State of Louisiana v. Franck A. Louis

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 18-228

STATE OF LOUISIANA

VERSUS

FRANCK A. LOUIS

**********

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 76429
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar,
Judges.

CONVICTION AND SENTENCE FOR SECOND DEGREE
BATTERY AFFIRMED; MOTION TO WITHDRAW GRANTED.
MISDEMEANOR CONVICTION AND SENTENCE FOR FALSE
IMPRISONMENT SEVERED FROM APPEAL.

Don M. Burkett
District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Franck A. Louis

Anna Louise Garcie
P. O. Box 575
Many, LA 71449
(318) 729-9104
COUNSEL FOR APPELLEE:
State of Louisiana

EZELL, Judge.

Defendant, Franck A. Louis, was charged by bill of information filed on

January 9, 2017, with second degree battery, a violation of La.R.S. 14:34.1, and

false imprisonment, a violation of La.R.S. 14:46. On May 3, 2017, Defendant

waived his right to trial by jury, and a bench trial commenced on July 19, 2017.

Defendant was subsequently found guilty on both counts. On October 26, 2017,

Defendant was sentenced to serve four years at hard labor for second degree

battery and six months for false imprisonment, with the sentences to run

concurrently. Defendant filed a Motion to Reconsider Sentence on November 9,

2017. At a hearing on the motion, the trial court reduced the sentence for second

degree battery to two years at hard labor. A Motion for Appeal was filed on

December 22, 2017 and was subsequently granted.

Defendant’s 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 and requests this court grant her accompanying

motion to withdraw. Defendant was advised, via certified mail, that counsel filed

an Anders brief. Defendant was given until July 25, 2018, to file a pro se brief, and

he failed to do so. For the following reasons, we affirm the conviction and

sentence for second degree battery, sever the conviction and sentence for false

imprisonment, and grant appellate counsel’s motion to withdraw.

FACTS

On November 22, 2016, Defendant invited the victim, Kim Miller, to his

home for a drink, and she accepted the invitation. Miller testified she had several

alcoholic drinks and a hit of crack cocaine while at the residence. Defendant later

asked Miller for sex, and she declined. Miller subsequently went home. Miller

returned to Defendant’s house after he requested that she do so and promised he

would not ask her for sex again. Once back at the Defendant’s home, Miller had a

couple more drinks and another hit of crack cocaine. Miller testified the Defendant

then hit her in an attempt to make her have sex with him, and she slapped his hand.

Defendant hit Miller again, telling her she could not leave, and she had to die.

Next, Defendant bit her and stomped her, and she passed out. She later woke up

naked. Defendant was sleeping at that time, so Miller sneaked out of the house

without dressing. She then ran to the home of Quintkia Cade, tripping and falling

in the grass more than once. Cade called for help, and an ambulance transported

Miller to the hospital where she stayed for two days.

Patrolman Tim Harper said Miller’s jaws were swollen, she had a swollen

right eye, and a bite mark on her face. Defendant reported that he tried to get

Miller to leave his home, and she refused, so, they started pushing each other.

Nurse Patty Davis testified that, while at the hospital, Miller rated her pain a

ten, almost unbearable pain, on the pain scale. Miller had a bruise to the right side

of her face and an abrasion on the left cheek. Her right eye was swollen shut, and

her upper lip was swollen. Miller’s medical records also referenced bite marks and

places where she had been kicked and stepped on.

Defendant testified that Miller drank most of a bottle of alcohol and smoked

crack cocaine at his home. He felt he had been tricked because she refused to have

sex with him, so he asked her to leave. She refused, and, at some point, he broke

the crack pipe. Miller then left. Defendant claimed Miller fell numerous times

while at his home, including falling on top of a drum set. He denied striking

Miller.

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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, there are two

errors patent and a procedural issue noted by appellate counsel and addressed in

the Anders analysis below.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, Defendant’s appellate counsel filed a brief

stating she could find no errors on appeal that would support reversal of

Defendant’s conviction or sentence for second degree battery. Thus, counsel seeks

to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (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.

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

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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.

Trial counsel filed a pleading titled “Assignments of Error” on December

22, 2017. Therein, he asserted the following:

a) There was insufficient evidence to sustain a conviction on the
charge of second degree battery in light of the testimony of Kim
Miller who admitted using drugs and tripping and falling when
leaving Mr. Louis’ home. Furthermore, Ms. Miller’s testimony
of excessive drug and alcohol use on the night in question put
all of her testimony in question.

b) Considering the defendant is a first felony offender, the
sentence is harsh and excessive to the degree that it is cruel and
unusual punishment.

In her Anders brief, appellate counsel addresses these two assignments of error.

Appellate counsel first discusses the sufficiency of the evidence to support

Defendant’s conviction for second degree battery. Counsel notes the State was

required to prove Defendant committed a battery, without the victim’s consent, and

intentionally inflicted serious bodily injury. Counsel discusses Miller’s testimony

and notes that this court has rejected arguments that the type of injuries suffered by

Miller do not constitute serious bodily injury. In support of this contention,

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appellate counsel cites State v. Jackson, 02-1250 (La.App. 3 Cir. 2/5/03), 838

So.2d 841, writ denied, 03-832 (La. 10/17/03), 855 So.2d 759. Therein, this court

addressed serious bodily injury within the definition of La.R.S. 14:34.1, stating:

In State v. Hernandez, 96-0115 (La.App. 4 Cir. 12/18/96); 686
So.2d 92, the court upheld the defendant’s conviction for second
degree battery when the victim’s injuries consisted of a cut to her right
eye and nose area, a cut on her shoulder and a cut on her finger. The
victim testified the injuries burned.

In State v. Accardo, 466 So.2d 549 (La.App. 5 Cir.1985), writ
denied, 468 So.2d 1204 (La.1985), the defendant, a twenty-one year
old male struck a seventeen year old female on the head with either
his fist or a blackjack. The blow caused pain and swelling to the
victim’s head. The court found the evidence was sufficient to
establish the victim suffered serious bodily injury within the meaning
of the second degree battery statute even though the victim did not
lose consciousness and she did not testify she was in extreme physical
pain.

....

In [State v.]Young, 00,1437 [sic], [(La. 11/28/01),] 800 So.2d
847, [aff’d in part, 00-1437 (La. 11/28/00), 800 So.2d 847,] the
supreme court affirmed a jury verdict finding the jury could
reasonably have concluded the defendant intended to inflict serious
bodily injury when he choked the victim. The victim testified he
coughed frequently, cleared his throat and had trouble talking. The
court found the State proved the defendant intended to cause
“impairment of the function of a bodily member.”

Id. at 844.

Appellate counsel notes that, notwithstanding Miller’s testimony that she fell

in the grass while leaving Defendant’s home, the medical evidence reflecting bite

marks and places where she had been kicked and stepped on corroborate her

testimony that Defendant was the cause of her injuries. While Defendant denied

the allegations, the trial court chose to believe Miller’s version of the events.

Appellate counsel suggests this court should not second-guess that credibility

determination. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State

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ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d

1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). Thus, the State

proved the elements of second degree battery beyond a reasonable doubt.

Accordingly, Defendant’s conviction should be affirmed. We find appellate

counsel’s conclusions are correct.

Appellate counsel also addresses the excessiveness of Defendant’s sentence

for second degree battery. Appellate counsel notes the only relevant question is

whether the trial court abused its discretion in imposing the sentence not whether

another sentence, might be more appropriate. State v. Soraparu, 97-1027 (La.

10/13/97), 703 So.2d 608. Appellate counsel asserts a two-year sentence is in the

low range for second degree battery, and she cannot argue the trial court abused its

discretion nor that the sentence imposed is constitutionally excessive considering

the facts of the crime and the reduction of the original sentence.

Second degree battery is punishable by a fine of not more than $2,000 or

imprisonment with or without hard labor for not more than eight years, or both.

La.R.S. 14:34.1. Defendant was ultimately sentenced to serve two years at hard

labor, and no fine was imposed. Although Defendant is a first felony offender, he

previously pled guilty to two counts of domestic abuse battery.

Defendant’s two-year sentence is not excessive, particularly in light of the

trial court’s granting of his motion to reconsider sentence and his history of

violence toward others.

Appellate counsel addresses two errors patent. First, counsel contends the

lack of a written waiver of jury trial resulted in a violation of La.Code Crim.P. art.

780; however, she notes that there was a valid waiver in open court.

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Defendant was entitled to a jury trial in this case. See La.R.S. 14:34.1 and

La.Code Crim.P. art. 782. Louisiana Code of Criminal Procedure Article 780

(emphasis added) states:

A. A defendant charged with an offense other than one
punishable by death may knowingly and intelligently waive a trial by
jury and elect to be tried by the judge.

B. The defendant shall exercise his right to waive trial by jury
in accordance with Article I, Section 17 of the Constitution of
Louisiana. The waiver shall be by written motion filed in the district
court not later than forty-five days prior to the date the case is set for
trial. The motion shall be signed by the defendant and shall also be
signed by defendant’s counsel unless the defendant has waived his
right to counsel.

C. With the consent of the district attorney the defendant may
waive trial by jury within forty-five days prior to the commencement
of trial.

D. A waiver of trial by jury is irrevocable and cannot be
withdrawn by the defendant.

The record reveals no written waiver of jury trial as required by La.Code

Crim.P. art. 780. However, court minutes reflect that defense counsel advised the

court in Defendant’s presence that Defendant wished to waive his right to a trial by

jury. The court confirmed that Defendant could read, write, speak the English

language, was not under a doctor’s care for any physical or mental illness, and was

not under the influence of drugs, alcohol, or any other medication. Defendant

indicated that he had discussed the right to a trial by jury with his attorney, and the

court stated it was satisfied Defendant knowingly, intelligently, and voluntarily

waived his right to a jury trial.

In State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, this court

held that the absence of a written waiver of jury trial as required by La.Code

Crim.P. art. 780 was harmless error where the defendant and his counsel were in

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open court when the judge addressed the defendant’s right to a jury trial and his

waiver thereof. Accordingly, the error in failing to obtain a written waiver in

violation of La.Code Crim.P. art. 780 is harmless under the facts of this case.

Next, appellate counsel notes there was a misjoinder of offenses in the bill of

information waived by Defendant’s failure to file a motion to quash. Offenses may

be joined in a single indictment under limited circumstances if the offenses are

triable by the same mode of trial. La.Code Crim.P. art. 493. In the present case,

count one, second degree battery, is triable by a jury of six, all of whom must

concur to render a verdict. La.R.S. 14:34.1; La.Code Crim.P. art. 782. Count two,

false imprisonment, is a misdemeanor triable by a judge only. La.R.S. 14:46;

La.Code Crim.P. art. 779(B). Thus, the two counts were improperly joined in the

bill of information. However, review of the error is waived by Defendant’s failure

to file a motion to quash. La.Code Crim.P. art. 495; State v. Newton, 12-509

(La.App. 3 Cir. 2/13/13), 129 So.3d 1.

Counsel further correctly notes the misdemeanor charge of false

imprisonment, not triable by jury, is not appealable. In Newton, 129 So.3d at 4,

this court explained the mode of review in situations such as this:

In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d
286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, this court
severed a misdemeanor conviction from the defendant’s appeal of two
felony convictions. This court ordered the defendant to file a writ of
review regarding the misdemeanor conviction in compliance with the
rules of court. This court noted that the defendant did not make any
specific arguments regarding the misdemeanor conviction.
Consequently, this court considered the notice of appeal as a notice to
file a writ of review within thirty days of its opinion, if the defendant
desired to seek review of the misdemeanor conviction.

In this case, the Defendant does not raise any assignment of
error regarding the misdemeanor conviction. Therefore, following
this Court’s holding in Turner, we will sever the misdemeanor
conviction from the appeal and order Defendant to file a writ of

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review regarding the misdemeanor conviction in compliance with the
Uniform Rules—Courts of Appeal 1-3, if he so desires.
The same should be done in the present case, especially considering counsel

requests severance of the misdemeanor conviction with Defendant being given the

opportunity to file a writ of review if he chooses.

Appellate counsel further addresses an alleged discrepancy in the minutes of

November 30, 2017. Appellate counsel asserts the minutes indicate both

convictions for second degree battery and false imprisonment were taken up on the

motion to reconsider sentence. However, it is clear that the reduction of sentence

applied to the second degree battery conviction only. Appellate counsel suggests

the minutes of court be corrected.

The minutes of November 30, 2017, read, in part:

STATE OF LOUISIANA Case #17-CR-076429

VS CHARGE:

FRANCK A LOUIS* SECOND DEGREE BATTERY

FALSE IMPRISONMENT

Case fixed today for Motion to Reconsider Sentence. The defendant
was present in court with his attorney, Kevin Berg. The State was
represented by Anna Garcie, Assistant District Attorney. The Court
advised that he has received a letter from persons at Kings Chapel
which he provided a copy to the State and Defense. FRANCK
LOUIS was called, sworn, examined by Mr. Berg and made
statements to the Court. Mr. Berg made arguments to the Court. After
no objection, the letter from King’s Chapel was filed into the record.
The Court ordered the defendant’s sentence be REDUCED to TWO
(2) YEARS at HARD LABOR. The Court advised the defendant he
has two (2) years from the date the sentence becomes final to apply
for Post-Conviction Relief. The Court noted the State’s objection.

The minutes of court do not explicitly indicate the motion to reconsider sentence

was applicable to the false imprisonment conviction. Thus, there is no need for

correction of the minutes.

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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, and have confirmed the statements made

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

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

the verdict for second degree battery was correct, and he received a legal sentence

for second degree battery.

Review of the record reveals no issues that would support an assignment of

error on appeal. Therefore, Defendant’s conviction and sentence for second degree

battery are affirmed, and counsel’s motion to withdraw is granted. Defendant’s

misdemeanor conviction and sentence for false imprisonment are severed from the

appeal, and Defendant is ordered to file a writ of review regarding the

misdemeanor conviction within thirty days of the court’s ruling, if he so desires.

CONVICTION AND SENTENCE FOR SECOND DEGREE
BATTERY AFFIRMED; MOTION TO WITHDRAW GRANTED.
MISDEMEANOR CONVICTION AND SENTENCE FOR FALSE
IMPRISONMENT SEVERED FROM APPEAL.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2-16.3.

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