State v. Kent

178 So. 3d 219, 15 La.App. 5 Cir. 323, 2015 La. App. LEXIS 2109, 2015 WL 6687623
CourtLouisiana Court of Appeal
DecidedOctober 28, 2015
DocketNo. 15-KA-823
StatusPublished
Cited by19 cases

This text of 178 So. 3d 219 (State v. Kent) 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. Kent, 178 So. 3d 219, 15 La.App. 5 Cir. 323, 2015 La. App. LEXIS 2109, 2015 WL 6687623 (La. Ct. App. 2015).

Opinion

JUDE G. GRAVOIS, Judge.

I «Defendant, Tracy Kent, appeals his convictions and sentences for possession with intent to distribute marijuana and possession, of a firearm by a convicted felon. For the reasons that follow, we affirm defendant’s convictions. and sentences, grant appellate counsel’s motion to withdraw as counsel of record,for defendant, and remand the matter for correction of the commitment as noted herein.

PROCEDURAL HISTORY

On August 29, 2018, the Jefferson Parish District Attorney fíled a bill of information charging defendant, Tracy Kent, with possession with intent to distribute marijuana in violation’ Of La. R.S. 40:966(A) (count one), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count two). Defendant was arraigned the next day and pled not guilty, On February 12, 2014, the State amended the bill of. information to provide that defendant’s previous convictions on count two were for armed robbery and possession of a firearm by a- convicted felon, in addition to the possession of marijuana conviction previously |.¡alleged. Defendant was re-arraigned on the amended bill and pled not guilty.. On February 19, 2014, the State fled an amended bill of information to add additional prior felony convictions on count two. .

Defendant .fled several pre-trial motions, including motions- to suppress evidence and statement, which were denied, and a motion in limine, which was denied in part and granted in part. Defendant also fled a Motion to Dismiss Counsel, which was denied.

On March 18, 2014, a jury was selected and sworn, after which defendant withdrew his not guilty pleas and pled guilty as charged. The trial judge then sentenced defendant to imprisonment at hard labor for eighteen years on count one, and imprisonment at hard labor for eighteen years without the benefit of parole, probation, or suspension of sentence on count two, with those sentences to run concurrently with each Other. The trial judge recommended that the sentences in the instant case run concurrently with the sentence in case number 815-236 from the 174th District Court of Harris County, Texas, and any other sentences defendant may have been serving at that time.

On that same date,' the State fled a habitual offender bill of information alleging defendant to.be a second felony offender, to which defendant stipulated. The trial judge vacated defendant’s sentence on count one and resentenced defendant under the habitual Offender statute to imprisonment at hard labor for eighteen years without the benefit of probation or suspension of sentence. . The trial judge recommended that the enhanced sentence ran [224]*224concurrently with the sentence imposed on count two, the sentence in case number 815-236 from the 174th District Court of Harris County, Texas, and with any other sentences defendant may have been serving at that time.

|4On November 5,2014, defendant filed a “Motion to Correct an Illegal Sentence and or Enforce Plea Agreement,” which was denied. Defendant later filed a writ application in this Court, which was denied. State v. Kent, 14-KH-894 (La.App. 5 Cir. 12/16/14) (unpublished writ disposition). On January 16, 2015, defendant filed a pro se “Motion to Vacate Illegal Habitual Offender Sentence,” whieh.was also denied. On February 18, 2015, defendant filed a “Notice of Out-of-Time Appeal,” which was granted on March 4,2015.1

FACTS

Because defendant pled,guilty, the underlying facts were not fully developed at a trial. However, the State alleged in the February 19, 2014 bill of information that on or about July 29, 2013, defendant violated La. R.S. 40:966(A) in that he did knowingly or intentionally possess with intent to distribute a controlled dangerous substance, to-wit: marijuana (count one). The State, also alleged in that same bill of information that on July 29, 2013, defendant violated La. R.S. 14:95.1 in that he did have in his possession a firearm, to-wit: a Smith and Wesson .38 caliber handgun, having been previously convicted of the crimes of: armed robbery in violation of La. R.S. 14:64 under case number 93-351 in the 22nd Judicial District Court of Louisiana on March 11, 1982; felon in possession of a firearm in violation of La. R.S, 14:95.1 under case number 93-0302 in the 24th Judicial District Court of Louisiana on January 25, 1994; possession of cocaine in violation of La. R.S. 40:967(C) under case number 95-5794 in the 24th Judicial District Court of Louisiana on October 21, 1996; possession of marijuana, second of-fensé,- in violation of La. R.S. 40:966(C) under case number 99-5246 in the 24th Judicial District Court of Louisiana on January 19, 2000; and possession of marijuana, five |;;to fifty pounds, under case number 815-236 in the 174th District Court of Harris County, Texas on April 30, 2001 (count two).

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 appellate counsel requests permission to withdraw as counsel of record for defendant.

In Anders, supra, 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 [225]*225accompanied 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).

|fiIn State v. Jyles, supra 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 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.

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. Br+adford, supra at 1110.

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Cite This Page — Counsel Stack

Bluebook (online)
178 So. 3d 219, 15 La.App. 5 Cir. 323, 2015 La. App. LEXIS 2109, 2015 WL 6687623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kent-lactapp-2015.