction and sentence. However, to effectuate the
defendant's Crosby reservation, the Louisiana Supreme Court vacated the judgment of this Court
and remanded the case to the trial court to allow the defendant an opportunity to file a motion to
suppress to challenge the validity of the seizure. The Supreme Court noted that if defendant failed
to file such a motion, he would be deemed to have abandoned his Crosby reservation. Guillory,
957 So. 2d at 33.

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rule. State v. Floyd, 2006- 0657 ( La. App. 5th Cir. 12/ 27/ 06), 946 So. 2d 325, 327.

Defense counsel further argued that the guilty plea was rendered involuntary and
should be vacated, as the defendant could not obtain appellate review due to the

trial judge' s failure to rule on the motion. The State argued that the defendant

had waived his right to appeal the assigned errors on the motion to suppress,

because he did not obtain a ruling on his motion prior to entering his guilty plea.
The State also argued that the record did not reflect that the defendant reserved

his right to appeal any specific pre -plea ruling, particularly, the suppression issue.

The appellate court noted the Louisiana Supreme Court's holding in Joseph, 847

So. 2d at 1196- 97, that a defendant' s failure to specify which pre- trial rulings he

desires to reserve on appeal as part of a Crosby plea should not totally preclude

appellate review. Id. Stating that the reservation of appellate review rights was

an important part of the plea and that the record supported the defendant's

position that he believed the appellate court would review his allegations of defect

in the search and seizure, the appellate court in Floyd found that the defendant's

plea was involuntary and set aside the plea. Floyd, 946 So. 2d at 328- 30.

On writ of review, the Louisiana Supreme Court found that the Fifth Circuit

Court of Appeal erred in vacating the defendant's guilty plea and sentence in Floyd

and reversed the appellate court' s ruling. Despite the lack of specificity in the

defendant's Crosby reservation, the Supreme Court nonetheless remanded the

case to the trial court for a hearing on the motion to suppress and for a ruling on

the merits of the search issue. As in Walton, the court in Floyd in part noted,

In the event of an adverse ruling on his motion, the trial court shall maintain the

guilty plea and defendant may again appeal his conviction and sentence to the
court of appeal on the basis of his original Crosby reservation." Floyd, 965 So. 2d

at 865.

Considering the above, we find that the record establishes that defendant

pled guilty under Crosby, believing that he was reserving the right to appeal.
While the defendant did not specify what pre -plea ruling was being reserved, on

appeal, he asserts that his plea was conditioned on his ability to obtain appellate

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review of the motion to suppress identification. See Floyd, 946 So. 2d at 327. As

the motion to suppress identification goes to the heart of the State's case,

appellate review is not possible in the absence of a trial court ruling on the motion

to suppress identification. Therefore, the defendant's case must be remanded for

such a ruling. Accordingly, this case is remanded to the trial court for purposes of

conducting a hearing on the motion to suppress identification and for a ruling on

the merits of the issue. If the court rules favorably to the defendant on the motion,

it shall provide him with the opportunity of withdrawing his guilty pleas and

pleading anew. In the event of an adverse ruling on his motion, the trial court

shall maintain the guilty pleas and defendant may again appeal his convictions and

sentences to this court on the basis of his original Crosby reservation. See Floyd,

965 So. 2d at 865; Walton, 957 So. 2d at 134; Guillory, 957 So. 2d at 132- 33.

Accordingly, we pretermit discussion of the merits of the motion to suppress the

identification, asserted in assignment of error number two.

REMANDED FOR PROCEEDINGS CONSISTENT WITH OPINION
RENDERED HEREIN.