State of Louisiana v. Terrance Anderson

• Court: Louisiana Court of Appeal
• Decided: October 15, 2014
• Docket: KA-0014-0187
• Status: Unknown

Opinion

NOT FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-187

STATE OF LOUISIANA

VERSUS

TERRANCE WAYNE ANDERSON

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

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 09-237622 HONORABLE JOHN E. CONERY, DISTRICT JUDGE

SYLVIA R. COOKS JUDGE

Court composed of Sylvia R. Cooks, J. David Painter, and Phyllis M. Keaty, Judges.

CONVICTION AFFIRMED. SENTENCE VACATEDAND REMANDED FOR RESENTENCING. MOTION TO WITHDRAW DENIED.

J. Phillip Haney District Attorney - 16th JDC 415 S. Main Street, 200 Courthouse St. Martinville, LA 70582 (337) 394-2220 COUNSEL FOR APPELLEE: State of Louisiana

Edward J. Marquet Louisiana Appellate Project P.O. Box 53733 Lafayette, LA 70505-3733 (337) 237-6841 COUNSEL FOR APPELLANT: Terrance Wayne Anderson COOKS, Judge.

On January 15, 2010, Defendant, Terrance Anderson, was charged by bill of

information with one count of illegal possession of stolen things valued over

$500.00, a violation of La.R.S. 14:69B(1). On February 23, 2010, Defendant

entered a plea of not guilty to the charge. On March 14, 2011, pursuant to a plea

agreement with the State, Defendant entered a guilty plea to unauthorized use of a

movable. During the same plea proceeding, Defendant also pled guilty to several

charges filed in other docket numbers – two counts of possession of cocaine,

another count of unauthorized use of a movable, and one count of aggravated flight

from an officer. The trial court ordered a certified criminal history and then set the

matter for sentencing on June 2, 2011. On that date, the trial court imposed the

following sentences: 1) aggravated flight from an officer (this court’s docket

number 13-811) – two years at hard labor; 2) unauthorized use of a movable (this

court’s docket number 14-187) – five years at hard labor, consecutive; 3)

possession of cocaine (this court’s docket number 13-810) – five years at hard

labor, consecutive; 4) possession of cocaine (this court’s docket number 13-809) –

five years at hard labor, concurrent; and 5) unauthorized use of a movable (this

court’s docket number 14-186) – five years at hard labor, concurrent. The trial

court then stated Defendant was to serve a total of twelve years at hard labor.

On June 10, 2011, the Defendant’s attorney filed a Motion to Reconsider

Sentence. Then, on June 27, 2011, Defendant filed a pro se Motion for Sentence

Reconsideration. At a Motion to Reconsider hearing held on March 16, 2012, the

trial court amended the sentence imposed on aggravated flight from an officer to

two years at hard labor to run concurrently with all other charges. By amending

the sentence, the trial court reduced the net effect of Defendant’s sentences from

1 twelve years on all counts to ten years on all counts, and the trial court

recommended Defendant for the IMPACT Program.

On April 9, 2012, Defendant filed a Motion for Appeal and Withdrawal as

Counsel of Record for Appeal in all five docket numbers. The Motion for Appeal

stated that Defendant desired to appeal his sentence. On that same date,

Defendant filed a Motion and Order to Clarify and/or Amend Sentence, asking the

trial court to reduce the ten year sentence to seven years so that he would be

eligible for the IMPACT program. The trial court granted the appeals of

Defendant’s sentences on April 13, 2012, and ordered trial counsel to remain

counsel of record for purposes of the Motion and Order to Clarify and Amend

Sentence. Subsequently, on June 19, 2012, the trial court ordered the sentence in

the present docket number to remain the same.

Pursuant to several information requests to the St. Martin Parish Clerk of

Court, this court learned all of the minute entries were not submitted in the original

appellate records. Thus, on April 11, 2014, we sent an information request to the

St. Martin Parish Clerk of Court for all minute entries and pleadings pertaining to

this docket number. According to a minute entry dated May 24, 2013, Defendant’s

case went before the trial court on a Motion to Correct Illegal Sentence. The

matter was continued until June 11, 2013. A minute entry dated June 11, 2013,

states the case went before the court on a Motion to Correct Illegal Sentence but

was reset for June 27, 2013. Another minute entry dated June 11, 2013, states that

the case went before the court on a Motion to Correct Illegal Sentence but was

continued without date due to the nonappearance of Defendant’s attorney.

Finally, one of the supplemental records revealed that on June 27, 2013, the

matter went before the trial court on a Motion to Reconsider and Amend Sentence.

According to the minute entry, the trial court, on joint motion of the parties, 2 amended the previously imposed sentences to order all sentences to run

concurrently with each other. According to the transcript of the June 27, 2013,

hearing, the matter before the court was a Motion to Reconsider Sentence based on

the discontinuance of the Boot Camp program. The trial court stated that pursuant

to a joint recommendation, “[a]ll sentences remain the same as to the amount of

time imposed, but they should run concurrently with one another and with each

other’s docket number.” The trial court stated it was its intention that Defendant

would receive a five-year hard labor sentence. The trial court also recommended

all of the programs for which Defendant is eligible as noted in the written

Judgment on the Amended Sentence signed that same date.

The present appeal lodged in this court on February 12, 2014, and Defendant

filed a brief on March 18, 2014 concerning the conviction and sentence on one of

the charges of unauthorized use of a movable. Defendant’s appellate counsel filed

a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

alleging the record contained no non-frivolous issues for appeal and requested this

court grant his accompanying Motion to Withdraw. On March 20, 2014,

Defendant was advised, via certified mail, that counsel filed an Anders brief and he

would be given until April 21, 2014, to file a pro se brief. In light of the filing of

supplemental records after appellate counsel’s original Anders brief was filed, this

court issued an order on May 5, 2014, ordering appellate counsel to file a new brief

in light of the supplemental records. On May 30, 2014, appellate counsel filed a

second Anders brief and requested this court grant his accompanying motion to

withdraw. On June 3, 2014, Defendant was advised, via certified mail, that

counsel filed a second Anders brief and that he was given until June 30, 2014, to

file a pro se brief. As of this date, no pro se brief has been filed.

3 Before the court are five separate appeals with five separate docket numbers.

Because of an illegality in the sentences discovered by this court in its error patent

review, we deny appellate counsel’s motion to withdraw in each case and remand

each case for resentencing in accordance with this opinion. Defendant’s

convictions in each case, however, are affirmed.

FACTS

The following factual basis was submitted by the State at Defendant’s guilty

plea:

Your Honor, in Docket No. 09-237,622 Mr. Anderson did use a movable which belonged to a Mr. Cody Huval, that movable being an Arctic Cat four-wheeler. That occurred in the city of Breaux Bridge, parish of St. Martin, and it was without the consent of Mr. Huval.

Again, that is Revised Statutes 14:68 and carries a penalty of zero (0) to five (5) 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 one

error patent that requires the sentences in each case be vacated and the case

remanded for resentencing.

The sentences orally pronounced by the trial court at the June 27, 2013,

resentencing conflict with the sentences set forth in the written Judgment on

Amended Sentence rendered that same date. At the oral pronouncement of

Defendant’s sentence, the trial court stated, “We recommend all the programs that

he is eligible for in the Department of Public Safety & Corrections as noted in the

Judgment on the Amended Sentence which has been agreed to by the State, and I

will sign at this time.” (emphasis added). In the written Judgment on Amended

4 Sentence, however, the trial court ordered (rather than recommended) the

following:

 Defendant to be immediately transferred to, enrolled in, complete, and graduate from an in-patient program for substance abuse and, if available, psychiatric treatment from the Acadiana Recovery Center in Lafayette, Louisiana.

 The Acadiana Recovery Center to immediately admit Defendant, make a bed available for Defendant, and admit Defendant into its in-patient program for substance abuse and, if available, psychiatric treatment.

 Defendant’s participation in the Acadiana Recovery Center to be considered as time served.

 Defendant be transported from Elayn Hunt Correctional Center (or any other correctional center to which he may be assigned) to Acadiana Recovery Center.

 Defendant be immediately returned to David Wade Correctional Center after graduating from his rehabilitation program for calculation of the total time remaining on his sentence.

 Defendant be immediately returned to David Wade Correctional Center if he does not graduate or withdraws, for any reason, from the rehabilitation program for calculation of the total time remaining on his sentence.

 Defendant be treated by a health care provider in the area for mental illness, regularly attend behavioral treatment by a psychologist, therapist, and/or psychiatrist for a minimum of six months.

Although the trial court’s oral recommendation that Defendant be placed in

all of the programs for which he is eligible was something it had authority to do,

the trial court’s written order that Defendant be placed in specific programs and

facilities was a violation of La.R.S. 15:824(A). That statute provides that any

individual subject to confinement in a state adult penal or correctional institution

shall be committed to the Department of Public Safety and Corrections and not to

any particular institution within the jurisdiction of the department. As the supreme

5 court noted in State v. Blue, 315 So.2d 281, 282 (La.1975), a defendant sentenced

to hard labor is “committed” to the custody of the Department of Corrections.

La.R.S. 15:824(C). Once in the custody of the Department of Corrections, “the

physical placement of prisoners [is] within the jurisdiction of the DOC alone.”

State v. Sylvester, 94-2343, p. 5 (La.App. 4 Cir. 12/15/94), 648 So.2d 31, 33.

Thus, it is improper for the trial judge to designate physical placement of a

defendant committed to the custody of the Department of Corrections.

In Blue, the supreme court found the trial court improperly designated the

placement of a defendant in the Louisiana State Penitentiary (rather than DOC)

when the defendant had been sentenced to hard labor. Because of the error, the

supreme court remanded the case for resentencing. Id. Similarly, in State v.

Welch, 07-1401 (La.App. 3 Cir. 4/30/08) (unpublished opinion),1 this court found

the trial court improperly ordered the Department of Corrections to place the

defendant in the St. Gabriel Women’s Correctional Facility. As did the supreme

court in Blue, this court in Welch set aside the sentence and remanded for

resentencing. Id. at p. 2.

Likewise, we find the sentences imposed in each of the present cases should

be set aside and the cases remanded for resentencing. We recognize that an oral

pronouncement, not a written judgment of sentence, is required by La.Code

Crim.P. art. 871. State v. Sebastien, 31,750 (La.App. 2 Cir. 3/31/99), 730 So.2d

1040, writ denied, 99-1426 (La. 10/29/99), 748 So.2d 1157. Thus, this court

could find, as did the second circuit in Sebastien, that “[d]iscrepancies between a

written judgment and the sentencing transcript should be resolved in favor of the

oral sentence reflected in the sentencing transcript.” Id. at 1048 (citing State v.

Boyte, 571 So.2d 722 (La.App. 2 Cir. 1990). By making this finding, remand for 1 This case is cited at 2008 WL 1897721. 6 resentencing would not be necessary as the oral pronouncement by the trial court

only recommended Defendant’s participation in all programs for which he is

eligible. We find, however, that resentencing is the appropriate course of action to

take in this case. It is clear that when the trial court orally pronounced sentence,

the written Judgment on the Amended Sentence had already been prepared and, in

fact, was signed by the trial court at that time. According to the written Judgment

on Amended Sentence, “counsel for the State and Defendant [had] intensely

discussed the matter at issue . . . and desire[d] to settle said issue amicably, without

the need for any further judicial proceedings. . . .” Thus, the sentencing judge, the

prosecutor, and defense counsel clearly intended that Defendant receive services

that would lead him to rehabilitation, and they knew these services were available

at the Acadiana Recovery Center. Had the trial court known it could not

specifically designate the institution where Defendant would be placed, it is

possible he may have imposed a different sentence. For these reasons, we vacate

the sentences imposed in each case and remand for resentencing in accordance

with this opinion.

ANDERS ANALYSIS

Pursuant to Anders, Defendant’s appellate counsel alleges that he 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 7 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.

While it is not necessary for Defendant’s appellate counsel to “catalog

tediously every meritless objection made at trial or by way of pre-trial motions

with a labored explanation of why the objections all lack merit[,]” counsel’s

Anders brief must “‘assure the court that the indigent defendant’s constitutional

rights have not been violated.’ McCoy [v. Court of Appeals of Wisconsin, 486 U.S.

[429] at 442, 108 S.Ct. [1895] at 1903 [(1988)].” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241. Counsel must fully discuss and analyze the trial

record and consider “whether any ruling made by the trial court, subject to the

contemporaneous objection rule, had a significant, adverse impact on shaping the

evidence presented to the jury for its consideration.” Id. (citing United States v.

Pipper, 115 F.3d 422, 426 (7th Cir. 1997). Thus, counsel’s Anders brief must

review the procedural history and the evidence presented at trial 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 his original Anders brief, appellate counsel pointed out that Defendant

pled guilty after being explained his constitutional rights. Additionally, appellate

counsel noted that Defendant agreed that no one threatened him or promised him

anything in exchange for pleading guilty. The trial court accepted Defendant’s

8 guilty pleas and found each to be free and voluntary with a complete understanding

and waiver of all constitutional rights.

Finally, in his original Anders brief, appellate counsel asserted the sentence

imposed for unauthorized use of a movable, five years at hard labor, could not

reasonably be argued as excessive. Appellate counsel based this assertion on the

fact that for all five counts, Defendant received a total sentence of ten years at hard

labor. This sentence, appellate counsel noted, had been reduced from twelve years

to ten years pursuant to a Motion to Reconsider Sentence filed by Defendant.

Appellate counsel further noted Defendant has a significant criminal history –

simple robbery and several arrests. In his most recent Anders brief, appellate

counsel again asserts that the sentence imposed is not excessive in “view of the

fact that the defendant’s total sentence on all the charges to which he pled guilty

was reduced to five (5) years . . . .”2

Pursuant to Anders, 386 U.S. 738, and Benjamin, 573 So.2d 528, we have

performed a thorough review of the record, including pleadings, minute entries, the

charging instrument, and the transcripts. Defendant was properly charged in the

bill of information, and he was present and represented by counsel at all crucial

stages of the proceedings. Additionally, Defendant entered a free and voluntary

plea after he was advised of his rights in accordance with Boykin v. Alabama, 395

U.S. 238, 89 S.Ct. 1709 (1969). Defendant pled guilty to unauthorized use of a

movable, a crime different than the two charges for which he was originally

charged – illegal possession of stolen things and aggravated flight from an officer.

Although the record contains no amendment to the bill of information, the trial

court stated at the June 2, 2011, sentencing that the aggravated flight from an

2 We note that Defendant’s “total sentence” was not reduced to five years as contended by appellate counsel. Rather, the “net effect” of the sentences was reduced to five years because of the trial court’s order that all sentences run concurrently. 9 officer charge had been dropped and Defendant pled guilty to the amended charge

of unauthorized use of a movable. According to the supreme court, the district

court retains jurisdiction to accept a defendant’s knowing and voluntary guilty plea

even if the offense to which the defendant pleads is not responsive to the original

charge, and the State fails to amend the bill of information to conform to the plea.

State v. Jackson, 04-2863 (La. 11/29/05), 916 So.2d 1015.

After questioning Defendant as to whether anyone had threatened him or

promised him anything to get him to plead guilty, the trial court advised him of his

right to an attorney, his right to a trial by jury, his right to confront his accusers,

and his right to remain silent. The trial court also made sure Defendant was aware

of his right to have the State prove its case against him and his right to subpoena

witnesses to testify on his behalf. The trial court accepted each of Defendant’s

guilty pleas, finding that they were all freely and voluntarily entered with a

complete understanding and waiver of constitutional rights.

Finally, this court has previously addressed the legality of the sentences

imposed. As discussed in the error patent section, we find the sentences imposed

in each case must be vacated and the case remanded for resentencing in accordance

with this opinion. Since Defendant must be represented at resentencing, defense

counsel’s Motion to Withdraw is denied. See State v. White, 08-838 (La.App. 3

Cir. 12/11/08) (unpublished opinion).3

Accordingly, after conducting an Anders review, this court affirms

Defendant’s conviction for unauthorized use of a movable. The sentence,

however, is vacated based on the error patent discussed above, and the case is

remanded for resentencing in accordance with this opinion. Because Defendant

3 This case is cited at 2008 WL 5191845. 10 must be represented at the resentencing, appellate counsel’s Motion to Withdraw is

denied.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING. MOTION TO WITHDRAW DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules–Courts of Appeal, Rule 2-16.3.