State of Louisiana v. Robert Earl Sanders

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-470

STATE OF LOUISIANA

VERSUS

ROBERT EARL SANDERS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 322,524
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.

CONVICTIONS AFFIRMED. SECOND
DEGREE BATTERY SENTENCE
VACATED. REMANDED FOR
RESENTENCING WITH
INSTRUCTIONS. DOMESTIC ABUSE
AGGRAVATED ASSAULT
SENTENCES AMENDED. SECOND
DEGREE KIDNAPPING SENTENCE
AFFIRMED. MOTION TO
WITHDRAW GRANTED.

Phillip Terrell, District Attorney
Numa V. Metoyer, III, Assistant District Attorney
Ninth Judicial District Court
Parish of Rapides
State of Louisiana
P. O. Box 1472
Alexandria, LA 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR APPELLANT:
Robert Earl Sanders

Savoie, Judge.

Defendant, Robert Earl Sanders, was charged by bill of information with one

count of second degree kidnapping, one count of second degree battery, and three

counts of domestic abuse aggravated assault. Defendant was convicted by a

unanimous jury for each of the charged offenses. The court sentenced Defendant

to fifteen years at hard labor without the benefit of parole, probation, or suspension

of sentence for second degree kidnapping, six years at hard labor for second degree

battery, and four years at hard labor without the benefit of parole, probation, or

suspension of sentence for each count of domestic abuse aggravated assault.

Defendant is before this court appealing his conviction and sentence.

Appellate counsel 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; thus, he requests this court grant his accompanying motion to withdraw.

Defendant has filed a pro se brief. For the following reasons, we affirm

Defendant’s convictions and sentences and grant appellate counsel’s motion to

withdraw.

FACTS:

Lisa Elliott, Defendant’s girlfriend, testified that after work on July 17,

2014, she and her boss, Mike Smith, were sitting in his kitchen drinking beer when

Defendant rode over on his bicycle to get his house key and cell phone. Ms. Elliot

and Defendant had been living together for approximately two years, and

Defendant did not like her associating with Mr. Smith. After Mr. Smith gave

Defendant the items he wanted, Ms. Elliott remembered she had Defendant’s

phone charger. She went out of the door to hand it to him. When she did,

Defendant grabbed her, picked her up by the scruff of her neck, and threw her

down the stairs of the second story garage apartment. Ms. Elliott testified that the

fall did not hurt her.

Ms. Elliott further testified that, as she subsequently walked down the

driveway, Defendant took her by the arm and escorted her back to his apartment

against her will. He then held a metal meat skewer to her temple and told her “if

the police come knocking on the door. . . I’m gonna go to jail ’cause I’m gonna

juke you.” Ms. Elliott begged him not to hurt her. As she hovered against the

bathroom door, Defendant sprayed her hair, face, and clothes with lighter fluid and

“made like he was gonna set [her] afire.” He told her that he was not going to kill

her, but he was going to make her look like a mummy. Defendant then sat down

on a chair near Ms. Elliot and “kept smacking” her on the top of the head with the

flat side of the blade of a long-bladed kitchen knife and twice kicked her in the

head with the side of his foot. At some point, Defendant opened the door of the

apartment and told Ms. Elliott that she could leave, but she was afraid to,

perceiving this as a test of her loyalty to him.

After attempting to “talk him down” and convince him that she was still his

“girl,” Ms. Elliott returned with Defendant to Mr. Smith’s house to retrieve his

bicycle. While there, she saw some people she knew. Fearing she was about to be

“really hurt” by Defendant, she tried to get in the car with them. They thought she

was kidding, and Defendant heard her, so she started back to Defendant’s

apartment with him. Defendant was not holding onto her, but he told her to pick

up the pace when she attempted to lag behind to see if any cars drove by.

At one point, Ms. Elliot began to yell for help, which resulted in Defendant

grabbing her and throwing her to the ground. Her head hit the street, causing a

“really bad head injury.” Dazed, Ms. Elliott was led back to the apartment by
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Defendant. When she was in a lighted area, Ms. Elliott saw that she was soaked in

blood, and she observed “spongy bits of tissue” in her scalp wound. Defendant

poured lighter fluid into her head wound, and he then made Ms. Elliott wash

dishes. Ms. Elliot told Defendant she needed to go to the hospital because she was

losing so much blood. With each plea for help, Defendant slapped her in the face.

Finally, being unable to continue standing, Ms. Elliott lay down on the

kitchen floor where she stayed for a couple of hours. Ms. Elliot testified she was

prevented from leaving because Defendant had moved furniture against the door

and because Defendant was lying down in a room where he could watch her. At

one point, it appeared Defendant was asleep, but Ms. Elliot was afraid to leave

because “he’s very fast[,]” and any attempt to move the blockade “woulda made all

kinda racket.”

Ms. Elliott went and asked Defendant to help her, and he let her lay down in

the bed with a towel on her head. Afraid Defendant would be angry if she got

blood on the bed, Ms. Elliott got on the floor at the foot of the bed. A few hours

later, Defendant got her up and helped her clean up her hair and skin. She then

slept for a little while before Defendant woke her up and made her clean the

bathroom. She rested a little while longer before he woke her up and told her she

could leave if she wanted.

According to Ms. Elliott, Defendant seemed regretful, and he asked her why

she made him have to hurt her, and why she made him so crazy. He then gave her

some of his clothes to wear and she left. Ms. Elliott went to Mr. Smith’s

apartment, and they contacted her mother who came to get her. Since her head

wound was over twenty-four hours old, she did not think it could be stitched, so

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she and her mother left the emergency room, which was full of other people

waiting to be seen.

Ms. Elliott’s mother contacted authorities. They took pictures of Ms.

Elliott’s injuries and later took her statement. Five months later, police arrested

Defendant. Prior to the arrest, Ms. Elliott and Defendant were again living

together. At trial, Ms. Elliot explained that they were attempting to reconcile and

overcome this event.

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 three

errors patent.

First, for second degree battery, Defendant was sentenced to serve six years

at hard labor. At the time of the commission of the offense, second degree battery

carried a penalty of a fine of not more than $2,000.00, or imprisonment with or

without hard labor for not more than five years, or both. La.R.S. 14:34.1.

Although the statute was amended to allow for a sentence of up to eight years, this

provision was not in effect at the time of the commission of the offense. “A

defendant must be sentenced according to the sentencing provision in effect at the

time of the commission of the offense.” State v. Sugasti, 01-3407, p. 4 (La.

6/21/02), 820 So.2d 518, 520 (citing State v. Narcisse, 426 So.2d 118 (La.1983)).

Thus, Defendant received an illegally excessive sentence for second degree

battery. Accordingly, we vacate Defendant’s sentence for this conviction and

remand the case for resentencing by the trial court.

Next, domestic abuse aggravated assault, a violation of La.R.S. 14:37.7,

carries a sentence of hard labor for not less than one year nor more than five years.
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While the term of Defendant’s four year sentence on each count is legal, the trial

court’s denial of benefits is not. At sentencing, the judge stated “those are to be

without benefit and with a permanent protective order.” Accordingly, we amend

these three sentences to strike the denial of the benefits of parole, probation, or

suspension of sentence. The trial court is instructed to make an entry in the court

minutes reflecting this amendment.

Finally, the record does not indicate that the trial court advised Defendant of

the prescriptive period for filing post-conviction relief as required by La.Code

Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the

provisions of Article 930.8 at resentencing.

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, he 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.
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Id. at 531.

While it is not necessary for Defendant’s appellate 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.’ McCoy [v. Court of Appeals of Wisconsin, 486 U.S.

[429] at 442, 108 S.Ct. [1895] at 1903 [(1988)].” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241. 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 [trier of fact] for its consideration.” Id. 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.” State v.

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

In his Anders brief, appellate counsel summarized the pertinent testimony

presented at trial to support his assertion that the State presented sufficient

evidence to establish each element of the charges against Defendant. Despite the

victim’s admission at trial that she lied at the preliminary examination, or

alternatively, was lying at trial, counsel notes that the jury was free to accept or

reject in whole or in part any portion of a witness’s testimony. Counsel also details

some objections made at trial, and, although he contends some of the rulings were

legally incorrect, he suggests that admission of the contested evidence was

harmless error.

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Next, counsel suggests that the patent error which occurred in trying

Defendant for second degree battery before a jury of more than six persons was

waived. Finally, counsel contends that the sentences imposed on Defendant were

not excessive. Accordingly, counsel asserts that his review of the record supports

no non-frivolous issues to raise on appeal. We find counsel’s brief complies with

the requirements set forth in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241

and State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176.

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

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

entries, the charging instrument, and the transcripts, and has confirmed the

statements made by appellate counsel. Defendant was properly charged in the bill

of information and was present and represented by counsel at all crucial stages of

the proceedings. Contrary to counsel’s assertion, Defendant was correctly tried by

a jury of twelve. See La.Code Crim.P. art. 493.2. The verdicts were correct, and

the legality of the sentences was addressed above. In reviewing the transcripts to

determine if any ruling provides an arguable basis for appeal, we note there were a

number of objections by defense counsel, some of which were mentioned by

counsel in his brief; however, none of the rulings support a non-frivolous issue to

raise on appeal, as suggested by counsel.

Pro se brief:

Defendant filed a document in this court requesting that he be allowed to file

a supplemental pro se brief once he received a copy of the appellate record. He

stated that he wished to review the appellate record so that he could exercise his

constitutional right to judicial review based upon a complete record of all evidence.

The record was forwarded to Defendant, and he was given until August 31, 2016,
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to file a supplemental brief. No brief was received. Thus, we have reviewed the

vague allegations made by Defendant, which were never fully developed via

supplemental brief.

First, Defendant complains of the inconsistency in the victim’s testimony at

the preliminary examination and the trial. Also, he notes that the police report

indicates the victim’s injury was a “minor injury,” but the victim testified that the

injury was much more serious. The inconsistency in the victim’s testimony and

the extent of her injuries were all brought out at trial and were therefore placed

before the jury for its consideration. “The trier of fact makes credibility

determinations and may, within the bounds of rationality, accept or reject the

testimony of any witness[.]” State v. Higgins, 03-1980, p. 17 (La. 4/1/05), 898

So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182 (2005). Thus, the jury

was free to accept or reject the victim’s testimony, and they resolved the credibility

determination in favor of the victim. Thus, we find these claims have no merit.

Next, Defendant claims Detective Painter lied regarding previous charges

against Defendant. Detective Painter testified at trial, and again, the jury was free

to accept or reject her testimony. This claim has no merit.

Defendant also appears to claim that his attorney was ineffective in failing to

show him Detective Painter’s affidavit until after trial and also in failing to do

anything to help Defendant with his case. In State v. Mitchell, 13-426, pp. 27-29

(La.App. 3 Cir. 11/6/13), 125 So.3d 586, 604-05, writ denied, 14-102 (La.

6/20/14), 141 So.3d 807, this court stated:

A claim for ineffective assistance of counsel is
properly raised in an application for post-conviction
relief because this allows the trial court to order a full
evidentiary hearing on the matter. State v. Burkhalter,
428 So.2d 449 (La.1983). However, where the record
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contains sufficient evidence to decide the issue, and the
issue is raised by an assignment of error on appeal, it
may be considered by the appellate court. State v. Tapp,
08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also
State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670
So.2d 461.

State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696,
701.

....

. . . Decisions relating to investigation, preparation, and strategy
require an evidentiary hearing and cannot possibly be reviewed on
appeal. Only in an evidentiary hearing in the district court, where the
defendant could present evidence beyond that contained in the instant
record, could these allegations be sufficiently investigated.
Accordingly, the defendant’s claims of ineffective assistance of
counsel will be relegated to post-conviction relief.

Similarly, the ineffective assistance of counsel claims raised by Defendant in

this case are relegated to post-conviction relief.

Finally, Defendant claims his request for a copy of the trial transcript from

the trial court was unanswered, and he requests that the trial transcript be

“released” to him. This court provided Defendant with a copy of the appellate

record which contains a copy of the trial transcript. Accordingly, this claim is

misguided.

Finding no non-frivolous issues and no merit to the pro se assignments of

error raised by Defendant, we grant counsel’s motion to withdraw.

DECREE:

Defendant’s convictions are affirmed. His sentence for second degree

battery is vacated, and the case is remanded for resentencing for this conviction.

At the resentencing proceeding, the trial court is directed to inform Defendant of

the provisions of La.Code Crim.P. art. 930.9. Each of Defendant’s sentences for

domestic abuse aggravated assault is amended to delete the denial of the benefit of
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parole, probation, or suspension of sentence. The trial court is instructed to make

an entry in the court minutes reflecting this amendment. Defendant’s sentence for

second degree kidnapping is affirmed, and his sentences on each count of domestic

abuse aggravated assault are affirmed as amended.

CONVICTIONS AFFIRMED. SECOND DEGREE BATTERY

SENTENCE VACATED. REMANDED FOR RESENTENCING WITH

INSTRUCTIONS. DOMESTIC ABUSE AGGRAVATED ASSAULT

SENTENCES AMENDED. SECOND DEGREE KIDNAPPING SENTENCE

AFFIRMED. MOTION TO WITHDRAW GRANTED.

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