STATE v. NGUYEN (2025)

In this Anders appeal, the defendant, Brandon Nguyen, challenges his convictions and sentences following his plea of guilty to a twelve-count indictment. In our review of the record, we find non-frivolous matters related to the voluntariness of the defendant's pleas, which necessitate vacating the sentences imposed and remanding to the trial court for an evidentiary hearing. We conditionally affirm the defendant's convictions and sentences for counts two and twelve. We also grant defense counsel's motion to withdraw.

PROCEDURAL HISTORY

On February 16, 2023, the Jefferson Parish District Attorney filed a bill of information charging the defendant with pornography involving juveniles under the age of thirteen in violation of La. R.S. 14:81.1 (count one), indecent behavior with a juvenile under the age of thirteen in violation of La. R.S. 14:81 (count two), nine counts of video voyeurism in violation of La. R.S. 14:283 (counts three to eleven), and stalking while a protective order was in effect in violation of La. R.S. 14:40.2 (count twelve). On February 17, 2023, the defendant pleaded not guilty at arraignment. The State filed an Amended Bill of Information on June 23, 2023.¹ On October 28, 2024, the defendant pled guilty as charged to all twelve counts. Following the trial court's acceptance of the defendant's plea, the defendant was sentenced to five years imprisonment without the benefits of probation, parole, or suspension of sentence on count one; two years imprisonment without benefit of probation, parole, or suspension of sentence on count two; and two years imprisonment on counts three through twelve. All sentences were ordered to be served concurrently at hard labor.

The trial court vacated the defendant's sentence for count one, and the defendant was resentenced on November 18, 2024, to ten years at hard labor without the benefits of parole, probation, or suspension of sentence.

The defendant sent a pro se letter to the Jefferson Parish Clerk of Court on December 17, 2024, asserting that he wanted to withdraw his guilty plea, pursue an appeal, and have his case proceed to trial. On January 30, 2025, the trial court granted the defendant an appeal.

On appeal, the defendant's appointed counsel has filed an appellate brief pursuant to Anders v. California ² and has further filed a motion to withdraw as counsel of record. The defendant has also filed a letter with this Court, alleging that his pleas were involuntary and that he did not receive the bargained-for sentences outlined in his plea agreement.

FACTS

Because the defendant's convictions were the result of a guilty plea, the facts underlying the crimes are not contained in the record.

LAW AND DISCUSSION

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So. 2d 1108, 1110-11,³ 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. The State contends that a review of the record reveals no non-frivolous issues that would support reversing the conviction or vacating the defendant's sentence, and it finds no irregularity or constitutional infirmity in the guilty plea that would render the plea invalid.

The bill of information properly charged the defendant and plainly and concisely stated the essential facts constituting the charged offenses. It also sufficiently identified the defendant and the crimes charged. See generally La. C.Cr.P. arts. 464-466. As reflected in the minute entries, the defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea proceeding, sentencing, and resentencing on Count One. As such, the defendant's presence does not appear to present any issues that would support an appeal.

Defendant pleaded guilty in the instant case. If a defendant pleads guilty, they usually waive all non-jurisdictional defects in the proceedings leading up to the guilty plea and preclude review of such defects, either by appeal or by an application for post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, the defendant entered unqualified pleas of guilty; consequently, all non-jurisdictional defects are waived. No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584, 588 (La. 1976).

Regarding all the counts, the record reflects that the defendant was adequately advised of his Boykin ⁴ rights. By the waiver of rights form and during the colloquy, the defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. During the colloquy, the defendant indicated that he understood he was waiving these rights. On the waiver of rights form, the defendant's initials appear next to these rights, and it was signed at the bottom, acknowledging the defendant's understanding that he was waiving his rights by pleading guilty. Defendant further indicated that he was satisfied with counsel and that his plea was a knowing, intelligent, free, and voluntary act not induced by promises or threats. The trial court informed the defendant that his guilty pleas could be used to enhance punishment for future convictions. After the colloquy, the trial judge accepted the pleas as knowingly, intelligently, and voluntarily made.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 676 So.2d at 1110. Our review of the record has revealed several non-frivolous issues that necessitate vacating the defendant's sentences and remanding for an evidentiary hearing to determine if his pleas were constitutionally infirm.

Sex Offender Registration-Counts One through Eleven

The defendant's convictions for pornography involving a juvenile in violation of La. R.S. 14:81.1 (count one), indecent behavior with a juvenile under the age of thirteen in violation of La. R.S. 14:81 (count two), and video voyeurism in violation of La. R.S. 14:283 (counts three through eleven) are defined as offenses under La. R.S. 15:541(24), which require the defendant to register as a sex offender. However, the record does not indicate that the trial court advised the defendant of the sex offender registration or notification requirements during the plea colloquy, and there is no indication in the record that defense counsel informed the defendant of those requirements. Notice of the registration requirement is also absent from the waiver of rights form, although La. R.S. 15:543(A) required that such notice be included.

While the Louisiana Supreme Court has not opined whether the failure to timely notify a defendant of the registration requirements alone timely would require a district court to permit a guilty plea to be withdrawn, it has held that the failure of the trial court to advise a defendant of the sex registration requirements before accepting his guilty plea is a factor “that undercuts the voluntariness of that plea.” State v. Calhoun, 96-786 (La. 5/20/97), 694 So.2d 909, 914. In this case, because the defendant has raised the issue of the voluntariness of his plea, both at the trial court and on appeal, the omission takes on greater significance. Under similar circumstances, this Court has allowed an evidentiary hearing on the voluntariness of the defendant's guilty plea. It has permitted the defendant to withdraw his plea if the trial court determines it was involuntary. State v. Smith, 08-127 (La. App. 5 Cir. 7/29/08), 993 So.2d 659, 661. Accordingly, we vacate all of the defendant's sentences and remand this matter for that purpose.

Should the trial court find after an evidentiary hearing that the defendant's pleas were voluntary despite the registration issue, then we otherwise conditionally affirm the defendant's convictions and sentences for indecent behavior with a juvenile under the age of thirteen, in violation of La. R.S. 14:81 (count two), and one count of stalking, in violation of La. R.S. 14:40.2(B)(3) (count twelve).

We note other errors on the face of the record that require action by the trial court.

Count One

It is unclear whether the defendant pled guilty to pornography involving juveniles under the age of thirteen under La. R.S. 14:81.1(E)(5)(a) or to pornography involving juveniles under La. R.S. 14:81.1(E)(1)(a).

The record reflects that the State charged defendant in the bill of information with pornography involving a juvenile under thirteen in violation of La. R.S. 14:81.1(E)(5)(a). However, the plea colloquy and waiver of rights form reflect that the defendant would plead to La. R.S. 14:81.1(E)(1)(a). Although the record supports that the defendant pled guilty and was sentenced under La. R.S. 14:81.1(E)(1)(a), it appears that he was subsequently resentenced under La. R.S. 14:81.1(E)(5)(a). While a ten-year sentence is within the statutory ranges provided by both La. R.S. 14:81.1(E)(1)(a) and (E)(5)(a), the record reflects that before pleading guilty defendant was advised he would receive a five-year sentence at hard labor on count one under (E)(1)(a), yet he ultimately received a ten-year sentence under (E)(5)(a). This raises the question of whether the defendant, in fact, received what he bargained for when entering his guilty plea.

A guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain and that bargain is not kept. State v. Mitchell, 08-629 (La. App. 5 Cir. 1/13/09), 7 So.3d 744, 751, writ denied, 09-254 (La. 10/30/09), 21 So.3d 270. In this case, following his resentencing, the defendant filed a letter with the trial court requesting to withdraw his plea on the basis that the judge had threatened and forced him to accept the agreement, that he had received ineffective assistance of counsel, and that he had been deprived of a fair trial. On appeal, appellate counsel and the State point out that no objection was raised at the time of resentencing on count one, nor did the defendant seek to withdraw his guilty plea before the amended sentence was imposed. However, in his subsequent letter to this Court, defendant renewed these arguments and further alleged that he specifically directed counsel to object to the ten-year resentencing, but counsel failed to do so. He also asserted that the plea agreement was not the same as the one actually pleaded to.

Based on the foregoing, we separately vacate the defendant's sentence on count one and remand for an evidentiary hearing to clarify the following: whether the defendant pled guilty to pornography involving juveniles under the age of thirteen under La. R.S. 14:81.1(E)(5)(a) or to pornography involving juveniles under La. R.S. 14:81.1(E)(1)(a); what sentence the defendant was supposed to receive pursuant to the plea agreement with the State; and whether that agreement was breached by the sentence ultimately imposed. If the trial court concludes that the plea agreement was breached, then the defendant should be allowed to withdraw his guilty plea as to that count.

Counts Six through Eleven

Although the defendant was charged with video voyeurism involving a juvenile in violation of La. R.S. 14:283(B)(4) in counts three through five, and with video voyeurism of a known person in violation of La. R.S. 14:283(B)(1) in counts six through eleven, it appears that the defendant may have pled guilty under La. R.S. 14:283(B)(4) as to all counts, three through eleven.

With respect to counts three through five, the record supports that the defendant pled guilty to video voyeurism of a juvenile under La. R.S. 14:283(B)(4). The bill of information specified that counts six through eleven involved video voyeurism of an adult victim, J.T. The record does not contain a factual basis linking the plea to the charged conduct. During the colloquy, the defendant was advised that he was pleading guilty to “video voyeurism” with a sentencing range of two to ten years without benefits, which corresponds to the harsher penalty provision under La. R.S. 14:283(B)(4). The waiver of rights form likewise referenced La. R.S. 14:283(B)(4). However, the November 18, 2024, Nunc Pro Tunc sentencing minute entry and UCO from that date reflect that the defendant pled guilty to “video voyeurism” under La. R.S. 14:283(B)(1) as to counts six through eleven.⁵ This discrepancy raises the possibility that the defendant may have pled guilty under a statutory provision different from the one he was charged with in the bill.

As previously indicated, the defendant filed a letter with the trial court seeking to withdraw his guilty plea. In response, the trial court issued an order stating that counts three through eleven were pled and sentenced under La. R.S. 14:283(B)(4), thereby further reflecting that the defendant was treated as having pled under that subsection. The defendant has since written to this Court, asserting that the plea agreement he was promised was not the same as the one ultimately enforced. Although the two-year sentences imposed on each of counts six through eleven fall within statutory limits under either subsection, they represent the maximum penalty under La. R.S. 14:283(B)(1), but the statutory minimum under La. R.S. 14:283(B)(4). Therefore, the record provides less indication that the defendant was fully apprised of the essential nature of the charges in counts six through eleven at the time of the plea, and it appears that this resulted in a plea under a harsher penalty provision.

Based on the foregoing, we separately vacate the defendant's sentences on counts six through eleven and remand for an evidentiary hearing to clarify the following: whether the defendant understood and intended to plead guilty to La. R.S. 14:283(B)(1) or La. R.S. 14:283(B)(4), and if the defendant has a basis to withdraw his pleas on these counts.

Ineffective Assistance of Counsel

The defendant alleges that his trial counsel was ineffective for several reasons. An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Jones, 13-99 (La. App. 5 Cir. 8/27/13), 123 So.3d 758, 765. Where the record does not contain sufficient evidence fully to explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924-930.8. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

Based on the limited record on appeal, we find that the defendant's ineffective assistance of counsel claims would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary, and the defendant can present evidence to support his allegations.

ERROR PATENT REVIEW

The record was reviewed 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). In addition to the issues previously identified, we observe the following issues, which may be rendered moot if the defendant is ultimately allowed to withdraw his guilty pleas.

On October 28, 2024, the defendant withdrew his prior pleas and pleaded guilty to the charges. The waiver of rights form, which bears defendant's signature, reflects that the defendant understood the sentences would run “concurrent w/each other [and] cases 22-6197, 24-4331, 23-2989, [and] 23-2102.” During the plea colloquy, the record reflects that as to his sentences on counts one through twelve, he was advised by the judge, “All Counts to run concurrent with each other, cases 22-6197, 24-4331, 23-2989, 23-1202.” When the court asked if he understood, the defendant responded, “Yes, sir.” When imposing the sentences, however, the record reflects the trial court ordered, “All counts are to run concurrent with each other in cases 22-6197, 24-4331, 23-2989, 23-2102.” However, this phrasing appears to differ from the waiver of rights form and the advisement at the colloquy. It is unclear whether this was the court's intent or a possible typographical error.

Further, the minute entry from that date reflects that the trial court ordered “the above sentence on ALL counts to run concurrent with one another and case #22-6197 / 23-2102 / 23-2989 / 24-4311.” Likewise, the UCO from that date reflects the same language through a checked box. The November 18, 2024, Nunc Pro Tunc minute entry and UCO from that date, as well as the trial court's written order granting the defendant's appeal, also contain this phrasing. This wording appears more consistent with the waiver of rights form, which specified concurrency “with each other [and]” the listed cases, and differs from the phrasing at the time of sentencing.

Should the trial court determine that the defendant should not be allowed to withdraw his pleas, the trial court is ordered to correct the minute entry and UCO to delete the provision relating to the concurrent nature of the sentence, as it was not reflected in the sentencing transcript. See State v. Tate, 22-570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236, 249-50.

CONCLUSION

In conclusion, we find non-frivolous matters related to the voluntariness of the defendant's pleas that necessitate vacating the sentences imposed and remanding the case to the trial court for an evidentiary hearing. For counts one and six through eleven, we find additional reasons to vacate those sentences for the trial court to consider, should it find that the defendant's pleas were voluntary. We conditionally affirm the defendant's convictions and sentences for counts two and twelve, pending the resolution of the trial court's evidentiary hearing on the voluntariness of his pleas. We also grant defense counsel's motion to withdraw.

SENTENCES VACATED, CONDITIONALLY AFFIRMED, IN PART; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

FOOTNOTES

1.   The bill of information amended count three to include one count of video voyeurism in violation of La. R.S. 14:283(B)(4). Counts four and five were amended to include video voyeurism in violation of La. R.S. 14:283(B)(4). Counts six through eleven included counts of video voyeurism in violation of La. R.S. 14:283(B)(1). The amended bill of information further added one count of stalking, alleging that the defendant violated La. R.S. 14:40.2(B)(3) by repeatedly following or harassing A.T. while a protective order was in effect.

2.   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

3.   In Bradford, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528,530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

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

5.   There appears to be an issue as to whether the trial court imposed separate sentences for counts three through eleven.

MOLAISON, J.