State v. Pierre

186 So. 3d 361, 15 La.App. 3 Cir. 914, 2016 La. App. LEXIS 405, 2016 WL 805907
CourtLouisiana Court of Appeal
DecidedMarch 2, 2016
DocketNo. 15-914
StatusPublished

This text of 186 So. 3d 361 (State v. Pierre) 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. Pierre, 186 So. 3d 361, 15 La.App. 3 Cir. 914, 2016 La. App. LEXIS 405, 2016 WL 805907 (La. Ct. App. 2016).

Opinion

GENOVESE, Judge.

| defendant, Jamarlon W. Pierre, is again before this court appealing his habitual offender sentences. Defendant’s original convictions of attempted second degree murder and armed robbery were affirmed by this court in State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d 348.1 In a separate opinion rendered the same date, this court affirmed Defendant’s adjudication as a third habitual offender, but vacated the single life sentence imposed by the trial court. State v. Pierre, 14-1333 (La.App. 3 Cir. 5/6/15), 165 So.3d 365.2 This court found the single life sentence indeterminate, since both convictions (attempted second degree murder and armed robbery) were included in the habitual offender bill, and the trial court failed to specify which of the convictions was being enhanced or whether both were being enhanced. Id. This court granted Defendant’s appellate counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), affirmed Defendant’s adjudication as a third habitual offender, vacated the life sentence, and remanded the case for the appointment of defense counsel and for resentencing. Id. This court instructed the trial court to clarify which sentence(s) was (were) being enhanced and to impose a separate sentence on the remaining conviction should only one sentence be enhanced. Id.

Pursuant to this court’s remand, the trial court held a resentencing hearing on June 25, 2015. At the resentencing hearing, the trial court enhanced both |2convictions under the habitual offender provision and imposed a life sentence without benefit of parole, probation, or suspension of sentence on each count, to run concurrently. Defendant filed a motion to appeal and is now before this court appealing his habitual offender sentences. Appellate counsel has filed a brief'pursuant-to Anders, alleging the record does not contain any non-frivolous issues for appeal; thus, he requests this court.grant his accompanying motion to withdraw. For the following reasons, we affirm Defendant’s habitual offender sentences and grant Defendant’s appellate counsel’s motion' to withdraw.

FACTS

On December 12, 2011, thé victim, Cons-wayla Mitchell, was living in Natchitoches, Louisiana, with her fiancé, Tyrell Thomas. Mr. Thomas, a known drug dealér, was out of town at the time. At approximately 9:00 a.m., the front door of their home was kicked in, and two men entered the house. They rushed into the bedroom, and one of the men shot Ms. Mitchell. The men then took $2,200.00 and a gun from the bedroom. A tip and police investigation resulted in the arrest of several individuals, including Defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, wé review all appeals for errors patent on the face of the record. After ’re[364]*364viewing the record, we find no errors patent.

ANDERS ANALYSIS.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, Defendant’s appellate counsel has filed a brief stating he could find no errors on appeal that would support reversal of Defendant’s habitual offender sen-: fences and seeks to withdraw.

Is An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Defrene, 07-823, p. 4 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33. 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.

State v. Newman, 12-359, p. 7 (La.App. 5 Cir. 12/11/12), 107 So.3d 775, 780, writ denied, 13-121 (La.6/21/13), 118 So.3d 407.

Defendant’s appellate counsel’s Anders brief must “,‘assure the court that the indigent defendant’s constitutional rights have not been violated.’ ” State v. Jyles, 96-2669, p. 2 (La.12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903, 100 L.Ed.2d 440 (1988)). Counsel must fully discuss and analyze the trial record and consider “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. (citing United States v. Pippen, 115 F.3d 422 (7th Cir.1997)). Thus, counsel’s Anders brief must review the procedural history and the evidence presented in the trial court and provide “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La.4/28/95), 653 Sp.2d 1176, 1177.

Since this court’s remand was for resen-tencing only, the only possible issue in the current appeal is the trial court’s resen-tencing of Defendant. Pierre, 165 So.3d 365. Defendant’s appellate counsel’s brief to this court recites the | ¿procedural history of the case and asserts that there were no non-frivolous errors found after he performed a conscientious review of the record. He cites State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233, for the proposition that there was no prohibition against the trial court’s enhancement of both convictions. Additionally, he notes that since the life sentences were ordered to run concurrently with one another, a claim that the sentences are excessive would be frivolous.

In accordance with Anders and Newman, we have performed a thorough review of the record, including minute entries and the resentencing transcript, and have confirmed the statements made by Defendant’s appellate counsel. The only issue before the court in this appeal is Defendant’s resentencing, for which Defendant was present. As stated previously, the trial court chose to enhance both of Defendant’s convictions as a third habitual offender,'a decision that was authorized by the supreme court in Shaw, 969 So.2d 1233. In Shaw, the supreme court allowed all five of Shaw’s sentences to be enhanced as a third habitual offender, even though [365]*365the sentences all stemmed from the same episode of criminal behavior. Id. Shaw held that “all multiple sentences imposed after a single course of criminal conduct can be enhanced under the Habitual Offender Law.” Id.' at 1235. Thus, Defendant’s appellate counsel correctly asserts that there was no prohibition against the trial court’s enhancement of both sentences in the present case.

Further, we find that the sentences imposed are legal in all respects.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
McCoy v. Court of Appeals of Wisconsin, District 1
486 U.S. 429 (Supreme Court, 1988)
State v. Jyles
704 So. 2d 241 (Supreme Court of Louisiana, 1997)
State v. Shaw
969 So. 2d 1233 (Supreme Court of Louisiana, 2007)
State v. Defrene
980 So. 2d 31 (Louisiana Court of Appeal, 2008)
State v. Newman
107 So. 3d 775 (Louisiana Court of Appeal, 2012)
State v. Pierre
165 So. 3d 365 (Louisiana Court of Appeal, 2015)
State v. Pierre
170 So. 3d 348 (Louisiana Court of Appeal, 2015)
Day v. Allen
129 So. 260 (Louisiana Court of Appeal, 1930)

Cite This Page — Counsel Stack

Bluebook (online)
186 So. 3d 361, 15 La.App. 3 Cir. 914, 2016 La. App. LEXIS 405, 2016 WL 805907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierre-lactapp-2016.