STATE OF LOUISIANA NO. 24-KA-291 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. 22-5343, 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 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.
PROCEDURAL HISTORY
On November 9, 2022, the Jefferson Parish District Attorney filed a bill of information charging defendant, Scott T. Surgi, with simple burglary of a shed
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).
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located at 6225 Hodgson Street belonging to K. Briscoe in violation of La. R.S. 14:62.2 Defendant pled not guilty at his arraignment on November 15, 2022.
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. The trial judge ordered the sentence to run concurrently with the sentences in case numbers 23-4835, 24-52, and 24-53, and with any other sentences defendant may be currently serving, including parole revocation sentences. The trial judge further ordered defendant to pay fines, fees, and costs as per the fines, fees, and sentencing provision probation requirement form, as well as restitution to the victim in the amount of $300.00, as agreed to by defendant. On March 14, 2024, defendant filed a timely pro se motion for an appeal that was granted on April 8, 2024.3 FACTS
Defendant entered a guilty plea, and therefore, the underlying facts were not developed at a trial. However, during the colloquy, the prosecutor stated that if the case had proceeded to trial, the State would have proven that on or about October 9, 2022, defendant violated La. R.S. 14:62, in that he committed a simple burglary of a shed located at 6225 Hudson Street4 belonging to “Kate Brisco.” Additionally, defendant indicated that he committed the crime.
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
2 Kasey Lynn Wallace was also charged with that same offense in the same bill of information.
3 Defendant has two companion cases, 24-KA-292 and 24-KA-293, pending in this Court. In all three cases, defendant pled guilty to simple burglary in violation of La. R.S. 14:62. Also, in 24-KA-293, defendant stipulated to being a second-felony offender.
4 The State alleged in the bill of information that the shed was located on Hodgson Street.
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to be wholly frivolous after a conscientious examination of it.5 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 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
5 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).
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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. 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.
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In response, the State contends 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 2, 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 proceedings, 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 omnibus motions, which were 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. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, which 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.
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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 Boykin6 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.
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 trial judge stated that the offense had a maximum sentence of twelve years. The State said that it would not file a habitual offender bill in this matter. 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 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.
6 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
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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 prosecutor added that defendant would have to pay restitution to the victim in the amount of $300.00, and defense counsel responded that was indicated on the Boykin form.
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 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 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.
Further, defendant’s sentence falls within the sentencing range prescribed by the applicable statute. See La. R.S. 14:62. Also, the sentence was imposed pursuant to, and in conformity with, the plea agreement. In this regard, La. C.Cr.P.
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art. 881.2(A)(2) precludes a defendant from seeking review of a sentence that was 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.
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). Our review of the record reveals no errors patent.
DECREE
Accordingly, we affirm defendant’s conviction and sentence.
AFFIRMED
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
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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-291
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