State of Louisiana v. Roderick T. Branch

Judgment rendered April 5, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,951-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

RODERICK T. BRANCH Appellant

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 2020-394F

Honorable Glynn David Roberts (Ad Hoc), Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Bruce Gerard Whittaker

PENNY WISE DOUCIERE Counsel for Appellee
District Attorney

CAROLINE HEMPHILL
AMANDA MICHELE WILKINS
Assistant District Attorneys

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Before COX, HUNTER, and MARCOTTE, JJ.

MARCOTTE, J.

This appeal arises from the Fifth Judicial District Court, Parish of

Franklin, the Honorable Glynn David Roberts presiding ad hoc. Defendant,

Roderick Branch, pled guilty to second-degree murder and was sentenced to

imprisonment at hard labor without benefits. Branch now appeals arguing

that the trial court erred in denying his motion to withdraw his guilty plea.

For the following reasons, his conviction is affirmed, his sentence is vacated,

and the case is remanded for resentencing.

FACTS AND PROCEDURAL HISTORY

On September 8, 2020, Branch was charged by bill of indictment

with: 1) count one: the second-degree murder of Darrion Wilson

(“Darrion”), in violation of La. R.S. 14:30.1; 2) count two: possession of a

firearm by a convicted felon, in violation of La. R.S. 14:95.1; and 3) count

three: aggravated flight from an officer where human life is endangered, in

violation of La. R.S. 14:108.1. Counts one and two occurred on August 20,

2020. Count three occurred on August 21, 2020.

On February 1, 2022, during jury selection for his trial, Branch elected

to plead guilty as charged to second-degree murder; his remaining counts

were dismissed, and the state agreed not to charge Branch as a habitual

offender. The trial court conducted a guilty plea colloquy pursuant to

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

Branch stated that he was living with his father in Winnsboro,

Louisiana at the time of his offenses, but he lived in Wisconsin prior to that

doing construction and other work. At the time of his guilty plea, Branch

was 42 years old, and he attended school through the 10th grade. Branch

said that he was not under the influence of any drugs or alcohol that

prevented him from being competent to plead guilty. Branch stated that he

was satisfied with his attorney’s representation. The trial court recited the

statutory description of second-degree murder under La. R.S. 14:30.1, and

Branch affirmed that he understood the description. The trial court asked

Branch if he understood that the sentence for a conviction of second-degree

murder is life imprisonment without benefits, and Branch affirmed that he

did. The trial court then apprised Branch of the rights he was foregoing by

pleading guilty.

The trial court informed Branch that he was giving up his right to a

trial by jury where the state was required to prove his guilt beyond a

reasonable doubt; Branch responded that he understood. The trial court

advised Branch that he had the right to confront and cross-examine the

witnesses called to testify against him; he affirmed that he understood. The

trial court told Branch that he could not be compelled to testify against

himself, but that he could testify on his own behalf and present evidence in

his defense; Branch indicated that he understood. Branch stated that he

understood that by pleading guilty he was giving up those rights. He

affirmed that no one threatened him or made promises to him regarding his

case. Branch confirmed that no one had made promises to him about his

sentence.

The state then provided a factual basis for Branch’s guilty plea. The

state said:

[O]n the evening of August 20, 2020, Roderick T. Branch, the
defendant, did commit second-degree murder of Darrion
Wilson. This occurred on Polk Street in Winnsboro, Franklin
Parish, Louisiana, using a hand gun. The doctor, Frank Peretti
removed two projectiles from Darrion Wilson, two shots; one
was located in the back and one was located in the chest. And
he died instantly. And what I’d like to introduce…as S-1 the
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surveillance camera footage from August 20, 2020, from Polk
Street; also the transcript of the motion to suppress hearing
which is included [as] an exhibit, which was the audio
recording of the defendant’s statement to law enforcement
Officer Jerry Davis, and the transcript of that statement where
he confessed. And the investigative report of Officer Jerry
Davis.

Officer Davis’ report states that on August 20, 2020, he was

dispatched to the corner of Polk and Mike Streets in Winnsboro, where he

observed a black male lying face down in the road. The man was

transported to the hospital where he later died. Officer Davis spoke with

eyewitnesses who reported that a group of “boys” were walking around the

corner of Polk and Mike Streets. One witness stated that Darrion, who was

wearing a black shirt, was at the front of the group of boys “walking fast.”

A witness reported that a black male in a white shirt shot a black male in a

black shirt and then walked off as the other male fell to the ground.

Witnesses informed Officer Davis that the shooter lived “around the corner”

with his father, whose name was Robert Wright.

Officer Davis spoke with witness Maurice James; his report states:

Mr. James stated that he and the victim (Darrion Wilson) were
together all that day and Darrion’s gun came up missing.
That’s when Darrion took Mr. Branch’s nephew’s gun and
walked off. Then Mr. Branch asked for a weapon from his
nephew and started walking behind Darrion asking for the gun
back, Darrion wouldn’t give it back. [T]hat’s when Branch shot
Darrion in the street and ran to Mr. Wright’s house and got in
his car and sped off somewhere.

Officer Davis then sought a warrant for Branch’s arrest. When

located, Branch fled law enforcement and was later apprehended. Officer

Davis’ report then stated:

Officer Jerry Davis went to the Franklin Parish Detention
Center to do a recorded interview with [Branch]. While there
he was read his Miranda Rights in which he signed, and gave a
voluntary statement. [Branch] then stated that Darrion and him
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were playing dominoes and having a good time. He then began
to cry saying, I don’t care about the stuff I do, but I do care
about hurting somebody that didn’t deserve it. [Branch] went
on to say he (Darrion) didn’t deserve it. It wasn’t an accident,
then he said it was an accident. [Branch] then stated that
Darrion grabbed the gun out of a vehicle after they left the
store. Darrion then began to walk down the street with the gun
in his hand; Branch then told him to put the gun up that’s when
Darrion put the gun in his pocket. Branch stated that he asked
for the gun repeatedly but Darrion wouldn’t give the gun back.
Branch stated that Darrion cocked the gun and told him he had
one in the chamber. Branch then went on to say that he shot
Darrion in the back, that was the only place he remembered
shooting Darrion, but he did remember hearing three shots.
Later that evening I found a video of the shooting where Branch
walked behind Darrion and later shot him in the back in the
chest area.

The transcript of Branch’s confession corroborates what Officer Davis

described in his report. The surveillance camera footage depicts two men,

one wearing a white shirt and the other wearing a black shirt walking down

the road. The man wearing the black shirt walks ahead of the man in the

white shirt. The man in the white shirt raises a gun and shoots the victim in

the back. The victim walks back towards the shooter, passes him, and then

turns back towards him. The shooter then shoots the victim again in the

chest. The victim falls to the ground and lays still.

Branch admitted that the factual basis was true and correct; defense

counsel affirmed that the factual basis was accurate. Defense counsel

confirmed that he was satisfied that Branch’s constitutional rights were

observed and that he was entering into his plea freely, voluntarily, and with

an understating of the charge and the consequences of pleading guilty. The

trial court accepted Branch’s plea as knowing, intelligent, and voluntary and

that there was a factual basis for the plea. The trial court ordered that a

presentence investigation report (“PSI”) be prepared. A written and signed

guilty plea was filed into the record.
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Branch then filed a pro se motion to withdraw his guilty plea. That

motion does not appear in the record, and the clerk for the district court

informed this court that the pro se motion was never presented for filing in

the district court’s clerk’s office. However, on April 1, 2022, the state filed

an opposition to Branch’s motion to withdraw his guilty plea which stated

that Branch’s motion was filed on March 22, 2022. Also, the trial court

heard arguments and ruled on the motion at his sentencing hearing, where

the court referenced reading the motion Branch “filed.”

On April 1, 2022, a sentencing hearing was held. The trial court first

heard arguments and considered Branch’s motion to withdraw his guilty plea

prior to sentencing him. Defense counsel, Kevin Johnson (“Atty. Johnson”),

stated that he had no knowledge of Branch’s pro se motion to withdraw his

guilty plea until just before the sentencing hearing began and he would not

be adopting the motion. Atty. Johnson said that he did not think the motion

was timely filed, and, after conferring with Branch, he believed his motion

to withdraw his guilty plea was “more like a sentencing memorandum”

where he sought leniency from the court. Atty. Johnson stated that Branch

was not denying that he shot the victim.

The state provided a brief argument referring to the written opposition

it filed in open court. In its written opposition, the state argued that

Branch’s plea was voluntarily and intelligently made; his plea was explained

to him by the assistant district attorney, and he was informed that his

sentence would be life imprisonment. The state maintained that Branch did

not object or ask for clarification and he affirmed that he understood his

sentence. The state observed that Branch was fully informed of the rights he

was giving up and the consequences of his guilty plea. The state argued that
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Branch was not misled or provided ineffective assistance of counsel and that

there was strong evidence of actual guilt.

The trial court referred to Branch’s PSI in which he first claimed he

was acting in self-defense, but later claimed he shot Darrion by accident.

The trial court then allowed Branch to argue his motion. Branch stated that

Atty. Johnson lied to him and that he didn’t shoot Darrion accidentally,

“because I did pull the trigger.” Branch also appeared to claim that an

investigator or a member of law enforcement counseled him to plead guilty,

but then later Branch seemed to state that the investigator may have rather

offered him religious counseling. Branch stated that he sought leniency

from the court. He stated that it hurt him that he “took a life,” and he

apologized several times to Darrion’s family.

Atty. Johnson then addressed the court and stated that he used his 19

years of experience in criminal law to evaluate Branch’s case and determine

whether to take his case to trial. Atty. Johnson stated that Branch made a

confession, which he sought to have suppressed without success. Atty.

Johnson said that he received discovery from the state about Branch’s case

not long before the trial, which he sought to have delivered to Branch. Atty.

Johnson stated that the documents he mailed to Branch were returned to him

unopened.1 Atty. Johnson stated that he was prepared to go to trial and they

were in the middle of jury selection when Branch, on his own, decided he

wanted to plead guilty. Atty. Johnson averred that he did not lie to Branch

or trick him into pleading guilty. Atty. Johnson stated that Branch spoke

with the victim’s mother prior to pleading guilty.

1
Atty. Johnson later gave the unopened parcel of documents to Branch in open
court.
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The state responded stating that Branch understood what was going on

at the time of his guilty plea and that two of his other charges were

dismissed and the state agreed not to charge him as a habitual offender. The

trial court stated that Branch’s plea was freely, knowingly, and voluntarily

given and that there was a factual basis for the plea.

The trial court then referenced the language in the written plea

agreement, which Branch approved. The trial court stated that there was no

evidence to support Branch’s contention that he acted in self-defense and

that he did not intentionally shoot Wilson. The trial court also found that

there was no evidence to indicate that Branch was tricked into pleading

guilty and that his Boykin exam and plea agreement clearly show he was not

coerced into pleading guilty. The trial court denied the motion.

The trial court then stated:

The penalty for second-degree murder is mandated by statute,
thus the court does not have any discretion. Accordingly, it is
the order of this court that the defendant Roderick T. Branch is
sentenced to imprisonment at hard labor under the supervision
of the Department of Corrections without benefit of parole,
probation, or suspension of sentence.

Notably, the trial court did not use the term “life” in sentencing

Branch, according to the sentencing transcript. Branch was given credit for

time served and was advised of his appeal and post-conviction relief time

limits. Branch now appeals.

DISCUSSION

Branch’s sole assignment of error is that the trial court erred in

denying his motion to withdraw his guilty plea. Branch argues that the trial

court abused its discretion in denying his pro se motion to withdraw his

guilty plea, because his plea bargain “was no bargain at all” as he pled guilty

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to a crime which carries a mandatory life sentence and he gained nothing in

return. Branch states that his guilty plea was not knowing and intelligent,

therefore it should be set aside. Branch contends that the absence of his

written motion to withdraw his guilty plea leaves him and this court at a

disadvantage. Branch states that the record shows that he and his trial

counsel did not see eye-to-eye. Branch points out that Atty. Johnson

“disavowed” his desire to withdraw his guilty plea and argued against it

being granted on a basis not raised by the state.

Branch states that the bargain that he struck with the state was of no

benefit to him given that the mandatory sentence for second-degree murder

is life at hard labor. He claims that he was induced to plead guilty under the

illusion that there was a plea agreement by which he would benefit. He

argues that the terms of the bargain laid out in his plea agreement as

understood by him were not satisfied, making the guilty plea not knowing

and intelligent. Branch asks that this court set aside his guilty plea and

remand his case for further proceedings.

The state argues that Branch has provided no legally-recognized

grounds as to why his plea was not knowingly and intelligently entered. The

state contends that the trial court did not abuse its discretion in finding that

Branch’s guilty plea was knowingly and voluntarily rendered or in denying

his motion to withdraw his guilty plea. The state argues that the trial court

conducted a full Boykin colloquy in which it asked Branch about his

education level, age, work experience, and confirmed that he had not taken

any medication, narcotics, nor consumed any alcohol that would have

impacted his ability to think clearly. The state maintains that Branch stated

8

that he understood the proceedings and was satisfied with his attorney’s

representation.

The state argues that the trial court defined the charge of second-

degree murder for Branch and explained the mandatory life sentence without

benefits; Branch stated that he understood the charge to which he was

pleading guilty and the sentence. The state contends that Branch was

informed of the three rights he was waiving by pleading guilty and he stated

that he understood he was waiving those rights. The state points out that

there was strong evidence that Branch killed Wilson, including an audio

recording and transcript of Branch’s confession to law enforcement and

surveillance video footage showing Branch shooting Wilson in the back and

chest. The state maintains that Branch agreed that the state’s factual basis

for his plea was correct.

The state argues that Branch received the benefit of having the

possession of a firearm by a convicted felon and aggravated flight charges

dropped and the state agreed not to bill him as a habitual offender by

pleading guilty. The state contends that Branch has had a change of heart

about pleading guilty, which is not grounds for allowing him to withdraw his

guilty plea. The state further argues that La. C. Cr. P. art. 556.1 does not

require that the state offer a “bargain” in return when a defendant pleads

guilty. The state asks that this court affirm defendant’s conviction and

sentence.

Upon motion of the defendant and after a contradictory hearing,

which may be waived by the state in writing, the court may permit a plea of

guilty to be withdrawn at any time before sentence. La. C. Cr. P. art.

559(A). The discretion to allow the withdrawal of a guilty plea under La. C.
9

Cr. P. art. 559(A) lies with the trial court and such discretion cannot be

disturbed unless an abuse or arbitrary exercise of that discretion is shown.

State v. McGarr, 52,641 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1189. A

defendant has no absolute right to withdraw a guilty plea. Id.

Under La. C. Cr. P. art. 556.1, a valid guilty plea must be a voluntary

choice by the defendant and not the result of force or threats. La. C. Cr. P.

art. 556.1 also provides that prior to accepting a guilty plea, the court must

personally inform the defendant of the nature of the charge to which the plea

is offered, any mandatory minimum penalty, and the maximum possible

penalty. When the record establishes that an accused was informed of and

waived his right to a trial by jury, to confront his accusers, and against self-

incrimination, the burden shifts to the accused to prove that despite this

record, his guilty plea was involuntary. Boykin v. Alabama, supra; State v.

McGarr, supra.

An express and knowing waiver of those rights must appear on the

record, and an unequivocal showing of a free and voluntary waiver cannot

be presumed. Boykin, supra; State v. McGarr, supra; State v. Johnson,

51,430 (La. App. 2 Cir. 07/05/17), 224 So. 3d 505. A plea of guilty

normally waives all non-jurisdictional defects in the proceedings prior to the

plea, including insufficiency of the evidence. State v. Crosby, 338 So. 2d

584 (La. 1976); State v. McGarr, supra. A validly entered guilty plea, or

plea of nolo contendere, waives any right a defendant might have had to

question the merits of the state’s case and the factual basis underlying the

conviction. State v. Bourgeois, 406 So. 2d 550 (La. 1981); State v. McGarr,

supra; State v. Hardy, 39,233 (La. App. 2 Cir. 01/26/05), 892 So. 2d 710.

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When ruling on a motion to withdraw a guilty plea, the trial court

should look beyond the Boykinization and consider all relevant factors.

State v. McGarr, supra; State v. Griffin, 535 So. 2d 1143 (La. App. 2 Cir.

1988). A court, when called upon to ascertain an accused’s state of mind,

has the power, notwithstanding a record waiver of constitutional rights, to

determine whether other factors present at the time of a guilty plea, whether

inside or outside the plea colloquy record, were sufficient to render the plea

involuntary or unintelligent. State v. Lewis, 421 So. 2d 224 (La. 1982); State

v. Galliano, 396 So. 2d 1288 (La. 1981); State v. McGarr, supra.

In order to properly exercise its discretion and in order for the

appellate court to review the exercise of that discretion, the trial court should

conduct a hearing or inquiry on defendant’s motion to withdraw a guilty

plea. State v. Lewis, supra; State v. McGarr, supra. Reasons supporting

withdrawal of the plea would ordinarily include factors bearing on whether

the guilty plea was voluntarily and intelligently made, such as breach of a

plea bargain, inducement, misleading advice of counsel, strength of the

evidence of actual guilt, or the like. A mere change of heart or mind by the

defendant as to whether he made a good bargain would not ordinarily

support allowing the withdrawal of a bargained guilty plea. Id.

The record clearly reflects that Branch was properly informed of his

rights at the time his guilty pleas were accepted. While Branch’s written

motion to withdraw his guilty plea is not included in the record, he was

granted an opportunity to explain why he wanted to withdraw his plea.

Branch stated that he sought leniency from the trial court with regard to his

sentence. Branch was 42 at the time he was sentenced and he had a 10th

grade education. He confirmed that he was not under the influence of drugs
11

or alcohol at the time of his plea, and he stated that he was satisfied with

Atty. Johnson’s representation. The trial court properly informed Branch of

the charge to which he was pleading guilty and that the sentence was

mandatory life imprisonment at hard labor. Branch acknowledged that he

understood the nature of the charge and the punishment.

Additionally, the state provided a factual basis for Branch’s plea

which shows there is overwhelming evidence of actual guilt, in the form of

eyewitness testimony, a video recording of the murder, and Branch’s

confession to the crime. Branch complains that he did not receive anything

in return for his guilty plea. However, his remaining counts were dismissed

and the state agreed not to bill him as a habitual offender. Branch’s

assignment of error lacks merit and his conviction should be affirmed.

Errors Patent Discussion

We reviewed the record for errors patent in accordance with La. C.

Cr. P. art. 920.

First, according to the sentencing transcript, the trial court failed to

specify a term of imprisonment, but solely sentenced Branch to

“imprisonment at hard labor.” The sentence for second-degree murder is life

imprisonment at hard labor without benefits. La. R.S. 14:30.1. If a

defendant who has been convicted of an offense is sentenced to

imprisonment, the court shall impose a determinate sentence. La. C. Cr. P.

art. 879. The trial court’s failure to use the term “life” makes Branch’s

sentence indeterminate. Therefore, defendant’s sentence must be vacated

and remanded for resentencing.

Second, the minutes for Branch’s sentencing must be corrected.

When the record was lodged with this court, it did not include minutes of
12

sentencing. The record was later supplemented with the sentencing minutes

which accurately stated that the trial court sentenced Branch to

“imprisonment at hard labor.” Later, at the state’s request, the minutes were

amended to state that Branch was sentenced to “life imprisonment at hard

labor.” This made the minutes and the sentencing transcript inconsistent.

Due to the disparity between the minutes of sentencing and the transcript of

sentencing, the trial court is ordered to amend the minutes of sentencing to

accurately reflect the sentencing transcript.2

CONCLUSION

The defendant’s conviction is affirmed and his sentence is vacated and

remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RESENTENCING.

2
We note also that the minutes of sentencing do not reflect that Branch’s motion
to withdraw his guilty plea was argued and denied.
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