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Date: 04-20-2017

Case Style:



Case Number: 16-KA-715

Judge: Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg


Plaintiff's Attorney: n

Paul D. Connick, Jr.
Terry M. Boudreaux
Gail D. Schlosser
Rhonda J. Goode-Douglas

Defendant's Attorney: n

Bertha M. Hillman

Description: On February 9, 2015, the Jefferson Parish District Attorney‟s office (“the
State”) filed a bill of information charging defendant with one count of possession
of heroin, between 28-200 grams, in violation of La. R.S. 40:966.D. In count two
of the bill of information, defendant was charged with one count of possession of
Tramadol without a prescription, a violation of La. R.S. 40:1238.1.1 On February
20, 2015, defendant pled not guilty at arraignment. On January 27, 2016,
defendant withdrew his not guilty plea, pled guilty as charged to both counts, and
was sentenced to 20 years at hard labor on count one, and five years at hard labor
on count two, with both sentences to run concurrently. Also, on that same date, the
State filed a multiple bill of information that alleged defendant was a second felony
offender, to which defendant stipulated. Pursuant to a plea agreement, the trial
court vacated the previously imposed sentence for count one, and resentenced
defendant as a multiple offender to 20 years at hard labor without benefit of
probation or suspension of sentence, with each of defendant‟s sentences to run
concurrently.2 On August 31, 2016, defendant filed a Uniform Application For
Post-Conviction Relief seeking an out of time appeal, which the trial court granted
on September 6, 2016. The instant appeal follows.
Because the instant convictions were a result of guilty pleas, the underlying
facts were not fully developed at trial. The bill of information in this case alleged
that on January 15, 2015, defendant knowing or intentionally possessed heroin,
between 28-200 grams, and also knowingly or intelligently possessed Tramadol
without a prescription. In addition, an “Arrest Report and Probable Cause
Affidavit” in the record indicates that the offenses took place in Jefferson Parish.
Under the procedure adopted by this Court in State v. Bradford, 95-929, pp.
3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,3 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, 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),
appointed counsel requests permission to withdraw as counsel of record.
In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if he finds his case to be
wholly frivolous after a conscientious examination of it.4 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
3In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam). 4 The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

16-KA-715 3
counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440
(1988) (internal citation omitted).
In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme
Court stated that 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 Anders, an appellate court
must conduct an independent review of the record to determine whether the appeal
is wholly frivolous. Bradford, 95-929 at 4, 676 So.2d at 1110. 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 appellant counsel. Id.
Defendant‟s appellate counsel asserts that after a detailed review of the
record, she could find no non-frivolous issues to raise on appeal. Counsel indicates
that defendant pled guilty pursuant to a counseled plea agreement, and that the trial

16-KA-715 4
court‟s colloquy was thorough and complete. Appellate counsel has filed a motion
to withdraw as attorney of record and has mailed defendant a copy of her brief.5
The State asserts that the record shows that prior to defendant‟s guilty plea,
the district court fully explained to him the rights he was waiving, and defendant
affirmed his understanding. The State agrees with counsel that defendant made a
knowing and voluntary act of pleading guilty. Further, defendant was informed of
his right to appeal. The State concludes, therefore, that defendant‟s convictions and
sentences should be affirmed and that appellate counsel should be allowed to
An independent review of the record supports appellate counsel‟s assertion
that there are no non-frivolous issues to be raised on appeal.
The record shows that defendant was present at the original sentencing and
his re-sentencing as a multiple offender, and was represented by counsel. Prior to
sentencing and re-sentencing as a multiple offender, the trial court entered into a
colloquy with defendant wherein the court advised defendant of his Boykin6 rights
and asked defendant if he understood that he was waiving those rights by pleading
guilty. Defendant was advised of the sentences he would receive if he pled guilty.
Defendant‟s sentences were in the statutory range for violations of La. R.S.
40:966.D and La. R.S. 40:1238.1, and as a second felony offender under La. R.S.
15:529.1. The record shows that defendant‟s plea bargain resulted in an agreement
from the State to file a multiple offender bill of information alleging defendant to
be a second felony offender instead of a fourth felony offender. Furthermore, La.
C.Cr.P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of
a sentence imposed in conformity with a plea agreement which was set forth in the

5 Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until January 22, 2017, to file a pro se supplemental brief. Defendant did not file a pro se brief. 6 Boykin v. Alabama, 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).

16-KA-715 5
record at the time of the plea. Defendant was also properly advised of the time
limitations for filing post-conviction relief.
Because appellant counsel‟s brief adequately demonstrates by full discussion
and analysis that she has reviewed the trial court proceedings and cannot identify
any basis for a non-frivolous appeal and an independent review of the record
supports counsel‟s assertion, we affirm defendant‟s sentences and convictions and
grant appellate counsel‟s motion to withdraw as attorney of record.
Defendant requests 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. 5 Cir. 1990) regardless of whether defendant makes such a request. Our
review reveals errors patent in this case which require correction.
First, we note that the commitment in this case fails to indicate that
defendant‟s sentence for count two is to be served at hard labor, which is
inconsistent with the trial court‟s order during sentencing. Next, while the trial
court ordered that defendant be given credit for time served “pursuant to Article
880 of the Code of Criminal Procedure,” the commitment more specifically
provides that defendant was “given credit for time served from date of initial arrest
until today for each day defendant actually served.” Further, the transcript and the
uniform commitment order reflect that the trial judge recommended defendant for
any self-help programs. However, the commitment fails to reflect this
recommendation. When there is a discrepancy between the transcript and the
minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

16-KA-715 6
We also note that the transcript, the commitment, and the uniform
commitment order appear inconsistent regarding the concurrent nature of
defendant‟s original sentences. The commitment provides that “the above sentence
is to run concurrently with 14-4182 and 15-766 and with any time already
serving.” The uniform commitment order also includes as a sentence condition:
“Concurrent with 14-4182 and 15-766 and with any time already serving.” The
transcript, however, provides that defendant‟s sentences in the instant matter were
to run “concurrently with each other and concurrently with [his] sentences in
Matter Number 14-4182.” Again, when there is a discrepancy between the
transcript and the minute entry, the transcript prevails. Lynch, supra.
Accordingly, to ensure accuracy in the record, we remand the case for
correction of the commitment and the uniform commitment order and direct the
Clerk of Court to transmit the corrected commitments to the officer in charge of
the institution to which defendant has been sentenced as well as to the legal
department of the Louisiana Department of Public Safety and Corrections.


Accordingly, for the reasons provided herein, defendant‟s convictions and sentences are affirmed, the matter is remanded for corrections to the commitment and uniform commitment order, and appellate counsel‟s motion to withdraw as attorney of record is hereby granted.

Plaintiff's Experts:

Defendant's Experts:


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