State of Louisiana v. Terrance Wayne Anderson

• Court: Louisiana Court of Appeal
• Decided: October 15, 2014
• Docket: KA-0013-0810
• Status: Unknown

Opinion

NOT FOR PUBLICATION STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-810

STATE OF LOUISIANA

VERSUS

TERRANCE WAYNE ANDERSON

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

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 10-239290 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 VACATED AND 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 November 9, 2010, Defendant, Terrance Wayne Anderson, was charged

by bill of information with one count of possession of cocaine, a violation of

La.R.S. 40:967(C). On January 3, 2011, Defendant pled not guilty to the charge.

Thereafter, on March 14, 2011, Defendant entered a guilty plea to possession of

cocaine and several other charges – two counts of unauthorized use of a movable,

another count of possession of cocaine, and 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 13-

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.

After Defendant filed a pro se Motion for Sentence Reconsideration and his

attorney filed a Motion to Reconsider Sentence, on March 16, 2012, the trial court

amended the sentence imposed on aggravated flight from an officer to run

concurrently with all other charges. By amending the sentence, the trial court

reduced the net effect of Defendant’s sentences from twelve years on all counts to

ten years on all counts, and the trial court recommended him 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. In the Motion for

Appeal, Defendant stated that he desired to appeal his sentences. On that same 2 date, Defendant filed a Motion and Order to Clarify and/or Amend Sentence,

asking the trial court to reduce the sentences to seven years so 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 to Clarify and/or Amend Sentence. Subsequently, on

June 19, 2012, the trial court ordered the sentences to remain the same.

Pursuant to an information request to the St. Martin Parish Clerk of Court,

this court learned that the original appellate record did not contain all of the minute

entries and pleadings related to this case. Thus, this court requested the St. Martin

Parish Clerk of Court supplement the original appellate record with all minute

entries and pleadings pertaining to this docket number. One of the supplemental

records revealed that on May 24, 2013, Defendant’s case again went before the

trial court on a Motion to Correct Illegal Sentence. The matter was continued until

June 11, 2013. A minute entry for June 11, 2013, states that the case went before

the court on a Motion to Reconsider 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,

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

receive a five-year hard labor sentence. The trial court recommended all of the

programs for which Defendant was eligible as noted in the Judgment on the

Amended Sentence signed that date.

The present appeal lodged in this court on July 16, 2013, and Defendant

filed a brief on September 3, 2013 concerning the conviction and sentence on one

of the charges for possession of cocaine. 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 September 6, 2013,

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

was given until October 7, 2013, to file a pro se brief. Due to the district court’s

failure to timely submit all records associated with this appeal, the case was not

placed on an appellate docket until the May 2014 docket. Additionally, this court

made numerous requests for supplemental records due to missing information. 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 another 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 an 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.

Before the court are five separate appeals in 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. 4 FACTS

The following factual basis was set forth by the State at the guilty plea

proceeding:

Your Honor, under Docket No. 10-239,290 on or about the date alleged in the Bill of Information, specifically September 16 th, 2010, the St. Martin Parish Sheriff’s Office was working in Breaux Bridge, Louisiana. Agent Brad LeBlanc observed a vehicle failing to stop at a stop sign. He activated his emergency red lights and pulled the vehicle into the parking lot of Food-N-Fun, which is the corner of Berard and Mills Avenue in Breaux Bridge, Louisiana. Mr. Anderson began acting nervously. He granted the officer permission to search his person and the vehicle, and in the vehicle he located a small bag of cocaine, powder cocaine.

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 requiring the sentences be vacated and 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

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.

5  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 for the remainder of his sentence if he does not graduate or withdraws, for any reason, from the rehabilitation program.

 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

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) 6 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.

Likewise, we find the sentences imposed in the 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 and 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

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

1 This case is cited at 2008 WL 1897721. 7 that would lead him to rehabilitation, and they knew these services were available

at the Acadiana Recovery Center. Had the trial judge known he 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 he made a

conscientious and thorough review of the trial court record and could find no errors

on appeal that would support reversal of 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 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. 8 [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 Anders brief, appellate counsel points out that Defendant pled guilty

after being explained his constitutional rights. Additionally, appellate counsel notes

Defendant agreed that no one threatened him or promised him anything in

exchange for pleading guilty. The trial court accepted Defendant’s 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 that the

sentence imposed for possession of cocaine, five years at hard labor, could not

reasonably be argued as excessive. Appellate counsel based his 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 that 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

9 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). After questioning Defendant as to whether anyone

had threatened him or promised him anything to get him to plead guilty, the trial

court advised Defendant 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 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 each 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

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.

3 This case is cited at 2008 WL 5191845. 10 Accordingly, after conducting an Anders review, this court affirms

Defendant’s conviction for possession of cocaine. 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 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.