State of Louisiana v. Harvey G. Love

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1076

STATE OF LOUISIANA

VERSUS

HARVEY G. LOVE

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2009-900
HONORABLE MARTHA A. O‟NEAL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and Shannon J. Gremillion,
Judges.

CONVICTION AND SENTENCE AFFIRMED
AS AMENDED. MOTION TO WITHDRAW
GRANTED.

David W. Burton
District Attorney - 36th JDC
P. O. Box 99
DeRidder, LA 70634-0099
(337) 463-5578

COUNSEL FOR APPELLEE:
State of Louisiana
Mr. Edward John Marquet
La Appellate Project
P. O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Harvey G. Love

Harvey Love, Pro Se
Allen Correctional Center, Earth D-1
3751 Woodyard Road
Kinder, LA 70648

SAUNDERS, Judge.

The Defendant, Harvey G. Love, was charged by bill of information with

driving while intoxicated, fifth offense. On motion of the Defendant, a sanity

commission was appointed by the court to determine whether the Defendant had

the mental capacity to proceed. After initially being found incompetent to stand

trial, the Defendant was later found competent, and the case proceeded. The

Defendant subsequently pled guilty to DWI, fourth offense, and pursuant to a plea

agreement was sentenced to serve ten years in the Louisiana Department of

Corrections consecutive to other time he may have to serve. Seventy-five days

were imposed without the benefit of parole, probation, or suspension of sentence

with the Defendant being ordered to immediately undergo an evaluation by the

Department of Health and Hospitals Office for Addictive Disorders and the Office

of Behavioral Health to determine the extent of his substance abuse disorder. He

was ordered to participate in any treatment plan recommended by those offices

including treatment in a facility approved by the offices for a period of not less

than four weeks followed by treatment for a period not to exceed twelve months.

The Defendant was further ordered to pay $5,000 “together with fines, cost

and fees,” $300 to the District Attorney‟s Office, $150 to the Public Defender‟s

Office, and $300 to the Criminal Court Fund. All amounts were ordered to be paid

while the Defendant was on parole as a condition of parole.

The Defendant requested and was granted an out-of-time appeal. Appellate

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396 (1967), alleging no non-frivolous issues exist on which to base an appeal and

seeking to withdraw as Defendant‟s counsel. The Defendant filed a pro se brief

alleging that his guilty plea was not knowingly and voluntarily entered because he

was not apprised of his right to a trial by jury. For the following reasons, we

affirm the Defendant‟s conviction and amend his sentence to strike various

illegalities. Additionally, we amend the Defendant‟s sentence to impose the

statutorily mandated $5,000 fine. Counsel‟s motion to withdraw is granted.

FACTS:

A factual basis was not provided at the guilty plea proceeding. However, the

bill of information indicates that on or about September 6, 2009, the Defendant

operated a motor vehicle while under the influence of alcohol, having a blood

alcohol concentration of .143 percent.

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 two

errors patent concerning the Defendant‟s sentence.

Prior to pleading guilty to DWI, fourth offense, the prosecutor set forth the

plea agreement as follows:

It is my understanding that he would be pleading guilty to the
included charge or lesser included charge of DWI 4 th offense agreeing
to a sentence of 10 years with the Department of Corrections
consecutive to any other. The statutory mandated fine of $5000 plus
cost. $300 to the District Attorney‟s office. A reasonable amount to
the Criminal Court fund and to the Public Defender‟s Office. The
recommendation would include intensive substance abuse treatment
prior to his release from the Department of Corrections. I believe that
completes our plea agreement.

Defense counsel indicated to the court that the prosecutor‟s statement was

correct and they concurred in the State‟s recommendations. After the guilty plea

was entered, the court sentenced the Defendant as follows:

Mr. Love, it is the sentence of the Court having pled guilty in
CR-2009-900, State of Louisiana versus Harvey Love, to DWI 4 th that
you serve 10 years Department of Corrections consecutive to any and
all other time that you otherwise may have to serve. You pay $5000
together with fines, cost and fees; $300 to the District Attorney‟s
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office; that you pay the sum of $150 to the Public Defender‟s Office
and $300 to the Criminal Court Fund. All of these amounts should be
paid while you are on parole and as a condition of parole.

Furthermore, you are ordered to receive the - - let me read this
out of the statute for you:

Of the 5 years - - I‟m sorry - - Of the 10 years, Department of
Correction, it is required by law that 75 of those days of that sentence
be imposed without benefit of probation, parole, or suspension of
sentence. You are ordered to immediately undergo any evaluation by
the Department of Health and Hospitals Office for Addictive
Disorders to determine the nature and extent of you substance abuse
disorder and to participate in any treatment plan recommended by the
Office of Addictive Disorders including treatment in an in-patient
facility approved by the office for a period of not less than 4 weeks
followed by in-patient treatment services for a period not to exceed 12
months. You are to immediately undergo this evaluation and to
determine the nature and extent and make arrangements to go into this
as well as any recommendation with the Department of Health and
Human Hospitals Office of Behavior Health to also determine the
nature and extent of any substance abuse disorder and to participate in
any treatment plan recommended by the Office of Behavior Health
including treatment of an in-patient facility approved by the Office of
Behavior Health for a period of not less than 4 weeks followed by out-
patient treatment services for a period not to exceed 12 months.

First, we vacate the portion of the sentence requiring the Defendant to

undergo evaluations to determine the extent of his substance abuse disorder and

treatment. Louisiana Revised Statutes 14:98(E)(1)(b) provides for such evaluation

and treatment only when an offender is placed on probation. The Defendant in the

instant case was not placed on probation. Thus, this portion of the Defendant‟s

sentence is illegal, and we amend the Defendant‟s sentence to delete this provision.

See State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694. The trial

court is instructed to note the amendment in the court minutes.

Next, the fine and various payments ordered by the court were improperly

imposed as conditions of parole. The trial court lacks the authority to impose

conditions of parole. State v. Franco, 08-1071 (La.App. 3 Cir. 4/1/09), 8 So.3d

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790, writ denied, 09-1439 (La. 2/12/10), 27 So.3d 843. In State v. Kotrla, 08-364

(La.App. 3 Cir. 11/5/08), 996 So.2d 1224, the trial court ordered as conditions of

parole that the defendant undergo substance abuse treatment, pay restitution, and

pay the fine and court costs that the court had previously imposed as part of the

defendant‟s sentence. In finding the trial court lacked the authority to impose these

conditions, we stated:

In State v. Bradley, 99-364 (La.App. 3 Cir. 11/3/99), 746 So.2d
263, this court explained that the power to regulate one on parole is
vested in a parole board within the Department of Corrections and that
a trial court has no authority to impose a condition on a parolee. More
specifically, a sentencing court is without authority to impose
restitution as a condition for a defendant‟s future parole. State v.
Douglas, 576 So.2d 1102 (La.App. 3 Cir.1991). Additionally,
La.Code Crim.P. art. 888 provides that costs and fines shall be
payable immediately.

The trial court erred in ordering that Defendant pay the fine and
court costs, as well as restitution, as conditions of any possible future
parole. Defendant‟s sentence is amended, deleting payment of the
fine, court costs, and restitution, as well as the requirement that he
undergo substance abuse treatment, as conditions of parole, and the
trial court is instructed to make an entry in the court minutes reflecting
the amendment.

Although the trial court recommended that Defendant be
confined to a facility where he could receive substance abuse
treatment, it failed to require that he participate in a court-approved
substance abuse program as part of his original sentence as mandated
by La.R.S. 14:32.1, thus rendering Defendant‟s sentence illegally
lenient. Defendant‟s sentence must be amended to reflect that he is
required to participate in a court-approved substance abuse program,
and we instruct the trial court to make a notation in the minutes
reflecting the amendment. See State v. Williams, 00-1725
(La.11/28/01), 800 So.2d 790, and La.Code Crim.P. art. 882.

Id. at 1226-27.

Accordingly, we amend the Defendant‟s sentence to delete the fine and

payments imposed as conditions of parole. We amend the Defendant‟s sentence to

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impose the $5,000 fine mandated by La.R.S. 14:98E(1)(a). The trial court is

instructed to note the amendment in the court minutes.

PRO SE ASSIGNMENT OF ERROR:

The Defendant contends that while he was apprised of his right to a trial

prior to the entry of his guilty plea, he was not apprised of his right to a jury trial.

He notes in a footnote that there is nothing on the record to affirmatively show that

his counsel advised him of this before or during the plea proceedings. The State, in

its brief, notes that defense counsel informed the court that he read the entire plea

form to the Defendant and the Defendant indicated that he was “oriented times

four.” The Defendant responded to the State‟s brief, arguing that the trial court

could not rely on the defense attorney‟s review of rights with him. The Defendant

prays he be allowed to withdraw his guilty plea.

Louisiana Code of Criminal Procedure Article 556.1 provides that before

accepting a felony plea of guilty or nolo contendere, the trial court must inform a

defendant of and determine that he understands certain rights one of which is the

right to be tried by a jury. See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709 (1969).

The issue presented in this case was previously before this court in State v.

Fontenot, 09-1044 (La.App. 3 Cir. 5/12/10), 38 So.3d 1122, writ denied, 10-1758

(La. 8/19/11), 67 So.3d 1257. This court held:

Despite the trial court‟s failure to directly address the
defendant‟s right to a jury trial, we find no merit in this assignment of
error. The record reflects that, when initially arraigned, the defendant
requested a jury trial. Thus, he was aware from the beginning of his
prosecution that he was entitled to a jury trial. Additionally, on the
day he entered his plea, the defendant executed a written form in
conjunction with his plea agreement entitled “PLEA OF NO
CONTEST AND WAIVER OF RIGHTS.” The written form provided
that he had been informed of his rights, including specifically his right
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to a jury trial; that by entering his plea he waived his rights, including
specifically his right to a jury trial; and that he understood his plea
subjected him to the same punishment as if he had been “TRIED
AND CONVICTED BY A JURY.”

Id. at 1124.

This court found no merit to the assigned error after concluding that the

record reflected a knowing and voluntary waiver of the right to a jury trial.

This issue has also been presented to this court in post-conviction relief writ

applications. In State v. Davis, an unpublished writ ruling bearing docket number

10-963 (La.App. 3 Cir. 5/9/11), this court held:

WRIT DENIED: Relator first claims that the trial court erred in
increasing his sentence upon resentencing. The trial judge found this
claim to be repetitive under La.Code Crim.P. art. 930.4, stating that
the same issue had previously been addressed in her ruling of March
5, 2010. Relator offers no proof to controvert this ruling.

Relator next claims that he was not advised of his right to
confront witnesses. The trial court held that the plea of guilty form
executed by Relator advised him of this right, which has been held to
be adequate proof in State v. Fontenot, 09-1044 (La.App. 3 Cir.
5/12/10), 38 So.3d 1122.

In State v. Skipper, an unpublished writ ruling bearing docket number 11-

1205 (La.App. 3 Cir. 7/17/12), this court issued the following ruling:

WRIT DENIED: Although the trial judge orally informed Relator of
his right to a trial, rather than trial by jury, the plea form, which was
signed by Relator, informed him of the right to a trial by a jury.
Relator alleged his sentence is illegal because of the failure to inform
him of the right to a jury trial. However, Relator‟s claim is not
cognizable in a motion to correct an illegal sentence. State v. Moore,
93-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, writ denied, 94-1455
(La. 3/30/95), 651 So.2d 858; State v. Gedric, 99-1213 (La. App. 1
Cir. 6/3/99), 741 So.2d 849, writ denied, 99-1830 (La. 11/5/99), 751
So.2d 239. Accordingly, Relator‟s motion was treated as an
application for post-conviction relief. Sentencing issues, however,
cannot be raised in an application for post-conviction relief. See State
ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 655 So.2d 1172.

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The fifth circuit addressed this issue in State v. Cole, 04-615 (La.App. 5 Cir.

3/1/05), 900 So.2d 15. In Cole, the defendant contended on appeal that his guilty

plea was not knowingly and voluntarily entered because he was not properly

informed of his right against self-incrimination. The plea transcript indicated that

the trial court confirmed that counsel had reviewed the defendant‟s right against

self-incrimination with the defendant. The plea form which was signed by the

defendant and his attorney stated that the defendant was waiving his right against

self-incrimination. The defendant wrote “yes” after each section of the form. The

fifth circuit concluded there was no merit to the defendant‟s claim on appeal.

In the present case, at the guilty plea proceeding, defense counsel indicated

to the court that due to the fact the Defendant has a sixth grade education, he read

the entirety of the guilty plea form with the Defendant, who “verbalized he was

oriented times four.” The judge asked the Defendant whether he understood the

things defense counsel had told him, and the Defendant responded that he had.

The judge proceeded to inform the Defendant of his right to trial, but she did not

specifically mention the right to a jury trial. The Defendant indicated he wished to

waive his right to trial. Despite the fact the judge did not specifically mention that

the Defendant had the right to a jury trial, the plea form, which was signed by the

Defendant, states in pertinent part (emphasis added):

I understand that at a jury trial I would have the right to hear the
accusing witnesses testify against me; the right through my lawyer to
cross-examine these witnesses and the right to present witnesses and
evidence on my own behalf.

I understand that I would have the right to remain silent at my trial,
that it is the job of the prosecutor to prove my guilt to the jury beyond
a reasonable doubt and that I am not required to help him in any way.

....

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I understand that if this guilty plea is accepted by the court, I will be
admitting that I have committed a crime, that there will be no trial and
that all my constitutional right [sic] that would be available and
exercised at trial will be given up or waived by me when I enter this
plea.

Under these facts, we find the Defendant made a knowing and voluntary

waiver of his right to a jury trial. Accordingly, this assignment of error has no

merit.

ANDERS ANALYSIS:

Pursuant to Anders, Defendant‟s appellate counsel has filed a brief stating he

has made a conscientious and thorough review of the trial court record and 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, 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
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.

Appellate counsel‟s Anders brief must review the record and provide “„a

detailed and reviewable assessment for both the defendant and the appellate court

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of whether the appeal is worth pursuing in the first place.‟” State v. Mouton, 95-

981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

In his Anders brief, appellate counsel notes the Defendant was fully

Boykinized at his guilty plea proceeding. He notes that no factual basis was recited

but notes that one was not required as there was no assertion of innocence by the

Defendant.

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

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

transcripts. The Defendant was properly charged in a bill of information and was

present and represented by counsel at all crucial stages of the proceedings.

Contrary to the allegations of the Defendant‟s pro se assignment of error, the

Defendant entered a free and voluntary guilty plea after properly being advised of

his rights in accordance with Boykin, 395 U.S. 238. The illegalities in the

Defendant‟s sentence were addressed in the error patent section of this opinion.

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

assignment of error on appeal beyond that raised in the Defendant‟s pro se

assignment of error. Accordingly, counsel‟s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED.

MOTION TO WITHDRAW GRANTED.

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