State of Louisiana v. Gene Paul Dowden

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

KA 10-1173 consolidated with KA 10-1174

STATE OF LOUISIANA

VERSUS

GENE PAUL DOWDEN

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 77953
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese,
Judges.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO
WITHDRAW GRANTED.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Gene Paul Dowden

Ronald K. Seastrunk
Assistant District Attorney, 30th Judicial District Court
P. O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
Counsel for Appellee:
State of Louisiana

EZELL, JUDGE.

On January 20, 2010, the Defendant, Gene Paul Dowden, was charged by three

bills of information: 1) Docket Number 77953, theft of a firearm, a violation of

La.R.S. 14:67.15; 2) Docket Number 77954, illegal possession of a firearm by a

convicted felon, a violation of La.R.S. 14:95.1; and 3) Docket Number 77955, simple

burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2.

On April 28, 2010, the Defendant pled guilty to theft of a firearm and simple

burglary of an inhabited dwelling in Docket Numbers 77953 and 77955. In exchange

for his guilty plea, the remaining charge of illegal possession of a firearm by a

convicted felon in Docket Number 77954 was dismissed, and the State agreed not to

charge the Defendant as a habitual offender. The Defendant was sentenced on July

28, 2010. For theft of a firearm, he was sentenced to serve eight years at hard labor,

to be served without benefit of probation, parole, or suspension of sentence, and

ordered to pay a fine of $750.00, plus court costs. For simple burglary of an inhabited

dwelling, the Defendant was sentenced to serve eight years at hard labor, with one

year to be served without benefit of probation, parole, or suspension of sentence, and

ordered to pay court costs. The sentences were ordered to be served concurrently

with each other and consecutively with any other sentence to which Defendant was

subject. Following sentencing, the cases were consolidated for the purpose of appeal

upon the Defendant’s motion.

A motion to reconsider sentence was filed on August 12, 2010, and denied

without a hearing on August 16, 2010. On August 16, 2010, the Defendant filed a

“Motion for Appeal and Designation of Record,” which was granted by the trial court.

Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), alleging that the record contains no pre-plea errors to

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support reversal of the Defendant’s convictions and sentences in this matter. We find

there are no non-frivolous issues in this matter. Accordingly, the Defendant’s

convictions and sentences are affirmed, and counsel’s motion to withdraw is granted.

FACTS

At the Defendant’s guilty plea hearing and sentencing, the State established

that on May 5, 2009, the Defendant and his fifteen-year-old brother-in-law broke into

a residence belonging to the mother and stepfather of the Defendant’s brother-in-law.

While in the home, they took a number of items, including two handguns.

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 records, we find there is

one error patent concerning the Defendant’s sentence for theft of a firearm.

For a first offense of theft of a firearm, La.R.S. 14:67.15 requires imposition

of a fine of one thousand dollars. In this case, the court imposed a fine of $750.00,

rendering the Defendant’s sentence illegally lenient. However, this court will not

recognize an illegally lenient sentence unless it is raised as error.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, the Defendant’s appellate counsel has filed

a brief stating she has made a conscientious and thorough review of the trial court

record and could find no errors on appeal that would support reversal of the

Defendant’s conviction or sentence. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (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

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court performs a thorough independent review of the record after
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.

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

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

transcripts. The Defendant was properly charged by bill of information for both

offenses and was present and represented by counsel at all crucial stages of the

proceedings.

At the guilty plea hearing, the Defendant acknowledged he had reviewed the

guilty plea form with defense counsel and that he understood it and signed it. The

guilty plea form indicated that the Defendant was thirty years old, had nine years of

formal education, and could read and write the English language.

Next, the terms of the plea agreement were clarified by the parties. The State

indicated that in exchange for the Defendant’s guilty plea to theft of a firearm and

simple burglary of an inhabited dwelling, the remaining charge of illegal possession

of a firearm by a convicted felon would be dismissed. Also, the State would not

charge the Defendant as a habitual offender. The Defendant subsequently confirmed

the accuracy of the agreement between the parties, expressed his understanding of the

guilty plea form, and indicated he had no questions regarding the form.

The Defendant was informed of the elements and penalties of the offenses to

which he was pleading guilty and confirmed his understanding of same. Next, he

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was properly advised of his rights in accordance with Boykin v. Alabama, 395 U.S.

238, 89 S.Ct. 1709 (1969), and entered a free and voluntary guilty plea after properly

being advised of his rights. The State then moved to dismiss the charge of illegal

possession of a firearm by a convicted felon.

The Defendant was subsequently sentenced in conformity with his plea

agreement — there were no agreed-upon sentences. Both sentences fall within the

respective statutory ranges set forth in La.R.S. 14:67.15 and 14:62.2. For theft of a

firearm, first offense, the Defendant faced a maximum sentence of ten years; and for

simple burglary of an inhabited dwelling, he faced a maximum sentence of twelve

years. Additionally, the trial court imposed a fine less than mandated by the statute

for theft of a firearm. In addition to receiving sentences within the statutory ranges,

the trial court demonstrated leniency in ordering the Defendant’s sentences to run

concurrently with each other.

Further, the Defendant received a substantial benefit from his plea agreement.

Prior to his plea, the Defendant faced an additional hard-labor sentence of ten to

fifteen years, without benefit of probation, parole, or suspension of sentence, and a

fine of $1,000.00 to $5,000.00. La.R.S. 14:95.1(B). 1 The Defendant, classified as

a fifth felony offender, was also spared the possibility of being charged and

adjudicated as a habitual offender pursuant to La.R.S. 15:529.1, significantly

reducing his sentencing exposure. Lastly, the Defendant’s guilty plea waived all non-

jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d

584 (La.1976).

1
Louisiana Revised Statutes 14:95.1 was amended in 2010 to provide that the sentence is now
at hard labor for not less than ten nor more than twenty years by 2010 La. Acts No. 815, § 1.

4

Our review of the record has revealed no issues which would support an

assignment of error on appeal. Therefore, appellate counsel’s motion to withdraw is

granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO
WITHDRAW GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules
— Courts of Appeal, Rule 2-16.3.

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COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

10-1173 consolidated with 10-1174

STATE OF LOUISIANA

Appellee

VERSUS

GENE PAUL DOWDEN

Defendant-Appellant

On Appeal from the Thirtieth Judicial District Court, Docket Numbers 77953 and

77955, Parish of Vernon, State of Louisiana, Honorable Vernon B. Clark, Judge.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel and

the appeals presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate defense counsel’s motion to

withdraw is granted.

THUS DONE AND SIGNED this 30th day of March, 2011.

COURT OF APPEAL, THIRD CIRCUIT

_______________________________
Judge John D. Saunders

_________________________________
Judge Billy H. Ezell

_________________________________
Judge James T. Genovese