State v. Bunyard

STATE OF LOUISIANA v. MARVIN L. BUNYARD, JR.

No. 21-202

Court of Appeals of Louisiana, Third Circuit

October 13, 2021

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON NO. 94391 HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

Annette Roach Louisiana Appellate Project Counsel for Defendant/Appellant: Marvin L. Bunyard Jr.

Ronald K. Seastrunk Assistant District Attorney, Thirtieth Judicial District Counsel for Appellee: State of Louisiana

Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G. Fitzgerald, Judges.

CHARLES G. FITZGERALD, JUDGE

In this appeal, Marvin L. Bunyard Jr. (Defendant) appeals his conviction and sentence for indecent behavior with a juvenile under the age of thirteen years old.

FACTS AND PROCEDURAL HISTORY

On March 31, 2013, Defendant engaged in anal and oral sexual intercourse with the male juvenile victim, E.J., who was eight years old.^[1] Defendant is the victim's step-grandfather. On October 15, 2019, Defendant was charged by bill of information with indecent behavior with a juvenile under the age of thirteen years old, in violation of La.R.S 14:81(A)(1), and sexual battery of a juvenile, in violation of La.R.S. 14:43.1(A)(1)-(2).

On November 10, 2020, Defendant entered into a plea agreement in open court whereby he pled guilty to the indecent-behavior charge in exchange for a sentencing cap of twenty years and the dismissal of the sexual-battery charge. At the conclusion of the plea hearing, the trial court ordered the preparation of a Presentence Investigation.

The sentencing hearing was then held on February 23, 2021, at which time the trial court sentenced Defendant to twenty years at hard labor, the first ten years without benefit of probation, parole, or suspension of sentence. The trial court also recommended that Defendant be placed in an appropriate medical facility to care for his medical conditions.

Thereafter on March 2, 2021, Defendant filed a motion to reconsider his sentence, which the trial court denied on March 3, 2021. This appeal followed.

LAW AND ANALYSIS

I. Errors Patent

Pursuant to La.Code Crim.P. art. 920, we find no errors patent on the face of the record.

II. Anders Analysis

Defendant's appeal counsel has filed a brief and motion to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). The Louisiana Supreme Court differentiated an Anders brief from the typical appellate brief in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241. There, the supreme court explained that "'[u]nlike the typical advocate's brief in a criminal appeal, which has as its sole purpose the persuasion of the court to grant relief,' the Anders brief must 'assure the court that the indigent defendant's constitutional rights have not been violated.'" Id. at 241 (quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903 (1988)).

The Anders brief here initially states that there are no non-frivolous issues on which an appeal could be based. The brief notes that Defendant pled guilty pursuant to a plea agreement with the State-in essence, Defendant pled guilty to the indecent-behavior charge in exchange for a sentencing cap of twenty years and the dismissal of the sexual-battery charge. The brief then correctly points out that Defendant is precluded from seeking review of his sentence because it was imposed in conformity with the plea agreement. La.Code Crim.P. art. 881.2(A)(2) ("The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.").

Defense counsel's Anders brief also asserts that Defendant was represented by a court-appointed attorney when he (Defendant) pled guilty in exchange for a sentencing cap; that Defendant was properly advised of his constitutional rights prior to pleading guilty; and that Defendant knowingly waived those rights prior to his guilty plea. Thus, Defendant's unconditional plea waived all claims for review, including non-jurisdictional pre-plea defects. State v. Johnson, 19-2004 (La. 12/11/20), 314 So.3d 806.

The Anders brief submitted in this case assures us that Defendant's constitutional rights have not been violated. However, our review does not end here.

A proper Anders analysis also imposes requirements on our independent review of the record. The fourth circuit addressed these requirements in State v. Benjamin 573 So.2d 528, 531 (La.App. 4 Cir. 1990), explaining that

[t]his court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the

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