Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana. Trial Court No. 2011-491F. Honorable E. Rudolph McIntyre, Jr., Judge.
LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant.
GERRY D. BANKS, Pro se.
JOHN M. LANCASTER, District Attorney, WILLIAM R. BARHAM, PENNY WISE DOUCIERE, Assistant District Attorneys, Counsel for Appellee.
Before WILLIAMS, LOLLEY, and GARRETT, JJ.
[49,767 La.App. 2 Cir. 1]
The defendant, Gerry D. Banks, pled guilty to aggravated burglary and was sentenced to serve 10 years at hard labor, in accordance with a sentencing cap that was part of a plea agreement. The defendant then sought to withdraw his guilty plea.
The claim was denied, but the defendant was granted an out-of-time appeal. The defendant's appellate counsel filed an Anders/Benjamin brief stating that she could find no nonfrivolous issues to raise on appeal, as well as a motion to withdraw as counsel for the defendant. The defendant has filed his own pro se brief raising several assignments of error. For the following reasons, we grant the motion to withdraw by appellate counsel and affirm the defendant's conviction and sentence, as well as the trial court's denial of the defendant's motion to withdraw his guilty plea.
Around 4:00 a.m. on June 30, 2011, the 28-year-old defendant went to the home of 15-year-old L.J., and saw her on the porch. The defendant was married to L.J.'s sister. According to L.J., the defendant demanded sex from her, but she refused. She claimed the defendant became enraged, hit her in the head and attempted to choke her. L.J. broke free, ran inside the house, and shut the door. The defendant kicked the door open and entered the house. L.J.'s mother was awakened. L.J. saw the defendant strike her mother in the head with a lamp, knocking her unconscious and cutting her scalp. The defendant also struck L.J.'s younger brother in the face. The [49,767 La.App. 2 Cir. 2] defendant hit L.J. in the head with the lamp before she ran out of the house and summoned help. L.J. and her mother were treated at the hospital for their injuries.
Police investigated and determined that the back door of L.J.'s house had been forced open. Police went to the house where the defendant lived. When the defendant returned with blood on his clothing, they arrested him. On September 20, 2011, the defendant was charged with two counts of attempted second degree murder and one count of aggravated burglary. On April 16, 2013, the day before his jury trial was to begin, the defendant entered into a guilty plea agreement whereby he pled guilty to one count of aggravated burglary.
In exchange for the plea, the two counts of attempted second degree murder were dismissed, along with a charge of simple battery in another case. The defendant signed a written plea agreement specifying that he agreed to plead guilty to aggravated burglary with a sentencing cap of 10 years at hard labor. The state agreed to make no recommendation as to the sentence. Sentencing was to occur after the completion of a presentence investigation (" PSI" ).
The plea was entered in open court on April 16, 2013. In accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the defendant was advised of the rights waived by entry of a guilty [49,767 La.App. 2 Cir. 3] plea. The defendant was informed of the sentencing range for aggravated burglary. He was also advised that, because he was pleading guilty with a sentencing cap, he waived his right to appeal the sentence on the grounds of excessiveness.
Defense counsel stated that he had explained the defendant's rights to him and the defendant understood them. The defendant stated in court that he understood his rights, that he had discussed his case with his attorney several times and that he was satisfied with the services of his attorney. The trial court incorporated all the facts supporting the plea contained in the preliminary examination, which occurred on April 8, 2013. The guilty plea was accepted by the trial court.
The defendant appeared for sentencing on September 18, 2013. The trial court provided lengthy reasons for imposing the sentence of 10 years at hard labor with credit for time served.
In October 2013, the defendant filed an application for post conviction relief (" PCR" ), seeking reversal of his conviction or withdrawal of his guilty plea based upon alleged ineffective assistance of counsel. The defendant claimed that his attorney told him " stuff" that did not happen. In effect, the defendant asserted that he thought he would receive a suspended sentence. He also alleged that his attorney failed to file an appeal on his behalf. The trial court determined that the allegations of the application could be disposed of without a hearing. On November 18, 2013, the court issued lengthy written reasons for denying the relief sought. The trial court denied the application for PCR, finding that the defendant failed to prove that he received ineffective assistance of counsel. The court noted that the [49,767 La.App. 2 Cir. 4] defendant entered into an advantageous plea agreement whereby two counts of attempted second degree murder were dismissed and his sentence for aggravated burglary was limited to 10 years at hard labor. The trial court found that the services rendered by the defendant's attorney were not ineffective. The trial court also observed that the defendant was not entitled to appeal his sentence because he pled guilty with an agreed-upon sentencing cap.
The defendant then filed two motions which sought to withdraw his guilty plea. On January 16, 2014, he filed an application for an out-of-time appeal, alleging the existence of newly discovered evidence, and seeking an " out-of-time" appeal in order to file an application for PCR based on that evidence. In his brief in support of this motion, the defendant reasserted his claim of ineffective assistance of counsel, urging that his lawyer misled him into thinking he would receive only a suspended sentence of five years at hard labor, with five years of supervised probation. He also argued that the state withheld the result of DNA testing showing he was not the father of L.J.'s child. The defendant wanted to use this information to attack L.J.'s credibility concerning her claims in the present case. He also asserted that he did not receive photos of his injuries taken by police at the time of his arrest; he was not allowed to face his accusers at the preliminary examination; and the trial court, in imposing sentence, was influenced by arrests which did not result in convictions. On February 21, 2014, the defendant filed a motion to withdraw his guilty plea, alleging ineffective assistance of counsel in that he was coerced by his attorney to enter his [49,767 La.App. 2 Cir. 5] guilty plea, reasserting his allegations that he was told by his lawyer that he would receive a more lenient sentence than that actually imposed.
On June 4, 2014, the trial court held an evidentiary hearing on the motions. New counsel was appointed to represent the defendant at this hearing. After the hearing, the court issued a comprehensive 19-page written opinion. The court determined that the defendant was properly informed of his Boykin rights and was not ...