State v. Campbell

28 So. 3d 470, 9 La.App. 5 Cir. 287, 2009 La. App. LEXIS 1973, 2009 WL 4043098
Louisiana Court of Appeal·Decided November 24, 2009·No. 09-KA-287·Published·Cited by 3 cases

Opinions

JUDE G. GRAVOIS, Judge.

ly.The defendant, Ashton R. Campbell, has appealed his conviction and sentence for manslaughter. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 24, 2007, defendant pled guilty to manslaughter in violation of LSA-R.S. 14:31. Thereafter, on June 14, 2007, defendant was sentenced to 22 years imprisonment. On November 5, 2008, defendant filed a Motion to Correct an Illegal Sentence that was denied by the trial judge. Defendant sought review of that ruling from this Court. This Court granted the writ for the limited purpose of remanding the application to the trial court and ordering that it be considered as an application for an out-of-time appeal. State v. Campbell, 08-KH-1286 (La.App. 5 Cir. 1/14/09) (unpublished writ disposition). On January 28, 2009, pursuant to this Court’s order, the trial judge ordered that defendant be allowed to file an out-of-time appeal.

1 «LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990),1 appointed appellant counsel has filed a brief 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, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any 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 [472]*472withdraw if she finds her 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, 96-2669 at 2, 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. However, an An-ders brief must demonstrate by full |4discussion 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.” State v. Jyles, supra.

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. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 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 defendant’s conviction and sentence. Conversely, 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 appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that, while a Motion to Suppress was heard and denied by the trial court, defendant subsequently pled guilty without reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the adverse ruling with respect to the Motion to Suppress. She further states that, a review of the evidence adduced in light of the applicable law does not suggest that the trial court’s denial of the Motion to Suppress presented reversible error.

Appellate counsel also states that, prior to defendant’s decision to plead guilty, he was fully informed of the legal consequences of changing his plea by his trial counsel and the trial judge. She asserts that, although the standard discovery motions were filed, the trial record does not reflect that either the State or defense Iscounsel posed any objections or motions that would support a decision from this Court to reject defendant’s subsequent guilty plea.

Appellate counsel notes that the waiver of rights form was signed by defendant and his attorney, but not by the trial judge. She contends, however, that an examination of the plea colloquy revealed that the district court was quite thorough in explaining to defendant, and making sure he understood, the trial rights he [473]*473would be waiving by pleading guilty. The trial judge informed defendant, among other things, that he had the constitutional right to a jury trial, the right against self-incrimination, and the right to confront witnesses. Appellate counsel states that defendant did not file a motion to withdraw the guilty plea, nor did he object to the sentence or move for reconsideration. She argues, therefore, that defendant is now restricted by law from appealing his sentence, citing LSA-C.Cr.P. art. 881.2.

Appellate counsel has filed a motion to withdraw as attorney of record which states she was appointed to represent defendant and had made a conscientious and thorough review of the trial court records, but could find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal. She asserts that she notified defendant of the filing of this motion and had advised defendant 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 may file a pro se supplemental brief. Defendant has not filed a brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. However, we will address defendant’s Motion to Correct Illegal Sentence.

| (¡Approximately five months after pleading guilty as charged, defendant filed a Motion to Correct Illegal Sentence requesting that the trial court vacate his sentence and resentence him. In his motion, defendant indicated that the trial judge erred by not considering the sentencing guidelines of LSA-C.Cr.P. art. 894.1. He argued that the trial judge did not consider aggravating or mitigating factors, nor the factual basis. Given that defendant’s sentence was agreed to as part of a plea bargain, defendant is precluded from challenging the sentence on appeal. LSA-C.Cr.P. art. 881.2; State v. Jarrow, 08-743, p. 7 (La.App. 5 Cir. 2/25/09), 9 So.3d 905, 910.

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State v. Campbell, 28 So. 3d 470, 9 La.App. 5 Cir. 287, 2009 La. App. LEXIS 1973, 2009 WL 4043098 (La. Ct. App. 2009).

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