STATE OF LOUISIANA NO. 24-KA-293
VERSUS FIFTH CIRCUIT
SCOTT T SURGI COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 24-52, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
February 26, 2025
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Jude G. Gravois, John J. Molaison, Jr., and Timothy S. Marcel
AFFIRMED; REMANDED WITH INSTRUCTIONS JGG JJM TSM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler
COUNSEL FOR DEFENDANT/APPELLANT, SCOTT T. SURGI Bertha M. Hillman GRAVOIS, J.
Defendant, Scott T. Surgi, appeals his conviction and sentence for simple
burglary in violation of La. R.S. 14:62. Under the procedure adopted by this Court
in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,1
previously appointed appellate counsel filed a brief asserting that she thoroughly
reviewed the trial court record and could not find any non-frivolous issues to raise
on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704
So.2d 241 (per curiam), previously appointed appellate counsel filed a Motion to
Withdraw as Attorney of Record for defendant. However, prior to submission of
this appeal for decision, previously appointed appellate counsel for defendant and
newly appointed appellate counsel for defendant filed a Motion to Substitute newly
appointed appellate counsel for defendant in place of previously appointed
appellate counsel for defendant. The Motion to Substitute was granted by this
Court. This Court then denied previously appointed appellate counsel’s Motion to
Withdraw as Attorney of Record for defendant as moot. Newly appointed
appellate counsel for defendant has filed neither a brief on behalf of defendant, nor
a Motion to Withdraw as Attorney of Record for defendant.
For the following reasons, we affirm defendant’s conviction and sentence
and remand on errors patent review with instructions.
PROCEDURAL HISTORY
On January 5, 2024, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Scott T. Surgi, with simple burglary of a garage
located at 1004 Alura Avenue in Metairie belonging to Steven Crawford and/or
1 In Bradford, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).
24-KA-293 1 Maria White in violation of La. R.S. 14:62. Defendant pled not guilty at his
arraignment on January 8, 2024.
On February 28, 2024, defendant withdrew his not guilty plea and pled
guilty as charged. On that same date, the trial court sentenced defendant to the
Department of Corrections for two years in accordance with the plea agreement.
The transcript reflects that the trial judge also ordered the sentence to run
concurrently with the sentences in case numbers 22-5343, 23-4835, and 24-53.
Also on February 28, 2024, the State filed a habitual offender bill of
information alleging defendant to be a second-felony offender to which defendant
stipulated. On that same date, the trial judge vacated the original sentence and
resentenced defendant as a second-felony offender to seven years in the
Department of Corrections without the benefit of probation or suspension of
sentence. The trial judge waived all court costs, fines, and fees associated with the
instant case. On March 14, 2024, defendant filed a timely pro se motion for an
appeal that was granted on April 8, 2024.2
FACTS
Defendant entered a guilty plea, and therefore, the underlying facts were not
developed at a trial. However, during the colloquy, the prosecutor said that if the
case had proceeded to trial, the State would have proven that on or about
November 6, 2023, defendant violated La. R.S. 14:62, in that he committed a
simple burglary of a garage located at 1004 Allura Avenue3 in Metairie belonging
to Steven Crawford and/or Maria White. Additionally, defendant indicated that he
committed the crime.
2 Defendant has two companion cases, 24-KA-291 and 24-KA-292, pending in this Court. In all three cases, defendant pled guilty to simple burglary in violation of La. R.S. 14:62. 3 The State alleged in the bill of information that the offense occurred on Alura Avenue.
24-KA-293 2 ANDERS BRIEF
In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if counsel finds the appeal
to be wholly frivolous after a conscientious examination of it.4 The request must
be accompanied by “‘a brief referring to anything in the record that might arguably
support the appeal’” so as to provide the reviewing court “with a basis for
determining whether appointed counsel have fully performed their duty to support
their clients’ appeals to the best of their ability” and to assist the reviewing court
“in making the critical determination whether the appeal is indeed so frivolous that
counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440
(1988).
In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an
Anders brief need not tediously catalog every meritless pretrial motion or objection
made at trial with a detailed explanation of why the motions or objections lack
merit. The Supreme Court explained that an Anders brief must demonstrate by full
discussion and analysis that appellate counsel “has cast an advocate’s eye over the
trial record and considered 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.
When conducting a review for compliance with Anders, an appellate court
must conduct an independent review of the record to determine whether the appeal
is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review,
the reviewing court determines there are no non-frivolous issues for appeal, it may
grant counsel’s motion to withdraw and affirm the defendant’s conviction and
4 The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
24-KA-293 3 sentence. However, if the court finds any legal point arguable on the merits, it may
either deny the motion and order the court-appointed attorney to file a brief arguing
the legal point(s) identified by the court, or grant the motion and appoint substitute
appellate counsel. Id.
ANALYSIS
Defendant’s previously appointed appellate counsel asserted in the brief
filed on defendant’s behalf that after a detailed review of the record, she could find
no non-frivolous issues to raise on appeal. Counsel stated that during the plea
colloquy, the trial judge explained to defendant each of the rights necessary to
ensure a knowing and intelligent waiver of rights. The trial judge explained to
defendant that he had the right to a jury trial, to remain silent, to confront
witnesses, and to the presumption of innocence. Counsel averred that the trial
judge informed defendant that the State would be required to prove his guilt
beyond a reasonable doubt and that by tendering his plea, he was waiving his right
to appeal. Counsel also averred that the trial judge told defendant that if he was
arrested and convicted of subsequent offenses, this plea could be used to enhance
the penalty under the habitual offender law.
Counsel provided that the trial judge determined that defendant was aware of
the nature of the crime and understood the consequences of his plea. Counsel also
provided that the trial judge agreed to sentence defendant to a term of two years
and that she thereafter sentenced defendant in conformity with the plea agreement.
Counsel averred that the State filed a habitual offender bill of information in open
court, after which the trial judge explained the rights defendant would be waiving
by admitting he was a second-felony offender. Counsel further averred that the
trial judge informed defendant that the sentencing range under the habitual
offender bill was four to twenty-four years and that he would receive an enhanced
sentence of seven years. Counsel stated that the trial judge vacated the prior
24-KA-293 4 sentence and resentenced defendant to seven years in conformity with the plea
agreement.
Counsel asserted that the bill of information shows that defendant was
properly charged, that it plainly and concisely states the essential facts constituting
the offense charged, and that it sufficiently identified defendant and the crime
charged. Counsel maintained that the record reveals that there are no appealable
issues involving defendant’s presence, as he was present and represented by
counsel at all crucial stages of the proceedings, including his arraignment and
sentencing. Counsel submitted that the trial judge imposed the sentence in
conformity with the plea agreement. Accordingly, counsel acknowledged that
defendant is now restricted by law from appealing his conviction and sentence.
The State responds that appellate counsel correctly noted that this case
presents no non-frivolous issues for appellate review.
Previously appointed appellate counsel filed a motion to withdraw as
attorney of record for defendant, which states that counsel notified defendant of the
filing of this motion and of his right to file a pro se brief in this appeal.
Additionally, this Court sent defendant a letter by certified mail informing him that
an Anders brief had been filed and that he had until August 1, 2024 to file a pro se
supplemental brief. Defendant did not file a pro se supplemental brief.
Our independent review of the record supports previously appointed
appellate counsel’s assertion that there are no non-frivolous issues to be raised on
appeal. The bill of information properly charged defendant and plainly and
concisely stated the essential facts constituting the charged offense. It sufficiently
identified defendant and the crime charged. See La. C.Cr.P. arts. 464 and 466. As
reflected by the minute entries, defendant and his counsel appeared at all crucial
stages of the proceedings against him, including his arraignment, guilty plea
24-KA-293 5 proceedings, habitual offender stipulation, and sentencing. As such, defendant’s
presence did not present any issues that would support an appeal.
The record also indicates that defense counsel filed a Motion for Discovery
and Inspection and for Exculpatory Evidence for Defendant, which was not ruled
upon by the trial court prior to the time defendant entered his guilty plea.
However, defendant did not object to the trial court’s failure to do so. When a
defendant does not object to the trial court’s failure to hear or rule on a pretrial
motion prior to pleading guilty, the motion is considered waived. See State v.
Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.
Defendant pled guilty as charged to simple burglary, and he also stipulated
to being a second-felony offender. If a defendant pleads guilty, he normally
waives all non-jurisdictional defects in the proceedings leading up to the guilty
plea and precludes review of such defects either by appeal or by an application for
post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47
So.3d 455, 459. Once a defendant is sentenced, only those guilty pleas that are
unconstitutionally infirm may be withdrawn by appeal or by an application for
post-conviction relief. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924
So.2d 1120, 1124. A guilty plea is unconstitutionally infirm if it is not entered
freely and voluntarily, if the Boykin5 colloquy is inadequate, or when a defendant is
induced to enter the plea by a plea bargain, or what he justifiably believes was a
plea bargain, and that bargain is not kept. Id. Additionally, an unconditional plea,
willingly and knowingly made, waives any and all non-jurisdictional defects and
bars a defendant from later asserting on appeal that the State failed to produce
sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465 (La.
App. 5 Cir. 11/25/97), 704 So.2d 300, 304.
5 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
24-KA-293 6 Our independent review of the record reveals no unconstitutional infirmity
or any irregularity in defendant’s guilty plea that would render it invalid. The
record reflects that on February 28, 2024, defense counsel advised the trial judge
that defendant was going to plead guilty that day to simple burglary. The State
said that it would limit its prosecution in this matter to a double bill. During the
colloquy, defendant indicated that he was pleading guilty to simple burglary. The
trial judge advised defendant that by pleading guilty, he was giving up many rights,
including the right to a trial by a jury. The trial judge informed defendant that he
had the right to require that the State prove his guilt beyond a reasonable doubt and
the right to confront accusers, to cross-examine witnesses, and to compel testimony
on his own behalf. She also informed defendant that he had the right to remain
silent and not testify and that his silence would not be an inference of guilt. The
trial judge advised defendant that he had the right to appeal any adverse verdict
and the right to the assistance of an attorney. She stated that if defendant could not
afford an attorney, a free court attorney would be appointed. When asked if
defendant understood that he was waiving and giving up these rights if he entered
into a guilty plea, defendant replied affirmatively.
Defendant also indicated he understood that by pleading guilty, he was
authorizing the trial court to impose a penalty without having a trial. He
understood that if he was arrested and convicted of any subsequent offense, his
guilty plea could be used to enhance the penalty for that offense. Defendant
indicated that no one had made any promises or threats and that no one had
coerced him into entering a guilty plea. The prosecutor then provided a factual
basis for the offense, and defendant admitted that he had committed the crime to
which he was pleading guilty.
The trial judge then stated that she was satisfied that defendant was aware of
the nature of the crime to which he was pleading guilty, that defendant did in fact
24-KA-293 7 commit the crime, that he understood the consequences of his plea, that he was
voluntarily pleading guilty, and that there was a factual basis for the plea.
Therefore, the trial judge accepted defendant’s guilty plea.
Further, the waiver of rights form pertaining to the guilty plea reflects that
defendant was advised of his rights, including his right to a jury trial, his right to
confrontation, and his privilege against self-incrimination; that defendant placed
his initials next to the individual advisals of his rights; and that he placed his
signature at the end of the waiver of rights form, thus indicating that he understood
he was waiving those rights. The waiver of rights form also reflects that defendant
understood that he was pleading guilty to simple burglary, and it set forth the
actual sentence defendant would receive if he pled guilty. The trial judge found
that defendant made a knowing, intelligent, free, and voluntary act of pleading
guilty.
The trial judge subsequently sentenced defendant to two years in the
Department of Corrections and ordered that sentence to run concurrently with the
sentences in case numbers 22-5343, 23-4835, and 24-53. Afterwards, the State
filed a habitual offender bill of information alleging defendant to be a second-
felony offender to which defendant stipulated. An independent review of the
record reveals no unconstitutional infirmity in defendant’s stipulation to the
habitual offender bill.
The record reflects that defense counsel told the trial judge that he and
defendant had been presented with a copy of the habitual offender bill of
information and that he had a chance to review it himself and with defendant.
Defense counsel stated that he explained to defendant that he had the right to
proceed to a hearing. He further stated that defendant asked him to waive the
hearing and stipulate that he was a second-felony offender as alleged by the State
in the habitual offender bill.
24-KA-293 8 The trial judge responded that the State alleged that defendant was a second-
felony offender after having pled guilty to simple burglary on May 3, 2019. The
trial judge told defendant that it was her understanding that he waived his rights
and was stipulating to the habitual offender bill. Defendant responded
affirmatively. Defense counsel informed the trial judge that it did not sound like
defendant wanted to stipulate to the habitual offender bill. The trial judge then
asked defendant if he wanted to stipulate to the habitual offender bill, and
defendant responded that he wanted to stipulate because he had no choice. The
trial judge told defendant he did have a choice, and defendant thereafter indicated
he wanted to stipulate to the habitual offender bill.
The trial judge advised defendant that by “pleading guilty,” he was
acknowledging that he had the prior felony conviction, that he was a second-felony
offender, that he was giving up the right to plead “not guilty,” and that he was
giving up the right to have a hearing that would force the State to prove that he was
the same individual who had a prior felony record. The trial judge further advised
defendant that by “pleading guilty,” he was giving up the right to have the State
prove “that not more than five or ten years from a crime of violence or sex offenses
have elapsed since the expiration of the correctional supervision, the term of the
imprisonment if not placed on supervision following imprisonment or other
previous convictions.” The trial judge informed defendant that by “pleading
guilty,” he was also giving up the right to have the State prove that if any prior
convictions were a result of guilty pleas, that he was properly advised at that time
as to his right to a trial by jury, to confront and cross-examine witnesses, to remain
silent, and to not have his silence held against him. Defendant indicated that he
understood these rights.
The trial judge advised defendant that the sentencing range as a second-
felony offender was four to twenty-four years, and that the sentence he would
24-KA-293 9 receive would be seven years without the benefit of probation or suspension of
sentence. Defendant indicated he understood. He also indicated that he had not
been forced or coerced into entering into the stipulation. The trial judge informed
defendant that no application for post-conviction relief or other out-of-time appeal
would be considered if it was filed more than two years after the judgment of
conviction and sentence became final. Afterwards, the trial judge stated she was
going to accept the stipulation by defendant as having been knowing, intelligently,
and voluntarily made.
Further, the waiver of rights form reflects that defendant stipulated to being
a second-felony offender. It indicates that defendant was advised of his rights, the
sentencing range, and the actual sentence. The waiver of rights form reflects that
defendant placed his initials next to the individual advisals of his rights and that he
placed his signature at the end of the waiver of rights form, thus indicating that he
understood he was waiving those rights. The trial judge found that defendant made
a knowing, intelligent, free, and voluntary act of stipulating to the habitual offender
bill.
Finally, defendant’s sentences do not present any issues for appeal.
Specifically, defendant’s original and enhanced sentences are within the sentencing
ranges prescribed by the statutes. See La. R.S. 14:62; La. R.S. 15:529.1. Further,
defendant’s original and enhanced sentences were imposed pursuant to, and in
conformity with, the plea agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a
defendant from seeking review of his sentence imposed in conformity with a plea
agreement, which was set forth in the record at the time of the plea. State v.
Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Likewise, this Court
has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant
from seeking review of an enhanced sentence to which the defendant agreed. State
v. Robinson, 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272.
24-KA-293 10 We find previously appointed appellate counsel’s brief adequately
demonstrated by full discussion and analysis that counsel reviewed the trial court
proceedings and could not identify any basis for a non-frivolous appeal, and our
independent review of the record supports counsel’s assertion.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,
State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990).
The record reflects inconsistencies between the transcript, the sentencing
minute entry, and the uniform commitment orders (“UCO”). The sentencing
minute entry and both UCOs reflect that the underlying and enhanced sentences
were to be served concurrently with case numbers 22-5343, 23-4835, 24-53, “and
any and all other sentences Defendant may be currently serving, including parole
revocation sentence.” However, the transcript reflects that the trial judge only
ordered the underlying and enhanced sentences to run concurrently with case
numbers 22-5343, 23-4835, and 24-53. She did not say that the underlying and
enhanced sentences were to run concurrently with any and all other sentences
defendant may be currently serving, including parole revocation sentences.
The transcript prevails where there is a discrepancy between the minutes and
the transcript. State v. Lynch, 441 So.2d 732, 734 (La. 1983). To ensure accuracy
in the record, we remand the matter to the trial court to correct the sentencing
minute entry and both UCOs to properly reflect the trial court’s ruling regarding
the concurrent nature of the sentences. We also direct the Clerk of Court for the
24th Judicial District Court to transmit the corrected habitual offender UCO to the
appropriate authorities and the Department of Corrections legal department.
24-KA-293 11 DECREE
Accordingly, we affirm defendant’s conviction and sentence. However, we
remand the matter for correction of errors patent as noted herein.
AFFIRMED; REMANDED WITH INSTRUCTIONS
24-KA-293 12 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY FEBRUARY 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-KA-293 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT) CHRISTOPHER A. ABERLE (APPELLANT)
MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053