NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
12-380
VERSUS
BENJAMIN CALEB WIEMELT
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 298,608 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
BILLY H. EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy H. Ezell, and James T. Genovese, Judges.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED. THE DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS OF THE DATE OF THIS OPINION.
James C. Downs District Attorney, Ninth Judicial District Court Michael W. Shannon Assistant District Attorney Post Office Drawer 1472 Alexandria, LA 71309 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana Paula Corley Marx Louisiana Appellate Project P.O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 COUNSEL FOR APPELLANT: Benjamin Caleb Weimelt
Benjamin Caleb Weimelt, Pro Se Rapides Parish Detention Center III 7400 Academy Drive Alexandria, LA 71303 EZELL, Judge.
The Defendant, Benjamin Caleb Wiemelt, was charged by bill of information
filed on October 12, 2009, with carnal knowledge of a juvenile, a violation of La.R.S.
14:80. The Defendant entered a plea of not guilty on October 16, 2009. On May 10,
2012, the Defendant withdrew his former plea and entered a plea of guilty. He was
then sentenced to serve two years at hard labor and to pay a fine of $500.00.
On May 14, 2010, the Defendant filed a “Motion to Set Aside Guilty
Plea/Reconsider Sentence.” The Defendant pled anew to the same offense on June
14, 2010, and was sentenced, in accordance with a plea agreement, to serve five years
at hard labor. Four and one-half years of the sentence were suspended, and the
Defendant was placed on probation for five years. The Defendant’s probation was
revoked on January 5, 2012.
A motion for appeal was filed on January 17, 2012. Thereafter, the record was
lodged with this court, and an order issued on March 30, 2012, ordering the Defendant
to show cause why his appeal should not be dismissed, as the judgment at issue was
not an appealable judgment. Appellate counsel filed a response on April 20, 2012,
alleging the Defendant was seeking review of his conviction and sentence and not the
revocation of his probation, as probation revocations are subject to supervisory
review. Appellate counsel asked this court to consider the appeal as a notice of intent
to file a writ application and to allow the Defendant thirty days from the date of this
court’s ruling in his appeal to file his supervisory writ application. The Defendant
subsequently filed a pro se response to this court’s order and adopted appellate
counsel’s arguments. After considering the “Show Cause Brief” filed by appellate
counsel, this court withdrew its order on August 20, 2012. The Defendant’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no errors
to support a reversal of the Defendant’s conviction and sentence in this matter. On
December 6, 2012, the Defendant was advised that counsel filed an Anders brief. For
the following reasons, the Defendant’s conviction and sentence are affirmed, and
appellate counsel’s motion to withdraw is granted.
FACTS
The Defendant, who was seventeen years of age or older, engaged in
consensual sexual intercourse with an unmarried female who was thirteen years of age
or older but less than seventeen years of age, and the age difference between the two
was four or more years.
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 record, we find there are
no errors patent.
ANDERS ANALYSIS
Pursuant to Anders, Defendant’s appellate counsel has filed a brief stating she
has made a conscientious and thorough review of the trial court record and could find
no errors on appeal that would support reversal of the Defendant’s conviction or
sentence. Thus, counsel seeks to withdraw.
In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth
circuit explained the Anders analysis:
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
2 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.
Appellate counsel’s Anders brief must review the record and provide “a
detailed and reviewable assessment for both the defendant and the appellate court of
whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2
(La. 4/28/95), 653 So.2d 1176, 1177.
In her Anders brief, appellate counsel first considered an excessive sentence
claim. She notes the Defendant pled guilty in exchange for a specific sentence. Thus,
any claim that his sentence is excessive is procedurally barred in accordance with
La.Code Crim.P. art. 881.2(A)(2), which provides: “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.”
The plea form indicates the parties agreed that, in exchange for his plea, the
Defendant would receive the sentence imposed by the trial court on June 14, 2010.
Thus, any claim of excessiveness of sentence is barred.
Appellate counsel also considered the legality of the conditions of the
Defendant’s probation. As a condition of probation, the trial court ordered the
payment of a $500.00 fine and court costs by November 29, 2010, and ordered default
time in the amount of thirty days for failure to timely pay. Appellate counsel asserts
3 the default time should be deleted and the trial court instructed to make an entry in the
minutes reflecting this amendment.
In State v. Monette, 99-1870, p. 14 (La.App. 4 Cir. 3/22/00), 758 So.2d 362, the
defendant complained about fines imposed as a condition of her probation. The fourth
circuit noted her probation had been revoked, rendering the issue moot. Based on
Monette, any claim regarding default time is moot, as the Defendant’s probation was
revoked on January 12, 2012.
Pursuant to Anders and Benjamin, we have performed a thorough review of the
record, including pleadings, minute entries, the charging instrument, and the
transcripts.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
12-380
VERSUS
BENJAMIN CALEB WIEMELT
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 298,608 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
BILLY H. EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy H. Ezell, and James T. Genovese, Judges.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED. THE DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS OF THE DATE OF THIS OPINION.
James C. Downs District Attorney, Ninth Judicial District Court Michael W. Shannon Assistant District Attorney Post Office Drawer 1472 Alexandria, LA 71309 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana Paula Corley Marx Louisiana Appellate Project P.O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 COUNSEL FOR APPELLANT: Benjamin Caleb Weimelt
Benjamin Caleb Weimelt, Pro Se Rapides Parish Detention Center III 7400 Academy Drive Alexandria, LA 71303 EZELL, Judge.
The Defendant, Benjamin Caleb Wiemelt, was charged by bill of information
filed on October 12, 2009, with carnal knowledge of a juvenile, a violation of La.R.S.
14:80. The Defendant entered a plea of not guilty on October 16, 2009. On May 10,
2012, the Defendant withdrew his former plea and entered a plea of guilty. He was
then sentenced to serve two years at hard labor and to pay a fine of $500.00.
On May 14, 2010, the Defendant filed a “Motion to Set Aside Guilty
Plea/Reconsider Sentence.” The Defendant pled anew to the same offense on June
14, 2010, and was sentenced, in accordance with a plea agreement, to serve five years
at hard labor. Four and one-half years of the sentence were suspended, and the
Defendant was placed on probation for five years. The Defendant’s probation was
revoked on January 5, 2012.
A motion for appeal was filed on January 17, 2012. Thereafter, the record was
lodged with this court, and an order issued on March 30, 2012, ordering the Defendant
to show cause why his appeal should not be dismissed, as the judgment at issue was
not an appealable judgment. Appellate counsel filed a response on April 20, 2012,
alleging the Defendant was seeking review of his conviction and sentence and not the
revocation of his probation, as probation revocations are subject to supervisory
review. Appellate counsel asked this court to consider the appeal as a notice of intent
to file a writ application and to allow the Defendant thirty days from the date of this
court’s ruling in his appeal to file his supervisory writ application. The Defendant
subsequently filed a pro se response to this court’s order and adopted appellate
counsel’s arguments. After considering the “Show Cause Brief” filed by appellate
counsel, this court withdrew its order on August 20, 2012. The Defendant’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no errors
to support a reversal of the Defendant’s conviction and sentence in this matter. On
December 6, 2012, the Defendant was advised that counsel filed an Anders brief. For
the following reasons, the Defendant’s conviction and sentence are affirmed, and
appellate counsel’s motion to withdraw is granted.
FACTS
The Defendant, who was seventeen years of age or older, engaged in
consensual sexual intercourse with an unmarried female who was thirteen years of age
or older but less than seventeen years of age, and the age difference between the two
was four or more years.
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 record, we find there are
no errors patent.
ANDERS ANALYSIS
Pursuant to Anders, Defendant’s appellate counsel has filed a brief stating she
has made a conscientious and thorough review of the trial court record and could find
no errors on appeal that would support reversal of the Defendant’s conviction or
sentence. Thus, counsel seeks to withdraw.
In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth
circuit explained the Anders analysis:
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
2 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.
Appellate counsel’s Anders brief must review the record and provide “a
detailed and reviewable assessment for both the defendant and the appellate court of
whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2
(La. 4/28/95), 653 So.2d 1176, 1177.
In her Anders brief, appellate counsel first considered an excessive sentence
claim. She notes the Defendant pled guilty in exchange for a specific sentence. Thus,
any claim that his sentence is excessive is procedurally barred in accordance with
La.Code Crim.P. art. 881.2(A)(2), which provides: “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.”
The plea form indicates the parties agreed that, in exchange for his plea, the
Defendant would receive the sentence imposed by the trial court on June 14, 2010.
Thus, any claim of excessiveness of sentence is barred.
Appellate counsel also considered the legality of the conditions of the
Defendant’s probation. As a condition of probation, the trial court ordered the
payment of a $500.00 fine and court costs by November 29, 2010, and ordered default
time in the amount of thirty days for failure to timely pay. Appellate counsel asserts
3 the default time should be deleted and the trial court instructed to make an entry in the
minutes reflecting this amendment.
In State v. Monette, 99-1870, p. 14 (La.App. 4 Cir. 3/22/00), 758 So.2d 362, the
defendant complained about fines imposed as a condition of her probation. The fourth
circuit noted her probation had been revoked, rendering the issue moot. Based on
Monette, any claim regarding default time is moot, as the Defendant’s probation was
revoked on January 12, 2012.
Pursuant to Anders and Benjamin, we have performed a thorough review of the
record, including pleadings, minute entries, the charging instrument, and the
transcripts. Defendant was properly charged in a bill of information, was present and
represented by counsel at all crucial stages of the proceedings, and entered a free and
voluntary guilty plea after properly being advised of his rights in accordance with
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, the Defendant
received a legal sentence that was also in conformity with his plea agreement.
A review of the record has revealed no issues which would support an
assignment of error on appeal. Therefore, appellate counsel’s motion to withdraw is
granted. The Defendant may seek supervisory writs within thirty days of the date of
this decision seeking review of his probation revocation. The Defendant is not
required to file a notice of intent to seek writs nor must he obtain an order from the
trial court setting a return date, as is generally required by Uniform RulesCourts of
Appeal, Rule 4n3. We construe the motion for appeal as a timely-filed notice of
intent to seek a supervisory writ.
4 CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED. THE DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS OF THE DATE OF THIS OPINION.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform RulesCCourts of Appeal. Rules 2n16.3.
5 12-380
Plaintiff-Appellee
Defendant-Appellant
On Appeal from the Ninth Judicial District Court, Docket Number 298,608, Parish of Rapides, State of Louisiana, Honorable Patricia Evans Koch, Judge.
ORDER
After consideration of appellate counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter;
IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.
THUS DONE AND SIGNED this _____ day of _________________, 2013.
_________________________________ Judge Ulysses Gene Thibodeaux
_________________________________ Judge Billy H. Ezell
________________________________ Judge James T. Genovese