State of Louisiana v. Terrance Hudson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-760

STATE OF LOUISIANA

VERSUS

TERRANCE HUDSON

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2021-0628
HONORABLE E. DAVID DESHOTELS, JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry,
Judges.

CONVICTION AND SENTENCE AFFIRMED AND
MOTION TO WITHDRAW GRANTED.
REMANDED WITH INSTRUCTIONS.

G. Paul Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
(337) 237-2537
COUNSEL FOR APPELLANT:
Terrance Hudson

Joseph Green
District Attorney, Thirty-Third Judicial District Court
P.O. Box 839
Oberlin, LA 70665
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Chief Judge.

FACTS

On or about September 16, 2020, a correctional officer discovered paper strips

containing synthetic marijuana in the defendant’s bunk during a routine property

search at the Department of Corrections lockup in Allen Parish, also known as

Raymond Laborde Correctional Center.

On May 14, 2021, the state filed a bill of information charging the defendant,

Terrance Antonio Hudson, with possession of contraband upon the grounds of a

correctional institution, in violation of La.R.S. 14:402(B), and possession of

marijuana or synthetic cannabinoids, in violation of La.R.S. 40:966(C).

On March 14, 2022, the defendant entered a plea of no contest to possession

of contraband. As part of the plea, the state agreed not to charge the defendant as a

habitual offender and to dismiss the possession of marijuana charge. On the same

day, the trial court sentenced the defendant to serve one year with the Department of

Corrections and ordered the sentence to run concurrently with the charges under

docket numbers CR-2021-0629 and CR-2021-0704 and to run consecutively to the

time presently being served.1 The defendant filed this appeal.

The defendant’s appellate counsel 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 his accompanying motion to

1
Docket number CR-2021-0629 was before this court in 23-514; an opinion
was rendered on January 31, 2024. Docket number CR-2021-0704 is the companion
case to the instant case.

withdraw. The defendant was advised, via certified mail, that counsel filed an Anders

brief, and he was given until February 1, 2024, to file a pro se brief.2

For the following reasons, we affirm the conviction and sentence for

possession of contraband upon the grounds of a correctional facility and grant

appellate counsel’s motion to withdraw.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

one error patent regarding the advisement of the time period for filing post-

conviction relief.

The trial court did not accurately advise the defendant as to the time period

for filing post-conviction relief. At sentencing, the trial court informed the defendant

that he had “[t]wo years any [sic] post-conviction relief.” In the written plea

agreement signed by the defendant, he was advised that he had “two years from the

date this conviction becomes final to file an application for post-conviction relief.”

According to La.Code Crim.P. art. 930.8(A) (emphasis added), the defendant has

“two years after the judgment of conviction and sentence has become final” to seek

post-conviction relief.

The advice given by the trial court at sentencing is inadequate. The advice

provided on the written plea agreement form is partially, but not completely

accurate. The trial court is instructed to inform the defendant of the correct

provisions of article 930.8 by sending appropriate written notice to him within ten

days of the rendition of this opinion and to file written proof that the defendant

2
No pro se brief has been filed.
2

received the notice in the record of the proceedings. State v. Green, 21-14, 21-15

(La.App. 3 Cir. 10/27/21), 329 So.3d 917.

ASSIGNMENT OF ERROR

Counsel asserts the following argument in his brief to this court:

Where the sentence is the statutory minimum of one year, concurrent
with two other charges but consecutive to the sentence appellant was
serving, is there any basis to argue constitutional excessiveness?

ANDERS ANALYSIS

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

alleging he could find no non-frivolous issues upon which to base an appeal. As

such, 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.

Counsel’s Anders brief must “‘assure the court that the indigent defendant’s

constitutional rights have not been violated.’” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of Appeals of Wisconsin

Dist. 1, 486 U.S. 429, 108 S.Ct. 1895 (1988)). Appellate counsel must fully discuss
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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 jury for its consideration.” Jyles, 704 So.2d at

241 (citing U.S. v. Pippen, 115 F.3d 422, 426 (7th Cir. 1997)). Thus, appellate

counsel’s Anders brief must review the procedural history 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 discusses the procedural history and the

facts of the case. Appellate counsel notes the defendant was charged with possession

of contraband upon the grounds of a correctional institution and entered a plea of no

contest. Appellate counsel also alleges there is no basis in the record to support a

claim that the plea was constitutionally infirm. Appellate counsel further asserts the

defendant entered an open-ended plea wherein the trial court would determine the

sentence. Appellate counsel maintains the plea was advantageous, as the trial court

imposed the legal, minimum sentence and ordered the sentence to run concurrently

to the other two felonies. Moreover, appellate counsel notes the state agreed not to

seek enhancement under La.R.S. 15:529.1 as part of the plea agreement. Appellate

counsel states the sentence received by the defendant is “unassailable” given the

circumstances of the offenses. Therefore, appellate counsel claims there are no non-

frivolous claims for review and asks for permission to withdraw.

Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, we have

performed a thorough review of the record, including the charging instrument,

pleadings, minute entries, and transcripts. The defendant was properly charged in a

bill of information. He was present and represented by counsel at all crucial stages
4

of the proceedings. Additionally, the defendant entered a plea of no contest, and that

plea was freely and voluntarily entered after he was advised of his Boykin rights.3

“A plea of nolo contendere is equivalent to an admission of guilt and is treated as a

guilty plea.” State v. Gordon, 04-633, p. 9 (La.App. 1 Cir. 10/29/04), 896 So.2d

1053, 1061 (citations omitted), writ denied, 04-3144 (La. 4/1/05), 897 So.2d 600.

The entry of that plea waived all pre-plea non-jurisdictional defects, and no rulings

were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584

(La.1976). See State v. Aguilar, 14-714 (La.App. 5 Cir. 1/14/15), 167 So.3d 862.

Although appellate counsel asserts the defendant entered an open-ended plea,

wherein the trial court would determine the sentence, the Boykin transcript reflects

that the sentence was recommended by the state.4 Generally, a defendant is

precluded from seeking review of sentence imposed in conformity with a plea

agreement that was set forth at the time of plea. La.Code Crim.P. art. 881.2(A)(2).

However, this court has consistently held that it is “not automatically precluded from

reviewing a sentence unless the plea agreement provides a specific sentence or

sentencing cap.” State v. Curtis, 04-111, p. 2 (La.App. 3 Cir. 8/4/04), 880 So.2d 112,

114 (emphasis added) (citing State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99),

741 So.2d 696, writ denied, 99-1577 (La. 11/5/99), 751 So.2d 232, and writ denied,

01-2178 (La. 4/19/02), 813 So.2d 1081), writ denied, 04-2277 (La. 1/28/05), 893

3
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).
4
The minute entry for the Boykin hearing states the one-year sentence was a
joint recommendation; however, the transcript of the hearing provides otherwise.
The state made the recommendation while the defense neither objected nor agreed
to the sentence. “[W]hen 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.

5

So.2d 71. Additionally, “[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 (emphasis added). Here,

neither the plea agreement nor the transcript reflects that there was a specific

sentence imposed in conformity with the defendant’s plea agreement. As such, the

defendant is not precluded from seeking review of his sentence. Therefore, we will

discuss the defendant’s sentence for the offense of possession of contraband on the

grounds of a correctional facility.

At the Boykin hearing, the state mentioned that the statutory minimum for the

offense was one year. However, La.R.S. 14:402(G)(1) provides that whoever

commits the offense of possession of contraband on the grounds of a correctional

facility “shall be imprisoned with or without hard labor for not more than ten years.”

There is no minimum sentence mandated under La.R.S. 14:402(G)(1).5 We do not

find that the sentence imposed was excessive considering the circumstances of the

defendant’s case. As such, we find no issues which would support an assignment of

error on appeal.

Accordingly, the defendant’s conviction and sentence are affirmed, and

appellate counsel’s motion to withdraw is granted.

CONCLUSION

We hereby affirm the defendant’s conviction and sentence and grant appellate

counsel’s motion to withdraw. The trial court is instructed, however, to inform the

defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending

5
The plea agreement also reflects there is no minimum sentence required
under La.R.S. 14:402(G)(1).
6

appropriate written notice to him within ten days of the rendition of this opinion and

to file written proof that Defendant received the notice in the record of the

proceedings.

CONVICTION AND SENTENCE AFFIRMED AND MOTION TO
WITHDRAW GRANTED.
REMANDED WITH INSTRUCTIONS.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules―Courts of Appeal, Rule 2–16

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