State v. Hoppens

140 So. 3d 293, 13 La.App. 5 Cir. 948, 2014 WL 1622373, 2014 La. App. LEXIS 1087
CourtLouisiana Court of Appeal
DecidedApril 23, 2014
DocketNo. 13-KA-948
StatusPublished
Cited by10 cases

This text of 140 So. 3d 293 (State v. Hoppens) 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. Hoppens, 140 So. 3d 293, 13 La.App. 5 Cir. 948, 2014 WL 1622373, 2014 La. App. LEXIS 1087 (La. Ct. App. 2014).

Opinion

ROBERT M. MURPHY, Judge.

li>,On March 11, 2013, defendant, Maxim C. Hoppens, pled guilty to one count of manslaughter, in violation of La. R.S. 14:31. The trial court sentenced defendant to 40 years of imprisonment at hard labor as per the plea agreement. Defendant was granted an out-of-time appeal. Defendant’s appointed appellate counsel has filed an Anders1 brief, asserting that there is no basis for a non-frivolous appeal. For the reasons that follow, we affirm defendant’s conviction and sentence and remand the matter to the trial court for correction of an error patent as noted herein.

FACTS AND PROCEDURAL HISTORY

In this case, defendant’s conviction resulted from a guilty plea, so the circumstances surrounding the offense were not fully developed at trial. Here, the | ¡¡record reflects that on or between August 4, 2011 or August 5, 2011, defendant committed the manslaughter of David Goldberg.

On December 8, 2011, a Jefferson Parish Grand Jury indicted defendant for second degree murder in violation of La. R.S. 14:30.1 (count one); forgery in violation of La. R.S. 14:72 (counts two and three); and access device fraud in violation of La. R.S. 14:70.4 (count four). Prior to the indictment, defendant filed a “Motion for Order for Mental Examination and to Convene Lunacy Hearing with Incorporated Memorandum” on November 18, 2011. A sanity hearing was held on January 18, 2012, after which the trial judge found defendant competent to stand trial. On that same date, defendant was arraigned and entered a plea of not guilty.

On June 14, 2012, defendant withdrew his not guilty plea and pled “not guilty and not guilty by reason of insanity.” On January 14, 2013, count one of the indictment was amended from second degree murder to manslaughter in violation of La. R.S. 14:31. On March 11, 2013, defendant amended his plea a second time and pled guilty to manslaughter. In exchange for defendant’s guilty plea, the State dismissed counts two, three, and four. On that same date, the trial judge sentenced defendant to imprisonment at hard labor for forty years. On September 19, 2013, [297]*297defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial court granted.

LAW AND DISCUSSION

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 |4filed 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 counsel requests permission to withdraw as counsel of record.

In Anders, supra, 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.3 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, supra at 241, the Louisiana Supreme Court stated that an An-ders 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 An-ders 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.” Id.

|sWhen 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. Bradford, supra at 1110. 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 points identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In his brief, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel states that the only pre-trial rulings centered on defendant’s motion and order for a mental examination. He further [298]*298States that the motion was apparently granted, but that defense counsel later withdrew the not guilty and not guilty by reason of insanity plea and entered a plea to manslaughter, a lesser included offense. Counsel asserts that he thoroughly reviewed the information relative to the motion and has not found any appealable issues. Counsel states that prior to pleading guilty, defendant was fully informed of the legal consequences of changing his plea by both his trial counsel and the district court. He notes that although the standard discovery motions were filed, the trial court record does not reflect that either the State or the defense lodged any objections or motions that would support a decision by this Court to reject defendant’s guilty plea.

Appellate counsel provides that an examination of the plea colloquy revealed that the trial court was very thorough in explaining the consequences of a guilty plea to defendant, and in making sure defendant understood the constitutional rights he would be waiving by pleading guilty. Appellate counsel Estates that the district court also carefully explained the sentencing range defendant would be exposed to if his guilty plea were accepted. He notes that defendant expressly acknowledged that he wanted to waive his constitutional rights to a trial, and that he made no reservation to appeal any pretrial rulings or his conviction and sentence. Appellate counsel asserts that defendant did not file a motion to reconsider sentence or a motion for appeal before he filed his application for post-conviction relief on September 19, 2013. He concludes that there are no credible arguments to advance on appeal and, therefore, requests that this Court grant his request to withdraw and conduct an error patent review.

Appellate counsel has filed a motion to withdraw as attorney of record which provides that he has notified defendant of the filing of this motion and advised him of his right to file a pro se brief.

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Bluebook (online)
140 So. 3d 293, 13 La.App. 5 Cir. 948, 2014 WL 1622373, 2014 La. App. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hoppens-lactapp-2014.