State of Louisiana Versus Symmeron Nigel Cole

• Court: Louisiana Court of Appeal
• Decided: November 27, 2019
• Docket: 19-KA-322
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 19-KA-322

VERSUS FIFTH CIRCUIT

SYMMERON NIGEL COLE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-3366, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

November 27, 2019

HANS J. LILJEBERG JUDGE

Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

AFFIRMED; MOTION TO WITHDRAW GRANTED HJL SJW JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux

COUNSEL FOR DEFENDANT/APPELLANT, SYMMERON NIGEL COLE Bruce G. Whittaker LILJEBERG, J.

Defendant appeals his conviction and sentence for the crime of failing to

maintain registration as a sex offender. For the following reasons, we affirm. We

also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On June 20, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Symmeron Nigel Cole, with failing to maintain

his registration as a sex offender by failing to complete his annual registration, in

violation of La. R.S. 15:542. Defendant was arraigned on July 9, 2018, and

pleaded not guilty. On May 31, 2019, defendant withdrew his not guilty plea and

pleaded guilty as charged. The trial court sentenced him to imprisonment at hard

labor for two years without benefit of parole, probation, or suspension of sentence.

The trial court also ordered this sentence to run concurrently with defendant’s

sentence in case number 18-5978.1 Defendant appeals.

FACTS

Because defendant pleaded guilty, the underlying facts were not fully

developed at a trial. In the bill of information, the State alleged that on or about

March 10, 2017, in Jefferson Parish, defendant violated La. R.S. 15:542, in that he

failed to maintain his registration as a sex offender by failing to complete his

annual registration. Additionally, the State provided the following factual basis

during the guilty plea colloquy:

Your Honor, if this matter proceeded to trial, with regard to or [sic] Bill in case number 18-3366, our evidence would have proven beyond a reasonable doubt that Mr. Cole, on or about March 10th of the year 2017, committed a violation of Louisiana Revised Statute 15:542 in that he did fail to 1 On May 31, 2019, defendant also pleaded guilty in case number 18-5978 to a charge of failing to notify law enforcement of a change of address, in violation of La. R.S. 15:542.1.2. The trial court sentenced him to imprisonment at hard labor for two years on that charge. The trial court also found defendant guilty of direct contempt of court for failure to appear for the previous trial date. The trial court sentenced him to 30 days in the Jefferson Parish Correctional Center and ordered the sentences in case numbers 18- 3366 (the instant case) and 18-5978 to run consecutively to the contempt sentence.

19-KA-322 1 maintain his registration as a Sex Offender, specifically, by failing to complete his registration. He was obligated to register as a result of previously pleading guilty to a sex offense.

LAW AND DISCUSSION

Pursuant to the procedure adopted by this Court in State v. Bradford, 95-929

(La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,2 appointed appellate counsel

has filed a brief asserting that he has thoroughly reviewed the trial court record and

cannot find any non-frivolous issues to raise on appeal. Accordingly, under

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), appointed

counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed

appellate counsel may request permission to withdraw if he finds his case to be

wholly frivolous after a conscientious examination of it.3 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

2 In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95- 0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam). 3 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).

19-KA-322 2 made at trial with a detailed explanation of why the motions or objections lack

merit. The 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

the legal point(s) identified by the court, or grant the motion and appoint substitute

appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed

review of the record, he could find no non-frivolous issues to raise on appeal.

Appellate counsel states that defendant entered an unqualified guilty plea to the

charging document waiving all non-jurisdictional defects, after which he was

sentenced pursuant to a plea agreement. He notes that defendant indicated that he

understood the plea form, his rights, the elements of the charge, and the sentence

he would receive in exchange for the plea. Appellate counsel also asserts that

defendant indicated he had not been forced, coerced, or threatened into pleading

guilty. He asserts that the plea bargain appears to have been advantageous to

defendant because he received the minimum sentence of two years for an offense

carrying a maximum of ten years and because the sentence was ordered to run

concurrently with his other felony sentence.

19-KA-322 3 Appellate counsel has filed a motion to withdraw as attorney of record, in

which he states that he notified defendant that he filed an Anders brief and advised

him of his right to file a pro se supplemental brief.4 Defendant has not filed a pro

se supplemental brief in this matter.

An independent review of the record supports appellate counsel’s assertion

that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant, identified defendant and

the crime charged, and stated the essential facts constituting the offense charged.

See La. C.Cr.P. arts. 462-466. The record also shows there are no appealable

issues surrounding defendant’s presence. The minute entries show that defendant

and his counsel appeared at all crucial stages of the proceedings against him,

including his arraignment, guilty plea, and sentencing.

Further, defendant pleaded guilty as charged. Generally, when 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 post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47

So.3d 455, 459. Here, defendant entered an unqualified guilty plea, and therefore,

all non-jurisdictional defects are waived. Also, no rulings were preserved for

appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

Although defendant filed a motion for preliminary hearing, the record does

not reflect that the trial court ruled upon defendant’s motion. However, defendant

did not object to the trial court’s failure to do so. When the trial court does not

hear or rule on a pretrial motion, and the defendant does not object prior to

pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.

4 This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief.

19-KA-322 4 App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Accordingly, defendant’s motion for

preliminary hearing was waived.

Next, once a defendant is sentenced, only those guilty pleas that are

constitutionally infirm may be withdrawn by appeal or post-conviction relief.

State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty

plea is constitutionally 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.

A review of the record reveals no constitutional infirmity in defendant’s

guilty plea. At the hearing on May 31, 2019, defendant’s counsel stated that

defendant was going to withdraw his not guilty plea and plead guilty. Defendant

indicated that he understood the nature of the crime to which he was pleading

guilty, i.e. failing to maintain his registration as a sex offender in violation of La.

R.S 15:542, with the date of the offense being March 10, 2017. During the

colloquy, defendant indicated he was able to read the Boykin form and understand

it with the assistance of counsel, and he identified his initials and signature on the

Boykin form. Defendant also indicated that he did not have any mental or physical

impairment affecting his ability to enter the guilty plea and that he was able to

read, write, and understand the English language. On the waiver of rights form and

during the colloquy with the trial court, defendant was advised of his right to a jury

trial, his right to confrontation, and his privilege against self-incrimination as

required by Boykin. Defendant indicated during the colloquy with the trial court

that he understood those rights.

During the colloquy and on the waiver of rights form, defendant was

informed of the maximum sentence he faced and the actual sentence that would be

5 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

19-KA-322 5 imposed if his guilty plea was accepted. La. C.Cr.P. art. 556.1(A)(1) provides that,

prior to accepting a guilty plea, the court must personally inform the defendant of

the nature of the charge to which the plea is offered, any mandatory minimum

penalty, and the maximum possible penalty. “Any variance from the procedures

required by this Article which does not affect substantial rights of the accused shall

not invalidate the plea.” La. C.Cr.P. art. 556.1(E). Although the trial judge did not

inform defendant of the minimum possible sentence, defendant was not prejudiced

because he knew the sentence he would receive, and he received that sentence.

The advisement of the agreed upon sentence is sufficient for compliance with La.

C.Cr.P. art. 556.1. Id. After defendant indicated that no promises or threats had

been made to encourage him to plead guilty, the trial judge found that defendant

made a knowing, intelligent, free, and voluntary act of tendering his guilty plea,

and he accepted his plea.

Finally, defendant’s sentence does not present any issues for appeal. La.

C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence

imposed in conformity with a plea agreement. See State v. Washington, 05-211

(La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, defendant’s sentence was

imposed in accordance with the terms of the plea agreement set forth in the record

at the time of the plea, and it falls within the statutory sentencing range. See La.

R.S. 15:542.1.4. In addition, defendant’s plea agreement was beneficial to him in

that he received the minimum sentence of two years when he could have received a

maximum sentence of ten years, and the sentence was ordered to run concurrently

with the sentence in case number 18-5978.

Appellate counsel’s brief adequately demonstrates by full discussion and

analysis that he has reviewed the trial court proceedings and cannot identify any

basis for a non-frivolous appeal, and an independent review of the record supports

19-KA-322 6 counsel’s assertion. Accordingly, we affirm defendant’s conviction and sentence,

and we grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

The record was reviewed for errors patent in accordance with 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. 5 Cir. 1990). Our review did not reveal any errors that require

corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence for

failing to maintain his registration as a sex offender in violation of La. R.S. 15:542.

We also grant appellate counsel’s motion to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED

19-KA-322 7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. 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 NOVEMBER 27, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-322 E-NOTIFIED TERRY M. BOUDREAUX

MAILED BRUCE G. WHITTAKER HON. PAUL D. CONNICK, JR. ATTORNEY AT LAW DISTRICT ATTORNEY LOUISIANA APPELLATE PROJECT TWENTY-FOURTH JUDICIAL DISTRICT 1215 PRYTANIA STREET 200 DERBIGNY STREET SUITE 332 GRETNA, LA 70053 NEW ORLEANS, LA 70130