State of Louisiana v. Cornelius Guillory, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-422

STATE OF LOUISIANA

VERSUS

CORNELIUS GUILLORY, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 7224-04
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

CONVICTIONS AND SENTENCES AFFIRMED AS AMENDED, WITH
INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

John Foster DeRosier
District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
Counsel for Plaintiff/Appellee:
State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
P.O. Box 719
Rayville, LA 71269
(318) 728-2043
Counsel for Defendant/Appellant:
Cornelius Guillory, Jr.

Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
Counsel for Plaintiff/Appellee:
State of Louisiana

Cornelius Guillory, Jr.
Calcasieu Correctional Center
P. O. Box 2017
Lake Charles, LA 70602
In Proper Person

SAUNDERS, Judge.

The Defendant, Cornelius Guillory, Jr., was charged by indictment filed on

March 18, 2004, with two counts of molestation of a juvenile, in violation of La.R.S.

14:81.2. The Defendant entered a plea of not guilty to all charges on July 19, 2004.

Jury selection commenced on September 12, 2006, and on September 13, 2006,

the jury returned verdicts of guilty of molestation of a juvenile on count one and

guilty of the responsive verdict of indecent behavior with a juvenile, in violation of

La.R.S. 14:81, on count two.

The Defendant filed a Motion for Post Verdict Judgment of Acquittal on

September 19, 2006. On November 15, 2006, the trial court denied the Defendant’s

Motion for Post Verdict Judgment of Acquittal and sentenced the Defendant to four

years in the Louisiana Department of Corrections for molestation of a juvenile and

to two years in the custody of the Louisiana Department of Corrections for indecent

behavior with a juvenile. The sentences were ordered to run consecutively. A

Motion for Appeal and Designation of Record was filed on November 16, 2006.

Appellate counsel has filed an Anders brief in this matter and the Defendant

asserts one pro se assignment of error. For the following reasons, we amend the

sentence, affirm the convictions and sentences as amended, and grant the motion to

withdraw.

FACTS:

While acting as a substitute teacher on March 31, 2003, the Defendant rubbed

the breasts and grabbed the buttocks of a fifth grade student. The Defendant also

threw a pen between the legs of another student and softly brushed her leg with a few

papers he was holding in his hand. The student testified that after the Defendant

brushed her leg with the papers, he asked her if it tingled, if she had to go to the

bathroom, and how it made her feel “below.”

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there are

two errors patent.

First, the trial court failed to specifically deny the Defendant eligibility for

diminution of sentence on the convictions of molestation of a juvenile and indecent

behavior with a juvenile. Louisiana Revised Statutes 15:537(A) requires that

diminution of sentence be denied to a person who is sentenced to imprisonment for

a stated number of years or months and is convicted of or pleads guilty to certain sex

offenses, including molestation of a juvenile and indecent behavior with a juvenile,

violations of La.R.S. 14:81.2 and 14:81. We addressed this issue in State v. S.D.G.,

06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, writ denied, 06-1917 (La. 3/15/07),

952 So.2d 964, explaining in pertinent part:

Louisiana Revised Statutes 15:537(A) requires that diminution of
sentence be denied to all offenders who are convicted of or plead guilty
to sex offenses, including aggravated rape and aggravated incest. Here,
the trial court failed to deny the defendant diminution eligibility under
La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr.,
05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court
stated:

We note that the second paragraph of La.R.S. 15:537 is
clearly directed to the sentencing court, and the trial court’s
failure to include a denial of diminution of sentence
thereunder renders Defendant’s sentences illegally lenient.
Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800
So.2d 790 and La.Code Crim.P. art. 882, this court is
authorized to recognize and correct illegally lenient
sentences.

Here, the trial court’s failure to deny diminution of sentence

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renders the defendant’s sentences illegally lenient. Therefore, we amend
the defendant’s sentences to reflect that diminution eligibility is denied
pursuant to La.R.S. 15:537(A). We also instruct the trial court to make
a notation in the minutes reflecting the amendment.

Id. at 1247. Thus, the Defendant received illegally lenient sentences. Consequently,

the Defendant’s sentences are amended to reflect that he is not eligible for diminution

of sentence pursuant to La.R.S. 15:537, and the trial court is ordered to note the

amendment in the court minutes.

Second, the record does not indicate that the trial court advised the Defendant

of the prescriptive period for filing post-conviction relief as required by La.Code

Crim.P. art. 930.8(C). Thus, the trial court is directed to inform the Defendant of the

provisions of article 930.8 by sending appropriate written notice to the Defendant

within ten days of the rendition of this opinion and to file written proof that the

Defendant received the notice in the record of the proceedings. State v. Roe, 05-116

(La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924

So.2d 163.

ANALYSIS:

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

Defendant’s appellate counsel has filed a brief stating he could find no errors on

appeal that would support reversal of the Defendant’s convictions or sentences.

Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit

explained the Anders analysis:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after

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providing the appellant an opportunity to file a brief in his or her own
behalf. This court’s review of the record will consist of (1) a review of
the bill of information or indictment to insure the defendant was
properly charged; (2) a review of 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) a
review of all pleadings in the record; (4) a review of the jury sheets; and
(5) a review of all transcripts to determine if any ruling provides an
arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will
order that the appeal record be supplemented with pleadings, minute
entries and transcripts when the record filed in this Court is not
sufficient to perform this review.

Id. at 531.

Pursuant to Anders and Benjamin, we performed a thorough review of the

record, including pleadings, minute entries, the charging instrument, and the

transcripts. The Defendant was properly charged in an indictment, was present and

represented by counsel at all crucial stages of the proceedings, the jury composition

and verdicts were correct, and he received legal sentences.

We have found no issues which would support an assignment of error on

appeal. Therefore, appellate counsel’s motion to withdraw is granted.

PRO SE ASSIGNMENT OF ERROR:

In his pro se brief, the Defendant alleges defense counsel was ineffective. He

asserts that he, along with his son, his wife, and his wife’s aunt, observed two jurors

sleeping and that information was relayed to defense counsel. Additionally, the

Defendant’s son observed witnesses, two or more at a time, going into and out of the

“District Attorney’s Room” despite the trial court’s order that witnesses not talk

among themselves. The Defendant asserts he asked defense counsel to raise these

issues, but was informed that it could “Help Not Hurt Us.” The Defendant further

asserts that defense counsel failed to call any witnesses, including the school

counselor, the computer lab teacher, the lunch lady, and other students who were in

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the classroom on the date of the offenses. The Defendant then addresses

inconsistencies in the statements made by several witnesses and avers that defense

counsel did not object to or bring up these inconsistencies at trial.

We find the record is insufficient to rule on the Defendant’s claims. Rather

than on direct appeal, ineffective assistance of counsel claims are most appropriately

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

where a full evidentiary hearing can be conducted. State v. Leger, 05-11, p. 44 (La.

7/10/06), 936 So.2d 108, 142, cert. denied, __ U.S. __, 127 S.Ct. 1279 (2007).

Accordingly, the Defendant’s claims of ineffective assistance of counsel are relegated

to post-conviction proceedings.

CONVICTIONS AND SENTENCES AFFIRMED AS AMENDED, WITH
INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

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