State v. Walker

128 So. 3d 1205, 13 La.App. 5 Cir. 340, 2013 WL 5856797, 2013 La. App. LEXIS 2216
CourtLouisiana Court of Appeal
DecidedOctober 30, 2013
DocketNo. 13-KA-340
StatusPublished

This text of 128 So. 3d 1205 (State v. Walker) 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. Walker, 128 So. 3d 1205, 13 La.App. 5 Cir. 340, 2013 WL 5856797, 2013 La. App. LEXIS 2216 (La. Ct. App. 2013).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

|2In this case, defendant’s appointed appellate counsel has filed an Anders1 brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant’s convictions and sentences and grant counsel’s motion to withdraw.

Facts and Procedural History

In this case, the convictions resulted from guilty pleas so the circumstances surrounding the charged offenses were gleaned from the record, including testimony presented at defendant’s suppression hearings. Here, the record reveals that, on March 16, 2008, Benjamin Walker perpetrated forcible rape upon an adult female, whose date of birth is January 14, 1944.2 Further, on that same date, Benjamin Walker committed aggravated burglary of a residence on Angus Street in Harvey. Lastly, on April 8, 2008, Benjamin Walker attempted to commit simple burglary of an inhabited dwelling in Marrero.

3On March 5, 2009, the Jefferson Parish Grand Jury indicted defendant, Benjamin Walker, on one count of aggravated rape, in violation of La. R.S. 14:42; one count of aggravated burglary, in violation of La. R.S. 14:60; and one count of attempted simple burglary of an inhabited dwelling, in violation of La. R.S. 14:(27)62.2.3

On May 14, 2012, defendant entered guilty pleas to three counts: first, to the reduced charge of forcible rape, in violation of La. R.S. 14:42.1; second, to aggravated burglary, as charged; and, third, to attempted simple burglary of an inhabited dwelling, as charged. That same day, after defendant waived statutory delays, the trial judge, pursuant to a plea agreement set forth in the record, sentenced defendant for forcible rape to “30 years in the Department of Corrections,”4 the first two of which are without the benefit of probation, parole or suspension of sentence; for aggravated burglary, “30 years Department of Corrections;” 5 and, for the attempted residential burglary, “six years Department of Corrections6 ... the first year to be served without the benefit of parole, probation or suspension of sentences.”

[1207]*1207In addition, on May 14, 2012, the State filed a multiple offender bill of information alleging that defendant was a second felony offender, pursuant to La. R.S. 15:529.1. That day, defendant stipulated to being a second felony offender. Thereafter, the trial court vacated defendant’s original sentence for forcible rape and imposed an enhanced sentence of “30 years Department of Corrections; the first two years ... without the benefit of probation, parole or suspension of ^sentence.”7 The trial judge reiterated that all of defendant’s sentences were to run concurrently.

On May 24, 2012, defendant filed a pro se Motion for Reconsideration of Sentence, which the trial judge denied on July 9, 2012. On July 18, 2012, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which the trial judge granted. This appeal follows.

Discussion

Under the procedure adopted by this Court in State v. Bradford,8 appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, supra, and State v. Jyles9 appointed counsel requests permission to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it.10 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.”11

bin State v. Jyles,12 the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial 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.” 13

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 [1208]*1208wholly frivolous.14 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 legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing legal points identified by the court, or grant the motion and appoint substitute appellate counsel.15

In her brief, defendant’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal or ruling of the court that arguably supports the appeal. First, counsel sets forth a procedural history of the case, and statement of the relevant facts revealed in the record. Counsel further notes that defendant’s pleas were made without reservation of his right to review pre-trial rulings under State v. Crosby, 338 So.2d 584 (La.1976), so those rulings have not been preserved for review. Counsel ^additionally points out that defendant was adequately informed of the legal consequences of changing his plea by his counsel and the trial judge, who also advised defendant of the rights that he would be waiving by entering his guilty pleas and the sentencing exposure that he faced for each count of the bill of information.

Counsel contends that her brief is in compliance with Anders and that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Finally, appellate counsel has filed a motion to withdraw as attorney of record, which states she has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal.

As a result of that filing, this Court sent defendant a certified letter on July 30, 2013, informing him that his appointed appellate counsel had filed an Anders brief and that he had until August 30, 2013, to file a pro se supplemental brief. When defendant sought leave to file a supplemental brief, this Court provided defendant with a copy of the appellate record in this matter.

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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)
McCoy v. Court of Appeals of Wisconsin, District 1
486 U.S. 429 (Supreme Court, 1988)
Smith v. Robbins
528 U.S. 259 (Supreme Court, 2000)
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. Benjamin
573 So. 2d 528 (Louisiana Court of Appeal, 1990)
State v. Mouton
653 So. 2d 1176 (Supreme Court of Louisiana, 1995)
State v. Washington
916 So. 2d 1171 (Louisiana Court of Appeal, 2005)
State v. Bradford
676 So. 2d 1108 (Louisiana Court of Appeal, 1996)
State v. Schaefer
704 So. 2d 300 (Louisiana Court of Appeal, 1997)
State v. Jyles
704 So. 2d 241 (Supreme Court of Louisiana, 1997)
State v. Vance
947 So. 2d 105 (Louisiana Court of Appeal, 2006)
State v. McCoil
924 So. 2d 1120 (Louisiana Court of Appeal, 2006)
Hall v. Excelsior Steam Laundry Co.
5 La. App. 5 (Louisiana Court of Appeal, 1926)

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Bluebook (online)
128 So. 3d 1205, 13 La.App. 5 Cir. 340, 2013 WL 5856797, 2013 La. App. LEXIS 2216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walker-lactapp-2013.