State v. Howard

91 So. 3d 564, 11 La.App. 5 Cir. 1155, 2012 WL 1867590, 2012 La. App. LEXIS 707
Louisiana Court of Appeal·Decided May 22, 2012·No. No. 11-KA-1155·Published·Cited by 7 cases

Opinion

WALTER J. ROTHSCHILD, Judge.

|?On January 7, 2009, defendant, Gerard M. Howard, pled guilty to one count of manslaughter, in violation of LSA-R.S. M^l.1 He was sentenced to 35 years of imprisonment at hard labor. Defendant was granted an out-of-time appeal. For the foregoing reasons, we affirm defendant’s conviction and sentence.

FACTS

Because defendant pled guilty without proceeding to trial on the merits, the pertinent facts of this case are taken from the indictment, the waiver of rights form, and the guilty plea colloquy. According to the record before us, on October 31, 2007, defendant committed manslaughter of Dwain Stewart.

LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir.1990),2 appointed appellate counsel has filed an Anders brief pursuant |sto 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. Accordingly, appointed counsel requests permission to withdraw as counsel of record. The State concurs with appellate counsel’s assessment that there are no non-frivolous issues for appeal.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her 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, 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 [568] explained that an Anders 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.” 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. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 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 point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that the transcript of the hearing on the motion to suppress evidence and identification reveals no issues for appellate review, and the plea colloquy reveals no constitutional abnormalities. Additionally, appellate counsel considered raising an issue regarding excessive sentence; however, she concluded that defendant was informed of the sentencing range for manslaughter and the sentence he would receive in the guilty plea form, and the trial court informed defendant of his sentence in the plea colloquy. She further asserts that defendant agreed to plead to a reduced charge of manslaughter with the understanding that the State would not file a multiple offender bill of information, thus avoiding a possible life sentence. As such, she concluded that the 35-year sentence was not constitutionally excessive.

| sAppellate counsel has filed a motion to withdraw as attorney of record which states that she notified defendant of the filing of her motion and has advised defendant of his right to file a pro se brief in this 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 January 28, 2012, to file a pro se supplemental brief. Defendant filed a supplemental brief on January 23, 2012.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief is filed, the appellate court reviews: 1) the bill of information/indictment to insure the defendant was properly charged, 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal, 3) all pleadings in the record, and 4) all transcripts to determine if any ruling provides an arguable basis for appeal. Bradford, 95-929 at 4, 676 So.2d at 1110-11.

In conducting this review, we note that defendant was properly charged by a grand jury indictment. The indictment plainly, concisely, and definitely states the essential facts constituting the offense charged, and cites the statute defendant violated. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-466.

As reflected by the minute entries and commitment, defendant appeared at all [569] crucial stages of the proceedings, including arraignment, guilty plea, and sentencing. As such, defendant’s presence does not present, any issues which would support an appeal.

Further, pursuant to a plea bargain, defendant pled guilty to a reduced charge of manslaughter, in violation of LSA-R.S. 14:31. During the guilty plea colloquy, |,¡he was advised of and waived his Boy-kin 4 rights, including his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant was also advised of these rights by means of the Plea of Guilty and Waiver of Constitutional Rights form. Defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty.

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State v. Howard, 91 So. 3d 564, 11 La.App. 5 Cir. 1155, 2012 WL 1867590, 2012 La. App. LEXIS 707 (La. Ct. App. 2012).

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