State of Louisiana v. Darious D. Rogers

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1434

STATE OF LOUISIANA

VERSUS

DARIOUS D. ROGERS

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 17497
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and John E. Conery, Judges.

Pickett, J., concurs and assigns written reasons.

CONVICTION AFFIRMED. SENTENCE AMENDED. MOTION TO
WITHDRAW GRANTED. THE TRIAL COURT IS ORDERED TO MAKE
A MINUTE ENTRY REFLECTING THE AMENDMENT OF THE
SENTENCE.

Edward Kelly Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Darious D. Rogers

Van Hardin Kyzar
District Attorney
10th Judicial District Court
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

On March 28, 2011, the State charged Defendant Darious Rogers and two

co-defendants with second degree murder, a violation of La.R.S. 14:30.1, and

armed robbery, a violation of La.R.S. 14:64. On March 12, 2012, pursuant to a

plea bargain, Defendant pled guilty to manslaughter, a violation of La.R.S. 14:31.

The State dismissed the armed robbery charge, and Defendant received a

sentencing cap of twenty years; he agreed to testify truthfully against his co-

defendants.

On May 25, 2012, the trial court sentenced Defendant to fifteen years at hard

labor. Trial counsel objected to the sentence and made an oral motion for appeal.

A written motion for appeal was timely filed on May 29, 2012.

Appellate counsel now moves to withdraw from the case and has filed a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). This

court’s analysis indicates counsel should be allowed to withdraw.

FACTS

Defendant pled guilty, but as will be discussed later, the plea transcript is not

available. A transcript of the sentencing hearing is available which shows the

factual basis relied upon by the trial court:

The homicide and robbery in this case took place on January 24, 2011.
Mr. Rogers testified on behalf of the State at the trial of a co-
defendant, JaMario Kato. He testified that on the date of the incident,
he and the victim had driven to Houston together, where they visited
family, and where Mr. Jackson bought illegal drugs to sale [sic] in
Natchitoches. They returned to Natchitoches, and sold some of the
drugs. And then went to the apartment of Mr. Jackson’s former
girlfriend, and the mother of whom…of his child (sic), both of whom
were present at the apartment. JaMario Kato and Dominique Sibley
called and wanted to buy pills from Mr. Jackson, who refused to sell
them any. They came to the apartment complex and Mr. Rogers went
downstairs to meet them. They told him they were going to rob Mr.
Jackson. Mr. Rogers went back upstairs and did not tell Mr. Jackson

this. Later Mr. Jackson went out on the balcony of the apartment
building, and Kato and Sibley confronted him. Simply [sic] had a
gun, and shot and killed Mr. Jackson. Mr. Rogers, at first, faked that
he might have been shot, and then attempted to give assistance to Mr.
Jackson who died. The next day, Mr. Rogers, voluntarily went to the
police station and told what had happened. He admitted his role in
helping to set Mr. Jackson up. In his testimony he expressed great
remorse about his role in the killing of Mr. Jackson, who he described
as being like a brother to him.

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 one

error patent concerning the Defendant’s sentence for manslaughter. The judge

sentenced the Defendant to fifteen years with the Louisiana Department of

Corrections “85% of which is to be served” before the Defendant is eligible for

parole. In State ex rel. Calvin v. State, 03-870 (La. 4/2/04), 869 So.2d 866, 866,

the supreme court held:

Because the terms of the statutes under which relator was sentenced
do not include a prohibition on parole, see R.S. 14:62; R.S. 14:60;
R.S. 15:529.1, relator’s sentence is amended to delete the prohibition.
Relator’s parole eligibility is to be determined by the Department of
Corrections pursuant to R.S. 15:574.4. State ex rel. Meeks v. State, 98-
1930 (La.1/29/99), 736 So.2d 820; St. Amant v. 19th J.D.C., 94-0567
(La.9/3/96), 678 So.2d 536; cf. State ex rel. Simmons v. Stalder, 93-
1852 (La.1/26/96), 666 So.2d 661. The district court is directed to
make an entry in the minutes reflecting this change. In all other
respects, the application is denied as untimely. La.C.Cr.P. art. 930.8;
State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

Louisiana Revised Statutes 14:31 includes no prohibition on parole.

Accordingly, the Defendant’s sentence is amended to delete the restriction on

parole, and the district court is instructed to make a minute entry reflecting this

change.

2

ANALYSIS

Appellate counsel is seeking to withdraw from this case because he has

found no non-frivolous issues to assign as errors. The analysis for such cases is

well-established:

The defendant’s appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), stating that he has reviewed the appellate record and has not
found any non-frivolous issues which may be raised on appeal.
Appellate counsel seeks to withdraw from the case.

In State v. Mouton, 95-981 (La.4/28/95), 653 So.2d 1176, the
supreme court expressly approved of the procedures for review of an
Anders brief delineated by the fourth circuit in State v. Benjamin, 573
So.2d 528 (La.App. 4 Cir.1990). In Benjamin, 573 So.2d at 531, the
fourth circuit stated:

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.

This court has performed an independent review of the record,
including the pleadings, minute entries, the bill of information, and
the transcripts. The defendant was provided an opportunity to file his
own brief, but did not do so.

A review of the record reveals that the defendant was present
and represented by counsel at all crucial stages of the proceedings.

3

The defendant entered a free and voluntary guilty plea after properly
being advised of his rights in accordance with Boykin v. Alabama, 395
U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Further, the
defendant received legal sentences.

Our review of the record has not revealed any issues which
would support an assignment of error on appeal. Thus, appellate
counsel’s motion to withdraw is granted. See State v. Johnson, 09-
159 (La.App. 3 Cir. 10/7/09), 20 So.3d 568.

State v. LeBleu, 11-1158, pp. 2-3 (La.App. 3 Cir. 5/2/12), 93 So.3d 649, 651-52.

In the present case, the record is quite short. There is no transcript of the

guilty plea hearing, but an affidavit from the district court clerk explains that the

court’s recording equipment malfunctioned and failed to record the proceedings.

This is also briefly noted in the minutes of the guilty plea. The affidavit affirms

that as part of a plea agreement, Defendant pled guilty to manslaughter, reduced

from murder, and the State dismissed the armed robbery charge against him.

Further, it indicates that the minutes of the guilty plea are substantially correct

regarding Defendant’s guilty plea. We note that the minutes of the guilty plea

comport with information about the plea set forth during the sentencing hearing

and the forms filed in connection with the plea.

The supreme court has stated:

A criminal defendant has a right to a complete transcript of the
trial proceedings, particularly where counsel on appeal was not
counsel at trial. U.S. v. Atilus, 425 F.2d 816 (5 Cir.1970), citing
Hardy v. U.S., 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964).
The trial judge is duty-bound to see that the court reporter makes a
true, complete, and accurate record of the trial. State v. Landry, 97-
0499 (La.6/29/99), 751 So.2d 214, 216. “[W]here a defendant’s
attorney is unable, through no fault of his own, to review a substantial
portion of the trial record for errors so that he may properly perform
his duty as appellate counsel, the interests of justice require that a
defendant be afforded a new, fully recorded trial.” Landry, 751 So.2d
at 215, quoting State v. Ford, 338 So.2d 107, 110 (La.1976).

State v. Higginbotham, 11-564, pp. 5-6 (La. 5/6/11) 60 So.3d 621, 624.

4

In the present case, although the guilty plea transcript is not available, the

minutes affirm that Defendant was advised of his rights and pled guilty pursuant to

an agreement that was highly favorable to him. Further, the discussion of the facts

during sentencing shows that Defendant had criminal culpability in this case.

Indeed, he had a “role in setting Mr. Jackson [the victim] up.” Thus, the current

record provided enough facts for appellate counsel to determine there are no non-

frivolous issues to appeal.

The minutes and the district court clerk’s affidavit demonstrate that

Defendant was present with counsel during all crucial stages of the proceedings.

At arraignment, he was present via video. Further, as shown in the minutes of the

guilty plea and the plea form filed in connection therewith, he freely and

voluntarily entered a guilty plea after being advised of his constitutional rights

pursuant to Boykin v. Alabama.

The plea agreement included a twenty-year sentencing cap; Defendant

ultimately received a fifteen-year sentence. Considering that second degree

murder carries a mandatory life sentence and that armed robbery carries a possible

ninety-nine year sentence, Defendant benefitted greatly from the plea. He is

precluded from appealing the sentence due to the agreed-upon sentencing cap.

State v. Young, 96-195 (La. 10/15/96), 680 So.2d 1171; La.Code Crim.P. art

881.2(A)(2).

Our review of the record has not revealed any issue which would render an

appeal feasible. Therefore, appellate counsel’s motion to withdraw is granted.

DISPOSITION

For the foregoing reasons, the conviction is affirmed and appellate counsel is

allowed to withdraw. The Defendant’s sentence is amended to delete the

5

restriction on parole, and the district court is instructed to make a minute entry

reflecting the change.

CONVICTION AFFIRMED. SENTENCE AMENDED. MOTION TO

WITHDRAW GRANTED. THE TRIAL COURT IS ORDERED TO MAKE

A MINUTE ENTRY REFLECTING THE AMENDMENT OF THE

SENTENCE.

6

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1434

STATE OF LOUISIANA

VERSUS

DARIOUS D. ROGERS

PICKETT, J., concurring.

I agree in all respects with the result reached by the majority in this case,

wherein we recognize an error patent, finding the trial court’s restriction on parole

invalid. Considering that this is a non-frivolous issue affecting the defendant’s

sentence, I would reject defense counsel’s Anders brief and do not agree that the

motion to withdraw should be granted.