State v. Heath

236 So. 3d 732
CourtLouisiana Court of Appeal
DecidedDecember 27, 2017
DocketNO. 17–KA–502
StatusPublished
Cited by3 cases

This text of 236 So. 3d 732 (State v. Heath) 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. Heath, 236 So. 3d 732 (La. Ct. App. 2017).

Opinion

CHAISSON, J.

Defendant, Richard J. Heath, appeals his conviction and enhanced sentence for simple burglary of an inhabited dwelling. For the reasons that follow, we affirm defendant's conviction and sentence, as amended, and remand the matter for correction of errors patent as noted herein. In addition, we grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On May 18, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2. Defendant pled not guilty at his arraignment on June 10, 2015. Thereafter, on November 19, 2015, defendant withdrew his not guilty plea and, after being advised of his rights, pled guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to twelve years with the Department of Corrections and directed that the first year be served without benefit of parole, probation, or suspension of sentence.

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. After defendant stipulated to the multiple bill, the trial court vacated defendant's original sentence and resentenced him as a second felony offender to twelve years with the Department of Corrections without benefit of parole, probation, or suspension of sentence. The trial court ordered that defendant's sentence run concurrently with the sentence imposed in district court case number 14-1462 and with any other sentence defendant might be serving.

*734On August 17, 2017, the trial court granted defendant's motion 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, 1110-11,1 appointed appellate counsel has filed a brief asserting that he 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 appellate counsel requests permission to withdraw as attorney 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.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. He sets forth the procedural history of the case as well as the circumstances surrounding defendant's guilty pleas and sentencing. In particular, appellate counsel points out that defendant pled guilty and was sentenced pursuant to a counseled plea agreement, that defendant did not preserve any rulings for review under State v. Crosby , 338 So.2d 584 (La. 1976), and that defendant waived all non-jurisdictional defects by entering an unqualified guilty plea. Appellate counsel further sets forth that defendant's guilty pleas to the original and multiple offender bills of information were not constitutionally infirm because defendant was advised of and indicated that he understood the rights that would be waived by pleading guilty. Further, appellate counsel recognizes that defendant was not forced, coerced, or threatened to enter the guilty pleas, and that the sentences were imposed in conformity with the plea agreements. Defendant's appellate counsel concludes that after a conscientious and thorough review of the trial court record, he can find no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports an appeal. Therefore, he requests permission to withdraw as attorney of record for defendant.2

This Court has performed an independent, thorough review of the pleadings, minute entries, bills of information, and transcripts in the appellate record. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmity or irregularity in defendant's guilty plea to the charge of simple burglary of an inhabited dwelling that would render it invalid. 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 *735infirm if it is not entered freely and voluntarily, if the Boykin3 colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

In the present case, the record reflects that defendant was advised of the nature of the charge against him as well as his constitutional rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self- incrimination. Defendant signed the waiver of rights form indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood the rights he was waiving by pleading guilty. Defendant was additionally informed of his sentencing exposure and of the actual sentence that would be imposed upon acceptance of his guilty plea. Further, during the guilty plea colloquy and in the waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty plea. After the colloquy with defendant, the trial court accepted defendant's plea as knowingly, intelligently, freely, and voluntarily made.

With respect to the multiple offender proceeding, the record shows that defendant was likewise adequately advised of his rights.

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Cite This Page — Counsel Stack

Bluebook (online)
236 So. 3d 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-heath-lactapp-2017.