STATE OF LOUISIANA VERSUS HARRY LEE GATHE AKA HARRY LEE GOTCH AKA HAROLD LEE GOTCH AKA HAROLD LEE GATHE

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-997

STATE OF LOUISIANA

VERSUS

HARRY LEE GATHE

AKA HARRY LEE GOTCH

AKA HAROLD LEE GOTCH

AKA HAROLD LEE GATHE

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR118539
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy,
Judges.

CONVICTION AFFIRMED.
SENTENCE VACATED AND RESENTENCING ORDERED WITH
INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

Michael Harson
District Attorney, 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT APPELLANT:
Harry Lee Gathe

Harry Lee Gathe
Winn Correctional Center
P. O. Box 1260
Winnfield, LA 71483
COUNSEL FOR DEFENDANT APPELLANT:
Harry Lee Gathe

Harry Lee Gotch
Harry Lee Gathe

Harold Lee Gotch
Harry Lee Gathe

Harold Lee Gathe
Harry Lee Gathe

SAUNDERS, Judge.

Defendant, Harry Lee Gathe, was charged by bill of information filed on

March 6, 2008 with simple burglary of an inhabited building, a violation of La.R.S.

14:62.2. He entered a plea of not guilty on June 24, 2008. On February 2, 2010,

Defendant changed his plea to guilty. In accordance with the plea agreement, the

trial court sentenced Defendant to twelve years at hard labor. That sentence was

vacated, also according to the plea agreement, and Defendant was charged as a

habitual offender. He then pled guilty to the habitual offender charge and was

sentenced, according to the plea agreement, to twelve years at hard labor.

Defendant filed a motion for an out-of-time appeal on June 2, 2011. An

order allowing the appeal was signed on June 3 and filed on June 8, 2011.

Appellate counsel has filed an Anders brief in this matter alleging no non-frivolous

issues exist on which to base an appeal and seeking to withdraw as Defendant‟s

counsel. Defendant has also filed a pro se brief.

FACTS:

Defendant broke into an inhabited dwelling in Lafayette.

ERRORS PATENT:

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

this court for errors patent on the face of the record. We find that there are no

errors patent.

PRO SE ASSIGNMENT OF ERROR NO. 1:

Citing the court sentencing minutes as reference, Defendant contends the

trial court erroneously denied him credit for time served in imposing his sentence.

He contends he is statutorily entitled to credit for time served in accordance with

La.Code Crim.P. art. 880. Defendant notes that on a silent record, La.Code Crim.P.

art. 880 is self-operating, but in this case the affirmative denial of credit for time

served requires correction.1

Defense counsel noted in her supplemental brief to this court that the court

minutes and the Commitment Order indicate the Defendant is not to receive credit

for time served, but she contends this was not part of the sentence actually imposed

by the trial court. She notes credit for time served is mandatory as evidenced by

the use of the word “shall” in La.Code Crim.P. art. 880. Since this restriction was

not ordered by the court, she contends it should be stricken.

The State responded to this argument by stating that the plea form is clear

that the Defendant agreed that his twelve-year sentence was to be served starting

February 1, 2010 and that he agreed to forfeit any time served for this charge.

Thus, the State claims the court purposefully did not order that the Defendant

receive credit for time served.

In sentencing the Defendant as a habitual offender, the judge stated, “I am

going to vacate your original sentence and impose the habitual offender sentence

of twelve (12) years at hard labor.” The judge did not mention credit for time

served. We do note that at the end of the habitual offender guilty plea form is a

section titled “PLEA RECOMMENDATION.” The first item listed is marked

with an “X” and it states, “As a SECOND felony HABITUAL OFFENDER, a term

of 12 years at hard labor, credit for time served, without benefit of parole,

probation, or suspension of sentence.” At the bottom of the form is handwritten

the statement, “The defendant agrees to begin his sentence of 12 years on the date

of conviction 2-1-2010.” Just above this “PLEA RECOMMENDATION” section

is the following typewritten statement which is followed by the judge‟s signature:
1
The comments to La.Code Crim.P. art. 880 state, “This Article makes the credit for
prior custody self-operating even on a silent record.”
2

I accept this guilty plea, find a factual basis therefor, adjudicate
the defendant guilty, find the defendant to be a subsequent offender
under the Habitual Offender Law, and accept and impose the Plea
Recommendation sentence below, upon the defendant as an habitual
offender under the Habitual Offender Law as set forth in LSA-RS
15:529.1, as the Sentence of this Court, as stated in open court. I
further order that the fingerprints of the defendant be placed on the
back of the Bill of Information/Indictment.

Above this paragraph are the signatures of the Defendant, defense counsel,

and the prosecutor. Just above their signatures is a typewritten paragraph which

concludes with the statement, “I further agree to the imposition of the plea

recommended sentence below and any further orders of the court in connection

therewith.” The signatures of all of the parties appear above the PLEA

RECOMMENDATION section that contains the sentence.

We find the Defendant‟s sentence is indeterminate in that it is unclear

whether credit for time served was denied as alleged by the Defendant. Though

the plea form indicates the judge imposed the sentence set forth on the bottom of

the plea form, it also indicated that the sentence was “as stated in open court.”

Additionally, the fact that the phrase “credit for time served” is stricken on the

form does not clearly indicate that it was intended to be denied by the court. Under

the circumstances of this case, we vacate the Defendant‟s habitual offender

sentence and remand the case for resentencing in accordance with La.Code Crim.P.

art. 880, which provides that credit for time served is mandatory.

PRO SE ASSIGNMENT OF ERROR NO. 2:

Defendant argues the trial court did not comply with La.Code Crim.P. art.

556.1 by failing to correctly inform him of his right to a trial by judge “or the

correct sentencing provision for charged of conviction [sic].” He directs this court

3

to counsel‟s brief and argues the errors render his guilty plea unknowing and

involuntary. We will dicuss these perceived errors below.

ANDERS ANALYSIS:

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

State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, Defendant‟s appellate

counsel filed a brief citing several potential errors for appeal, but she apparently

concluded all of them would offer Defendant no relief. 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.

While it is not necessary for Defendant‟s counsel to “catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit[,]” counsel‟s Anders brief must

“„assure the court that the indigent defendant‟s constitutional rights have not been

violated.‟” Jyles, 704 So.2d at 241 (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct.
4

3308 (1983) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct.

1895 (1988)). Counsel must fully discuss and analyze the trial record and consider

“whether any ruling made by the trial court, subject to the contemporaneous

objection rule, had a significant, adverse impact on shaping the evidence presented

to the jury for its consideration.” Jyles, 704 So.2d at 241. Thus, counsel‟s Anders

brief must review the procedural history and the evidence presented at trial and

provide “„a detailed and reviewable assessment for both the defendant and the

appellate court of whether the appeal is worth pursuing in the first place.‟” Id. at

242.

Defendant‟s counsel examined a number of potential errors in her brief. She

noted Defendant was not specifically advised of his right to waive trial by jury and

to be tried by the judge. She also noted the record indicated no prejudice to

Defendant as a result of that error. Counsel stated “[t]he judge failed to comply

with several provisions of La.Code Crim.P. art. 556.1.” However, she also noted,

“the last provision of the article provides „Any variance from the procedures

required by this Article which does not affect substantial rights of the accused shall

not invalidate the plea.‟” Counsel did not expand on the “several provisions of

La.Code Crim.P. art. 556.1” with which the trial judge did not comply.

When the trial judge asked Defendant to state if he committed this offense,

Defendant responded, “[l]ast year I went into a house –,” and then agreed with the

State about the house‟s address in Lafayette. The burglary of an inhabited

dwelling with which Defendant was charged actually occurred at that address on

September 24, 2004, more than five years before Defendant‟s plea. However,

counsel points out her review of the record does not show Defendant did not

5

understand the charges to which he pled or that his “admission to breaking into the

specific residence, without mention of a time frame, was incorrect.”

Counsel also noted the trial judge did not set forth the plea agreement as

required by La.Code Crim.P. art. 556.1(C). While the plea agreement was not

placed on the record, counsel notes Defendant acknowledged the plea forms in

open court, and the sentencing agreements were set forth on both plea forms. She

proceeds to note sentencing issues that she feels would not support an assignment

of error. We have discussed one such issue above in conjunction with Pro Se

Assignment of Error No. 1. The remaining issues need not be discussed due to our

finding that the sentence is vacated and the case remanded for resentencing.

Counsel contends that, while this matter presents errors in the trial court, it presents

no non-frivolous issues for appeal.

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

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

transcripts and has confirmed the statements by counsel. Defendant was present

and represented by counsel at all crucial stages of the proceedings, and he

acknowledged guilty pleas on both plea forms after properly being advised of his

rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).

Contrary to the allegations of Defendant‟s Pro Se Assignment of Error No. 2, the

trial court correctly informed Defendant of his possible sentence for simple

burglary, and the State set forth Defendant‟s possible multiple offender sentence at

the sentencing hearing. Our review of the record has revealed no issues that would

support an assignment of error on appeal beyond that raised in Pro Se Assignment

of Error No. 1. Therefore, appellate counsel‟s motion to withdraw is granted.

DECREE:
6

We vacate the Defendant‟s sentence and remand the case for resentencing in

accordance with La.Code Crim.P. art. 880, La.R.S. 15:529.1(G), State v. Tate, 99-

1483 (La. 11/24/99), 747 So.2d 519, and La.R.S. 14:62.2. Further, we grant

appellate counsel‟s motion to withdraw and affirm Defendant‟s conviction.

CONVICTION AFFIRMED. SENTENCE VACATED AND
RESENTENCING ORDERED WITH INSTRUCTIONS. MOTION TO
WITHDRAW GRANTED.

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

7

11-997
COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Plaintiff-Appellee

VERSUS

HARRY LEE GATHE
a/k/a HARRY LEE GOTCH
a/k/a HAROLD LEE GOTCH
a/k/a HAROLD LEE GATHE

Defendant-Appellant

On Appeal from the Fifteenth Judicial District Court, Docket Number CR118539,
Parish of Lafayette, State of Louisiana, Honorable Edward D. Rubin, Judge.

ORDER

After consideration of appellate counsel‟s request to withdraw as counsel
and the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate counsel‟s motion to withdraw is
granted.

THUS DONE AND SIGNED this _29th__ day of _February________, 2012.

COURT OF APPEAL, THIRD CIRCUIT

_________________________________
Judge John D. Saunders

_________________________________
Judge Oswald A. Decuir

_________________________________
Judge Marc T. Amy