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State v. Rodriguez

Court of Appeals of Louisiana, Fifth Circuit

June 29, 2017

STATE OF LOUISIANA
v.
ARTURIO RODRIGUEZ

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 12-1863, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, James W. Myers.

          COUNSEL FOR DEFENDANT/APPELLANT, ARTURIO RODRIGUEZ Bertha M. Hillman

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois.

         AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS

         JGG

         SMC

         FHW

          JUDE G. GRAVOIS JUDGE

         Defendant, Arturio Rodriguez, appeals his convictions and sentences resulting from guilty pleas to two counts of forcible rape and two counts of aggravated burglary. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curium), appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After thorough review of the record, we agree with counsel's assessment of the case and accordingly grant the motion to withdraw. We affirm defendant's convictions and sentences, but remand the matter for correction of errors patent as noted in our errors patent review.

         PROCEDURAL HISTORY

         On April 5, 2012, a Jefferson Parish Grand Jury indicted defendant, Arturio Rodriguez, with aggravated rape in violation of La. R.S. 14:42[1] (count one) and aggravated burglary in violation of La. R.S. 14:60 (count two). On April 9, 2012, defendant was arraigned and pled not guilty. On April 11, 2012, defendant filed omnibus motions that were set for a hearing. Thereafter, in October of 2012, a Jefferson Parish Grand Jury returned a superseding bill of indictment charging defendant with two counts of aggravated rape in violation of La. R.S. 14:42 (counts one and three) and two counts of aggravated burglary in violation of La. R.S. 14:60 (counts two and four). On October 30, 2012, defendant appeared for arraignment and entered a plea of not guilty as to counts three and four only.

         On August 12, 2014, the Jefferson Parish District Attorney amended the indictment as to counts one and three to allege forcible rape in violation of La. R.S. 14:42.1. On that same date, defendant withdrew his previously entered plea of not guilty as to both of his cases and pled guilty as charged to all counts.[2] As to counts one and three, the trial court sentenced defendant to forty years at hard labor on each count, with the sentences to run concurrently with each other and with any other sentence defendant was serving. The first two years of defendant's sentences were to be served without the benefit of probation, parole, or suspension of sentence. As to counts two and four, defendant was sentenced to thirty years at hard labor on each count, with those sentences to also run concurrently with each other and with any other sentence defendant was serving. Defendant was also ordered to register as a sex offender for the remainder of his life.

         On June 27, 2016, defendant filed a uniform application for post-conviction relief requesting an out-of-time appeal, arguing that he was denied a direct appeal. On June 29, 2016, the trial court granted defendant an out-of-time appeal. Defendant's appeal follows.

         FACTS

         Because defendant pled guilty, the underlying facts were not fully developed at a trial. In the amended indictment, the State alleged that on February 7, 2009, defendant violated La. R.S. 14:42.1 in that he did forcibly rape a known female (D.O.B. 9/9/1981) (count one) and violated La. R.S. 14:60 in that he did commit aggravated burglary of 1924 Faith Place, Apartment A, Gretna, Louisiana, belonging to a known female (D.O.B. 9/9/1981) (count two). It further alleged that on March 8, 2009, defendant violated La. R.S. 14:42.1 in that he did forcibly rape a known female (D.O.B. 8/5/1977) (count three) and violated La. R.S. 14:60 in that he did commit aggravated burglary of 1912 South Forest Lawn, Apartment A, in Gretna, belonging to a known female (D.O.B. 8/5/1977) (count four).

         Additionally, during the colloquy, defendant stated that on February 7, 2009, within Jefferson Parish, he forced his victim to have sex with him "[b]y threats and such" and moved her from one room of the residence to another without her desire to be moved when he did not have the authority to enter the residence. Also during the colloquy, defendant admitted that on March 8, 2009, within Jefferson Parish, he entered a residence without authority armed with a shotgun with which he threatened the victim and had sexual intercourse with the victim.

         ANDERS BRIEF

         Under the procedure adopted by this Court in State v. Bradford, supra, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, supra, and State v. Jyles, ...


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