State v. Ivey

131 So. 3d 349, 13 La.App. 5 Cir. 426, 2013 WL 6504552, 2013 La. App. LEXIS 2571
CourtLouisiana Court of Appeal
DecidedDecember 12, 2013
DocketNo. 13-KA-426
StatusPublished

This text of 131 So. 3d 349 (State v. Ivey) 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. Ivey, 131 So. 3d 349, 13 La.App. 5 Cir. 426, 2013 WL 6504552, 2013 La. App. LEXIS 2571 (La. Ct. App. 2013).

Opinion

JUDE G. GRAVOIS, Judge.

| ^Defendant, Shantell K. Ivey, has appealed her convictions and sentences for two counts of distribution of cocaine in violation of La. R.S. 40:967(A). For the reasons that follow, we affirm defendant’s convictions and sentences, grant defendant’s appellate counsel’s motion to withdraw as counsel of record for defendant, and remand this matter with instructions.

PROCEDURAL HISTORY

On February 1, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of [351]*351distributing cocaine within 2,000 feet of a playground, violations of La. R.S. 40:981.3. On January 28, 2013, defendant pled guilty to two counts of distribution of cocaine, violations of La. R.S. 40:967(A), as alleged in an amended bill of information filed against defendant on that date. Also on that date, following a waiver of delays and pursuant to a plea agreement, defendant was sentenced to 15 years imprisonment at hard labor on each count, with the first two years of the sentences to be served | ¡.without the benefit of probation, parole, or suspension of sentence, with both sentences to run concurrently with each other, as well as with any other sentences defendant may have been serving at that time. Defendant was also given credit for time served. The State then filed a habitual offender bill of information against defendant, to which defendant stipulated to being a second felony offender. The trial court then vacated defendant’s original sentence on count one, and sentenced defendant to 15 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for the first two years, and without the benefit of probation or suspension of sentence for the entire sentence. Defendant was also given credit for time served. Defendant’s enhanced sentence was ordered to run concurrently with her sentence imposed on count two.

Defendant’s pro se motion for an appeal was granted on March 6, 2013 and appellate counsel was appointed.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders1 brief, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed appellate counsel requests permission to withdraw as counsel of record for defendant.

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. 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 ptheir 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). The Louisiana Supreme Court approved this procedure in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

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 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant appellate 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 [352]*352the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel also indicates that defendant was informed of the sentences that she would receive, and was sentenced accordingly.

Appellate counsel has filed a motion to withdraw as attorney of record for defendant which states that she has mailed defendant a copy of her brief. Additionally, this Court sent defendant a letter by certified mail informing her that an Anders brief had been filed on her behalf and that she had until July 7, 2013 to file a pro se supplemental brief. Defendant has not filed a pro se brief.

IsThe State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case, has complied with the procedure set forth in An-ders, and requests that this Court affirm defendant’s convictions and sentences.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The amended bill of information to which defendant pled properly charged defendant: it plainly, concisely, and definitely states the essential facts constituting the offenses charged, and cites the statute that defendant violated. It also sufficiently identifies defendant and the crimes charged. Also, as reflected by the minute entries and commitment, defendant appeared at the guilty plea proceedings and sentencing.

The record shows that defendant filed a pro se motion to quash; however, no ruling on this motion appears in the record. Regardless, a defendant waives his outstanding pre-trial motions by pleading guilty without complaining that the trial court had neither heard nor ruled on them. State v. Fleming, 11-135 (La.App. 5 Cir. 11/29/11), 80 So.3d 634, 638.

Defendant pled guilty as charged to the amended bill of information. If a defendant pleads guilty, he normally waives all non-jurisdietional defects in the proceedings leading up to the guilty plea, and precludes review of such defects, either by appeal or on post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or on post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin2 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. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

In the present case, the plea colloquy and waiver of rights form shows that defendant was aware that she was pleading guilty to two counts of distribution of cocaine.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
McCoy v. Court of Appeals of Wisconsin, District 1
486 U.S. 429 (Supreme Court, 1988)
State Ex Rel. Roland v. State
937 So. 2d 846 (Supreme Court of Louisiana, 2006)
State v. Wingerter
926 So. 2d 662 (Louisiana Court of Appeal, 2006)
State v. Benjamin
573 So. 2d 528 (Louisiana Court of Appeal, 1990)
State v. Washington
916 So. 2d 1171 (Louisiana Court of Appeal, 2005)
State v. Bradford
676 So. 2d 1108 (Louisiana Court of Appeal, 1996)
State v. Dixon
449 So. 2d 463 (Supreme Court of Louisiana, 1984)
State v. Lynch
441 So. 2d 732 (Supreme Court of Louisiana, 1983)
State v. Jyles
704 So. 2d 241 (Supreme Court of Louisiana, 1997)
State v. Oliveaux
312 So. 2d 337 (Supreme Court of Louisiana, 1975)
State v. McCoil
924 So. 2d 1120 (Louisiana Court of Appeal, 2006)
State v. Fleming
80 So. 3d 634 (Louisiana Court of Appeal, 2011)
State v. Clofer
80 So. 3d 639 (Louisiana Court of Appeal, 2011)
Hall v. Excelsior Steam Laundry Co.
5 La. App. 5 (Louisiana Court of Appeal, 1926)
Mathes v. Schwing
123 So. 156 (Louisiana Court of Appeal, 1929)

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Bluebook (online)
131 So. 3d 349, 13 La.App. 5 Cir. 426, 2013 WL 6504552, 2013 La. App. LEXIS 2571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ivey-lactapp-2013.