State v. Augustine

170 So. 3d 1123, 14 La.App. 5 Cir. 747, 2015 La. App. LEXIS 939, 2015 WL 2330463
CourtLouisiana Court of Appeal
DecidedMay 14, 2015
DocketNo. 14-KA-747
StatusPublished
Cited by10 cases

This text of 170 So. 3d 1123 (State v. Augustine) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Augustine, 170 So. 3d 1123, 14 La.App. 5 Cir. 747, 2015 La. App. LEXIS 939, 2015 WL 2330463 (La. Ct. App. 2015).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

|2Pefendant, James E. Augustine, appeals his convictions and sentences for possession with intent to distribute cocaine in violation of La. R.S. 40:9671 Defendant’s appointed counsel has filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and further filed a motion to withdraw as counsel of record. For the following reasons, we affirm the defendant’s convictions and sentences, grant counsel’s motion to withdraw, and remand the matter to the district court for correction of the commitment.

STATEMENT OF THE CASE

On April 29, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, James E. Augustine, with two counts of distribution of cocaine in violation of La. R.S. 40:967(A) (counts one and two). ' Defendant eventually entered into a plea agreement and, in exchange for his plea |sof guilty, was sentenced to fifteen years imprisonment at hard labor on each count to run concurrently with each other.

Subsequently, defendant filed a “Motion for Extension for Appeal” requesting an out-of-time appeal. The trial court denied defendant’s request for an out-of-time appeal on February 12, 2014. On June 3, 2014, defendant filed a pro se writ application with this Court, which was granted for limited purpose on June 16, 2014. In its writ disposition, this Court vacated the trial court’s denial of defendant’s out-of-time appeal and remanded the matter for the trial court to consider defendant’s motion as an application for post-conviction relief seeking an out-of-time appeal. On July 9, 2014, the trial court granted defendant’s motion for out-of-time appeal and appointed the Louisiana Appellate Project to represent defendant in this appeal.

FACTS

Defendant pled guilty without proceeding to a full trial. The record reflects that the bill of information charged defendant with distribution of cocaine. At the beginning of the guilty plea colloquy, defense counsel stated that defendant was pleading guilty to “the charges outlined in the Bill” and, in its factual basis, the State asserted that “Defendant knowingly and intentionally distributed cocaine.” Defendant agreed that he committed the crime as described by the State. In addition, the minute entry/commitment reflects that defendant pled guilty to “Distribution of CDS II to-wit: Cocaine.”

However, the waiver of rights form reflects that defendant was pleading guilty to possession with intent to distribute cocaine. Moreover, during the colloquy of the guilty pleas, the trial judge repeatedly stated that defendant was pleading guilty to “possession with the intent to distribute cocaine,” and the judge accepted defendant’s guilty pleas as having been knowingly and voluntarily made.

J¿DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 [1126]*1126S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiara), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana 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.” Jyles, 704 So.2d at 241. An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Dufrene, 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33.

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 ilegal 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 this case, appointed appellate counsel’s brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The state agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record. An independent review of the record supports counsel’s assertion that there are no non-frivolous issues for appeal.

First, the bill of information properly sets forth the offenses charged and presents no non-frivolous issues for appeal. The bill of information plainly, concisely, and definitely states the essential facts constituting the offenses charged as well as sufficiently identifies defendant. See also generally La.C.Cr.P. arts. 464-466.

Second, the minute entries and commitment reflect that defendant appeared at each stage of the proceedings against him, including his arraignment, his guilty plea proceedings, and sentencing.

Further, defendant’s guilty plea agreement does not present any issues for appeal. 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. As discussed below, that is not the case here. ' However, there is an issue of whether defendant pled guilty to the charged offense of distribution of cocaine or to the uncharged offense of possession with the intent to distribute cocaine that must be addressed first.

The record reflects that the bill of information charged defendant with distribution of cocaine. At the beginning of the colloquy of the guilty pleas, | r,defense coun[1127]*1127sel stated that defendant was pleading guilty to “the charges outlined in the Bill” and, in its factual basis, the State asserted that “Defendant knowingly and intentionally distributed cocaine.” Defendant agreed that he committed the crime as described by the State. In addition, the minute entry/commitment reflects that defendant pled guilty to “Distribution of CDS II to-wit: Cocaine.”

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Bluebook (online)
170 So. 3d 1123, 14 La.App. 5 Cir. 747, 2015 La. App. LEXIS 939, 2015 WL 2330463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-augustine-lactapp-2015.