State v. Harris

205 So. 3d 1042, 16 La.App. 5 Cir. 405, 2016 La. App. LEXIS 2392
Procedural entryThis page is a short order in State v. Harris. Read the opinion of the Court — 235 So. 3d 1354
Louisiana Court of Appeal·Decided December 7, 2016·No. NO. 16-KA-405·Published

Opinion

CHAISSON, J.

| defendant, Dernard Harris, appeals his convictions and sentences for armed robbery and illegal use of a firearm. For the reasons that follow, we affirm defendant’s convictions and sentences and grant [1044]*1044appellate counsel’s motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY

On October 21, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of armed robbery, in violation of La. R.S. 14:64 (counts one and two), and one count of illegal use of a firearm, in violation of La. R.S. 14:94 (count three). At the December 18, 2014 arraignment, defendant pled not guilty. Defendant filed several pre-trial motions, including a motion to suppress identification, which was heard and denied on December 18,2015.

Thereafter, on February 23, 2016, defendant withdrew his not guilty pleas and, after being advised of his rights, pled guilty to counts two and three.1 In accordance with the plea agreement, the trial judge sentenced defendant to imprisonment at hard labor for forty-nine years and six months without benefit of parole, probation, or suspension of sentence on count two and to imprisonment at hard labor for two years on count three, to run concurrently.

The State then filed a bill of information, pursuant to the provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second felony offender on count two. After defendant stipulated to the allegations of the multiple bill, the trial court vacated defendant’s original sentence on count two and resentenced him, in accordance with the plea agreement, to imprisonment at hard labor for forty-nine years and six months without benefit of parole, probation, or suspension of ^sentence, to run concurrently with the sentence on count three. On March 1, 2016, defendant filed a pro se motion to reconsider sentence, which was denied.

On April 7, 2016, defendant filed an application for post-conviction relief seeking an out-of-time appeal based on his arguments that he was denied the effective assistance of counsel, that his sentence was excessive, and that the trial judge erred by accepting a constitutionally infirm guilty plea. On April 28, 2016, the trial judge granted defendant’s request for an out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,2 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, 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 (per curiam), appointed counsel requests permission to withdraw as counsel of record for defendant.

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. State v. Bradford, 676 So.2d at 1110.

[1045]*1045In this case, defendant’s appellate counsel has complied with the procedures for filing an Anders brief. She thoroughly details the procedural history of the case and the facts as brought out at the suppression hearing. Appellate counsel then sets forth that, after a careful review of the record, she has found no non-frivolous ^issues to raise on appeal and no .ruling of the trial court which arguably supports the appeal. In particular, appellate counsel fully discusses the circumstances surrounding defendant’s guilty pleas to the original bill and to. the multiple offender bill of information, noting that defendant was advised of his rights, that he understood his rights and the consequences of his guilty pleas, and that he was not forced, threatened, or coerced into entering his guilty pleas.

In addition, appellate counsel addresses defendant’s pro se motion to reconsider sentence, in which he requested that his sentence be reduced to ten or fifteen years or that he be allowed to withdraw his guilty pleas and go to trial because he was unaware that he would not be able to appeal his entire case. Further, appellate counsel discusses the issues raised in defendant’s application for post-conviction relief that he was denied the effective assistance of counsel, that his sentence was excessive, and that the trial judge erred by accepting a constitutionally infirm guilty plea. After a complete analysis of these issues and a discussion of any potential concerns surrounding defendant’s case, counsel asserts in her appellate brief that she finds “no non-frivolous grounds which can be raised in this appeal.”

Along with her brief, appellate counsel has filed a motion to withdraw as counsel of record for defendant, which states that she has filed an Anders brief and that she has advised defendant of his right to file a pro se brief in the appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until September 18, 2016, to file a pro se supplemental brief. As of this date, defendant has not filed a supplemental brief.

This Court has performed an independent review of the appellate record, including the pleadings, minute entries, bill of ■information, and transcripts. Our |,[independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information 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 La. C.Cr.P. arts. 463-466. Further, as reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, guilty pleas, sentencing on counts two and three, and his stipulation to and sentencing on the multiple offender bill of information.

Defendant pled guilty in this case. Generally, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and review of such defects either by appeal or post-conviction relief is precluded. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Defendant herein entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived. In addition, no rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

Also, once a defendant is sentenced, only those 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 [1046]*1046freely and voluntarily, if the Boykin3

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State v. Harris, 205 So. 3d 1042, 16 La.App. 5 Cir. 405, 2016 La. App. LEXIS 2392 (La. Ct. App. 2016).

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