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State v. Gottke

Court of Appeal of Louisiana, Third Circuit

December 17, 2014

STATE OF LOUISIANA
v.
BENJAMIN GOTTKE AKA BENJAMIN A. GOTTKE AKA BENJAMINE A. GOTTKE

HEARD:10/30/2014.

CIRCULATED:11/20/2014.

Page 1251

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

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, Lafayette, LA, COUNSEL FOR APPELLEE: State of Louisiana.

Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: Benjamin Gottke.

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

OPINION

Page 1252

[14-769 La.App. 3 Cir. 1] 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, 18 L.Ed.2d 493 (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 [14-769 La.App. 3 Cir. 2] 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. ...


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