Opinion
NO. 20-KA-164
12-23-2020
STATE of Louisiana v. Bhavin P. NARAN
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Gail D. Schlosser, Harahan, Thomas J. Butler, Douglas E. Rushton COUNSEL FOR DEFENDANT/APPELLANT, BHAVIN P. NARAN, Kevin V. Boshea, Baton Rouge
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Gail D. Schlosser, Harahan, Thomas J. Butler, Douglas E. Rushton
COUNSEL FOR DEFENDANT/APPELLANT, BHAVIN P. NARAN, Kevin V. Boshea, Baton Rouge
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
MOLAISON, J.
Defendant, Bhavin P. Naran, appeals his November 28, 2018 conviction of indecent behavior with a juvenile, pursuant to a guilty plea, on the basis that his plea was not freely, voluntarily, knowingly, nor intelligently made. He also argues that his counsel provided ineffective assistance as to the sex offender registration requirements. For the reasons that follow, we affirm the conviction and sentence.
BACKGROUND
Defendant, Bhavin P. Naran, was charged by bill of information with one count of indecent behavior with a juvenile in violation of La. R.S. 14:81 on March 20, 2018. At his arraignment on April 25, 2018, defendant pled not guilty. At a pretrial status hearing on October 18, 2018, a bench conference was held on the record where the trial judge agreed to a sentence of three years of confinement, suspended with three years of probation, but stated he could not reduce the required fifteen year sex offender registration. On November 27, 2018, defendant withdrew his not guilty plea and pled guilty as charged.
The trial judge stated he could do "three and three" which would result in defendant serving eighteen months of probation.
Before accepting his plea, the trial court informed defendant of the rights he would give up by entering a guilty plea. The trial court informed him of the sentencing range of not more than seven years with or without hard labor and a fine not to exceed $5000. The judge instructed defendant that if the plea was accepted, the court would sentence him to three years at hard labor, suspended with thirty-six months of active probation with fines, fees, and costs reflected in the form. The court advised defendant that there would be a stay away protective order as well as sex offender registration for fifteen years. The State offered as factual basis that if the case were to proceed to trial, it would prove beyond a reasonable doubt that in Jefferson Parish, between October 1, 2016 and April 9, 2017, defendant, while over the age of seventeen, committed a lewd, lascivious act upon or in the presence of a known juvenile, with a date of birth of March 30, 2004, with the intention of arousing and gratifying the sexual desires of either person. Defendant was sentenced to three years imprisonment at hard labor, which was suspended and defendant was placed on active probation for thirty-six months.
At the October 18, 2018 pretrial hearing, trial counsel informed the court that defendant was "texting back and forth, [having] no contact" with a "young lady" he met at a church event while unaware of her age. Defendant was twenty and twenty-one years old during the charged period, and the victim was twelve and thirteen years old.
After withdrawing his first application for post-conviction relief, defendant filed an application for post-conviction relief on December 16, 2019. Defendant asserted a claim of ineffective assistance of counsel due to the attorneys’ failure to explain all of the sex offender registration requirements with which he had to comply as a direct consequence of his guilty plea. The State objected to the application as premature since the substance of defendant's claim was that his plea was not knowing and voluntary which should have been raised on appeal. On February 3, 2020, the trial court found that defendant must first exhaust his appellate rights before seeking post-conviction relief. In denying the application as premature, the court advised defendant that he was within the time to seek an out-of-time appeal and he must indicate if he wished to waive his right to appeal or convert his application into an out-of-time appeal. Defendant moved for an out-of-time appeal on March 2, 2020, which was granted by the trial court.
In a September 5, 2019 application for post-conviction relief, defendant asserted a claim of not being informed by the court or his attorneys that he would be subject to automatic removal and deportation as a result of his guilty plea. On September 6, 2019, his attorney moved to withdraw that application as "new facts have been uncovered which must now be included."
DISCUSSION
In his appeal, defendant asserts two assignments of error. The first is that the guilty plea was not freely, voluntarily, knowingly, nor intelligently undertaken. The second is that the guilty plea is legally infirm. Defendant's brief also raises the issue, not assigned as an error, that his trial counsel was ineffective for failing to fully explain the consequences of the sex offender registration prior to his guilty plea.
Defendant's Guilty Plea
Defendant argues that sex offender registration is a direct consequence of a guilty plea, similar to deportation, which requires the court and attorneys to properly inform and explain the requirements to a defendant when entering a plea. Defendant asserts that he was only shown a set of papers and told to sign and initial in his twenty to twenty-five minute meeting with his attorney. Defendant claims that if the consequences had been properly explained by counsel, he would not have pled guilty.
Once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn and only by appeal or post-conviction relief. State v. Joseph , 14-762 (La. App. 5 Cir. 3/25/15), 169 So.3d 661, 664. A guilty plea is constitutionally infirm when it is not intelligent and voluntary. Boykin v. Alabama , 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). A guilty plea is not made less voluntary or informed by the considered advice of counsel, in the absence of fraud, intimidation, or incompetence of counsel. Joseph , 169 So.3d at 664.
A defendant convicted of indecent behavior with a juvenile must register as a sex offender. See La. R.S. 15:542 and 15:541. When a defendant pleads guilty to a sex offense, La. R.S. 15:543 requires the court to provide written notification of the registration and notification requirements. The failure of the trial court to notify a defendant of the sex offender registration requirements before accepting a 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. This Court has recognized the failure of the trial court to give the notice as an error patent which can be corrected by remand with instructions to the trial judge to inform the defendant of the registration requirements for sex offenders by sending appropriate written notice to the defendant. State v. Christensen , 12-221 (La. App. 5 Cir. 10/16/12), 102 So.3d 984, 991.
Before accepting his plea, the trial court informed defendant that he was giving up the right to a trial by judge or jury, the right to require the State to prove his guilt beyond a reasonable doubt, the right to confront his accusers and crossexamine witnesses, the right to remain silent and not be compelled to incriminate himself, the right to assistance of a lawyer, the right to present witnesses and evidence that would be helpful to him, and the right to an appellate review of an adverse trial verdict. The trial court informed him of the potential sentencing range, the issuance of a protective order, and the requirement to register as a sex offender for fifteen years. The judge confirmed that defendant understood that requirement. The judge also inquired into whether anyone was forcing or threatening defendant into entering into the guilty plea and confirmed that he was satisfied with the representation of his attorney. Defendant was also served with a copy of the stay away order, a copy of the notification to sex offender regarding registration, and a declaration that he did not own a firearm.
Trial counsel confirmed that defendant had signed forms indicating that he was explained his rights, understood them, and was entering into the plea freely and voluntarily. The "Defendant's Waiver of Constitutional Rights Plea of Guilty" form in the record indicates defendant's initials next to all of his rights, as well as "I understand all of the possible legal consequences of pleading guilty and wish to plead guilty at this time." Defendant and his attorney signed a "Sex Offender Addendum to Waiver of Constitutional Rights Plea of Guilty" acknowledging that he was "agreeing to abide by the sex offender registration and notification requirements set forth in La.R.S. 15:541, et. seq "; he had received copies of the sex offender registration and notification statutes; and he had "reviewed and signed" the "Notification to Sex Offender Form." Defendant, his attorney, and the judge signed the "Notification to Sex Offender" form, which states that the court has the duty to provide defendant with the information necessary for awareness of sex offender registration requirements. The form provided by the court has eighteen paragraphs, stating the requirements for providing information to sheriff/police departments. The court told defendant "I want you to make sure you understand that failure to register is in and of itself a crime, punishable I think, a minimum of two years. So make sure you comply with the terms of the registration."
For some reason, the form used by the Court is not identical to the notifications in La. R.S. 15:543, including the deletion of one sentence of 15:543(1)(m)(i) and the entirety of (ii) which set forth the requirement for providing "temporary lodging information." Section one also requires "This information shall be provided at least three days prior to the date of departure unless an emergency situation has prevented the timely disclosure of the information." Section two details that "temporary lodging information regarding international travel shall be provided regardless of the number of days or nights you plan to stay. This information shall be provided at least twenty-one days prior to the date of departure unless an emergency situation has prevented the timely disclosure of the information. Upon receipt of this information by the bureau from the law enforcement agency, this information shall then be sent by the bureau to the United States Marshals Service's National Sex Offender Targeting Center for transmission to the proper authorities."
The record shows the court admonished defendant that he was required to comply with the terms of registration. While the court did not inquire into every requirement, he provided forms to the defendant which set forth the requirements and had defendant acknowledge receiving copies of the sex offender registration and notification statutes. The record indicates that defendant was put on notice of the registration requirements by the court before his guilty plea. He signed a written acknowledgement that he had received copies of the statute, reviewed the notification form which included the requirements, and understood that by pleading guilty he was agreeing to abide by the registration and notification requirements. If defendant had questions, he could have asked the court or his attorney. Defendant was a high school honor roll student and college student majoring in business, which indicates that he has the education and mental capacity to understand the forms and statutes or ask questions of the counsel he had retained to represent him in this matter.
In prior cases, even when the court fails to advise the defendant of his sex offender registration requirements, the Louisiana Supreme Court "express[ed] no opinion as to whether the failure to timely notify a defendant of the registration requirements alone would require a district court to permit a guilty plea to be withdrawn." State v. Calhoun, 694 So.2d at 914, n.6. This court previously allowed an evidentiary hearing concerning the voluntariness of a plea, when a defendant argued he would not have pled guilty if informed of the registration requirements, only where there was no indication on the record that defense counsel notified defendant of the requirement; the trial court did not advise defendant of the requirement in the plea colloquy; and he was not provided the notice of registration requirement in the guilty plea form as required by statute. State v. Smith , 08-127 (La. App. 5 Cir. 7/29/08), 993 So.2d 659, 661.
Therefore, we find that record reflects defendant's guilty plea was knowing and voluntary. The trial court provided the necessary registration requirements to defendant to allow him to make an informed and intelligent decision to plead guilty.
Ineffective Assistance of Counsel Claim
While not raised as an error in defendant's appeal, defendant raised the issue of whether trial counsel had a direct responsibility to "fully explain the consequences of a 15 year sex offender registration prior to entering into said guilty plea." Defendant chose to seek an out-of-time appeal, rather than waive his right to appeal and go forward on his application for post-conviction relief. Defendant's appeal only makes vague assertions of not being made "totally aware" of the requirements, without stating what requirements defendant was unaware of prior to his plea. In defendant's appellate brief, he only argues that "Mr. Naran was not explained the State requirements for sex offender registration." He claims that "Mr. Naran was literally shown a set of papers (including the sex offender forms) and requested to sign and initial." He does not state which requirements were not clear from the forms that defendant was provided and acknowledged receiving and reviewing.
Following the case law at the time, the trial court found his application to be premature, but informed him that he could convert it to a request for an out-of-time appeal. Recently, in Boyd v. State , 20-503 (La. 9/23/20), 301 So.3d 1153, 1154, the Louisiana Supreme Court found that although a defendant may seek reinstatement of his right to appeal, he is not required to seek it before he can present a claim of ineffective assistance of counsel by a timely filed application for post-conviction relief. The court further stated that "claims of ineffective assistance of counsel are normally relegated to collateral review."
The issue of ineffective assistance was raised in more detail in his application for post-conviction relief. The application stated that since the time of his plea, defendant has experience travel restrictions for travel outside of the United States. He listed four witnesses who could testify in support of his claim, including himself; Mr. Raymond Brown, defense counsel at the time of his plea; Mr. Arthur Harris, defendant's former attorney of record; and Mr. Pradip Naran.
Defendant's brief claims that sex offender registration has "has such a close connection to the guilty plea to Indecent Behavior with a Juvenile, as to require proper warnings from the District Court and proper explanation from Trial counsel." He cites no authority to support this assertion, and although he makes a comparison to Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) where the Supreme Court relied on the "unique nature of deportation" which involves "banishment and exile" in ruling that counsel was deficient in failing to advise of the deportation consequences of a plea. Notably, the Supreme Court would not find that Padilla could satisfy the second prong of prejudice, but left it to the state court to consider.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. Under Strickland v. Washington , a defendant asserting an ineffective assistance claim must show: 1) that defense counsel's performance was deficient, and 2) the deficiency prejudiced the defendant. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a defendant claims that counsel's ineffective assistance rendered a guilty plea invalid, the Strickland analysis on the second prong requires that "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." State v. Stiller, 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154, 1157 (citing Hill v. Lockhart , 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d. 203 (1985) ).
Claims of ineffective assistance of counsel are not normally addressed on appeal, but relegated to post conviction relief applications. State v. Burkhalter , 428 So.2d 449 (La. 2/23/1983). The Louisiana Supreme Court has recently noted Louisiana courts have repeatedly held that ineffective assistance of trial counsel claims should typically be brought in collateral proceedings, as "appellate counsel rarely will be able to adequately present an ineffective assistance of counsel claim to an appellate court without first asking for a remand to have the record expanded and the issue first determined by the trial court, which, while possible, is not practical." State v. Harris , 18-1012, p. 17 (La. 7/9/20), ––– So.3d ––––. These matters are more appropriately raised in post-conviction relief where a full evidentiary hearing can be conducted. State v. Ferrera , 16-243 (La. App. 5 Cir. 12/14/16), 208 So.3d 1060, 1067. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart , 621 So.2d 780, 787 (La. 1993). Where the record does not contain sufficient evidence to fully 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.
The record contains sufficient evidence to address the merits of defendant's claim. As discussed above, the record indicates that defendant's guilty pleas were knowing and voluntary. Contrary to defendant's assertions that he was unaware of the requirements, the record reflects that he signed forms indicating that he understood his rights, including a "Sex Offender Addendum to Waiver of Constitutional Rights Plea of Guilty" acknowledging that he would abide by the sex offender registration and notification requirements, that he had received copies of the sex offender registration and notification statutes, and that he had reviewed and signed the "Notification to Sex Offender Form." The judge gave defendant an opportunity to state if he was being forced into entering into a guilty plea or was unsatisfied with his attorney.
As to the first prong of Strickland, defendant has not provided any cases where Louisiana courts have found trial counsel's performance to be inadequate when counsel fails to explain all collateral consequences of a plea bargain. Other state courts have found that the requirement to register as a sex offender is a collateral consequence of a guilty plea, of which a defendant is not required to be informed, as opposed to a material consequence which a defendant must be aware of in order to knowingly and intelligently waive. See Mayagar v. State , 07-740, 18 So.3d 807, 811-812, FN5 (Miss. 8/13/09) (presenting a list of state court rulings finding registration to be a collateral consequence).
Some of the collateral consequences of a felony conviction include ineligibility for enlistment in the military, a security clearance, service on a jury, federally funded health care benefits, food stamps, and housing assistance. See Gabriel J. Chin & Richard W. Holmes Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 699, 702-3 (noting that collateral consequences can operate as a "secret sentence" but most defendants would be unable to show that knowledge or ignorance of a collateral consequence would have had any impact on their decision). The proper measure of attorney performance under Strickland , is "reasonableness under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. 2052. The article does reference ABA Criminal Justice Standards for Defense Function 4-6.3 (e) which instruct defense counsel to investigate and be knowledgeable about ... collateral consequences and likely outcomes...and advise the client on these topics before permitting the client to enter a negotiated disposition. 87 CORNELL L. REV. at 713.
But see, Commonwealth v. Thompson , the Kentucky Supreme Court noted that the effective assistance entails informing client of a particular consequence if it is "sufficiently serious, definite, and automatic (it can readily be determined by reviewing a controlling state statute)." 548 S.W.3d 881, 893 (Ky. 6/14/18) (the court also noted that many other state courts have found that a defendant has a right to effective assistance of counsel concerning the requirement to register as a sex offender).
Furthermore, even if defendant could show that counsel was deficient in failing to fully explain the registration requirements, defendant must prove the second Strickland prong of prejudice by showing that he would not have pled guilty and insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366. The Supreme Court has stated that "[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies... [but] instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." Lee v. United States , ––– U.S. ––––, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017). Defendant makes the broad assertion, contrary to his signed waiver, that his attorney did not review the forms with him, and if he were aware of the restrictions, he would "never have agreed to a guilty plea." General statements and conclusory allegations are not sufficient to prove a claim of ineffective assistance. State v. Fisher , 19-488 (La. App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247. Defendant raised no concerns regarding the registration requirements during his colloquy. Defendant would have to convince the court that a decision to reject the plea bargain and go to trial would have been rational. Padilla , 559 U.S. at 372, 130 S.Ct. 1473. As defendant, facing seven years at hard labor, received a favorable sentence of probation, he has not met his burden of proving that he was prejudiced from being subject to sex offender notification and registration requirements. If the travel notification provisions mentioned in his application for post-conviction relief are the ones he felt most in need of counsel's explanation before entering a plea, he would have to show that he was willing to risk imprisonment from conviction at trial to avoid having to notify the sheriff before traveling.
Accordingly, we find the record reflects that defendant's pleas were knowingly and freely made and were an advantageous consequence of the plea-bargaining process. Defendant has failed to prove that but for counsel's alleged errors, the outcome of the proceedings would have been any different. Therefore, defendant's ineffective assistance of counsel claim lacks merit.
ERROR PATENT
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975). We observe that the transcript does not reflect that defendant was properly advised pursuant to La. C.Cr.P. art. 930.8 that a defendant shall have two years after the judgment of conviction and sentence has become final to seek post-conviction relief. Although, we do note that defendant did initial next to the statement understanding of this right on his waiver of rights form. If the trial court fails to advise, this error may be corrected by the appellate court informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. State v. Becnel , 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022. Thus, defendant is hereby informed that he has two years after the judgment of conviction and sentence has become final to file an application for post-conviction relief.
For the foregoing reasons, defendant's conviction and sentence are affirmed.
AFFIRMED
JOHNSON, J., DISSENTS, IN PART, WITH REASONS
I, respectfully, dissent, in part, from the majority opinion in this matter. While I am in agreement with the majority that the record sufficiently shows that Defendant, Bhavin P. Naran, was informed of the 15-year sexual offender registration requirement, and his conviction should be affirmed on that basis, I do not find that the record is sufficient to address whether Defendant was informed by his trial counsel of the international travel restrictions associated with the sexual offender registration requirements.
As noted in the majority opinion, the form used by the trial court that informs the defendants of the requirements for the sexual offender registration is not identical to the notifications listed in La. R.S 15:543. Specifically, the guilty plea notice pertaining to international travel is not included on the form. Additionally, the transcript does not show that Defendant was informed of the international travel restriction. Thus, without testimony that discloses what was told to Defendant by his trial counsel on the issue of international travel, there is insufficient evidence in the record to determine whether Defendant's trial counsel was ineffective.
Accordingly, I would find that the record in this matter is insufficient to fully explore the ineffective assistance of counsel claim raised by Defendant concerning the international travel restrictions. Therefore, I would remand the matter to the trial court to conduct a hearing on that particular issue. (See , State v. Fisher , 19-488 (La. App. 5 Cir. 6/24/20), 299 So.3d 1238, where this Court held that an ineffective assistance counsel claim can be remanded for a hearing, if the record is insufficient to fully explore the defendant's claim).