State of Louisiana v. Benjamin Gottke AKA Benjamin A. Gottke AKA Benjamine A. Gottke

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-769

STATE OF LOUISIANA

VERSUS

BENJAMIN GOTTKE
AKA BENJAMIN A. GOTTKE
AKA BENJAMINE A. GOTTKE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR133068
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery,
Judges.

CONVICTIONS AFFIRMED;
SENTENCE VACATED AND REMANDED FOR RESENTENCING;
MOTION TO WITHDRAW GRANTED.

Michael Harson
District Attorney, Fifteenth Judicial District Court
Alan P. Haney, Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR 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:
Benjamin Gottke

GREMILLION, Judge.

Defendant, Benjamin Gottke, broke into three businesses with the intent to

commit theft. He was charged by bill of information with three counts of simple

burglary, in violation of La.R.S. 14:62. Defendant pled guilty and was sentenced

pursuant to a plea agreement to twelve years at hard labor on each count to run

concurrently. Shortly thereafter, the trial court vacated the sentences because a

habitual offender bill had been filed by the State. When questioned, Defendant

indicated that he did not wish to contest the habitual offender bill and he

acknowledged that his agreement with the State was that his sentence would not be

less than twelve years at hard labor without the benefit of parole, probation, or

suspension of sentence, nor more than twenty-four years with the same conditions.

The trial court ordered a presentence investigation report at the close of the

hearing.

The trial court vacated Defendant’s previous sentences of twelve years and

sentenced him under the habitual offender statute to twenty years at hard labor

without benefit of probation, parole, or suspension of sentence. The plea form for

the habitual offender proceeding indicates that Defendant admitted to being a third-

level offender.

Defendant filed a motion for appeal which was granted by the trial court.

Defendant’s initial appellate counsel, Brent Hawkins of the Louisiana Appellate

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

1396 (1967), alleging the record contains no non-frivolous issues for appeal and

requests that this court grant his accompanying motion to withdraw. This court

granted Defendant until September 30, 2014, to file a pro se brief. To date,

Defendant has not filed a pro se brief. However, in November 2014, we signed an

order allowing Defendant to file a supplemental brief. A supplemental brief was

filed by different counsel from the Louisiana Appellate Project, Annette Roach,

and assigned three errors patent including the trial court’s failure to adjudicate

Defendant a habitual offender, sentencing irregularities, and restrictions imposed

upon the habitual offender sentence.

For the following reasons, we affirm Defendant’s convictions for three

counts of simple burglary but vacate his sentence and remand the case for

resentencing. Appellate counsel’s motion to withdraw is granted.1

ANDERS ANALYSIS

Pursuant to Anders, Defendant’s appellate counsel filed a brief stating that

he made a conscientious and thorough review of the trial court record and could

find no non-frivolous errors on appeal. 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.

1
We grant Brent Hawkins’ motion to withdraw for the reasons assigned hereafter and
further note that clearly Defendant is now represented by different appellate counsel from the
Louisiana Appellate Project rendering the issue moot.

2

Id. at 531.

Appellate counsel’s Anders brief must review the record 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.” State v. Mouton, 95-

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

In his Anders brief, appellate counsel points out that the trial court fully

informed Defendant of his rights at the guilty plea proceeding and that Defendant

knowingly and voluntarily entered his guilty plea. Additionally, appellate counsel

notes that any claim of excessiveness of sentence is barred because the sentence

was imposed in conformity with a plea agreement.

Pursuant to Anders, 386 U.S. 738, and Benjamin, 573 So.2d 528, we have

performed a thorough review of the record, including pleadings, minute entries, the

charging instrument, and the transcripts. Our review confirms the statements made

by appellate counsel. Defendant was properly charged in the bill of information,

and he was present and represented by counsel at all crucial stages of the

proceedings. Additionally, Defendant entered a free and voluntary plea after he

was advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89

S.Ct. 1709 (1969). These rights were also set forth in a written plea form signed

by Defendant. According to the guilty plea transcript, Defendant was forty-four

years old, had a twelfth grade education, and indicated he could read and write the

English language.

The trial court advised Defendant of the penalty range he was facing for

simple burglary, i.e., imprisonment with or without hard labor for not more than

twelve years and a fine of not more than $2,000.00. Additionally, Defendant

indicated that he had not been threatened, promised anything, nor induced to enter

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a guilty plea. He confirmed that he entered the plea freely and voluntarily. After

the trial court informed Defendant of the elements of the crime, the court asked

Defendant what he had done and he responded that he “broke into three

businesses” with the intent to steal. The trial court found the guilty plea was

knowingly and voluntarily entered. Considering the colloquy between the trial

court and Defendant, we find that the trial court properly Boykinized Defendant

and that Defendant voluntarily and knowingly entered his guilty plea to three

counts of simple burglary.

For the habitual offender proceedings, the trial court informed Defendant

that he had the right to remain silent, the right to counsel, and the right to subpoena

witnesses. It also informed him that the State had to prove his habitual offender

status. Finally, the trial court explained that it accepted the sentencing limitations

agreed to by the parties, which was that the sentence was to be not less than twelve

years nor more than twenty-four years at hard labor without benefit of parole,

probation, or suspension of sentence. Defendant also signed a written plea form

which set forth the plea agreement, the rights Defendant was waiving, and the

penalty range to which he was exposed.2 We find Defendant’s admission to his

habitual offender status was voluntary.

Both Defendant’s appellate counsel and the State contend that Defendant’s

sentence is not subject to review on appeal. Louisiana Code of Criminal Procedure

Article 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a

sentence imposed in conformity with a plea agreement which was set forth in the

record at the time of the plea.” In State v. Vital, 12-881, pp. 5-6 (La.App. 3 Cir.

2
The colloquy and one page of the plea form indicates that the agreement was that the
sentence would not be less than twelve years at hard labor, but the final page of the guilty plea
form indicates the minimum sentence would be eight years.

4

2/6/13), 107 So.3d 1274, 1278, writ denied, 13-430 (La. 9/13/13), 120 So.3d 692

(footnote omitted), this court held:

Louisiana Code of Criminal Procedure Article 881.2(A)(2)
provides that a “defendant cannot appeal or seek review of a sentence
imposed in conformity with a plea agreement which was set forth in
the record at the time of the plea.” This court has held, based on this
article, “[i]n an instance where the court sentences the defendant in
accordance with the parties’ recommendation for a specific sentence
or a sentencing range, it is clear that review of the imposed sentence is
precluded.” State v. Jordan, 98–101, p. 4 (La.App. 3 Cir. 6/3/98), 716
So.2d 36, 38. Thus, a defendant may not seek review of his sentence
“when a specific sentence or sentencing range is agreed to by both
parties as part of a plea agreement, and is judicially recognized at the
sentencing hearing.” Id. at 39.

Here, the trial court accepted the limitations placed on the sentencing range

and sentenced Defendant within the range. Defense counsel and the State correctly

conclude that Defendant cannot seek review of his sentence as it was imposed in

conformity with a plea agreement. However, as will be discussed below, there are

errors patent concerning the legality of Defendant’s sentence.

In State v. Drew, 47,531, pp. 3-4 (La.App. 2 Cir. 11/14/12), 107 So.3d 748,

750, the second circuit stated:

Defendant is precluded from seeking review of his sentence
because it was imposed under a sentencing cap in conformity with a
plea agreement set forth in the record at the time of the plea. See La.
C. Cr. P. art. 881.2; State v. Young, 96–0195 (La.10/15/96), 680 So.2d
1171. However, our error patent review indicates an illegally lenient
sentence which we are required to vacate. The trial judge failed to
restrict at least two years of defendant’s sentence for forcible rape
from benefit of parole, probation or suspension of sentence, as
required by La. R.S. 14:42.1(B). Because the language of the
sentencing provision gives the trial judge discretion in determining the
exact length of time that benefits were to be withheld, the sentence
must be vacated and the case remanded for resentencing in
compliance with La. R.S. 14:42.1. State v. Carter, 43,304 (La.App. 2
Cir. 6/18/08), 987 So.2d 364, writ denied, 08–2752 (La.9/25/09), 18
So.3d 86.

5

Further, in State v. Cabanas, 552 So.2d 1040, 1046-47 (La.App. 1 Cir.

1989), writ denied, 556 So.2d 41 (La.1990), the first circuit held:

Notwithstanding that defendant’s sentence may have been
negotiated pursuant to a plea bargain, in imposing sentence under the
applicable penalty provisions of LSA–R.S. 40:967F(3) and 40:967
G(1), the trial court imposed an illegal, indeterminate sentence. The
court is required to impose a determinate sentence. LSA–C.Cr.P. art.
879….

....

Regardless of whether or not the sentence was negotiated
pursuant to a plea bargain, this matter must be remanded to the trial
court for resentencing to correct the illegal sentence in a manner not
inconsistent with the views expressed herein.

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 Defendant’s sentence.

As discussed above, Defendant pled guilty to three counts of simple burglary

and was sentenced to twelve years at hard labor on each count to run concurrently.

The habitual offender bill referred to only one of the simple burglary convictions.3

At the habitual offender sentencing, the trial court vacated the original concurrent

twelve year sentences and sentenced Defendant under the habitual offender statute

to a single sentence of twenty years at hard labor without the benefit of probation,

parole, or suspension of sentence.4

3
In the supplemental brief, Defendant’s counsel’s first alleged error patent does not
assert error, but recommends action (a formal adjudication as a habitual offender). However,
counsel concedes that Defendant’s admission to his habitual offender status was adequate. Thus,
we find no corrective action is required by the trial court.
4
Defendant’s counsel’s third alleged error patent notes the restriction on parole imposed
by the trial court. While it is true that the trial court erred in restricting parole, this error is
rendered moot because we are vacating the sentence. See La.R.S. 15:529.1 and 14:62.

6

We find the trial court erred in that the record does not indicate which of

Defendant’s three simple burglary convictions was enhanced. Additionally, a

separate sentence should have been imposed on each of the two remaining simple

burglary convictions. Accordingly, Defendant’s sentence is indeterminate as he

was convicted of three counts of simple burglary and only a single sentence was

imposed.

In State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, the

defendant was convicted of four counts of armed robbery and sentenced as a third

felony offender to seventy-five years at hard labor. In addressing a similar raised

issue, we stated:

[T]he trial court erred in that the record does not reveal which of
defendant’s four armed robbery convictions was being enhanced.
Additionally, the trial court should have imposed a separate sentence
on each of the three remaining convictions. Therefore, defendant’s
sentence is indeterminate as he was convicted of four counts of armed
robbery and only a single sentence was imposed. See State v.
Bessonette, 574 So.2d 1305 (La.App. 3 Cir.1991); La.Code Crim.P.
art. 879. Accordingly, defendant’s sentence will be vacated and the
case remanded to the trial court for clarification as to which count is
being enhanced and for imposition of separate sentences on the
remaining three counts. See State v. Parker, 593 So.2d 414 (La.App.
1 Cir.1991).

Id. at 630.

Accordingly, Defendant’s sentence must be vacated and the case remanded

to the trial court for clarification as to which count is being enhanced and for

imposition of separate sentences on the remaining two counts of simple burglary.

We must next address whether this error affected Defendant’s plea agreement.

The plea form lists the charge as three counts of simple burglary and

indicates that the recommendation was a twelve-year sentence concurrent with any

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other sentence Defendant was serving. The following statement is included on the

bottom of the plea form:

THE DEFENDANT AGREES THAT THIS PLEA IS
CONTINGENT AND CONDITIONED UPON A PLEA AS A
HABITUAL OFFENDER AS OUTLINED IN THE ATTACHED
DOCUMENT LABLED [sic] THE [sic] A PLEA OF GUILTY,
ACKNOWLEDGMENT, WAIVER, CONFESSION AND
SENTENCE AS A HABITUAL OFFENDER.

THE DEFENDANT UNDERSTANDS THAT THE ABOVE
SENTENCE WILL BE VACATED AND REPLACED BY A
SENTENCE AS A HABITUAL OFFENDER.

The plea form for the habitual offender proceeding indicates that Defendant

is a third-level offender and the recommendation was that he be sentenced to not

less than twelve nor more than twenty-four years at hard labor without benefit of

probation or suspension of sentence concurrent with any other sentence he was

serving.

Three concurrent sentences were imposed for the three counts of simple

burglary. The plea form mentions the three counts of simple burglary, but then

indicates the “sentence” will be replaced by a habitual offender sentence. Thus, it

is unclear whether the understanding of the parties was that the three simple

burglary sentences were to be replaced by a single habitual offender sentence,

which renders the resulting sentence indeterminate, or whether only one of the

three simple burglary sentences was to be enhanced under the habitual offender

law and an unenhanced sentence was to be imposed on each of the two remaining

simple burglary convictions. In State v. Ott, 12-111, pp. 17-18 (La.App. 5 Cir.

10/16/12), 102 So.3d 944, 955, the fifth circuit addressed a similar issue as

follows:

Second, Defendant’s sentence as to Count Two, attempted
armed robbery with a firearm, is indeterminate. The bill of

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information charged Defendant with attempted armed robbery while
armed with a firearm in violation of LSA-R.S. 14:27 and 14:64.3.
LSA-R.S. 14:64.3 provides for an additional penalty of five years
without benefit of parole, probation, or suspension of sentence to be
served consecutively to the sentence imposed under LSA-R.S. 14:27
and 14:64, when the dangerous weapon used in the commission of an
attempted armed robbery is a firearm. However, the trial court
sentenced Defendant under LSA-R.S. 14:27 and 14:64, to 15 years at
hard labor. The trial judge did not reference LSA-R.S. 14:27 and
14:64.3 during sentencing, nor did she state that she was imposing an
additional period of incarceration when imposing Defendant’ s
attempted armed robbery sentence. Since the State intended to utilize
the provisions of LSA-R.S. 14:27 and 14:64.3, Count Two is
indeterminate because the trial judge did not state whether the
sentence included the firearm enhancement.

Because we find the Count Two sentence indeterminate, we
vacate the sentence and remand for resentencing according to law and
for clarification of whether Defendant’s sentence includes any
additional punishment under LSA-R.S. 14:27 and 14:64.3 as this
Court did in State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10); 52
So.3d 89, 108-09, writ denied, 10-2556 (La.4/8/11); 61 So.3d 681,
and State v. Price, 04-812 (La.App. 5 Cir. 3/1/05); 909 So.2d 612,
618. Additionally, in the event the trial court determines the five-year
firearm enhancement was not included in Defendant’s original 15-
year sentence, then we find it necessary to reserve Defendant’s right
to withdraw his guilty plea because it was not a part of his negotiated
plea agreement.

Accordingly, we vacate Defendant’s sentence, and the case is remanded for

clarification as to which count is being enhanced and for imposition of separate

sentences on the remaining two counts. If the trial court determines that the

agreement was that the three simple burglary sentences were to be replaced by a

single habitual offender sentence, then we reserve Defendant’s right to withdraw

his guilty plea.

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Thus, after conducting an Anders review, we affirm Defendant’s

convictions, vacate his sentence, and remand the case for further proceedings

consistent with this opinion. We further grant counsel’s motion to withdraw.5

CONVICTIONS AFFIRMED, SENTENCE VACATED, AND CASE

REMANDED FOR RESENTENCING. MOTION TO WITHDRAW

GRANTED.

5
The motion to withdraw is granted despite the remand for resentencing because this
defendant is represented by different counsel at the trial (Indigent Defender’s Board) and
appellate levels (Louisiana Appellate Project). Thus, the trial court will appoint/reappoint
counsel for Defendant at the resentencing hearing.

10