State v. Britton

167 So. 3d 843, 14 La.App. 5 Cir. 665, 2015 La. App. LEXIS 64, 2015 WL 316885
Louisiana Court of Appeal·Decided January 14, 2015·No. No. 14-KA-665·Published

Opinion

JUDE G. GRAVOIS, Judge.

1 ¡¿Defendant, Israel A. Britton, appeals his convictions of three counts of armed robbery with a firearm, violations of La. R.S. 14:64 and La. R.S. 14:64.3, respectively. For the reasons that follow, we affirm defendant’s convictions and sentences, and grant appellate counsel’s motion to withdraw as counsel of record for defendant.

ANALYSIS

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 appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot 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, [845]*84596-2669 (La.12/12/97), 704 So.2d 241 (per curiam), appointed |sappellate counsel requests permission to withdraw as counsel of record for defendant.

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.2 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 State v. Jyles, supra at 241, the Louisiana Supreme Court stated that an An-ders 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 An-ders 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, supra at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may |4grant 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 points identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

On February 5, 2013, defendant was charged, along with several co-defendants, by bill of information with three counts of armed robbery while armed with a dangerous weapon, to-wit: a firearm, in violation of La. R.S. 14:64 and 14:64.3. The facts of the offenses were not developed at the guilty plea hearing. The bill of information reflects that the offenses occurred on or about January 7, 2013 and involved three separate victims. In pretrial proceedings, defendant filed an omnibus motion which included a motion to suppress identification and evidence. The record reflects that the motions were set for a hearing, but were ultimately continued until the date defendant pleaded guilty, and were never ruled upon.

On October 25, 2013, defendant entered a plea of guilty to the three offenses charged in the bill of information. Defendant was sentenced that same day. The plea was entered without a reservation of defendant’s right to appeal any pretrial rulings. Further, the plea was entered pursuant to a plea agreement in which it was agreed that defendant would receive a sentence of ten years at hard labor, with[846] out the benefit of parole, probation or suspension of sentence, for each of the three counts of armed robbery, and additional consecutive terms of five years at hard labor, without the benefit of parole, probation or suspension of sentence, for each of the counts for the use of a firearm during the commission of the armed robberies, for a total of fifteen years at hard labor, without the benefit of parole, probation or suspension of sentence. It was agreed that the sentences on each | ¡¡charge would be served concurrently. The record reflects that defendant was sentenced accordingly.

The trial court informed defendant of the time delays for filing an appeal and for filing an application for post-conviction relief. Defendant subsequently filed a pro se request for an out-of-time appeal, which the trial court granted.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel indicates that defendant was informed of his constitutional rights, as well as the sentences that he would receive. Appellate counsel has filed a motion to withdraw as counsel of record for defendant and mailed defendant a copy of her brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed by his counsel and that he had until October 24, 2014 to file a pro se supplemental brief. Defendant has not filed a brief in this matter.

The State responds that defendant’s appellate counsel has cast an advocate’s eye over the record and determined that there were no non-frivolous issues upon which to base an appeal. The State further responds that defendant was advised of his Boykin3 rights and waived those rights. The State argues that defendant’s plea was voluntary and that the court fully explained the sentencing guidelines, as well as the sentence that defendant would receive. The State concludes that defendant’s appellate counsel has conformed with the procedures set forth in Anders and Jyles and should be allowed to withdraw.

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State v. Britton, 167 So. 3d 843, 14 La.App. 5 Cir. 665, 2015 La. App. LEXIS 64, 2015 WL 316885 (La. Ct. App. 2015).

167 So. 3d 843 (State v. Britton) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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