State of Louisiana v. Lionel Paul Dugas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-165

STATE OF LOUISIANA

VERSUS

LIONEL PAUL DUGAS

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 07-1638
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

Amy, J., dissents.

MOTION TO WITHDRAW DENIED;
BRIEFING ORDERED.

J. Phillip Haney
District Attorney
Walter J. Senette, Jr.
Assistant District Attorney
300 Iberia Street, Suite 200
New Iberia, Louisiana 70560
(337) 369-4420
Counsel for:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598
(337) 237-2537
Counsel for Defendant/Appellant:
Lionel Paul Dugas

Lionel Paul Dugas
In Proper Person
River Correctional Center
26362 Highway 15
Ferriday, Louisiana 71334
Defendant

KEATY, Judge.

Defendant, Lionel Paul Dugas, was charged by bill of information filed on

July 23, 2007, with monetary instrument abuse, a violation of La.R.S. 14:72.2;

theft over $500, a violation of La.R.S. 14:67; and forgery, a violation of La.R.S.

14:72. He entered a plea of not guilty on December 12, 2007.

On January 8, 2010, Defendant withdrew his former plea and entered a best

interest plea to forgery. The remaining charges were dismissed. In accordance

with a plea agreement, Defendant was sentenced to ten years at hard labor, to run

concurrently with his sentences in trial court docket numbers 07-2346 and 09-2265.

A bill of information charging Defendant as a multiple offender was filed on

January 12, 2010. As part of his original plea agreement, Defendant entered a plea

of guilty to the habitual offender charge on January 14, 2010. His sentence for

forgery was vacated, and he was sentenced to ten years at hard labor, to run

concurrently to the sentences previously imposed in trial court docket numbers 07-

2346 and 09-2265. Defendant filed a motion for out-of-time appeal on May 18,

2010, which was subsequently granted.

Appellate counsel filed an Anders brief in this matter, and Defendant set

forth several issues in a pro se brief. For the following reasons, appellate counsel’s

motion to withdraw is denied, and appellate counsel is instructed to brief the non-

frivolous issues discussed herein.

FACTS

On or about June 27, 2007, Defendant cashed a check made out to him from

Oceaneering International in the amount of $1,178.46. Two additional checks

from Kidney Care of Acadiana were also cashed. The checks, which were all fake,

were cashed at Menard Brothers Grocery.

Anders 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 Defendant’s conviction or sentence. 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
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.

In his pro se assignment of error, Defendant makes several claims. He

contends it was error for the trial court to accept his guilty plea to the habitual

offender charge without an affirmative showing that it was free and voluntary. He

alleges his plea was involuntary because the trial court stated his habitual offender

sentence would be the same as the sentence previously imposed for the underlying

offense of forgery. However, his sentence under La.R.S. 15:529.1 is not subject to

probation or suspension of sentence, and a sentence for forgery is. Additionally,

being sentenced under La.R.S. 15:529.1 restricts his eligibility for good time.

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At the time Defendant entered his plea of guilty to the underlying offense,

the trial court stated: ―You’re going to plead guilty to these three charges. You’re

going to get ten years on each, credit for time served, all concurrent. But the

District Attorney is reserving the right to bill you as a second felony offender on a

multiple offender bill.‖ Defendant indicated he did not understand. The trial court

then explained that Defendant would receive the ―same sentence‖ as a second

felony offender. The trial court stated: ―[Y]ou’re going to have ten years to serve

all concurrent.‖ Defendant was subsequently sentenced to serve ten years at hard

labor.

At the habitual offender hearing, Defendant entered a plea of guilty. The

trial court then stated the following:

Q. All right. It’s my understanding that you have entered into a plea
agreement which you have agreed to plead to this second or
subsequent offense giving your prior offense of the Unauthorized
Entry and this offense of Forgery and that exchange for that plea the
Court’s going to sentence you to ten years at hard labor, credit for
time served. That’s going to be your actual sentence. So is, is that
your understanding of what’s going to happen if you plead guilty to
this second or subsequent offense?

A. It makes me an [sic] multi offender?

Q. Yes.

A. And my time run flat.

Q. And your time’s going to be ten years.

A. Yes, sir.

Q. The same as you were given previously, okay?

A. Yes, sir.

The trial court subsequently sentenced Defendant, stating the following: ―In

accordance with your plea agreement, I sentence you on this Bill of Information to

ten years at hard labor, credit for time served.‖ There was no mention of the denial

3

of probation or suspension of sentence. However, pursuant to La.R.S. 15:529.1(G),

Defendant’s sentence was to be served without benefit of probation and suspension

of sentence. Furthermore, there may be restrictions on his eligibility for good time.

La.R.S. 15:571.3.

We find appellate counsel should brief the issues involving the voluntariness

of Defendant’s plea in light of the trial court’s comment that his habitual offender

sentence would be the same as that originally imposed for forgery.

Errors Patent

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

errors patent on the face of the record. Our review of the record revealed one such

error. The trial court failed to inform Defendant of his rights to silence, a hearing,

and to have the State prove its case at his habitual offender proceeding.

Because this issue is enmeshed with the pro se assignment of error which we

are requiring counsel to brief, counsel is also ordered to brief this error patent.

Counsel’s motion to withdraw is denied.

MOTION TO WITHDRAW DENIED; BRIEFING ORDERED.

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

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11-165

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Plaintiff-Appellee

VERSUS

LIONEL PAUL DUGAS

Defendant-Appellant

On Appeal from the Sixteenth Judicial District Court, Docket Number 07-1638,
Parish of Iberia, State of Louisiana, Honorable Gerard B. Wattigny, Judge.

ORDER

After consideration of the Motion to Withdraw as Attorney of Record filed
by counsel for Defendant, Lionel Paul Dugas, and the appeal presently pending in
the above captioned matter,

IT IS HEREBY ORDERED that appellate counsel file a new appellate brief
in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),
within twenty-five (25) days of this order, addressing the issues of: 1) the
voluntariness of Defendant’s habitual offender plea, and 2) the trial court’s failure
to inform Defendant of his rights to silence, a hearing, and to have the State prove
its case at his habitual offender proceeding where Defendant admitted his status as
a second felony offender.

Appellee’s brief shall be filed no later than forty-five (45) days from
rendition of this opinion.

THUS DONE AND SIGNED this _____ day of ________, 2011.

COURT OF APPEAL, THIRD CIRCUIT

_________________________________
Judge Ulysses Gene Thibodeaux,
Chief Judge

_________________________________
Judge Phyllis M. Keaty

Amy, J., dissents.