State of Louisiana v. Aubry Richard Sanders

• Court: Louisiana Court of Appeal
• Decided: October 6, 2010
• Docket: KA-0010-0247
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-246

consolidated with

10-247

VERSUS

AUBRY RICHARD SANDERS

On Appeal from the Ninth Judicial District Court, consolidated Docket

Numbers 295,231 and 295,232, Parish of Rapides, State of Louisiana, Honorable

John C. Davidson, District Judge.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel and

the appeals presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate defense counsel’s motion to

withdraw is granted.

THUS DONE AND SIGNED this _____ day of September , 2010.

_______________________________ Chief Judge Ulysses Gene Thibodeaux

_________________________________ Judge Oswald A. Decuir

_________________________________ Judge James T. Genovese STATE OF LOUISIANA

****************

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NOS. 295,231 AND 295,232 HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and James T. Genovese, Judges.

CONVICTIONS AND SENTENCES A FF IRMED WI TH INSTRUCTI ONS . MOTION TO WITHDRAW GRANTED.

James C. “Jam” Downs District Attorney – Ninth Judicial District Loren M. Lampert Assistant District Attorney Post Office Box 1472 Alexandria, Louisiana 71309 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana Peggy J. Sullivan Louisiana Appellate Project Post Office Box 2806 Monroe, Louisiana 71207-2806 (318) 387-6124 COUNSEL FOR DEFENDANT/APPELLANT: Aubry Richard Sanders GENOVESE, Judge.

Defendant, Aubrey Richard Sanders, was charged by bill of information filed

on January 23, 2009, in docket number 295,231, with possession with intent to

distribute CDS I, marijuana, in violation of La.R.S. 40:966; he also was charged in

docket number 295,232, with possession of CDS III, hydrocodone, in violation of

La.R.S. 40:968, and possession of CDS V, codeine, in violation of La.R.S. 40:970.

Defendant entered pleas of not guilty in both docket numbers on March 27, 2009. On

April 22, 2009, the two docket numbers were consolidated.

On September 15, 2009, Defendant withdrew his former pleas of not guilty and

entered pleas of guilty to possession with intent to distribute CDS I, possession of

CDS III, and possession of CDS V. The trial court then sentenced Defendant to the

stipulated sentence of five years at hard labor on each count, to run concurrently, with

a recommendation that Defendant be allowed to enter the Boot Camp program.

A “Reconsideration of Sentence to Modify Sentence” was filed in both docket

numbers on October 16, 2009, which was denied. A motion for appeal was filed and

granted.

Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), in this matter. For the following reasons, we affirm with

instructions and grant counsel’s motion to withdraw.

FACTS:

No factual basis for the charged offenses was given.1

1 “[W]here a defendant does not assert his innocence in a ‘no contest’ plea or indicate he misunderstood the nature and consequences of that plea, the trial court does not err by failing to include a factual basis of the offense in the record.” State v. Valrie, 09-737, p. 2 (La.App. 3 Cir. 12/9/09), 25 So.3d 1018, 1019 (citations omitted). ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the records in docket numbers

10-246 and 10-247, we find there are no errors patent. However, the minutes of

sentencing in trial court docket number 295,232 (appellate court docket number 10-

247) do not accurately reflect the transcript of sentencing.

The minutes of the sentencing proceeding in docket number 295,232 provide

in pertinent part:

Court sentenced accused for POSSESSION CDS III. POSSESSION CDS V. Court sentenced accused to be committed to the Louisiana Department of Corrections. Accused to serve 005 Years(s). Sentence is to be served at Hard Labor.

The transcript of sentencing provides, in pertinent part (emphasis added):

BY THE COURT: Okay. And I will accept the stipulated sentence. It’s five years at hard labor on each count, concurrent, with a recommendation of Boot Camp.

“[I]t is well settled that when the minutes and the transcript conflict, the

transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62 (citations omitted).

Consequently, the trial court is ordered to correct the minutes of sentencing in trial

court docket number 295,232 to accurately reflect the transcript of sentencing.

ANDERS ANALYSIS:

Pursuant to Anders, 386 U.S. 738, Defendant’s appellate counsel has filed a

brief stating that she could not find any errors on appeal that would support a reversal

of Defendant’s convictions or sentences. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the court

explained the Anders analysis:

2 When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This 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 proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D)[,] this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin, we have performed a thorough review of the

record, including pleadings, minute entries, the charging instruments, and the

transcripts. Defendant was properly charged by bills of information, was present and

represented by counsel at all crucial stages of the proceedings, and entered free and

voluntary guilty pleas after properly being advised of his rights in accordance with

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, Defendant

received legal sentences.

We have found no issues which would support an assignment of error on

appeal. Therefore, counsel’s motion to withdraw is granted.

CONVICTIONS AND SENTENCES AFFIRMED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.