State v. Ford

113 So. 3d 319, 12 La.App. 5 Cir. 717, 2013 WL 950875, 2013 La. App. LEXIS 472
CourtLouisiana Court of Appeal
DecidedMarch 13, 2013
DocketNo. 12-KA-717
StatusPublished
Cited by1 cases

This text of 113 So. 3d 319 (State v. Ford) 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. Ford, 113 So. 3d 319, 12 La.App. 5 Cir. 717, 2013 WL 950875, 2013 La. App. LEXIS 472 (La. Ct. App. 2013).

Opinion

ROBERT A. CHAISSON, Judge.

^Defendant, Gregory Ford, Jr., appeals his convictions and sentences for manslaughter and obstruction of justice. For the reasons that follow, we affirm his convictions and sentences, and we grant appellate counsel’s motion to withdraw.

PROCEDURAL HISTORY In June of 2011, a Jefferson Parish Grand Jury returned an indictment charging defendant with being a principal to second degree murder, in violation of LSA-R.S. 14:24 and 14:30.1, and with obstruction of justice, in violation of LSA-R.S. 14:130.1. On November 28, 2011, the trial court heard and denied defendant’s motions to suppress evidence, identification, and statement. Thereafter, on March 20, 2012, after being advised of his rights, defendant pled guilty to the amended charge of manslaughter and to obstruction of justice. In accordance with the plea agreement, the trial judge sentenced defendant to imprisonment at hard labor for forty years on each count to run concurrently. On | sMay 17, 2012, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial judge granted.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990),1 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 (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 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, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or 14objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s [321]*321eye 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. 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 the legal point identified by the court, or grant the motion and appoint substitute appellate. counsel. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108,1110.

In this case, defendant’s appellate counsel asserts that after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that there is no ruling of the trial court to be challenged, that this was not a plea under State v. Crosby,3 and that the charges were amended pursuant to a plea agreement. She further states in her appellate brief that she considered whether to raise the issue of excessiveness of the sentence, but concluded that such a claim would be frivolous because defendant was sentenced in accordance with the plea agreement.

| ¡Along with her brief, appellate counsel has filed a motion to withdraw as attorney of record which states she has made a conscientious and thorough review of the trial court record and could find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal. She further stated that she notified defendant of the filing of the motion to withdraw and that she advised defendant of his right to file a pro se brief in this appeal. Additionally, on October 3, 2012, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 1, 2012, to file a pro se supplemental brief. On October 8, 2012, defendant filed a motion to file a pro se supplemental brief. This Court granted defendant’s motion on October 15, 2012, and gave him until November 11, 2012, to file a pro se supplemental brief. On February 6, 2013, this Court granted defendant’s motion for leave to file an out-of-time supplemental brief and gave him until February 21, 2013, to file his pro se brief. As of the rendering of this opinion, defendant has not filed a pro se supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See generally LSA-C.Cr.P. arts. 464-66. Also, as reflected by the minute entries and commitment, defendant appeared at his guilty plea proceeding and sentencing.

Further, defendant pled guilty. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State [322]*322v. Wingerter, 05-697 (La.App. 5 Cir, 3/14/06), 926 So.2d 662, 664. |nIn the instant case, defendant filed motions to suppress evidence, identification, and statement that were denied after a hearing. However, defendant did not preserve these rulings for review under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Additionally, our review of the record reveals no irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin4

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Bluebook (online)
113 So. 3d 319, 12 La.App. 5 Cir. 717, 2013 WL 950875, 2013 La. App. LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ford-lactapp-2013.