State v. Cox

134 So. 3d 68, 2014 WL 346642
CourtLouisiana Court of Appeal
DecidedJanuary 31, 2014
DocketNo. 13-KA-699
StatusPublished

This text of 134 So. 3d 68 (State v. Cox) 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. Cox, 134 So. 3d 68, 2014 WL 346642 (La. Ct. App. 2014).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

|2In this case, defendant’s appointed appellate counsel has filed an Anders1 brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant’s conviction and sentence, remand for correction of the commitment, and grant counsel’s motion to withdraw.

Facts and Procedural History

In this case, the conviction resulted from a guilty plea so the circumstances surrounding the charged offense were gleaned from the bill of information. Here, the record reflects that, on or about October 31, 2011, defendant committed an aggravated burglary of 6476 Park Manor belonging to Knobi Weaver.

On November 27, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Thomas Cox, with aggravated burglary, in violation of La. R.S. 14:60. On April 18, 2018, defendant entered a plea of guilty as charged and the trial judge, pursuant to a plea agreement, set forth in the record, sentenced defendant to eight years imprisonment with the Department of | ¡jCorrections.2 He filed an Application for Post Conviction Relief that was stamped as filed on June 20, 2013, and was granted an out-of-time appeal on August 6, 2013.

Discussion

Under the procedure adopted by this Court in State v. Bradford,3 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, supra, and State v. Jyles,4 appointed counsel requests permission to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it.5 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.”6

[70]*70In State v. Jyles,7 the Louisiana Supreme Court .stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The |4supreme 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.” 8

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.9 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 legal points identified by the court, or grant the motion and appoint substitute appellate counsel.10

In her brief, defendant’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal and can find no ruling of the trial court that arguably supports the appeal. First, counsel sets forth the procedural history of the case and a statement of facts. Next, counsel notes that defendant’s plea was made without reservation of his right to review pre-trial rulings under State v. Crosby, 338 So.2d 584 (La.1976), so those rulings have not been preserved for review. Counsel additionally points out that defendant was adequately informed of the legal consequences of changing his plea by his counsel and the trial judge, who also advised defendant of the rights that he |fiwould be waiving by entering his guilty plea and the sentencing exposure that he faced.

Counsel contends that her brief is in compliance with Anders and that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Finally, appellate counsel has filed a motion to withdraw as attorney of record, which states she has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal.

As a result of that filing, on September 17, 2013, this Court sent defendant a certified letter informing him that his appointed appellate counsel had filed an Anders brief and that he had until October 16, 2013, to file a pro se supplemental brief. Defendant sought and was granted leave to file a supplemental brief, which was filed on November 13, 2013.

In its brief, the State responds that appellate counsel has shown a diligent, complete, and thorough description of the procedural history of the case. The State concurs that the record does not reveal non-frivolous issues upon which to base an appeal.

Specifically, the State suggests that a review of the record shows that the bill of information properly charged defendant, that defendant was present and represented by counsel at all crucial stages of the [71]*71proceedings, that defendant entered a free and voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that defendant entered an unqualified guilty plea, waiving review of any pre-plea, non-jurisdictional defects. The State further concludes that defendant received a legal sentence that falls within the sentencing range prescribed by La. R.S. 14:60 and that his sentence was imposed in conformity with the plea |fiagreement. The State further states that an excessive sentence argument would be “frivolous and futile.”

In sum, the State contends that counsel has cast an advocate’s eye over the record and found no significant non-frivolous issues upon which to base an appeal. Finally, the State requests that this Court affirm defendant’s conviction and sentence.

Most importantly, our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. First, the bill of information in this case properly charged defendant and plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally, La.C.Cr.P. arts. 464-66.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
McCoy v. Court of Appeals of Wisconsin, District 1
486 U.S. 429 (Supreme Court, 1988)
Smith v. Robbins
528 U.S. 259 (Supreme Court, 2000)
State v. Crosby
338 So. 2d 584 (Supreme Court of Louisiana, 1976)
State Ex Rel. Roland v. State
937 So. 2d 846 (Supreme Court of Louisiana, 2006)
State v. Wingerter
926 So. 2d 662 (Louisiana Court of Appeal, 2006)
State v. Benjamin
573 So. 2d 528 (Louisiana Court of Appeal, 1990)
State v. Mouton
653 So. 2d 1176 (Supreme Court of Louisiana, 1995)
State v. Washington
916 So. 2d 1171 (Louisiana Court of Appeal, 2005)
State v. Bradford
676 So. 2d 1108 (Louisiana Court of Appeal, 1996)
State v. Jyles
704 So. 2d 241 (Supreme Court of Louisiana, 1997)
State v. McCoil
924 So. 2d 1120 (Louisiana Court of Appeal, 2006)
State v. Craig
66 So. 3d 60 (Louisiana Court of Appeal, 2011)
State v. Roche
39 So. 3d 706 (Louisiana Court of Appeal, 2010)
State v. Casimer
113 So. 3d 1129 (Louisiana Court of Appeal, 2013)
Hall v. Excelsior Steam Laundry Co.
5 La. App. 5 (Louisiana Court of Appeal, 1926)
C. C. Elmer Tank Boiler Co. v. Art Cleaner & Dyers
118 So. 773 (Louisiana Court of Appeal, 1928)
Associated Motors, Inc. v. Burk
119 So. 451 (Louisiana Court of Appeal, 1929)

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134 So. 3d 68, 2014 WL 346642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cox-lactapp-2014.