State of Louisiana v. Paul E. Wilson

• Court: Louisiana Court of Appeal
• Decided: October 3, 2007
• Docket: KA-0007-0365
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-365

STATE OF LOUISIANA

VERSUS

PAUL E. WILSON

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2926-04 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Michael G. Sullivan, Judges.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

John F. DeRosier District Attorney Post Office Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana

G. Paul Marx Post Office Box 82389 Lafayette, LA 70598 (337) 237-2537 COUNSEL FOR DEFENDANT/APPELLANT: Paul E. Wilson AMY, Judge.

The defendant was charged by bill of information with aggravated second

degree battery in violation of La.R.S. 14:34.7. He pled guilty to the amended charge

of aggravated battery in violation of La.R.S. 14:34.1 The defendant was sentenced

to five years with the Department of Corrections, to run consecutively to any sentence

he was currently serving in Texas. The trial court denied his motion to reconsider

sentence. The defendant now appeals.

Appellate counsel has filed an Anders brief in this matter. For the following

reasons, we affirm and grant appellate counsel’s motion to withdraw.

Discussion

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 two errors

patent.

First, the face of the bill of information indicates that the defendant was

originally charged with one count of aggravated second degree battery occurring on

or about September 7, 2000, a violation of La.R.S. 14:34.7. The State amended the

bill to charge the defendant with aggravated battery occurring on or about “10-22-98

and September 7, 2000” and listed the victim as Michael Berry. It appears that the

bill charged two distinct crimes in a single count. Louisiana Code of Criminal

Procedure Article 493 allows for the joinder of two or more offenses in the same bill

in a separate count for each offense if certain requirements are met. Here, the bill

indicates that these incidents occurred two years apart. Therefore, we find that the

1 According to the facts adduced at the guilty plea proceedings, on October 28, 1998, the defendant approached Michael Berry and demanded money. Berry threw money on the ground, and the defendant stabbed him in the chest. Additionally, on September 7, 2000, the defendant went to the home of George Colton and stabbed him in the chest. inclusion of the two distinct crimes in one count of the bill was error; however, for

the reasons discussed below, we find that any error was waived.

This court in State v. Simpson, 464 So.2d 1104, 1109 (La.App. 3 Cir. 1985),

defined duplicity as “the charging of more than one distinct crime in one count of an

indictment.” The fourth circuit, in a case in which the indictment improperly charged

the defendant disjunctively rather than conjunctively, held that a claim that an

indictment is duplicitous is not a jurisdictional defect and is waived if not timely

asserted in a motion to quash. State v. Defraites, 449 So.2d 540 (La.App. 4 Cir.), writ

denied, 452 So.2d 179 (La.1984). Here, no motion to quash was filed. Additionally,

when the defendant entered his guilty plea, he waived any pre-plea non-jursidictional

defects. Thus, we find any error was waived.

Second, the bill does not contain the statutory citation for aggravated battery,

the amended offense as required by La.Code Crim.P. art. 464. Article 464 also

provides: “Error in the citation or its omission shall not be ground for dismissal of the

indictment or for reversal of a conviction if the error or omission did not mislead the

defendant to his prejudice.” Here, the defendant does not allege any prejudice

because of the missing citation. Further, by entering an unqualified guilty plea, the

defendant waived review of this pre-plea non-jurisdictional defect. See State v.

Crosby, 338 So.2d 584 (La.1976).

Anders Brief

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), the

defendant’s appellate counsel has filed an Anders brief stating that he could find no

errors on appeal that would support reversal of the defendant’s conviction or

sentence. Therefore, counsel seeks to withdraw.

2 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 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 performed a thorough review of the

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

transcripts. As discussed in the error patent section, review of any errors in the bill

of information was waived. See Crosby, 338 So.2d 584. The defendant was present

and represented by counsel at all critical stages of the proceedings, and he entered a

free and voluntary guilty plea after being properly advised of his rights in accordance

with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). The defendant also

received a legal sentence.

Accordingly, we affirm the defendant’s conviction and sentence. Finding no

issues which would support an assignment of error on appeal, we grant appellate

counsel’s motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.