State v. Nicholas

196 So. 3d 864, 16 La.App. 5 Cir. 16, 2016 La. App. LEXIS 1324, 2016 WL 3551653
CourtLouisiana Court of Appeal
DecidedJune 30, 2016
DocketNo. 16-KA-16
StatusPublished
Cited by3 cases

This text of 196 So. 3d 864 (State v. Nicholas) 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. Nicholas, 196 So. 3d 864, 16 La.App. 5 Cir. 16, 2016 La. App. LEXIS 1324, 2016 WL 3551653 (La. Ct. App. 2016).

Opinion

GRAVOIS, J.

1 .INTRODUCTION

Defendant/appellant, Kareem Nicholas,1 has filed this appeal regarding his convictions and sentences resulting from guilty pleas and a habitual offender proceeding. His appointed appellate counsel has filed a brief in accordance with the procedures adopted by this Court in State v. Bradford, [868]*86895-929 (La.App, 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,2 and a motion to withdraw as counsel of record for defendant. After thorough review, we affirm defendant’s convictions, habitual offender adjudication, and sentences, and grant appointed appellate counsel’s motion to withdraw. We further remand the matter to the district court for correction of the minute entry and commitment as described below.

PROCEDURAL HISTORY AND FACTS

On February 10, 2015, the Jefferson Parish District Attorney filed a bill of information alleging that defendant, Kareem Nicholas, committed possession with the intent to distribute cocaine in violation of La, R.S; 40:967(A) (count one); possession with intent to distribute oxycodone in violation of La.' R.S. 40:967(A) (count two); possession of a firearm by ■ a’ convicted felon in violation of La. R.S. 14:95.1 (count three); and possession without a prescription of a legend drug, Tramadol, in violation of La. R.S. 40:1238.1 (count five).3 On February 20, 2015,-defendant filed a motion to suppress confession, identification, and physical evidence. Defendant pled not guilty to the charges at arraignment on February 27,2015.

On March 31, 2015, the bill of information was amended as, to- counts two and three. Specifically, count two was amended to attempted possession with the 12intent to distribute oxycodone in violation of La. R.S. 40:979 and La. R.S. 40:967(A), and count three was amended to attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and La., R.S. 14:95.1. Also on March 31, 2015, defendant withdrew his not guilty pleas and pled guilty to all counts as amended:

On July 17, 2015, the State filed a habitual offender bill of information alleging that defendant was a second felony offender. On July 28, 2015, defendant was sentenced as follows: seven years imprisonment at hard labor, with the' first two years to be served without the- benefit of parole, probation, or suspension of sentence, on count one; seven years imprisonment at hard labor on count two; ■ five years imprisonment at hard labor, to be served without the benefit of parole, probation, or suspension of sentence,' on count three; and five years imprisonment at hard labor on count five. All counts were ordered to run concurrently with each other and with case number 14-3763. On that same date, defendant, denied the allegations contained in the habitual offender bill of information.

On July 29, 2015, defendant filed a motion to withdraw his guilty pleas, which was denied on September-1, 2015. Also on September 1, 2015, defendant stipulated to his identity as a previously-convicted offender, and the court found -defendant to be a second felony offender. At the habitual offender hearing, defense counsel requested that the trial court deviate from the mandatory minimum sentence; the -trial court denied defendant’s request. The trial court thereupon vacated defendant’s sentence as to count one and sentenced him as a second felony offender to fifteen years imprisonment at hard labor, without the benefit of probation or suspension of sentence. The trial court further -ordered [869]*869that defendant’s sentence run concurrently ■with all counts in this case and any and all other sentences defendant may have been serving.

lsOn September 23, 2015, defendant filed a pro se notice of appeal, which was granted on October 14, 2015. This appeal followed.

Defendant pled guilty to all charges filed against him instead of proceeding to trial. At the guilty plea hearing, no factual basis was provided. However, the amended bill of information alleged that on January 14, 2015, in Jefferson Parish, defendant committed possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one); attempted possession with intent to distribute oxycodone in violation of La. R.S. 40:979 and La. R.S. 40:967(A) (count two);, attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:27 and La. R.S. 14:95.1, when he had previously been convicted of possession of a firearm with a controlled dangerous substance in violation of La. R.S. 14:95(E) (count three); and possession without a prescription of a legend drug, Tramadol, in violation of La. R.S. 40:1238.1 (count five).

Under the procedure adopted by this Court in State v. Bradford, supra, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and found no 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:he finds defendant’s appeal 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 their clients’ appeals to the best of their ability” and to assist the reviewing court |4“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).

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 defendant’s convictions, habitual offender stipulation and/or adjudication, and sentences. 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. See Bradford, 95-929 at 4, 676 So.2d at 1110.

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 district court accepted defendant’s guilty pleas after conducting a thorough Boykin4 colloquy advising defendant of the constitutional rights that he was waiv[870]*870ing by entering his guilty pleas. Counsel notes that defendant indicated that he was satisfied with defense counsel’s performance and denied being threatened by anyone to enter his guilty pleas.

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Bluebook (online)
196 So. 3d 864, 16 La.App. 5 Cir. 16, 2016 La. App. LEXIS 1324, 2016 WL 3551653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nicholas-lactapp-2016.