Salus Populi Suprema Lex Esto

About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 04-20-2017

Case Style:


Marrero teenager indicted in shooting death of his cousin

Case Number: 16-KA-645

Judge: Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson


Plaintiff's Attorney: n

Paul D. Connick, Jr.
Terry M. Boudreaux

Defendant's Attorney: n

Prentice L. White

Description: On December 18, 2014, a Jefferson Parish Grand Jury indicted defendant
with second degree murder in violation of La. R.S. 14:30.1 (count one) and
obstruction of justice in violation of La. R.S. 14:130.1 (count two). On January 8,
2015, defendant was arraigned and pled not guilty to the charges against him.2
Subsequently, in connection with a plea agreement, the State amended count one
of the indictment to charge defendant with manslaughter in violation of La. R.S.
14:31. On June 24, 2016, defendant withdrew his not guilty pleas and pled guilty
to the amended manslaughter charge and the obstruction of justice charge. On the
same date, the trial court sentenced defendant to twenty-five years imprisonment at
hard labor on count one and twenty years imprisonment at hard labor on count two.
Defendant filed a timely motion for appeal.
Defendant pled guilty without proceeding to trial, but the State provided the
following factual basis for each charge during defendantís guilty plea colloquy:

1 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 Defendant filed omnibus pretrial motions. The record reflects that, following a hearing, the trial judge denied defendantís motion to suppress his confession but that other motions filed were never ruled upon. Defendant did not object to the trial courtís failure to rule on his pre-trial motions prior to pleading guilty and, thus, those motions are considered waived. See State v. Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

16-KA-645 2
If the State would proceed to trial, it would prove beyond a reasonable doubt that the defendant, Ahmad Wiley, on September the 11th, 2014, while in Jefferson Parish, violated La. R.S. 14:31 in that he committed the manslaughter of Alontay Simmons. FurthermoreÖdefendant violated La. R.S. 14:130.1 in that he intentionally removed a firearm from the location of that incident having good reason to believe that that firearm would have been the subject of an investigation by state and local law enforcement officers.

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.
App. 4th Cir. 1990), defendantís appointed appellate 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 that he has thoroughly reviewed the trial court record and could
find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel
requests to withdraw as counsel of record.
In Anders, the United States Supreme Court stated that appointed appellate
counsel may request permission to withdraw if he finds the case to be wholly
frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana
Supreme Court explained that an Anders brief must demonstrate by full discussion
and analysis that appellate counsel ďhas cast an advocateís 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.Ē Jyles, 704 So.2d at 241.
An appellate court must conduct an independent review of the trial court
record to determine whether the appeal is wholly frivolous. ďWhen 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

16-KA-645 3
basis for appeal.Ē State v. Dufrene, 07-823 (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. 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 the legal point(s) identified by the
court, or grant the motion and appoint substitute appellate counsel. Id.
In this case, appointed appellate counselís brief demonstrates that after a
detailed review of the record, counsel could find no non-frivolous issues to raise on
appeal. The State agrees and urges this Court to grant defense counselís request to
withdraw as counsel of record. An independent review of the record supports
counselís assertion that there are no non-frivolous issues to raise on appeal.
First, the amended indictment filed properly charged defendant with
manslaughter in violation of La. R.S. 14:31 and obstruction of justice in violation
of La. R.S. 14:130.1. As required, the indictment sufficiently identified defendant
and clearly, concisely, and definitely stated the essential facts constituting the
crimes charged. See La. C.Cr.P. arts. 464-66. Second, the minute entries reflect
that defendant appeared at each stage of the proceedings against him. Defendant
and his counsel appeared in open court for defendantís arraignment, guilty plea
proceeding, and sentencing.
Third, defendant pled guilty to the charges against him. Once a defendant is
sentenced, only those guilty pleas that are constitutionally infirm may be
withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La. App.
5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it
is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when
a defendant is induced to enter the plea by a plea bargain or what he justifiably
believes was a plea bargain and that bargain is not kept. Id. In such a case, the

16-KA-645 4
defendant has been denied due process of law in that the plea was not given freely
and knowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).
The record reflects that defendant was aware he was pleading guilty to the
charged offenses, manslaughter and obstruction of justice. The trial court advised
defendant of the nature of the offenses to which he pled guilty. Defendant was
informed during the colloquy and in the waiver of rights form of the maximum
sentence for both crimes and the actual sentences that would be imposed pursuant
to the guilty pleas.3 The trial court advised defendant of his right to a jury trial, his
right to confrontation, and his privilege against self-incrimination, as required by
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed. 274 (1969). Defendant
was advised of these rights by means of the waiver of rights form, which he signed,
and during the colloquy with the trial judge. During his guilty plea colloquy and in
his waiver of rights form, defendant indicated that he had not been forced or
coerced into entering his guilty plea. After the colloquy with defendant, the trial
judge was convinced that defendantís pleas were knowingly, intelligently, and
voluntarily made.
Last, defendantís sentencesóimposed pursuant to a plea agreementódo not
present any non-frivolous issues on appeal. A defendant cannot appeal or seek
review of a sentence imposed in conformity with a plea agreement set forth in the
record at the time of the plea. La. C.Cr.P. art. 881.2(A)(2). Because defendantís

3 The record reflects that the trial judge failed to inform defendant of the minimum sentences on either count. 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. Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations, however, are subject to harmless error analysis. See State v. Goff, 13-866 (La. App. 5 Cir. 04/09/14), 140 So.3d 147, 151; State v. Guzman, 99-1528 and 99-1753 (La. 5/16/00), 769 So.2d 1158, 1164-66; State v. Gilliam, 01-748 (La. App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-0512 (La. 11/1/02), 828 So.2d 562. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendantís knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Gilliam, 807 So.2d at 1027. 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). We find this error to be harmless under the facts of this case, where defendant was advised of the sentences he would receive and did in fact receive those sentences. Moreover, the record reflects that the plea agreement was beneficial to defendant, resulting in the amended manslaughter charge when defendant faced a possible mandatory life sentence under the second degree murder charge.

16-KA-645 5
sentences were imposed in conformity with a plea agreement which was set forth
in the record at the time of the plea, defendant cannot seek review of his sentences
on appeal. See State v. Smith, 09-1043 (La. App. 5 Cir. 6/29/10), 43 So.3d 261,
Moreover, defendantís plea agreement was beneficial to him in that he was
originally charged with second degree murder for which, if convicted, he would
have received a mandatory life sentence.5 Pursuant to the plea agreement, the State
amended the second-degree murder charge to a manslaughter charge, for which he
faced a forty year maximum sentence but received a twenty-five year sentence.
Upon an independent review of the record, we find no non-frivolous issues
for appeal. Defendantís appointed appellate counsel has adequately demonstrated
his review and analysis of the record in this case. An independent review of the
record supports counselís assertions set forth in his Anders brief. Therefore, we
find that counselís request to withdraw as counsel of record should be granted.
Defendant requests an error patent review. This Court routinely reviews
records 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. The record reflects
the following errors patent:
First, the commitment indicates that the trial judge advised defendant that he
had ďtwo (2) years after judgement of conviction and sentence has become final to
seek post-conviction relief.Ē However, the transcript reflects that the trial judge
advised defendant that he had ďtwo years after the judgment and sentence becomes

4 Nevertheless, a review of the record reflects that defendantís sentences fall within the sentencing ranges statutorily prescribed. See La. R.S. 14:31 and La. R.S. 14:130.1. 5 The testimony presented at the hearing on defendantís motion to suppress his confession provided that defendant and the victim, who was defendantís cousin, were involved in the attempted armed robbery of two Asian males on the date of the charged crimes. The testimony provided that, as the two Asian males fled the scene, both defendant and the victim, Simmons, began shooting at the two Asian males. At some point, Simmons walked into defendantís line of fire and was fatally shot.

16-KA-645 6
final in which to seek post-conviction relief.Ē The failure of the trial judge to
advise a defendant that the prescriptive period for seeking post-conviction relief
runs from the time his conviction and sentence become final renders the advisal
incomplete. State v. Grant, 04-341 (La. App. 5 Cir. 10/26/04), 887 So.2d 596,
598. When there is a discrepancy between the minute entry or commitment and
the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.
1983); State v. Pham, 12-635 (La. App. 5 Cir. 05/16/13), 119 So.3d 202, 227-28.
It is well-settled that if a trial court provides an incomplete advisal,
pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by
informing the defendant of the applicable prescriptive period for post-conviction
relief. See State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538,
writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.
App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La. 10/16/09), 19
So.3d 473; State v. Jacobs, 07-887 (La. App. 5 Cir. 5/24/11), 67 So.3d 535, writ
denied, 11-1753 (La. 2/10/12), 80 So.3d 468; State v. Taylor, 12-25 (La. App. 5
Cir. 6/28/12), 97 So.3d 522, 538; and State v. Brooks, 12-226 (La. App. 5 Cir.
10/30/12),103 So.3d 608.
Accordingly, we advise defendant by way of this opinion that no application
for post-conviction relief, including applications which seek an out-of-time appeal,
shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922.
Second, the record reflects an inconsistency between the commitment and
the transcript concerning the sentences imposed, rendering defendantís sentences
indeterminate. The transcript reflects that the trial judge ordered defendantís two
sentences to run concurrently with ďany other sentence.Ē The commitment,
however, more specifically states that the trial judge ordered the two concurrent

16-KA-645 7
sentences to run concurrently with ďany other sentence defendant may be serving.Ē
The transcript prevails. Lynch, supra. La. C.Cr.P. art. 879 provides that ď[i]f a
defendant who has been convicted of an offense is sentenced to imprisonment, the
court shall impose a determinate sentence.Ē


We find that defendantís sentences are
indeterminate because the trial court did not specify whether the sentences were
ordered to run concurrently with specific sentences imposed or simultaneously
with any other sentences imposed that defendant may have been serving at the time
of his sentencing.6 Accordingly, we vacate defendantís sentences and remand this
matter to the trial court to clarify defendantís sentences.

Plaintiff's Experts:

Defendant's Experts:


Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2018 MoreLaw, Inc. - All rights reserved.