State v. Naran

• Decision Date: 23 December 2020
• Docket Number: NO. 20-KA-164,20-KA-164
• Citation: 308 So.3d 419
• Parties: STATE of Louisiana v. Bhavin P. NARAN
• Court: Court of Appeal of Louisiana — District of US

308 So.3d 419

STATE of Louisiana

v.Bhavin P. NARAN

NO. 20-KA-164

Court of Appeal of Louisiana, Fifth Circuit.

December 23, 2020

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.¹ On November 27, 2018, defendant withdrew his not guilty plea and pled guilty as charged.

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.² Defendant was sentenced to three years imprisonment at hard labor, which was suspended and defendant was placed on active probation for thirty-six months.

After withdrawing his first application for post-conviction relief, defendant filed an application for post-conviction relief on December 16, 2019.³ 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.

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.⁴ 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."

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...