State v. Robinson

185 So. 3d 212, 15 La.App. 5 Cir. 610, 2016 La. App. LEXIS 131, 2016 WL 360840
CourtLouisiana Court of Appeal
DecidedJanuary 27, 2016
DocketNo. 15-KA-610
StatusPublished
Cited by3 cases

This text of 185 So. 3d 212 (State v. Robinson) 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. Robinson, 185 So. 3d 212, 15 La.App. 5 Cir. 610, 2016 La. App. LEXIS 131, 2016 WL 360840 (La. Ct. App. 2016).

Opinion

| defendant, Micfrael Anthony Robinson, appeals his convictions and ■ sentences for two counts of .operating a,, motor vehicle while intoxicated, fourth offense. For. the reasons that follow, we affirm defendant’s convictions, amend his sentences and affirm as'amended, and remand the case for correction of the uniform commitment.1

On July 15, 2013, defendant was'charged with two counts of operating a motor vehicle while intoxicated, fourth offense, in violation of La. R.S. 14:98(A)(E).2 After the denial of his pre-trial motions, on February 2,2015, defendant withdrew his former pleas of not guilty, and entered pleas of guilty as charged to both counts. Defendant was then sentenced to twenty-five years at hard'labor on each count,’with each count to run concurrently, and three years on each count to be'served without bénefit Of probation, parole, or suspension of sentence.

IsThe district court granted defendant an out-of-time appeal on August 10, 2015, and this appeal now follows.

[214]*214Because defendant pled guilty without proceeding to trial, the following facts are taken from a limited record on appeal. Pursuant to the bill of information, on or about December 2, 2012, and on or about February 10, 2013, defendant violated La. R.S. 14:98(A)(E), in that he willfully and unlawfully operated a motor vehicle while intoxicated while having three previous DWI convictions.3 Additionally, during the guilty plea colloquy, the State provided a factual basis for the guilty plea.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Accordingly, appellate counsel’s brief sets forth that it is filed in accordance with 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), which set forth the procedure appellate counsel should follow when, upon conscientious review of a case, counsel finds an appeal would be wholly frivolous.

In the instant case, appellate counsel purports that she reviewed the.procedural history of the case in her brief. She sets forth that, after a review of the record, she has found no non-frivolous issues to present on appeal. Appellate counsel asserts that defendant’s plea was not entered under State v. Crosby.4, Appellate counsel specifically notes that she considered whether to raise the issue of coercion of the plea and was compelled to conclude that such a claim would be frivolous based on the appellate record presented. Counsel also considered the Rclaim of excessiveness of the sentence, but ultimately concluded that this claim would be frivolous. Counsel contends that the trial court reviewed th'e plea, conducted a proper colloquy, and’informed defendant of his sentence‘during the' colloquy.

Accordingly, appellate counsel requests to withdraw from further representation of defendant." Appellate counsel advised this Court that she notified defendant of the filing of this motion, informing him of his right to file a pro se brief in this appeal. Additionally, we note that this Court sent defendant a letter by certified mail advising him that an Anders brief had been filed and that he had a right to file a pro se supplemental brief. Defendant chose not to file a pro se brief.

The State responds that appellate counsel’s brief satisfies all the necessary requirements for an Anders withdrawal. It notes that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history and agreed with appellate counsel that after a careful review of the record, there were no non-frivolous issues to present. Further, the State asserts that defendant was properly charged in the bill of information, that defendant was present at all crucial stages, and nothing in the pleadings or transcripts provide any arguable basis for an appeal. The State also notes that defendant’s guilty plea was freely and voluntarily made, the trial court fully explained to defendant the rights he was waiving by pleading guilty, and defendant was sentenced in accordance with his plea agreement.

This Court has-performed an independent, thorough review of the pleadings, minute entries, bills of information, ten[215]*215script, guilty plea colloquy, and guilty plea | ¿form in the appellate record. La.C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of . the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. We note that although defendant was told of the correct maximum and minimum sentences he faced, defendant was not advised of the restriction of benefits he faced for the offenses until after the trial court accepted his guilty pleas and sentenced defendant. Any variance from the procedure required by Article 556.1 that does not affect the substantial rights of the accused shall not invalidate the plea. La.C.Cr.P. art. 556.1(E). As such, we find that the failure to properly advise defendant during the colloquy of the restriction of benefits that were statutorily mandated and would be imposed was harmless error. Here, the record, as a whole, supports a finding that defendant knew the consequences of his guilty pleas, as well as the sentences he would receive, and conferred with his attorney before entering his guilty pleas. By signing the waiver of rights form, defendant also indicated that he understood the sentences he would receive. There is no indication in the record or suggestion by defendant that there was any inducement regarding the restriction of benefits in this case. Accordingly, we do not find that this error presents an issue for appeal.

Our further independent review reveals no non-frivolous issues or trial court rulings that arguably support an appeal. Accordingly, defendant’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw, which has been held in abeyance pending disposition of this matter, is granted.

Error Patent Review:

Appellate counsel requésts an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990) regardless of whether a defendant makes such a request.

First, we note that neither the sentencing transcript, the minute entry from the daté of sentencing, the uniform commitment order, nor the guilty plea form reflect that the trial court imposed the mandatory fine on each count provided by La. R.S. 14:98(A)(E) which states: “on a conviction of a fourth or subsequent offense ... the offender .shall be fined five thousand dollars.” As such defendant received illegally lenient sentences. While finding the omission of the imposition of a fine in . such cases to be error, this Court has, as a matter of discretion pursuant to La.C.Cr.P. art. 882, declined to correct an illegally lenient sentence based on the defendant’s indigent status. State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842.

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Cite This Page — Counsel Stack

Bluebook (online)
185 So. 3d 212, 15 La.App. 5 Cir. 610, 2016 La. App. LEXIS 131, 2016 WL 360840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robinson-lactapp-2016.