State v. Pierce

106 So. 3d 1058, 2012 WL 6185725
CourtLouisiana Court of Appeal
DecidedDecember 11, 2012
DocketNo. 12-KA-261
StatusPublished

This text of 106 So. 3d 1058 (State v. Pierce) 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. Pierce, 106 So. 3d 1058, 2012 WL 6185725 (La. Ct. App. 2012).

Opinion

MARION F. EDWARDS, Chief Judge.

|gThe defendant/appellant, Dennis Pierce (“Pierce”), has appealed his conviction and sentence for five counts of armed robbery while armed with a firearm. We affirm.

On October 28, 2010, Pierce was charged in a bill of information by the Jefferson Parish District Attorney with five counts of armed robbery while armed with a firearm, in violation of La. R.S. 14:64 and 14:64.3. Pierce pled not guilty to all counts at his arraignment. Pursuant to his Motion to Appoint Sanity Commission to Determine Defendant’s Competency to Stand Trial, a hearing was held on February 23, 2011, at which time Pierce stipulated to the substance and contents of the examiner’s report, and the trial court found him competent to stand trial. Subsequently, Pierce withdrew his not guilty plea and pled guilty as charged. After waiving sentencing delays, he was sentenced on all five counts to fifteen years of imprisonment at hard labor, to be served concurrently with one another. Additionally, pursuant to La. R.S. 14:64.3, the trial court further sentenced Pierce |ato five years of imprisonment at hard labor on each of the five counts, to be served concurrently with one another, but consecutively to the original fifteen-year concurrent sentences, for a total of twenty years of imprisonment. Pierce was given credit for time served.

On August 30, 2011, Pierce filed an application for post-conviction relief, alleging insufficient evidence, and ineffective assistance of counsel, which application was denied by the trial court. On October 19, 2011, he filed a second application for post-conviction relief and out-of-time appeal, alleging his guilty plea was constitutionally infirm, and an ineffective assistance of counsel claim. On January 3, 2012, the trial court granted Pierce’s motion for an out-of-time appeal. The instant appeal follows.

Since Pierce pled guilty, the facts surrounding the offenses were not fully developed at trial; however, during the guilty plea colloquy, the State provided a factual basis for his pleas. The State alleged that it would prove beyond a reasonable doubt [1060]*1060that, on September 1, 2010, Pierce committed five armed robberies with a firearm, namely a revolver, in violation of La. R.S. 14:64 and 14:64.3. The victims in the armed robberies were identified as Hector Zuniga, Adrian Rodriguez, Theodore Flores, Francisco Vasquez, and Agustín Izaguirre.

Appellate counsel has filed an Anders brief and a motion to withdraw as attorney of record. She further asserts that she has notified Pierce of the filing of her motion and advised him of his right to file a pro se brief in this appeal.

Appellate counsel’s Anders brief was filed in conformity with the procedures approved by the United States Supreme Court in that case, asserting that appellate counsel has reviewed the record and that it contains no non-frivolous |4issues that may be raised on appeal.1 In Anders, the United States Supreme Court stated that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” The An-ders requirements were adopted by this Court2 and later expanded by the Louisiana Supreme Court.3 Under the applicable cases, appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but his brief must contain “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.”4 According to Jyles, 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 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.” When conducting a review for compliance with An-ders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous.5 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.

If the Anders brief simply states that there are no non-frivolous issues, without some discussion, and only requests a review for errors patent, it is |r,ordinarily disallowed. After independent review, if the appellate court finds an arguable legal point on the merits, it may either deny appellate counsel’s motion to withdraw and order him to file a brief arguing that point, or it may grant the motion to withdraw and appoint substitute counsel.6

This Court sent Pierce a letter by certified mail informing him that an Anders brief had been filed and that he had until May 12, 2012 to file a pro se supplemental brief. On April 17, 2012, Pierce filed a Motion to File a Supplemental Pro-Se Brief. We granted Pierce’s pro se motion [1061]*1061and extended his deadline to file a pro se supplemental brief to May 18, 2012. As of the date of this opinion, Pierce has not filed his brief.

Pierce’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She contends that Pierce was fully informed of the legal consequences of changing his plea by both his trial counsel as well as the trial court. She asserts that the plea colloquy reveals that the trial court explained each of the rights necessary to ensure a knowing and intelligent waiver of rights, including his right to a trial by jury, to remain silent, and to confront witnesses. She contends that Pierce was advised of the statutory range of the penalty for his offenses and as to the sentence that would be imposed if his plea was accepted. She further notes that Pierce was sentenced in accordance with the plea agreement, noting that he did not object or move for reconsideration. Counsel asserts that Pierce is restricted by law from appealing his sentence, citing La. C.Cr.P. art. 881.2. Nevertheless, counsel requests that any errors patent be listed as assignments of error for purposes of this appeal. She further requests that this Court grant her motion to withdraw as counsel of record.

IfiAn independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged Pierce and, as required, plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies Pierce and the crime charged.

As reflected by the minute entries and commitment, Pierce appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. Further, he pled guilty as charged.

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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)
State v. Crosby
338 So. 2d 584 (Supreme Court of Louisiana, 1976)
State v. Wingerter
926 So. 2d 662 (Louisiana Court of Appeal, 2006)
State v. Washington
916 So. 2d 1171 (Louisiana Court of Appeal, 2005)
State v. Corzo
896 So. 2d 1101 (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. Jyles
704 So. 2d 241 (Supreme Court of Louisiana, 1997)
State v. McCoil
924 So. 2d 1120 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
106 So. 3d 1058, 2012 WL 6185725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierce-lactapp-2012.