State of Louisiana v. Charles L. Bergeron, Sr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 12-1327

STATE OF LOUISIANA

VERSUS

CHARLES L. BERGERON, SR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 16496-06
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.

John Foster DeRosier
Fourteenth Judicial District Court
District Attorney
Karen C. McLellan
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
La Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Charles L. Bergeron, Sr.

Charles L. Bergeron, Sr.
Rayburn Correctional Ctr. R-1
27268 Hwy. 21 N
Angie, LA 70426

EZELL, Judge.

Charles Bergeron, Sr. was charged on September 14, 2006, by a bill of

information with sexual battery. However, on April 11, 2012, the State amended the

charge to reflect the offense of indecent behavior with a juvenile, a violation of

La.R.S. 14:81. In a separate docket number, the grand jury indicted Defendant for

simple rape, twenty-five counts of oral sexual battery, fifty counts of indecent

behavior with a juvenile, and one count of molestation of a juvenile. 1 The State

reduced the simple rape charge to second degree sexual battery.

On April 11, 2012, Defendant pled guilty pursuant to a plea agreement. He

plead guilty to twelve counts of oral sexual battery, twelve counts of indecent

behavior with a juvenile, and one count of second degree sexual battery. The

remaining charges were dismissed. The plea agreement encompassed all the charged

offenses listed in lower court docket numbers 19101-08 and 16496-06.

Defendant was sentenced on June 13, 2012. On the convictions for twelve

counts of indecent behavior with a juvenile, the trial court sentenced Defendant to the

maximum sentence of seven years on each count, to be served consecutively for a

total of eighty-four years. The court also ordered the maximum sentence of ten years

on the twelve convictions of oral sexual battery to be served consecutively for a total

of one hundred and twenty years and a fifteen-year sentence on the conviction for

second degree sexual battery. The trial court indicated the aggregate eighty-four-year

sentence, the aggregate one-hundred-and-twenty-year sentence, and the fifteen-year

sentence were to be served concurrently. The aggregate sentence of one hundred and

twenty years was also ordered to be served consecutively to a ten-year sentence
1
These later charges were in lower court docket number 19101-08, and although the
assignments of error in the current appeal concern the convictions resulting from the grand jury’s
indictment, the issues involving those convictions, which are identical to the issues in the current
appeal, are before this court on appeal under docket number 12-1328.

imposed on a conviction for failure to register as a sex offender. 2 Following the

sentencing, defense counsel advised the trial court that “we reserve the right to

reconsider the sentence for the record.” However, no written motion to reconsider the

sentence was ever filed.

Defendant has perfected a timely appeal. He asserts that the sentences are

indeterminate and not supported by the record.3 He further asserts that the trial court

erred when it denied his motion to withdraw the guilty plea prior to imposing the

sentences. For the following reasons, we find there is no merit to Defendant’s claim

that the trial court erred when it denied his motion to withdraw the guilty plea.

However, we find that the sentence must be vacated and remanded for the following

reasons.

FACTS

Whereas Defendant pled guilty, the facts of the case are contained in the

transcript of the guilty plea hearing. Defendant, who was in his seventies at the time

of the offenses, had oral sexual contact with the victim, who was under the age of

seventeen.

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 is an

error patent concerning the Defendant’s sentence which was raised and addressed as

an assigned error.

2
This court affirmed Defendant’s conviction and sentence on the failure to register as a sex
offender in State v. Bergeron, 12-71 (La.App. 3 Cir. 10/3/12), 99 So.3d 90.
3
Although Defendant’s brief in this docket number repeatedly references sentences, there is
only one sentence at issue in this docket number; therefore, we will refer to only one sentence.

2

ASSIGNMENT OF ERROR

Defendant argues that the sentences, in the case of each offense, are

indeterminate in that the sentences are to be served with or without hard labor;

however, the trial court failed to designate whether the sentence was to be served with

or without hard labor. Furthermore, Defendant argues that the trial court was not clear

from the record as to whether the sentences in each category should be served

consecutively or concurrently. Finally, Defendant argues that “the sentences should be

vacated because they are not supported by the record.”

The sentencing provision for indecent behavior with a juvenile, at the time of

the offense, stated that the sentence imposed may be served with or without hard

labor. See La.R.S. 14:81(C). A review of the sentencing transcript shows that the trial

court did not indicate whether the sentence was to be imposed with or without hard

labor. Nor does the minute entry for that date indicate whether the sentence was

imposed with or without hard labor. Accordingly, the sentence is indeterminate and in

violation of La.Code Crim.P. art. 879, which provides that “[i]f a defendant who has

been convicted of an offense is sentenced to imprisonment, the court shall impose a

determinate sentence.” Therefore, the sentence should be vacated and the case

remanded for resentencing with the trial court being instructed to specify whether the

sentence is to be served with or without hard labor. State v. Matthew, 07-1326

(La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La. 4/24/09), 7 So.3d

1193.

Whereas we determine that the sentence must be vacated and the matter

remanded, all other issues raised regarding the sentence are moot.

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PRO SE ASSIGNMENT OF ERROR

Defendant argues that the trial court erred when it denied his requests to

withdraw the guilty plea made prior to sentencing.

Louisiana Code of Criminal Procedure Article 559 states that
“[t]he court may permit a plea of guilty to be withdrawn at any time
before sentence.” The withdrawal of a guilty plea is within the broad
discretion of the trial court, and is subject to reversal only if that
discretion is abused or arbitrarily exercised. State v. Blanchard, 00-1147
(La.4/20/01), 786 So.2d 701.

State v. Roe, 05-116, p. 8 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, 1271, writ denied,

05-1762 (La. 2/10/06), 924 So.2d 163 (alteration in original).

At sentencing, after a discussion as to the amount of time Defendant may have

to spend in prison, Defendant stated:

Your -- Your Honor, for four years, I’ve waited for a jury trial. You --
you know that. You’ve been my judge. But because I misunderstood --
not that I don’t have a good attorney, I do -- because of
misunderstanding, I -- I pled to --to what I pleaded to, but I didn’t
understand it. But I would like to ask at this time that if I could withdraw
my plea and go to a jury trial, but I’ll leave it up to His Honor, sir,
because you’ve been fair with me. And I did not understand and I’m not -
- what they said is not true, sir.

Without further discussion, the trial court denied the request and continued with

sentencing. In State v. Kron, 07-1024, pp. 5-6 (La.App. 5 Cir. 3/25/08), 983 So.2d

117, 120, writ denied, 08-813 (La. 10/24/08), 992 So.2d 1039, while discussing the

withdrawal of a guilty plea, the fifth circuit stated:

Generally, a denial of a Motion to Withdraw a Guilty Plea will not
be reversed on appeal if the record clearly shows the defendant was
informed of his rights and the consequences of his plea, and that the plea
was entered into voluntarily. State v. Stewart, 03-976 (La.App. 5 Cir.
12/30/03), 862 So.2d 1271. A mere change of heart or mind by the
defendant as to whether he made a good bargain will not ordinarily
support allowing the withdrawal of a bargained guilty plea. State v.
Green, 03-410 (La.App. 5 Cir. 10/28/03), 860 So.2d 237, writ denied,
03-3228 (La.3/26/04), 871 So.2d 346. Without fraud, intimidation or
incompetence of counsel, a guilty plea is not made less voluntary or
informed by the considered advice of counsel. Id.

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Furthermore:

In addition to the basic three rights enunciated in Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in order
to make a knowing and intelligent decision to plead guilty the defendant
must be apprised of the possible range of sentences for the offense to
which he pleads guilty. State ex rel. Curry v. Guillory, 441 So.2d 204
(La.1983).

State v. Rhea, 04-91, p. 4 (La.App. 4 Cir. 5/19/04), 876 So.2d 131, 134, writ denied,

04-901 (La. 10/1/04), 883 So.2d 1005.

At the guilty plea hearing, defense counsel advised the trial court that he had

gone over the constitutional rights as it related to the entering of the pleas with

Defendant. The trial court then questioned Defendant as to his understanding that he

was waiving certain constitutional rights: to be tried by a jury; to confront and cross-

examine witnesses; and the right against self-incrimination. Defendant answered that

he understood he was waiving these rights. The trial court also advised Defendant of

the potential sentences he could receive after pleading guilty to the offenses. He asked

Defendant if his decision to plead guilty was because he was threatened in any way

and whether the decision was his alone. Defendant answered that he was not coerced

and it was his decision. Following the State’s recitation of the facts of the case, the

trial court asked Defendant if he admitted to the twelve charges of oral sexual battery,

twelve charges of indecent behavior with a juvenile, and one charge of second degree

sexual battery, and Defendant answered, “Yes, sir.”

Considering all of the above, we find Defendant does not set forth sufficient

reasons why he should have been allowed to withdraw his guilty plea. He did not

allege fraud, incompetence of counsel, or intimidation. Defendant has failed to show

that his guilty plea was not voluntarily and intelligently made. The trial court did not

abuse its vast discretion when it denied his request to withdraw the guilty plea.

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DISPOSITION

This court affirms the convictions. However, the sentence is indeterminate in

violation of La.Code Crim.P. art. 879, in that the trial court did not indicate whether

the sentence was to be served with or without hard labor. Therefore, the sentence is

vacated and the case remanded for resentencing with the trial court instructed to

specify whether the sentence is to be served with or without hard labor.

SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
RulesCCourts of Appeal. Rule 2n16.3.

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