Opinion
2021 KA 0731
02-25-2022
STATE OF LOUISIANA v. EDDIE LEE OTIS BONIER, JR.
Joseph L. Waitz, Jr. District Attorney State of Louisiana Ellen Daigle Doskey Assistant District Attorney Attorneys for Appellee James S. Holt, IV Attorney for Defendant/Appellant Eddie Lee Otis Bonier, Jr
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE STATE OF LOUISIANA DOCKET NUMBER 768804, DIVISION "C" HONORABLE JUAN W. PICKETT, JUDGE
Joseph L. Waitz, Jr. District Attorney State of Louisiana Ellen Daigle Doskey Assistant District Attorney Attorneys for Appellee
James S. Holt, IV Attorney for Defendant/Appellant Eddie Lee Otis Bonier, Jr.
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
MCDONALD, J.
The defendant, Eddie Lee Otis Bonier, Jr., was charged by bill of information with home invasion (count one), a violation of La. R.S. 14:62.8, and aggravated second degree battery (count two), a violation of La. R.S. 14:34.7. He initially pled not guilty to each count. The trial court later granted the defendant's motion to amend his plea to not guilty and not guilty by reason of insanity. The defendant subsequently filed a motion for appointment of sanity commission, psychiatric examination, and expert. The trial court granted the defendant's motion, initially appointing a sanity commission consisting of two doctors but later supplemented with the evaluation of a third doctor. After receiving the third evaluation, the trial court held a hearing and found the defendant capable of assisting in his own defense and proceeding with trial.
The defendant subsequently withdrew his former pleas and pled guilty as charged to both counts. The trial court sentenced the defendant to fifteen years imprisonment at hard labor on each count, to be served concurrently. The defendant later filed a motion to withdraw/vacate his guilty pleas, which the trial court took under advisement after a hearing and subsequently denied. The defendant now appeals, assigning as error the trial court's denial of his motion to withdraw/vacate his guilty pleas and the ineffective assistance of counsel. For the following reasons, we affirm the convictions and sentences.
STATEMENT OF FACTS
As the defendant pled guilty as charged, the facts of the offenses were not fully developed. Based on the bill of information and other factual accounts in the record, on or about December 30, 2017, without authorization, the defendant entered an inhabited dwelling or other structure, located at 16 Waverly Place in Houma, with the intent to use force or violence upon the person of another, or to vandalize, deface, or damage the property of another. Upon entry, the defendant further committed a battery with a dangerous weapon upon his father-in-law, Larry James Pete, intentionally inflicting serious bodily injury.
According to the statement the defendant gave to Dr. Joshua Sanderson, the third doctor appointed to the sanity commission by the trial court, the defendant recollected the following circumstances as leading up to the offenses. The defendant and his wife were separated at the time, such that she lived in an apartment in Houma while he resided with family members in Alexandria. On the day in question, the defendant and his estranged wife argued before agreeing to meet at Chucky Cheese, presumably to allow the defendant to see his son, whom he noted he had not seen in six months. Before he arrived in Houma, the defendant stopped at a gas station where he saw a group of motorcyclists. The defendant noted the motorcyclists were "open carry" and that he armed himself with a tire iron for protection. He drove off without issue and continued to travel to meet his wife.
However, as the defendant relayed, when he arrived, he thought he heard the sound of firecrackers, had the sense of being followed, and felt like he was not in Houma. The defendant further explained that he felt like he was overseas and that he grabbed a pipe after seeing a woman run for cover. The defendant stated, "Mr. Pete opened the door... I think I just tried to get out of the way... inside... he stopped me." He added, "I didn't remember until I kept havin' to play this over and over ... I hit him as if he were try in' to take it from me ... He tried to take my weapon from me ... If I would've known it was him, I wouldn't have done it..."
Dr. Sanderson's evaluation further notes that police narratives based on information provided by the victim and his wife indicate that when the defendant arrived at the Houma residence, he asked to see his child. When he was told that he could not see his child, he aggressively pushed his way into the residence, got on top of the victim, and struck him multiple times yelling "I want to see my son."
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant contends that Dr. Mary Eschete and Dr. Brian Matherne, two of the three doctors on the court-appointed sanity commission, found him incompetent to proceed to trial. He further notes that one of the doctors specifically stated that he suffers from hallucinations and needs help. The defendant contends that the trial court relied on the evaluation of the third appointed doctor, Dr. Sanderson, though it was in direct contradiction to the conclusions of the two doctors who had previously evaluated him. The defendant contends that he continued to suffer from significant mental illness, hallucinations, and post-traumatic stress disorder (PTSD) that rendered him incompetent to enter into a plea agreement. He notes that a person can suffer from hallucinations and still have lucid intervals, presuming that this may have been the case when Dr. Sanderson interviewed him.
The defendant further claims that the trial court ruled him competent to proceed without reviewing his Veteran's Administration (VA) medical records and other medical records, which he claims substantiated his claim of incompetence. He argues that the trial court, in finding him competent to proceed, failed to apply the correct standard as well as the required substantive law. The defendant notes that the trial court, post-sentencing, admitted that he needed mental health treatment, which the defendant equates with being incompetent to proceed to trial. He concludes that as his guilty pleas are contrary to the law regarding mentally incompetent defendants being allowed to plead guilty and/or proceed to trial, his motion to withdraw/vacate the guilty pleas should have been granted.
A criminal defendant has a constitutional right not to be tried while legally incompetent. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, 365-66 (1992) (citing Drope v. Missouri, 420 U.S. 162, 173, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975)). A state must observe procedures adequate to protect a defendant's right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. State v. Carmouche, 2001-0405 (La. 05/14/02), 872 So.2d 1020, 1041. Louisiana's statutory scheme for detecting mental incapacity jealously guards a defendant's right to a fair trial. State v. Nomey, 613 So.2d 157, 161 (La. 1993). In Louisiana, "[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." La. Code Crim. P. art. 641; State v. Odenbaugh, 2010-0268 (La. 12/6/11), 82 So.3d 215, 227, cert, denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012); see also Nomey , 613 So.2d at 161. Louisiana law imposes a legal presumption that a defendant is sane and competent to proceed. See La. R.S. 15:432. Thus, the defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. Carmouche, 872 So.2d at 1041.
Relevant considerations in determining whether a defendant is fully aware of the nature of the proceedings include whether he understands the nature of the charge and can appreciate its seriousness, whether he understands what defenses are available, whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each, whether he has an awareness of his legal rights, and whether he understands the range of possible verdicts and the consequences of conviction. State v. Bennett, 345 So.2d 1129, 1138 (La. 1977) (on rehearing); State v. Walker, 2009-1741 (La.App. 1st Cir. 2/17/10), 2010 WL 546498, at *2, writ denied, 2010-0523 (La. 10/15/10), 45 So.3d 1108. Facts to consider in determining an accused's ability to assist in his defense include whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times, whether he is able to assist counsel in locating and examining relevant witnesses, whether he is able to maintain a consistent defense, whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements, whether he has the ability to make simple decisions in response to well-explained alternatives, whether he is capable of testifying if necessary in his own defense, and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. Bennett , 345 So.2d at 1138; Walker , 2010 WL 546498 at *2.
A reviewing court owes the trial court's determinations as to the defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Carmouche, 872 So.2d at 1041. In the exercise of its discretion, the trial court may consider both lay and expert testimony before deciding whether reasonable grounds exist for doubting the defendant's capacity to proceed and ruling on the defendant's motion to appoint a sanity commission. Carmouche, 872 So.2d at 1042.
The defendant was evaluated by Dr. Matherne, a general practitioner at Family Doctor Clinic in Houma, on December 19, 2018. Dr. Matherne noted that the defendant had a ten-year history of psychosis with schizophrenia and PTSD and had been treated in the past at VA clinics with multiple medications. He further noted that the defendant reportedly was "on treatment" at the time of the offenses. As to the defendant's condition at the time of his evaluation, Dr. Matherne noted the following, "He presently is alert, responsive and articulate. He does still report some hallucinations and is presently only on Cymbalta." Dr. Matherne added, "I do think that he is capable of aiding his attorney in his defense but feel like he is inadequately treated with Cymbalta alone. It is my recommendation that before he proceeds to trial he be evaluated and treated for hallucinations and his present psychiatric condition."
On December 20, 2018, one day after Dr. Matherne's evaluation, Dr. Eschete, the Deputy Coroner of Terrebonne Parish, examined the defendant to determine his mental state at that time and at the time of the offenses. In a letter dated January 10, 2019, Dr. Eschete noted that the defendant entered the military after high school and suffered a concussion in Afghanistan in 2012. He transitioned to the National Guard, retired in 2017, and received mental health services for PTSD from the VA hospital. She noted that the records of the defendant's last hospitalization at the VA hospital, from October 25, 2018, through November 8, 2018, listed his diagnosis as posttraumatic stress syndrome, a psychotic disorder, depressive disorder, and cannabis abuse. She noted the defendant's history of Methadone use until his 2017 arrest. She further noted that while the defendant was oriented as to name, date, and place, it was difficult to follow his train of thought, but he had "a good fund of knowledge." She also indicated that the defendant has "hyperreligiosity."
Regarding the instant offenses, Dr. Eschete noted that the defendant knew the charges against him and when the events occurred. She noted the defendant believed that he saw a motorcycle gang and that "they" were trying to hurt him or his family. She further noted the defendant then attempted to protect himself from his father-in-law at the time of the alleged incident. She noted the defendant believed he was in jail for protective custody reasons. While she believed the defendant could maintain proper courtroom decorum, she did not believe that he would be able to assist his attorney at that time. In that regard, she noted that he was unable to maintain a consistent defense and was uncertain of the consequences if convicted, but he knew his lawyer and understood possible pleas. In summary, she noted the defendant has PTSD and a substance abuse problem and asked that he be helped in seeking the care that he needs.
From the context of the sentence in Dr. Eschete's report to the trial court, it appears she mistakenly omitted the word "gang" in regard to the referenced sentence.
Several months later, on May 27, 2019, Dr. Sanderson, a Clinical Assistant Professor with the LSU Health Sciences Center, Department of Psychiatry, evaluated the defendant to determine his mental condition at the time, competency to stand trial, and his state of mind at the time of the offenses. Dr. Sanderson provided a lengthy, detailed assessment that includes quoted responses by the defendant to a variety of questioning. As a part of his assessment of the defendant's mental state at the time of the offenses, Dr. Sanderson's written evaluation includes the defendant's recollection of the events. The defendant initially indicated that he did not remember everything that happened, but he reviewed the evidence to help him "formulate a story." The defendant further relayed that he was feeling paranoid when the incident took place and noted that he was told that he drove three-and-a-half hours and that he struck his father-in-law, "Mr. Pete."
Dr. Sanderson documented the defendant's family, educational, and VA medical history, and drug use. Dr. Sanderson specifically noted the following determination: "with reasonable medical certainty, at the time of the evaluation, that Mr. Bonier is able to demonstrate a rational understanding of the nature of the proceedings and is able to assist his attorney in his defense." He further found that the defendant's behavior at the time of the offenses supports the conclusion that he had the ability to distinguish between right and wrong in reference to his conduct. Dr. Sanderson described the defendant as oriented to person, place, and date at the time of the interview and noted that his thought process was linear and goal directed. As Dr. Sanderson noted, the defendant denied any current suicidal or homicidal ideations, intents, desires, or plans. Further, it was noted that the defendant did not exhibit any thought content consistent with delusions or paranoia. His insight was noted as fair and his judgment was good, as evidenced by his cooperation with the interview. The defendant's memory, attention, and concentration levels were all noted as good.
Regarding the defendant's capacity to understand the proceedings against him, Dr. Sanderson noted that the defendant understood the nature of the charges and detailed the defendant's ability to fully articulate concepts such as an alibi, mistaken identity, and self-defense in hypothetical contexts. For example, the defendant was asked to distinguish/describe a guilty plea and stated, "that means I accept I am wrong here in this situation." The defendant described a not guilty plea as, "I am not wrong ... the things that you are saying about me are not accurate or true." He was also able to understand and define the roles of principals in the courtroom, was aware of his legal rights, and displayed a rational understanding of the range of possible verdicts and consequences of conviction. As to a guilty verdict, the defendant stated, "we find that you did this crime," as opposed to a not guilty verdict in which, "we don't believe that you committed this crime."
Further, regarding the defendant's capacity to assist in his defense, Dr. Sanderson in part noted the defendant was able to recall and relate facts pertaining to his actions, and was able to give a clear, rational, and detailed account of his previous medical, psychiatric, and social history, which was consistent with his provided history. Further, the defendant demonstrated the ability to assist his counsel in locating and examining relevant witnesses, to maintain a consistent defense, to inform his lawyer of any misstatements or distortions by potential witnesses, and to testify in his own defense, if necessary. Dr. Sanderson specifically noted that the defendant demonstrated an adequate command of language, answered questions with logical and relevant responses, and that his condition was unlikely to change during the trial as long as he remained compliant with his current medication regimen, noted as Risperdal and Cymbalta.
Regarding the events of this case, Dr. Sanderson noted that the defendant's behavior (aggressively pushing his way into the residence after being denied his request to see his son) supports the conclusion that there was a rational motive that drove the behavior on the day of the alleged events and that it was not a direct result of a physical threat on the defendant's health or safety. In a subsection entitled, "Exaggeration of Deficits and Multiple Denials of Responsibility," Dr. Sanderson noted that while the defendant repeatedly stated he had poor memory of the events, he was able to provide multiple explanations for his behavior and thought process that would be impossible to obtain solely from any legal documentation. He noted the defendant volunteered conclusions throughout the examination instead of strict recollection. The defendant's self-described symptoms of psychosis were atypical and consistent with non-genuine hallucinations. Finally, Dr. Sanderson restated that the defendant demonstrated a rational and factual understanding of the nature of the proceedings against him, his ability to appropriately assist his attorney in his defense, and his ability to distinguish right from wrong at the time of the alleged offenses.
The defendant's medical records include, in part, progress notes for the defendant's last hospitalization at the Veteran Affairs Medical Center (VAMC) prior to the December offenses. The notes indicate the defendant was admitted to inpatient psychiatry on October 25, 2017, with noted psychosis and non-compliance with medication. It was noted that the defendant was depressed with lack of contact with his child, was estranged from his wife, denied violent or suicidal thoughts, and was vague in regards to any hallucinations. The diagnoses listed in the note for the next day, October 26, include the following: "Posttraumatic stress disorder, chronic severe, Psychotic disorder, Depressive disorder NOS and Cannibis abuse."
On October 27, 2017, it was noted that the defendant was depressed, irritable, had jaw pain, and reported hearing voices telling him to look up certain Biblical scriptures. However, in the following days leading up to his discharge, from October 28 to November 7, 2017, the progress notes consistently indicate the defendant denied pain, suicidal ideation, homicidal ideation, paranoia, or audio or visual hallucinations. From October 28 to November 7, in addition to consistent comments indicating that the defendant denied any of the above listed conditions, progress notes also indicate the defendant was oriented, compliant with his medication, had not had any behavior problems, was interacting well with the other veterans and staff, and denied having thoughts of wanting to harm himself or others. On November 8, 2017, on which date the defendant was discharged, the defendant's health status was noted as alert and oriented, and he again denied any pain, homicide or suicide ideation, paranoia, or hallucinations. As further noted, he was "pleasant, interacts well with others, excited to D/C to home today."
On June 26, 2019, at the sanity hearing, the trial court noted that it received a report by the general practitioner, Dr. Matherne, indicating that he believed the defendant was capable of assisting his counsel, while Dr. Eschete, the Deputy Coroner, found that the defendant was unable to aid his counsel. The trial court then noted its consideration of the detailed, lengthy report by psychiatrist Dr. Sanderson indicating that the defendant understood the nature of the proceedings and was able to assist his attorney. In response to the concern expressed by Dr. Matherne regarding treatment for the defendant's hallucinations and psychiatric condition, the trial court noted that it would order the physicians at the Terrebonne Parish Criminal Justice Complex to monitor the defendant's medication. The trial court then noted that in its opinion, the defendant was capable of aiding his attorney and proceeding with trial. At the subsequent hearing on the defendant's motion to withdraw his guilty pleas, before taking the matter under advisement, the trial court noted its consideration of Dr. Sanderson's lengthy evaluation, fully highlighting the details of the report. The trial court subsequently denied the defendant's motion.
The trial court's determination is entitled to great weight. See Carmouche, 872 So.2d at 1041. The trial court considered the opinion of two experts finding that the defendant was able to aid in his defense. Furthermore, the comprehensive report of Dr. Sanderson, a psychiatrist, provided a detailed basis for his opinion that the defendant understood the proceedings. Finally, we reiterate that the trial court stated it would order that the defendant's treatment be monitored. Based upon our review of the record, as detailed above, we find no abuse of discretion in the trial court's conclusion. See State v. Brooks, 541 So.2d 801, 807 (La. 1989); State v. Robinson, 2018-1005 (La.App. 1st Cir. 4/10/19), 275 So.3d 938, 945, writ denied. 2019-00747 (La. 2/10/20), 292 So.3d 64; Walker, 2010 WL 546498, at *4.
We now turn to the issue of whether the defendant's guilty pleas were knowingly and voluntarily made. For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against compulsory self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). In determining whether the defendant's plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but also other factors that may have a bearing on the decision. See State v. Calhoun, 96-0786 (La. 5/20/97), 694 So.2d 909, 912. Everything that appears in the record concerning the predicate offense, as well as the trial judge's opportunity to observe the defendant's appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. Robinson, 275 So.3d at 945.
In this case, the trial court conducted a thorough, detailed colloquy with the defendant prior to accepting his guilty pleas. The defendant, who was represented by counsel, informed the trial court of his name, age, and date of birth. He stated that he went as far as college in school, confirmed that he was able to read and write the English language, and stated that he was in the National Guard at the time of his arrest. The defendant denied having any health or hearing problems or being under the influence of drugs or alcohol. The defendant informed the court that he was taking "[m]ental health medication" which he specified as Risperdal. The defendant denied that his mental health issue or medication prevented him from understanding what was going on at the hearing. The defendant confirmed that he had the opportunity to speak to his lawyers and that they went over the case, the law, the allegations, and the consequences of his pleas with him. He denied that he needed any more time with his attorneys.
The trial court showed the defendant the executed waiver of constitutional rights and plea of guilty form, and the defendant confirmed that his attorneys went over the form with him, that he understood the form, that he did not have any questions about the form, and that it was his signature on the bottom of the form. The trial court then went over each of the rights on the form, which the defendant individually confirmed that he understood. The trial court informed the defendant of the penalties that he faced in pleading guilty to the offenses. The defendant said he understood and further confirmed that he was not forced, threatened, or intimidated by anyone into pleading guilty, and that no one made any promises to induce his guilty pleas. Both of the defendant's attorneys confirmed that they met with the defendant and discussed the case with him, the allegations, the consequences of his pleas, and the law related to the offenses. They further confirmed that the defendant understood the discussions and that they felt his pleas were knowingly, intelligently, and voluntarily entered. The defendant confirmed that he still wished to plead guilty after "knowing all the rights that [he would] give up by pleading guilty." The trial court then accepted the defendant's pleas.
It is well settled that the withdrawal of a guilty plea is within the discretion of the trial court and is subject to reversal only if that discretion is abused or arbitrarily exercised. See State v. Johnson, 406 So.2d 569, 571 (La. 1981); Robinson , 275 So.3d at 946. Herein, the trial court made a careful assessment of the voluntariness of the defendant's pleas. Based upon our review of the record, we cannot say that the trial court abused its discretion in denying the defendant's motion to vacate his guilty pleas. We find no merit in assignment of error number one.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, the defendant argues that he received ineffective assistance from his trial counsel. He first notes that his trial counsel did not object to the trial court's determination that he was competent, despite his constitutional right not to be tried while incompetent. He further contends that his trial counsel failed to file discovery motions, to interview the doctors of the sanity commission after they conducted their evaluation of the defendant, failed to submit his medical records to the trial court for review, and failed to recognize the viability of an insanity defense at trial. He contends that the evaluations by Dr. Matherne and Dr. Eschete were evidence of his mental incompetence prior to and during the trial process.
The defendant lists several examples in further claiming that his VA records paint a "very disturbing and horrid picture of [his] mental state" during his hospitalization at the VAMC. The defendant notes that he had new counsel after his pleas and sentencing, at which point his VA medical records were first submitted to the trial court for in camera review. He argues it "shocks the conscious" that his trial counsel filed motions to amend his plea and to appoint a sanity commission but failed to review and thereafter submit his VA records to the trial court for review and allowed him to enter into a plea agreement. Citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant claims the cumulative effect of his trial counsel's deficiencies resulted in a total breakdown of the adversarial process.
Under the two-part test of Strickland v. Washington, to support a claim of ineffective assistance of counsel, the defendant must show (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Fuller, 454 So.2d 119, 125 n.9 (La. 1984). Counsel's performance is deficient when it can be shown that he made errors so serious that he was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In the context of a guilty plea, the "prejudice" component requires the defendant to prove that, but for counsel's erroneous advice, he would have elected to go to trial rather than plead guilty. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); State v. Crawford, 2015-0784 (La. 10/2/15), 176 So.3d 394, 395 (per curiam), cert, denied, 577 U.S. 1220, 136 S.Ct. 1454, 194 L.Ed.2d 557 (2016); State v. Cheatham, 2016-1648 (La.App. 1st Cir. 6/2/17), 222 So.3d 757, 760. A claim of ineffective assistance of counsel is generally relegated to postconviction relief unless the record permits definitive resolution on appeal. State v. Bright, 98-0398 (La. 4/11/00), 776 So.2d 1134, 1157. Decisions relating to investigation, preparation, and strategy cannot possibly be reviewed on appeal. Robinson , 275 So.3d at 946; State v. Tingle, 2012-1928 (La.App. 1st Cir. 6/7/13), 2013 WL 2484316, at *7 (a claim of ineffective assistance of counsel during plea bargaining may challenge counsel's decisions relating to investigation, preparation, and strategy, which cannot be reviewed on appeal).
Herein, the attorneys representing the defendant prior to his pleas assured the trial court that the defendant had been fully advised regarding his rights and the consequences of his pleas and that the defendant fully understood the same. After reviewing the record before us, we do not find that it permits definitive resolution on appeal. Considering the nature of the defendant's claims of ineffective assistance of counsel, we find they are more properly reserved for an application for postconviction relief, subject to the requirements of Louisiana Code of Criminal Procedure articles 924 through 930.9. Assignment of error number two is without merit or is otherwise not subject to appellate review herein. See Tingle, 2013 WL 2484316, at *7 ("Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond what is contained in the [appellate] record, could these allegations be sufficiently investigated.").
Accordingly, the defendant's convictions and sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.