STATE OF LOUISIANA v. JAVIER RIBON BAUTISTA (2025)

The defendant, Javier Ribon-Bautista, appeals his criminal conviction and seven-year sentence for indecent behavior with a juvenile. We affirm for the following reasons.

PROCEDURAL HISTORY

On February 16, 2023, the Jefferson Parish District Attorney filed a bill of information charging the defendant with molestation of a juvenile under thirteen in violation of La. R.S. 14:81.2, on or between November 23, 2014 and November 24, 2014. He pled not guilty at arraignment. On August 21, 2024, the State amended the charge to indecent behavior of a juvenile in violation of La. R.S. 14:81. The defendant pled guilty to the amended charge, and the trial judge sentenced him to seven years imprisonment at hard labor. On September 18, 2024, the defendant filed a pro se “Motion to Appeal My Conviction and Withdraw My Guilty Plea.” The trial court denied the defendant's motion to withdraw his guilty plea and granted the motion for appeal.

FACTS

The amended bill of information alleges on or between November 23, 2014, and November 24, 2014, the defendant violated La. R.S. 14:81 “in that he, having a position of control or supervision over the known juvenile, (D.O.B. 05/17/2003), and being more than two years older than the known juvenile, did commit a lewd and lascivious act upon the known juvenile, wherein the child was under the age of thirteen.” Because of the plea, the record does not contain all of the facts, but it appears from the record that in 2014, the eleven-year-old victim lived with her father and the defendant, who was her father's friend. During that time, while in the living room of the residence, the defendant kissed the victim on one occasion and, on another, put his hands under her shirt and grabbed her bare breasts. In 2014, law enforcement received a report of these incidents; the delay in prosecution is not clear from the record.

ASSIGNMENT OF ERROR

The trial judge erred in denying Mr. Ribon-Boutista's motion to set aside his guilty plea. Neither the plea form nor the plea colloquy informed him of the factual elements of the crime to which he pleaded guilty and the additional consequences of accepting the plea.

LAW AND ANALYSIS

On appeal, the defendant contends his plea was neither knowing nor voluntary, making it constitutionally infirm. He claims his family and attorney coerced him into accepting the plea and that he did not fully understand the nature of the offense, citing La. C.Cr.P. art. 556.1(A)(1).¹ The defendant contends the trial judge did not inquire about his educational level, failed to inform him of the elements of the offense to ensure his advisal of the nature of the crime, and failed to ascertain a factual basis for the plea. He avers he had no advisal of the collateral consequences of the plea, including diminution of the amount of “good time” he would receive or the probability of deportation. The defendant argues the record shows his reluctance to enter the guilty plea and that his plea was involuntary.

The State responds that the defendant entered a constitutionally sound guilty plea based on the plea negotiations and transcript of the plea colloquy. The State contends that the defendant raises new arguments on appeal that he did not raise in his motion to withdraw the guilty plea. The State avows that the defendant cannot raise a new argument or ground for objection for the first time on appeal but acknowledges that the courts have not conclusively determined whether this principle applies to the appellate review of a guilty plea. The State avers, however, that the arguments the defendant failed to raise in his motion should not be considered on appeal, as no error by the trial court exists when the defendant fails to request relief on issues not presented to it.

The State argues even if this Court considers the defendant's newly-raised arguments, they do not warrant relief. It avers that the defendant knowingly, intelligently, freely, and voluntarily entered a guilty plea in compliance with constitutional requirements. It further argues the defendant availed himself of a favorable plea agreement and was advised and waived his rights in both the plea form and during the colloquy. The State contends that the defendant's desire for a lower sentence does not form a valid basis for withdrawing his plea.

In the pro se “Motion to Appeal My Conviction and Withdraw My Guilty Plea,” the defendant alleged:

1) He was “wrongfully charged with molestation”;

2) His counsel was ineffective because he failed to demonstrate to the judge and the State that he was “wrongfully charged”;

3) He received a constitutionally excessive sentence when sentenced to the maximum penalty;

4) He did not want to enter a guilty plea because it was “against his will,” and his attorney made him accept it and “infused” fear in him and his wife to “take the deal”;

5) He “felt pressured” by the judge to take the guilty plea;

6) He had no prior convictions, and

7) He was the “main provider” for his wife and children.

The trial court denied the defendant's motion to withdraw his guilty plea, finding that the defendant pled guilty with the assistance of counsel and received a legal, negotiated sentence to which he agreed.

A defendant does not have an absolute right to withdraw a guilty plea. State v. Johnson, 18-294 (La. App. 5 Cir. 1/16/19), 264 So.3d 593, 597, writ denied, 19- 259 (La. 5/28/19), 274 So.3d 561. The trial court has the discretion to permit a defendant to withdraw his guilty plea at any time before sentencing. La. C.Cr.P. art. 559(A). Once sentenced, only those with constitutionally infirm pleas are eligible for withdrawal by appeal or post-conviction relief. State v. Patin, 19-157 (La. App. 5 Cir. 11/13/19), 285 So.3d 48, 55. A guilty plea is constitutionally infirm when not entered freely and voluntarily, if the Boykin ² colloquy is inadequate, or when a plea bargain or what he justifiably believes is a plea bargain not kept induces the defendant to enter the plea. Id. (citing State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124). A guilty plea is not valid unless the plea is a free and voluntary choice by the defendant. Patin, 285 So.3d at 55. Under Boykin, a guilty plea is not free and voluntary unless the court advises the defendant of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. Id. The waiver of those rights must be on the record, unequivocal, express and knowing, and free and voluntary. Id.

Suppose the record clearly shows that the court informed the defendant of his rights and the consequences of his plea, and the defendant entered the plea voluntarily. In that case, the court of appeal will not reverse the trial court's denial of a motion to withdraw a guilty plea. State v. Harris, 23-233 (La. App. 5 Cir. 12/27/23), 379 So.3d 152, 158, writ denied, 24-118 (La. 4/23/24), 383 So.3d 607. Dissatisfaction with a sentence or a change of heart or mind by the defendant regarding whether he made a good bargain is not a basis for withdrawing a bargained guilty plea. Johnson, 264 So.3d at 597.

The State points out that a defendant cannot raise a new ground for an objection for the first time on appeal, citing State v. Gassenberger, 23-148 (La. App. 5 Cir. 12/20/23), 378 So.3d 820, 834. The defendant specified seven different complaints in his pro se motion to withdraw his plea; however, the counseled brief on appeal addresses five issues:

1) He was coerced by his family and attorney to take the plea;

2) Neither the plea form nor the colloquy informed him of the elements of the offense;

3) The court did not inquire as to his educational level;

4) The trial court failed to ascertain that there was a factual basis for the plea; and

5) Neither the plea form nor the colloquy informed him of the collateral consequences of the plea (including “good time” and the probability of deportation).

The only argument that the defendant raised on appeal and presented to the trial court was force and coercion to take the plea. However, the courts have not conclusively determined whether a new ground for an objection can be raised for the first time on appeal when a defendant seeks an appellate review of a denial to withdraw a guilty plea. See State v. Eugene, 19-466 (La. App. 4 Cir. 11/20/19), 364 So.3d 69, 71, writ denied, 20-423 (La. 9/8/20), 301 So.3d 28, and Louisiana v. Paige, No. 24-KA-141, 2024 WL 5050215, at *4 (La. App. 1 Cir. Dec. 10, 2024)³ and State v. Jones, 13-98 (La. App. 5 Cir. 9/4/13), 125 So.3d 1169, 1175.⁴ In the interest of justice and judicial economy, we will consider all of the defendant's arguments raised on appeal.

Coercion by Family and Attorney

The defendant argues that his family and attorney coerced him into accepting the plea.

In State v. Barnes, 15-268 (La. App. 5 Cir. 11/19/15), 179 So.3d 885, this Court found that the defendant's guilty pleas to armed robbery and felon in possession of a firearm were not involuntary or unintelligent based on force, coercion, or threats to enter the pleas. This Court noted that the defendant replied “no” when the trial court asked whether he was forced, threatened, or coerced into entering the guilty pleas. On his guilty plea form, the defendant initialed that no force, coercion, or threats caused him to enter his guilty pleas. Id.

In this case, the defendant does not provide evidence to support his argument that his family and attorney coerced him into accepting the plea. The record indicates that through an interpreter, the trial court asked the defendant if he understood that he was going to trial for molestation of a juvenile under thirteen. The defendant replied, “Yes.” The trial court asked the defendant if he understood that the sentence ranged from twenty-five to ninety-nine years if convicted. The defendant replied, “Yes.” The trial court asked the defendant if he understood that the State had offered him a plea deal in which the sentence would be zero to seven years, and if he took the plea deal, the court could sentence him anywhere in this range. The court stated: “[P]robably seven years, as opposed if you go to trial and you're convicted, you're looking at up to ninety-nine years. Have you considered-- do you know about this? Are you aware of this plea deal?” The defendant replied, “Yes, I am now.” The court asked the defendant if he wanted to “take the plea of seven years.” The defendant asked if he could speak to his attorney, and the court allowed him to confer with his attorney. The prosecutor said he amended the charge to a single count of indecent behavior with a juvenile violating R.S. 14:81. The defense counsel then stated the defendant was withdrawing his not guilty plea and entering a guilty plea to the amended bill of information.

The trial court asked the defendant if he was satisfied with how his attorney and the court had handled his case, and the defendant replied, “No,” “Not enough time passed to go over my case.” The defendant said he would have liked more visits from his attorney “instead of waiting for the last day.” The trial court asked the defense counsel if he had met with the defendant. Defense counsel stated he had met with him multiple times, had discussed the matter with him, went over discovery with him, and discussed the plea offer, which defense counsel indicated was only offered within the “last week.” The prosecutor confirmed that the plea offer was made “within the last week.” The trial court again asked the defendant if he understood the twenty-five to ninety-nine-year sentence he was facing if he went to trial, and his lawyer got the charge reduced and a sentence of seven years. The defendant indicated that he understood. The trial court stated, “․ we can take you to trial if you want to go to trial. Do you want to go to trial and face twenty-five to ninety-nine? Let me know.” The defendant replied, “I will respect the decision.” The trial court then stated, “․ I don't want you to think you're being forced. You're not being forced. You have a choice, and the choice is yours. If you want to go to trial, we'll go to trial. I'll convene a jury tomorrow if you want, and we'll try you, if you're convicted you do twenty-five to ninety-nine.” The defendant replied, “I am thankful for the offer that they made.”

The trial court asked the defendant if force, coercion, or threats caused him to plead guilty plea, and the defendant replied, “No.” The defendant initialed the statements that he was not forced, coerced, or threatened to enter the guilty plea on the Waiver of Constitutional Rights Felony Plea of Guilty form. The defendant answered affirmatively that he was satisfied with how his attorney and the court handled his case and initialed these statements on the Waiver of Constitutional Rights Felony Plea of Guilty form.

No evidence indicates that the defendant's attorney or family coerced him into accepting the plea. This argument is without merit.

Failure to Inform Defendant of Elements of the Offense

The defendant argues that while the trial court informed him of the charge to which he was pleading guilty, the sentencing range, and his obligation to register as a sex offender, the court failed to inform him of the offense's elements and the crime's nature.

In State v. Mitchell, 23-225 (La. App. 5 Cir. 12/27/23), 379 So.3d 127, 132-33, writ denied, 24-146 (La. 10/1/24), 393 So.3d 869, the defendant alleged that his guilty plea was constitutionally inadequate because he did not knowingly and intelligently understand the complex nature and elements of the charge of vehicular homicide and that the trial court violated La. C.Cr.P. art. 556.1 by accepting his guilty plea without first determining if he understood the nature of the charge against him. Id. This Court stated that the defendant acknowledged during the colloquy and on the waiver of rights form that he understood he was pleading guilty to vehicular homicide, and at no point during the plea colloquy did he advise the trial court or his counsel that he did not understand the nature of vehicular homicide. The defendant did not ask questions about the nature of the charge or indicate he did not understand any element of vehicular homicide. This Court explained that the defendant did not plead guilty under Alford ⁵ and did not file a motion to withdraw his guilty plea because he did not understand the nature of the charge to which he was pleading. In accepting his guilty plea, this Court held the trial court could presume that his counsel explained the nature and elements of the charge sufficiently that the defendant had notice of what his plea asked him to admit. This Court stated that “the law did not require the trial court to inform defendant of each element of the crime of vehicular homicide when defendant pled guilty and defendant did not state how an explanation of the elements would have affected his willingness to plead guilty to vehicular homicide,” finding the defendant failed to establish he lacked awareness of the essential nature of vehicular homicide, to which he pled guilty, or prejudice occurred by any failure by the trial court to comply with the provisions of La. C.Cr.P. art. 556.1 fully. Id. at 135-36.

In State v. Faggard, 15-585 (La. App. 5 Cir. 1/13/16), 184 So.3d 837, 845, writ denied, 16-338 (La. 2/10/17), 215 So.3d 701, the defendant argued in part that the trial judge failed to inform him of the nature of the charges against him by failing to inform him of the “crucial elements” of the crime to which he was pleading guilty. This Court explained that the defendant acknowledged on the waiver of rights form that he understood the nature of the charges against him. This Court found the record showed the defendant was aware he was pleading guilty to two counts of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance and one count of possession of methamphetamine. The record showed a proper advisal of his Boykin rights. The defendant never asked any questions about the nature of the charges during the plea colloquy or indicated that he did not understand the charges or any element of the charges. This Court found the defendant failed to establish that he lacked awareness of the essential nature of the offenses to which he pled guilty or any prejudice due to the trial court's failure to comply with the provisions of La. C.Cr.P. art. 556.1 fully. This Court concluded the trial court's failure to inform the defendant of the elements of the offenses and the nature of the charges was harmless.

In this case, the defendant acknowledged during the guilty plea colloquy and on the waiver of rights form that he was pleading guilty to indecent behavior of a juvenile in violation of La. R.S. 14:81. The defendant did not express confusion or ask any questions, indicating he did not understand the nature of the offense or any element of indecent behavior of a juvenile. The defense counsel stated he had met with the defendant several times and discussed the plea offer. An interpreter was present during the entire proceeding. The defendant fails to establish a lack of awareness of the essential nature of the offense to which he pled guilty or that prejudice occurred by the trial court's failure to comply with the provisions of La. C.Cr.P. art. 556.1 fully. The defendant has not shown how any further explanation of the elements of the offense would have affected his willingness to plead guilty to this lesser charge.

Failure to Inquire into Education Level

The defendant argues that the trial court did not inquire about his educational level before beginning the colloquy.

In State v. Boles, 99-662 (La. App. 5 Cir. 11/10/99), 750 So.2d 1059, 1060-61, the defendant claimed the trial court erred in accepting his guilty plea without making him fully aware of his constitutional rights he was waiving. He claimed he did not knowingly and voluntarily change his plea, specifically arguing the trial court failed to inquire about his level of education. Id. This Court found that while the trial court did not ascertain the defendant's level of education, there is no constitutional or statutory requirement that a trial court ascertain a defendant's educational level before accepting a guilty plea. Id. at 1061-62 (citing State v. Nuccio, 454 So.2d 93 (La. 1984)). This Court held the guilty plea form signed by the defendant and his attorney, which lists each of the Boykin rights and bears the defendant's initials, served as further evidence of the defendant's awareness of his rights before he entered his guilty plea, and that he knowingly and voluntarily waived them. Id. at 1062.

In this case, the trial court did not inquire about the defendant's level of education. However, the record reflects that an interpreter and defense counsel were present with the defendant throughout the proceeding, and the trial court gave the defendant and his attorney time to discuss the plea. The Waiver of Constitutional Rights Felony Plea of Guilty form indicates that the defendant initialed the statements that he understood the rights he was waiving. This argument is without merit.

Failure to Ascertain Factual Basis

The defendant argues the trial court failed to ascertain that there was a factual basis for the plea before accepting the plea.

Louisiana law does not require a guilty plea to be accompanied by a recitation of the factual basis for the crime. Mitchell, 379 So.3d at 134. “[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea ․ Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” State v. Bowman, 18-517 (La. App. 5 Cir. 12/19/18), 262 So.3d 1075, 1078. Due process requires a finding of a significant factual basis for a defendant's guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. Mitchell, 379 So.3d at 134.

In Mitchell, 379 So.3d at 134, the defendant argued that during the plea colloquy, the trial court did not ask him if he was pleading guilty because he was, in fact, guilty. This Court stated that a review of the record showed that during the plea colloquy, the trial court did not specifically ask the defendant if he was guilty of the charge of vehicular homicide; however, the trial court did ask the defendant if he was pleading guilty to vehicular homicide. This Court, citing State v. Autin, 09-995 (La. App. 5 Cir. 4/27/10), 40 So.3d 193, 196, writ denied, 10-1154 (La. 12/10/10), 51 So.3d 725, stated:

A plea accompanied by a claim of innocence is an Alford plea and puts the trial court on notice that it must ascertain a factual basis to support the plea. State v. Orman, 97-2089 (La. 1/9/98), 704 So.2d 245 (per curiam). Here, defendant did not plead guilty pursuant to Alford, nor did he plead guilty because it was in his “best interest,” thus, a factual basis was not required. Accordingly, this argument is without merit.

Mitchell, 379 So.3d at 134-35.

In this case, the defendant did not plead guilty under Alford, nor does the record reflect that he was pleading because it was in his “best interest.” The defendant did not proclaim his innocence or inform the court that there was a need to inquire into the factual basis of the charge. The plea colloquy and waiver of rights form indicate the defendant was aware he was pleading guilty to the charge of indecent behavior of a juvenile. This argument is without merit.

Failure to Inform of Collateral Consequences

The defendant argues that neither the plea form nor the colloquy informed him of the collateral consequences of the plea, including “good time” and the probability of deportation.

In State v. Hernandez, 18-3 (La. App. 5 Cir. 6/6/18), 250 So.3d 356, 359, the defendant argued that misinformation about the rate of the good time he would receive and the absence of any information regarding the minimum possible sentences influenced his decision to plead guilty. He claimed neither his attorney nor the trial judge advised him that the required amount of time served on his sentences would be significantly longer because the offenses were crimes of violence. Id. Relying on State v. Roe, 05-116 (La. App. 3 Cir. 06/01/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163, where the court ruled the trial court is not obligated to inform a defendant of barred good time or parole, this Court found the defendant's claim that the trial judge did not properly advise him regarding good time and parole lacked merit. Hernandez, 250 So.3d at 359. Likewise, in this case, the defendant's claim regarding good time is without merit.

The defendant argues that neither the plea form nor the colloquy informed him of the probability of deportation.

La. C.Cr.P. art. 556.1 provides in pertinent part the following:

A. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:

***

(5) That if he pleads guilty or nolo contendere, he may be subject to additional consequences or waivers of constitutional rights in the following areas as a result of his plea to be informed as follows:

(a) Defense counsel or the court shall inform him regarding:

(i) Potential deportation, for a person who is not a United States citizen.

In State v. Gamboa, 22-806 (La. App. 3 Cir. 9/13/23), 370 So.3d 1260, 1263, writ denied, 23-1376 (La. 4/9/24), 382 So.3d 842, the defendant pled guilty and was sentenced for aggravated flight from an officer and other charges. In an application for post-conviction relief, he claimed ineffective assistance of counsel, arguing that his counsel failed to adequately advise him of the impact his guilty pleas would have on his immigration status as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).⁶ The State filed procedural objections to the defendant's application for post-conviction relief, and the trial court stayed the defendant's application pending the appeal. Gamboa, 370 So.3d at 1264. The trial court granted the defendant's motion for appeal as it related to his sentence but not his conviction because he had signed a plea form in which he waived his right to appeal from a guilty verdict. On appeal, the defendant argued the record did not establish an advisal regarding the impact of his guilty pleas on his immigration status as required by Padilla. The defendant argued that the trial court erred when it found his plea was knowing and voluntary. Id. After discussing Padilla, the court stated:

Defendant suggests Padilla established that a plea cannot be knowing and voluntary if a defendant is not counseled regarding the impact his plea may have on his immigration status. We disagree. The Supreme Court did not address the voluntariness of Padilla's plea. Rather, Padilla requires defense attorneys to inform noncitizen clients of the deportation risks associated with guilty pleas. The Supreme Court did not demand that such information be placed on the record at the time a guilty plea is entered, nor did it not apply the ruling in Padilla to judges or the prosecution. Likewise, the Louisiana Supreme Court did not address the voluntariness of the plea, noting that Padilla ‘answered the question of whether advice about removal consequences is within the reach of the Sixth Amendment at all.’

***

Based on the entirety of the transcript and the record, including Defendant's PCR application and its attachments, we conclude that he entered a valid and constitutional plea of guilty. Thus, we find that Defendant has not met his burden of proving that his guilty plea was involuntary. Accordingly, Defendant's conviction is affirmed, and as he failed to argue the excessiveness of the sentence, his sentence is also affirmed.

Gamboa, 370 So.3d at 1272 (internal citation omitted).

In this case, the defendant argues that neither the plea form nor the colloquy informed him of the probability of deportation. La. C.Cr.P. art. 556.1(A)(5)(a)(i) provides that the court or defense counsel shall inform a defendant of potential deportation if he is not a citizen of the United States. The defendant does not argue that his plea was involuntary because his counsel failed to inform him of immigration consequences, nor does he argue his counsel's ineffectiveness based on this allegation. Further, although the defendant does not explicitly raise his argument under Padilla, Padilla did not hold that the trial court was required to advise defendants on immigration consequences when entering a guilty plea or, by extension, the waiver of rights form. The Supreme Court did not require immigration consequences to be placed on the record when pleading guilty. See Gamboa, 370 So.3d at 1272. In this case, the waiver of rights form states: “I understand all of the possible legal consequences of pleading guilty explained to me by my attorney and by the court and wish to plead guilty at this time.” The defendant initialed this statement. This argument is without merit.

ERROR PATENT DISCUSSION

We reviewed the record for errors patent according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case.

CONCLUSION

The defendant entered a valid, constitutional, and favorable guilty plea, resulting in a term of imprisonment less than half the minimum he would have received had a jury found him guilty. He has not shown coercion to enter the plea or that he unknowingly or involuntarily entered the plea. We affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JULY 2, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-500

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)

CHAD M. IKERD (APPELLANT)

ANDREA F. LONG (APPELLEE)

THOMAS J. BUTLER (APPELLEE)

MAILED

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HONORABLE PAUL D. CONNICK, JR.

(APPELLEE)

DISTRICT ATTORNEY

TWENTY-FOURTH JUDICIAL DISTRICT

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FOOTNOTES

1.   La. C.Cr.P. art. 556.1(A)(1) provides:A. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

2.   Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

3.   In Eugene, the defendant raised for the first time on appeal that his guilty plea had not been knowing and voluntary, arguing new reasons on appeal than what he argued in his motion to withdraw his guilty plea. Eugene, 364 So.3d at 71. The court stated the following:Ordinarily, a new argument cannot be raised for the first time on appeal. La. C.Cr.P. art. 841; see also State v. Sims, 426 So. 2d 148, 155 (La. 1983) (observing that “[i]t is well-settled that a new basis for an objection cannot be raised for the first time on appeal”). It is unclear, however, whether this rule applies to a claim that a guilty plea is constitutionally infirm. In any event, Mr. Eugene's claim requires the resolution of factual questions to which our appellate jurisdiction does not extend. See La. Const. Ann. art. V, § 10(B) (providing, in relevant part that, “[i]n criminal cases the appellate jurisdiction [of the courts of appeal] extends only to questions of law”). Accordingly, we reserve Mr. Eugene's right to raise the new claim in a timely-filed application for post-conviction relief.Id. at 71-72.

4.   In Jones, this Court considered the defendant's argument made for the first time on appeal that his guilty plea was invalid because he was not advised of the sex offender registration requirement “a defendant's failure to make a formal motion to withdraw a guilty plea does not prohibit a constitutionally infirm guilty plea from being set aside either by means of appeal or post-conviction relief.” Id. at 1174 n.7.

5.   North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

6.   In Gamboa, the third circuit summarized Padilla:Padilla dealt exclusively with a claim of ineffectiveness of counsel. Padilla asserted that his counsel was ineffective for failing to advise him, an immigrant, that his felony guilty plea could or would result in his deportation. The Supreme Court granted certiorari “to decide whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from the country.” Padilla, 559 U.S. at 360, 130 S.Ct. 1473. The Supreme Court held that accepting his allegations as true, Padilla sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the Court went on to state that whether Padilla was entitled to relief on his claim would depend on whether he could satisfy Strickland’s second prong, prejudice, a matter it left to the lower state court to consider in the first instance.Gamboa, 370 So.3d at 1263 n.2.

JOHN J. MOLAISON, JR. JUDGE