NOT FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT 13-811
STATE OF LOUISIANA VERSUS TERRANCE WAYNE ANDERSON ************
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 10-238263 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 August 4, 2010, Defendant, Terrance Wayne Anderson, was charged by bill of information with one count of aggravated flight from an officer, a violation of La.R.S. 14:108.1(C). On September 1, 2010, Defendant entered a plea of not guilty to the charge. Thereafter, on March 14, 2011, Defendant pled guilty plea to aggravated flight from an officer and several other charges – two counts of possession of cocaine and two counts of unauthorized use of a movable. 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.
Pursuant to a Motion to Reconsider Sentence filed by Defendant 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 he desired to appeal his sentences. On that same date, Defendant filed a Motion and Order to Clarify and/or Amend Sentence, asking the
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trial court to reduce his sentences to seven years so that he will 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 sentence in the current docket number 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 the case went before the court on a Motion to Clarify or Amend Sentence but was reset for June 27, 2013. Another minute entry dated June 11, 2013, indicates 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 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
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docket number.” The trial court stated its intention was that Defendant would receive a five year hard labor sentence. The trial court recommended all of the programs for which Defendant was eligible as noted in the written Judgment on the Amended Sentence signed that date.
The present appeal lodged in this court on July 16, 2013, and the Defendant filed a brief on September 3, 2013 concerning aggravated flight from an officer. 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 that 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 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 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 filed 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.
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FACTS
The following factual basis was submitted by the State in support of Defendant’s guilty plea to aggravated flight from an officer:
Your Honor, in Docket No. 10-238,263 on or about the date alleged in the Bill of Information, the Breaux Bridge City Police Department, specifically Patrolman Daniel Abadie, located a green Chevy truck bearing Louisiana tag number X368690, which had been involved in an unauthorized use complaint earlier in that day. Officer Abadie thereafter put on his emergency lights and sirens and attempted to stop Mr. Anderson. Mr. Anderson then left or conducted high-speed chase with Officer Abadie running several red lights, running several stop signs, and in fact when he was on Dajereau Road, which is located here in St. Martin Parish, he did pass up or went through a school bus that had been stopped. Its stop signs had been extended and his lights were on. He went right through there without stopping, thereby committing the crime aggravated flight.
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 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 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.
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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 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.
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Thus, it is improper for the trial court 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.
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 resentencing would not be necessary as the oral pronouncement by the trial judge 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 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
1 This case is cited at 2008 WL 1897721.
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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 for Defendant to 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 it 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:
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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. [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
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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 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
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.
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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 Accordingly, after conducting an Anders review, this court affirms Defendant’s conviction for aggravated flight from an officer. 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.
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This case is cited at 2008 WL 5191845.