State of Louisiana v. Lorrie A. Anderson AKA Lorrie Ann Anderson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-588

STATE OF LOUISIANA

VERSUS

LORRIE A. ANDERSON

AKA LORRIE ANN ANDERSON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 143445
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and David Ellis
Chatelain*, Judges.

CONDITIONALLY AFFIRMED; CASE REMANDED FOR ADDITIONAL
HEARING WITH INSTRUCTIONS.

_____________________
*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Keith A. Stutes
District Attorney
Allan P. Haney
Assistant District Attorney
Fifteenth Judicial District Court
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Lorrie A. Anderson a/k/a Lorrie Ann Anderson

Roger P. Hamilton, Jr.
Assistant District Attorney
P. O. Box 12625
New Iberia, LA 70562-2625
(337) 519-7180
COUNSEL FOR APPELLEE:
State of Louisiana

EZELL, Judge.

Defendant, Lorrie A. Anderson, a/k/a/ Lorrie Ann Anderson, was indicted

on September 19, 2013, for the aggravated rape of two minor children, a violation

of La.R.S. 14:42; aggravated incest involving both children, a violation of the

statute designated at the time as La.R.S. 14:78.1; and human trafficking, a violation

of La.R.S. 14:46.3. On September 2, 2014, Defendant entered a plea of no contest

to human trafficking and to the reduced charge of molestation of a juvenile, a

violation of La.R.S. 14:81.2, pursuant to North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160 (1970).1

The trial court sentenced Defendant at the plea hearing as follows:

With respect to the molestation of a juvenile charge, I will accept the
State‟s recommendation and what you agreed to. I sentence you to
ten years at hard labor with credit for time served. That sentence is to
run concurrent[ly] with the sentence you will receive in count 3 in a
moment.

Count 3, human trafficking, I sentence you to five years at hard
labor to run without benefit of probation, parole, or suspension of
sentence. That sentence will run concurrent[ly] with the other charge.
The sentence on the molestation charge only is suspended. You are
placed on active supervised probation for two years. At the end of
any parole with respect to any other charge by the State of Louisiana,
you will serve.

Defendant did not file a motion to reconsider her sentences. She did, however, file

a motion for an out-of-time appeal on March 3, 2016. The trial judge granted the

motion on March 24, 2016, and appointed the Louisiana Appellate Project to

represent Defendant on appeal.

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues existed on which to

base an appeal and seeking to withdraw as Defendant‟s counsel. On August 10,

1
See a discussion of the difference between a no contest plea and an Alford plea below.

2016, Defendant was advised, via certified mail, that counsel filed an Anders brief

and she had until September 9, 2016, to file a pro se brief. To date, Defendant has

not filed a pro se brief.

On September 12, 2016, this court ordered appellate counsel to submit a

brief “addressing the confusion surrounding the true nature of Defendant‟s plea

and the issues raised in Defendant‟s motion for an out-of-time appeal.” The order

also denied counsel‟s motion to withdraw. State v. Anderson, 16-588 (La.App. 3

Cir. 9/12/16) (unpublished opinion.) Counsel has now filed his brief alleging two

assignments of error.

FACTS

Pursuant to her “best interest plea,” Defendant admitted to molestation of a

juvenile and to human trafficking. The record does not include details of the

crimes except for Office of Child Services (OCS) records in a separate sealed

volume.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court‟s failure to advise her of sex offender

registration and notification requirements prior to the entry of her pleas rendered

them involuntary. She contends this requires her pleas to be set aside or,

alternatively, requires her to have the opportunity to withdraw her pleas. 2 We

address this issue first, because if Defendant‟s pleas are rendered involuntary, then

we must vacate her convictions and sentences.

Defendant signed the “Notification to Sex Offender” form setting out the

registration and notification requirements on September 2, 2014, the day she

2
Defendant raises this issue for the first time on appeal. However, this court may
consider it because of the constitutional nature of Defendant‟s argument that her plea was not
made freely and voluntarily. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095.

2

entered her guilty plea. The form indicates Defendant‟s attorney reviewed it with

her. The record does not indicate whether Defendant signed the notification form

prior to the entry of her plea.

At the plea hearing, the trial court first accepted Defendant‟s guilty pleas and

then stated, “I will order that you follow Louisiana‟s Sex Offender Laws relative to

notice and registration as a Sex Offender.” Defendant indicated she understood.

Defendant entered no objection to the imposition of the notification requirements

at the plea hearing.

Louisiana Revised Statutes 15:543(A) requires the trial court to “provide

written notification to any person convicted of a sex offense and a criminal offense

against a victim who is a minor of the registration requirements and the notification

requirements of this Chapter.” Notification must be given on the statutorily

required form and “shall be included on any guilty plea forms and judgment and

sentence forms provided to the defendant, and an entry shall be made in the court

minutes stating that the written notification was provided to such offenders.” Id.

Failure to advise a defendant of the requirements of registration and

notification is a factor that may undercut the voluntary nature of a guilty plea.

State v. Calhoun, 96-786 (La. 5/20/97), 694 So.2d 909. In Calhoun, the supreme

court refused to set out a blanket rule that failure to notify of these requirements

nullifies a guilty plea. Rather, the court considered the totality of the

circumstances under which the pleas were made, including counsel‟s

unpreparedness. Additionally, the defendant‟s steadfast maintaining his innocence

supported his contention that he pled guilty only because his attorney told him he

had no possible defenses. The Calhoun trial court apparently did not inform the

defendant of the registration and notification requirements until his sentencing

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hearing more than two months after his guilty plea. The defendant “at the least,

implicitly stated that he would not have pled guilty had he been informed of the

registration requirements.” Id. at 914. He also raised the issue in a timely-filed

motion to withdraw his guilty plea prior to sentencing. The supreme court held

that, under these circumstances, the trial court‟s failure to advise the defendant of

the registration requirements prior to accepting the guilty plea undercut the

voluntariness of that plea.

The supreme court revisited the issue in State v. Blanchard, 00-1147 (La.

4/20/01), 786 So.2d 701, where the trial court denied the defendant‟s motion to

withdraw his guilty pleas because of lack of notification of the registration

requirements. The supreme court agreed with the trial court after this court

reversed its ruling. The supreme court found the defendant was aware of the

registration requirements, but he assumed he would not have to report as a sex

offender after entering his best interest pleas. However, he did not allege that

assumption was based on anything said or done by the trial court, defense counsel,

who testified he had informed his client of the registration requirement, or the

prosecutor. In short, the defendant‟s awareness of the requirements negated any

basis for him to withdraw his plea.

Soon after Blanchard, this court considered the issue in State v. Williams,

02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. The transcript of the plea hearing

showed the trial court informed the defendant, who was represented by counsel, of

his Boykin rights and of the sentencing range for the offense to which he pled. The

defendant did not set out the lack of notification as grounds for the withdrawal of

his guilty plea, and he did not allege ineffective assistance of counsel. This court

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found the totality of the circumstances did not warrant invalidation of the plea.

Nevertheless, this court concluded:

corrective action must still be taken because there is no indication in
the record as to whether the defendant is aware of the sex offender
registration requirements. Therefore, we remand this matter to the
district court to provide appropriate written notice to the defendant of
the sex offender registration requirements within ten days of the
rendition of the opinion and to file written proof that the defendant
received notice in the record of the proceedings.

Id. at 1100.

This court cited Blanchard, 786 So.2d 701, in State v. G.T., Jr., 10-1469

(La.App. 3 Cir. 6/15/11), 71 So.3d 394. The notification form incorrectly showed

the defendant had to register as a sex offender for twenty-five years rather than for

his lifetime as required by statute. The evidence did not show whether the

defendant was aware of the requirements, of any effect they may have had on the

voluntariness of his plea, or whether counsel notified the defendant of the

requirements. The guilty plea form did not include the required notice of the

registration requirements. Considering the totality of the circumstances, this court

remanded the matter for an evidentiary hearing on the voluntariness of the

defendant‟s plea.

On remand, the trial court found the “no contest plea was knowing and

voluntary despite the fact that [the defendant] was told he would be tried by a jury

of twelve, not advised of the sex offender registration requirements prior to entry

of his plea, and was told he would have to register for twenty-five years.” State v.

Tomplait, 12-857, p. 7 (La.App. 3 Cir. 1/9/13) (unpublished opinion). This court

noted counsel stated the defendant pled guilty because the State agreed not to file a

habitual offender bill. The defendant failed to ask questions about sex offender

registration or notification when the trial judge mentioned the registration form at

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the plea hearing, and he failed to object to the requirements at the hearing where he

was informed of those requirements. He also “received a very favorable plea

bargain” by avoiding the habitual offender issue and an additional charge for third-

offense driving while intoxicated. Id. This court affirmed the trial court‟s findings

and affirmed the defendant‟s conviction.

In State v. Murray, 12-378, 12-379 (La.App. 3 Cir. 4/3/13), 117 So.3d 130,

the defendant was not given timely notice of the requirements prior to the entry of

his plea of guilty to oral sexual battery and to the reduced charge of molestation of

a juvenile. At the hearing of the motion to withdraw his guilty pleas, the defendant

testified he pled guilty because his lawyers explained to him the six-year-old

victim was going to testify he had raped her, and the evidence showed she had

been raped. The defendant was told he would spend the rest of his life in prison if

convicted.

An administrative assistant to the defendant‟s counsel testified he did not tell

the defendant of the registration requirements. However, this assistant said he

thought the defendant asked about them and the attorney mentioned the

requirements to him. Defense counsel testified he did not recall the defendant

being given written notice of the requirements. This court found the failure to

notify the defendant of the notification and registration requirements was not a

factor that undercut the voluntary nature of the pleas in light of the other reasons

for the pleas. Although this court remanded the matter for an evidentiary hearing

to allow the State to present a factual basis for the guilty pleas, it rejected the

defendant‟s argument concerning the notification requirements.

Here, the record clearly shows Defendant received notice of the notification

and registration requirements, albeit late. The record includes Defendant‟s guilty

6

plea form showing both nolo contendere and Alford pleas. The “general

conditions” of probation applicable to Defendant explain she “shall pay a monthly

fee of eleven dollars cents [sic] to the Department of Public Safety and

Corrections for the „Sex Offender Registry Technology Fund[ʼ].” Defendant and

her attorney signed that form on September 2, 2014. However, the form does not

indicate whether Defendant signed the form before or after the trial court accepted

her guilty pleas.

The next six pages of the trial court record following the guilty plea

comprise a “Notification to Sex Offender” form that indicates Defendant reviewed

it with her attorney. That form states Defendant “has pled guilty to or been found

guilty of” molestation of a juvenile.

Defendant does not plainly set out her innocence in anything contained in

the record or in her appellant brief. However, she does contend the evidence

against her was weak and her counsel was ill-prepared and “should never have

forfeited her rights to an appeal.” She argues her counsel should have, “[a]t the

very least,” entered a plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976),

which would have allowed her to appeal pre-trial rulings. However, she does not

identify any pre-trial rulings she would have appealed or otherwise identify any

error of the trial court. Defendant‟s appellant brief claims she did not know the

result of making an Alford plea. Nevertheless, she argues she intended to enter a

“best interest” plea.

On the other hand, Defendant never made any effort to withdraw her pleas.

She has never alleged ineffectiveness of counsel other than to mention, in her

appellate brief, that counsel was ill-prepared. She does not plainly argue she

would not have pled guilty had she known of the registration requirements. She

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never alleges she did not know of the notification and registration requirements;

rather, she contends simply that the trial court failed to notify her of them.

We find Defendant had adequate knowledge of the notice and registration

requirements. Therefore, we now consider Defendant‟s Assignment of Error

Number One.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in determining her guilty pleas were

knowingly and intelligently made. She argues she intended to enter a “best interest

plea” and indicated that intent to the trial court. Thus, she argues the trial court

erred in accepting her pleas without a factual basis, and they should be set aside.3

Here, the indictment filed on September 19, 2013, alleges Defendant

committed aggravated incest by willfully and unlawfully engaging in a sexual act

with a male and a female, both under the age of eighteen, and both related to

Defendant, all in violation of La.R.S. 14:78.1. That indictment alleges Defendant

also willingly, unlawfully and knowingly recruited, harbored, transported,

provided, sold, purchased, obtained, or maintained the use of the minors for the

purpose of engaging in commercial sexual activity in violation of La.R.S. 14:46.3.

The indictment was amended to allege the offenses occurred from January 4, 2009,

through December 31, 2011.

Exhibits in the record indicate an investigation took place regarding

allegations Defendant‟s daughter was sexually abused by Defendant‟s drug dealer.

3
Defendant may raise this claim on appeal, even though she did not file a motion to
withdraw the pleas, because she alleges her pleas are constitutionally infirm. See State v. Jordan,
98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36.

8

The child alleged Defendant allowed the drug dealer to “do things to [her] for

drugs.”

An OCS Investigation Report dated October 8, 2012, stated both children

disclosed Defendant had sexually abused them. OCS made a “Valid finding of

Sexual manipulation or fondling by [Defendant]” with regard to both children. On

one or more occasions, Defendant abused her daughter in order to get money from

“Chicken Man” for drugs.

An employee of the school the children attended told an OCS worker she

had heard about Defendant putting her daughter “in a trunk and letting men have

sex with [her].” Defendant‟s daughter told the OCS worker Defendant had “put

fingers in her private area[.]” Defendant and victim‟s father denied Defendant had

ever abused the children.

At the plea hearing, the trial court asked Defendant, “Are you afraid that if

you went to trial, the State might win and you might be convicted? Is that one of

the reasons you want to plead no contest?” Counsel told the trial court he and

Defendant had discussed “the pleas to be accepted in this matter[,] and she believes

it to be in her best interest to take the deal in count 1.”4 The trial court then asked

Defendant, “[D]o you believe it is in your best interest to accept the agreement and

plead no contest?” Defendant answered “yes” to the questions asked of her.

The plea agreement form in the record, which Defendant signed, is titled

“Plea of Guilty/Nolo Contendere.” Where the form states, “I, DEFENDANT

above, on my plea of GUILTY/NOLO CONTENDERE . . .,” the words “nolo

contendere” are circled. However, slightly more than midway through the page,

4
The plea form includes a hand-written note indicating “Count 1” was dismissed as a
result of Defendant‟s plea. Court minutes also indicate that count was dismissed.

9

the words “Alford plea” are handwritten. Court minutes of September 2, 2014,

indicate Defendant “entered a plea of no contest/Alfred [sic] Plea . . . .”

Generally, a defendant waives the right to question the merits of
the State‟s case or the underlying factual basis by entering a plea of
guilt, or plea of nolo contendere. State v. Brooks, 38,963 (La.App. 2
Cir. 9/22/04), 882 So.2d 724. “When a guilty plea is otherwise
voluntary, there is no necessity to ascertain a factual basis for that plea
unless the accused protests his innocence or for some other reason the
trial court is put on notice that there is a need for such an inquiry. In
that event, due process requires a judicial finding of a significant
factual basis for the defendant‟s plea.” State v. Linear, 600 So.2d 113,
115 (La.App. 2 Cir.1992); See North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970). However, this court has held
that a plea of nolo contendre [sic] alone, unlike a guilty plea
accompanied by a claim of innocence, does not put the trial court on
notice that a significant factual basis must be obtained. State v.
Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, writ
denied, 00-1175 (La.3/16/01), 786 So.2d 745; State v. Guffey, 94-797
(La.App. 3 Cir. 2/1/95), 649 So.2d 1169, writ denied, 95-973
(La.9/22/95), 660 So.2d 469. Citing Alford, the Louisiana Supreme
Court has stated:

Moreover, even assuming that relator had
protested his innocence when he entered his guilty plea
and further assuming that in all cases involving a bona
fide Alford plea the record “before the judge [must]
contain [ ] strong evidence of actual guilt,” the standard
under Alford is not whether the state may prevail at trial
by establishing the essential elements of the crime
beyond a reasonable doubt and negating all possible
defenses, but rather whether the strength of the factual
basis, coupled with the other circumstances of the plea,
reflect that the plea “represents a voluntary and
intelligent choice among the alternative[s].”

State v. Orman, 97-2089, pp. 1-2 (La.1/9/98), 704 So.2d 245, 245
(citations omitted).

State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950-51

(second, third, and fourth alterations in orginal). Thus, if Defendant entered a plea

of nolo contendere, the State was not required to present a factual basis for the

plea. In contrast, if Defendant entered an Alford plea, the State would have to do

so.

10

Louisiana law does not recognize a no contest/Alford plea. Indeed, the two

pleas are contradictory. “A plea of nolo contendere is equivalent to an admission

of guilt,” whereas a defendant professes his innocence in an Alford plea. State v.

Villarreal, 99-827, p. 4 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied,

00-1175 (La. 3/16/01), 786 So.2d 745.

In her appellate brief, Defendant states she “believed it was in her best

interest to accept the plea agreement and plead no contest.” In her motion for an

out-of-time appeal, however, she stated she “was unaware that she was taking a „no

contest plea‟ and what that plea entailed.” But, in the next page of her motion, she

stated “the court should have taken measures to properly discuss with [her] what

the end result would be by her entering into an „Alford plea‟.” Adding to the

confusion, in her appellate brief (under the section titled “Action of the Trial

Court)”, she states her counsel should have filed a Crosby plea to preserve her right

to appeal pre-trial rulings.

If Defendant did in fact intend to enter a best interest plea, the State is not

required to enter a factual basis for the plea. However, the record does not clearly

indicate which type of plea Defendant entered. Accordingly, we must remand this

matter to determine whether Defendant intended to enter a nolo contendere plea or

an Alford plea.

In the event the trial court determines Defendant entered an Alford plea, it

should give the State the opportunity to enter a factual basis for the pleas in the

record. See State v. Guilbeau, 11-99 (La.App. 3 Cir. 6/22/11), 71 So.3d 1020.

11

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

are no errors patent; however, the court minutes of sentencing require correction.

The court minutes of sentencing indicate that for Defendant‟s conviction of

human trafficking, she was sentenced to serve five years at hard labor. The

sentencing transcript indicates that this sentence was imposed without the benefit

of parole, probation, or suspension of sentence. “[I]t is well settled that when the

minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-

137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62. Thus, we instruct the trial court to correct the court

minutes of sentencing to reflect that Defendant‟s sentence for human trafficking

was imposed without these benefits. See State v. Pete, 13-1107 (La.App. 3 Cir.

3/5/14), 134 So.3d 196, writ denied, 14-705 (La. 11/7/14), 152 So.3d 173, and

State v. Clayton, 10-1303 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, writ denied, 11-

1015 (La. 11/4/11), 75 So.3d 923.

DECREE

Defendant‟s convictions and sentences are conditionally affirmed based on

evidence in the record on appeal. However, we remand this matter to the trial

court for an evidentiary hearing to determine whether the plea entered constituted

an Alford plea or a nolo contendere plea. If the trial court determines an Alford

plea was entered, the trial court shall conduct an additional Boykin hearing to

ensure that there is a factual basis to support Defendant‟s pleas, and to allow the

State an opportunity to present other evidence of Defendant‟s guilt at that hearing.

If the trial court determines the State is unable to establish a sufficient factual basis

12

for Defendant‟s pleas, the trial court will set aside the convictions and sentences.

If the trial court finds the State sufficiently establishes a factual basis, it will affirm

Defendant‟s convictions and sentences. In that event, the trial court is instructed to

correct the court minutes of sentencing to reflect Defendant‟s sentence for human

trafficking was imposed without benefit of parole, probation, or suspension of

sentence.

Defendant may appeal from any adverse ruling on the issue of whether a

factual basis is sufficient to support the plea.

CONDITIONALLY AFFIRMED; CASE REMANDED FOR ADDITIONAL
HEARING WITH INSTRUCTIONS.

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