State v. Ott

102 So. 3d 944, 12 La.App. 5 Cir. 111, 2012 La. App. LEXIS 1302, 2012 WL 4899049
Louisiana Court of Appeal·Decided October 16, 2012·No. No. 12-KA-111·Published·Cited by 21 cases

Opinion

MARC E. JOHNSON, Judge.

^Defendant, Daniel Ott, appeals his convictions and sentences from the 24th Judicial District Court, Division “I”, resulting from his guilty pleas, asserting the pleas were involuntary and unknowingly made. For the following reasons, we affirm Defendant’s convictions; vacate his sentence on Count Two and remand for resentenc-[947] mg; remand for clarification of sentences, and remand for correction of the commitment in conformity with this opinion. Additionally, the appointed appellate counsel’s motion to withdraw is granted.

STATEMENT OF THE CASE AND FACTS

On December 18, 2008, Defendant was charged in a bill of information, by the Jefferson Parish District Attorney, with one count of possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1 (Count One); one count of attempted armed robbery while armed with a firearm, a violation of LSA-R.S. 14:27 and 14:64.3 (Count Two); and four counts of armed robbery while armed with a firearm, a violation of LSA-R.S. 14:64.3 (Counts Three, Four, Five and Six). On | ^December 19, 2008, Defendant pleaded not guilty at the arraignment to all counts. On February 10, 2010, Defendant withdrew his not guilty pleas and pleaded guilty to the charged offenses. After waiving sentencing delays, Defendant was sentenced on Counts One and Two to 15 years imprisonment at hard labor, and on Counts Three, Four, Five and Six, to 30 years imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence on each count. The trial court further ordered all sentences to be served concurrently.1 Additionally, pursuant to the firearm enhancement under LSA-R.S. 14:64.3, the trial court enhanced Defendant’s sentences for Counts Three, Four, Five and Six, to an additional five years at hard labor, to run consecutively to the thirty years on each count.2

On July 1, 2011, Defendant filed a pro se application for post-conviction relief alleging ineffective assistance of counsel. The trial court denied Defendant’s application for post-conviction relief, finding it premature. On October 7, 2011, Defendant filed a motion for out of time appeal, which the trial court granted on October 26, 2011. The instant appeal follows.

Given that the present matter involves guilty pleas, the specific facts underlying the charges are not contained in the record. However, the bill of information alleges that on October 13, 2008, Defendant violated LSA-R.S. 14:95.1 in that he did have in his possession a firearm, having been previously convicted of the crime of possession of ketamine, in violation of LSA-R.S. 40:968 C, under case number 07-6174, Division “A”, in the 24th Judicial District Court, Jefferson Parish. The District Attorney further alleged that on September |429, 2008, Defendant attempted to rob Glenn Turnbull while armed with a firearm. On the same date, it was further alleged that Defendant robbed James Solis while armed with a firearm. Additionally, on October 1, 2008, it was alleged that Defendant robbed Justin Toussaint, Joe Howard, and Jeremy Woolridge while armed with a firearm.

ASSIGNMENTS OF ERROR

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 [948] Cir.1990),3 appointed appellant counsel has filed an Anders brief 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, 242 (per curiam), asserting he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. As such, appointed appellate counsel requests to withdraw as counsel of record.

In his supplement pro se brief, Defendant raises two assignments of error: 1) the trial court erred in advising him of the incorrect maximum penalties and in failing to inform him of the mandatory minimum penalties provided by law, rendering his guilty pleas involuntary; and 2) the trial counsel’s failure to object to the trial court’s failure to advise him of the minimum sentences on each count constituted ineffective assistance of counsel.

LAW AND ANALYSIS

Anders’ Brief and Pro Se Assignment of Eiror Number One4

In Anders, 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.5 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, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every mer-itless 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 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, 96-2669; 704 So.2d at 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 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 [949] legal point arguable on the merits, it may either deny the motion and order the | f,court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

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State v. Ott, 102 So. 3d 944, 12 La.App. 5 Cir. 111, 2012 La. App. LEXIS 1302, 2012 WL 4899049 (La. Ct. App. 2012).

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