State v. Crochet

61 So. 3d 725, 10 La.App. 5 Cir. 387, 2011 La. App. LEXIS 219, 2011 WL 523382
CourtLouisiana Court of Appeal
DecidedFebruary 15, 2011
DocketNo. 10-KA-387
StatusPublished
Cited by5 cases

This text of 61 So. 3d 725 (State v. Crochet) 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. Crochet, 61 So. 3d 725, 10 La.App. 5 Cir. 387, 2011 La. App. LEXIS 219, 2011 WL 523382 (La. Ct. App. 2011).

Opinion

JUDE G. GRAVOIS, Judge.

| ^Defendant Daniel Crochet appeals his conviction for aggravated burglary, a violation of LSA-R.S. 14:60. On appeal, under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), appointed appellate counsel has filed an Anders 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. Appointed counsel moves this Court for leave to withdraw as counsel of record.

Defendant filed a pro se supplemental brief, raising issues of ineffective assistance of counsel and an excessive sentence. After thorough review of the record, we affirm defendant’s conviction and sentence, and grant counsel’s motion to withdraw.

\£ACTS AND PROCEDURAL BACKGROUND

Defendant was charged with aggravated burglary, a violation of LSA-R.S. 14:64. He pled not guilty at arraignment. Defendant later withdrew his not guilty plea and pled guilty as charged. The district court sentenced defendant to 15 years at hard labor.

[728]*728Defendant entered a stipulation to second felony offender status. The district court vacated defendant’s original sentence and imposed a habitual offender sentence on defendant of 15 years at hard labor. The district court granted defendant an out-of-time appeal on March 1, 2010.

No evidence was presented in this case. There were no motion hearings, and defendant entered a guilty plea to the charged offense. The prosecutor gave the following note of evidence at the time of the guilty plea:

With respect to Mr. Crochet, on September 6th, 2007, he entered 595 Brook-meade Drive, a home belonging to Raymond Liss. And the Bill of Information had previously listed Philip Trupiano as the owner, so I’m going to change that on the Bill. And he armed himself with a weapon while he was inside. He was apprehended inside the residence.

ANALYSIS

Pro Se Brief

In a pro se brief filed with this court, defendant argues that he received ineffective assistance of counsel. Specifically, he argues that his counsel failed to explain his case to him and failed to adequately prepare for trial, with the result that she instead convinced him to plead guilty. He also argues that counsel was ineffective because she allowed him to plead guilty to aggravated burglary, rather than simple burglary of an inhabited dwelling, because no person was present in the home during the commission of the crime. Third, defendant argues that he received an excessive sentence.

14A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that 1) his attorney’s performance was deficient, and 2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Allen, 06-778, p. 9 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 750, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754. The error is prejudicial if it is so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Allen, 06-788 at 10, 955 So.2d at 750. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Allen, supra.

In order to prevail, the accused must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel, because “opinions may differ on the advisability of such a tactic.” State v. Singleton, 05-634, p. 11, (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Cambre, 05-888, pp. 25-26 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 460, writ denied, 06-2121 (La.4/20/07), 954 So.2d 158. When there is sufficient evidence to consider some, but not all, of the allegations of ineffectiveness of counsel before it, this Court has declined to |saddress any of the claims on grounds that they [729]*729should be addressed in their entirety by the district court on post-conviction relief at an evidentiary hearing. State v. Allen, 06-778 at 11-12, 955 So.2d at 751-52. Accordingly, we decline to review defendant’s ineffective assistance of counsel claims on appeal.

Further, appellate counsel filed an An-ders brief certifying that she reviewed the appeal record and determined there were no non-frivolous issues she could raise on appeal, which is further discussed herein. Defendant’s excessive sentence claim is reviewed, in that context, below.

Anders brief

In Anders, 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.1 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. The supreme court explained that an Anders brief must | fidemonstrate' 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.” State v. Jyles, supra.

In evaluating an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous.

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Cite This Page — Counsel Stack

Bluebook (online)
61 So. 3d 725, 10 La.App. 5 Cir. 387, 2011 La. App. LEXIS 219, 2011 WL 523382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crochet-lactapp-2011.