State v. Bush

77 So. 3d 439, 11 La.App. 5 Cir. 257, 2011 La. App. LEXIS 1251, 2011 WL 5061514
CourtLouisiana Court of Appeal
DecidedOctober 25, 2011
DocketNo. 11-KA-257
StatusPublished
Cited by1 cases

This text of 77 So. 3d 439 (State v. Bush) 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. Bush, 77 So. 3d 439, 11 La.App. 5 Cir. 257, 2011 La. App. LEXIS 1251, 2011 WL 5061514 (La. Ct. App. 2011).

Opinion

FREDERICKS. HOMBERG WICKER, Judge.

|2Lance Bush, defendant/appellant, appeals his guilty plea convictions and sentences. Mr. Bush pleaded guilty to armed robbery1 and second degree kidnapping (as amended) and was sentenced in accordance with a plea agreement. His appellate counsel has filed a motion to withdraw together with an Anders and Jyles brief in support of the motion,2 stating that no non-frivolous issues exist which arguably support an appeal. After an independent review of the record, we agree that no non-frivolous issues exist. Therefore, we grant the motion to withdraw. We affirm Mr. Bush’s convictions and sentences and remand to the district court for correction of the commitment.

Facts and Procedural History

Mr. Bush, along with the codefendant Bryant J. Hulitt, was indicted by a Jefferson Parish Grand Jury with one count of armed robbery in violation of |?,La.R.S. 14:64 and one count of aggravated kidnapping in violation of La.R.S. 14:44. This appeal only concerns Mr. Bush. Before entering guilty pleas, trial counsel and Mr. Bush (in a pro se capacity) filed several pretrial motions. Defense counsel’s motions were continued to be reset and never heard. The trial court, however, denied Mr. Bush’s motion to quash in which he sought release from custody without bail. The court noted that Mr. Bush was represented by counsel. Later, pursuant to a plea agreement, Mr. Bush was sentenced to negotiated and stipulated sentences. In conformity with the plea agreement he received 15-year concurrent sentences at hard labor for each of two counts as charged or amended in the indictment. On the date of the pleas, the state had amended the second count from aggravated kidnapping to the lesser responsive charge, second degree kidnapping, La.R.S. 14:44.1, as to Mr. Bush only. La.C.Cr.P. art. 814(A)(18) (responsive verdicts). The sentence on the first count, armed robbery, was ordered (as agreed) to be served without benefit of parole, probation, or suspension of sentence. The first two years of the second degree kidnapping sentence was ordered (as agreed) to be served without benefit of parole, probation, or suspension of sentence. Mr. Bush testified that he understood that based on his plea agreement to testify truthfully (and consistently with his prior police statements) in Bryant J. Hulitt’s (his codefen-dant’s) trial, his failure to comply with that agreement meant that the state had a right to ask that the sentences be vacated and that the matter be set for further proceedings, including the trial on the merits of the case.

During the plea colloquy, Mr. Bush admitted that on December 20, 2006 he robbed Keith Blackstock while armed with a dangerous weapon, a firearm. And, on the same date he committed a second degree kidnapping of Keith Blackstock by removing Mr. Blackstock from one location and taking him to another location |4while armed with a dangerous weapon. He further admitted that he demanded that money be produced after taking Mr. Black-stock from one location to another.

At the plea hearing, defense counsel provided the court with a contemporane[442]*442ously-executed waiver of constitutional rights form.

Thereafter, Mr. Bush sought and was granted production of the plea and sentencing transcript. At the time, Mr. Bush stated his pleas were constitutionally infirm and he intended to seek post-conviction relief. Next, this appeal followed the granting of Mr. Bush’s application for post-conviction relief seeking an out-of-time appeal. The trial court appointed the Louisiana Appellate Project to represent Mr. Bush.

Anders Brief Analysis

Appellate counsel has filed a Jyles brief, seeking to withdraw because there are no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241(per curiam); and State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir.1990). When appointed counsel has filed such a brief, Anders requires that counsel move to withdraw. Benjamin, 573 So.2d at 531.

The brief outlines the procedural history and the Boykin3 compliant plea colloquy leading to Mr. Bush’s convictions. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra, citing State v. Mouton, 95-0981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam). Counsel further states that she notified Mr. Bush of the filing of the motion to withdraw and advised him of his right to file a pro se brief in this appeal, all in accordance with Anders, Jyles, and Benjamin, supra. This Court provided Mr. | sBush with the record, as he requested, and Mr. Bush has had an ample opportunity to file a brief, but has not done so.4

When an Anders brief is filed, the appellate court must conduct an independent review of the record. State v. Haynes, 09-109, p. 15-16 (La.App. 5 Cir. 2/9/10), 34 So.3d 325, 335, writ denied, 10-0493 (La.9/24/10), 45 So.3d 1073. After a full examination of all the proceedings, the appellate court proceeds to determine whether the case is wholly frivolous. Anders, supra, 87 S.Ct. at 1400. If it so finds, it may grant counsel’s motion to withdraw. Id. The motion will not be acted upon, however, until the appellate court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his own behalf. Benjamin, supra at 531.

In this case, we find that appellate counsel has complied with the requirements set forth in Anders. Appellate counsel found that nothing in the plea colloquy suggested the plea was not knowingly and intelligently made. On the contrary, she found that the trial court adequately advised Mr. Bush of the Boykin5 triad of constitutional rights (his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination), the constitutional rights he was relinquishing, the sentencing ranges, and the sentences he would receive. Further, counsel noted that Mr. Bush did not reserve his right to have the trial court’s pretrial ruling re[443]*443viewed on appeal. Also, counsel stated that Mr. Bush is now restricted by La. C.Cr.P. art. 881.2(A)(2) from appealing his sentences.

We will proceed with an independent review of the record. This review in the present non-jury case consists of:

|fil) a review of the bill of information or indictment to insure the defendant was properly charged; 2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, and a review of the sentences to ensure their legality; 3) a review of all pleadings in the record; and, 4) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.

Benjamin, supra at 531.

Our review of the record supports appellate counsel’s assertion that no non-frivolous issues arguably support an appeal.

A review of the record reveals that the indictment properly charged Mr. Bush. Mr. Bush was present and represented by counsel at all crucial stages of the proceedings. Further, Mr.

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Bluebook (online)
77 So. 3d 439, 11 La.App. 5 Cir. 257, 2011 La. App. LEXIS 1251, 2011 WL 5061514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bush-lactapp-2011.