author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Danny D. SAULNY
    NO. 16-KA-734
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D, Connick, Jr., Terry M. Boudreaux, Darren A. Allemand

      COUNSEL FOR DEFENDANT/APPELLANT, DANNY D. SAULNY, Bruce G. Whittaker
    Panel composed of Susan M. Chehardy, Robert A. Chaisson, and Robert M. Murphy
   CHEHARDY, C.J.

liOn appeal, defendant challenges his convictions for attempted second degree murder, felon in possession of a firearm, and home invasion. For the following reasons, we affirm defendant’s convictions and sentences but remand for correction of the uniform commitment orders.

Procedural history

On June 5, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Danny D. Saulny, with the attempted second degree murder of Erica Poret, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. On March 2, 2015, the State filed a superseding bill of information charging defendant with the attempted second degree murder of Erica Poret, in violation of La. R.S. 14:30.1 and La. R.S. 14:27; possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1; and home invasion, in violation of La. R.S. 14:62.8.

On June 21, 22, and 23, 2016, the case was tried before a twelve-person jury, which found defendant guilty as charged. On July 18, 2016, the trial judge sentenced defendant, for attempted second degree murder, to fifty years at hard labor without benefit of parole, probation, or suspension of sentence; for possession of a firearm by a convicted felon, twenty years at hard labor without benefit of parole, probation, or suspension of sentence; and, for home invasion, twenty-five years at hard labor, to all run concurrently.

On September 16, 2016, the State filed a bill of information alleging that defendant was a second felony offender. After a hearing that day, the trial judge found that the State had presented sufficient proof that defendant was a second felony offender. The trial judge vacated the original sentence for attempted second degree murder and imposed an enhanced sentence of seventy-five years at hard Rlabor, without benefit of probation or suspension of sentence, to run concurrently with the sentences on counts two and three. Defendant verbally moved to appeal.

Facts

At trial, Erica Poret testified that, in January of 2014, she was living with her cousin’s family at 117 Madeira Drive in Avondale. On the night of January 13, 2014, she was cooking dinner in the kitchen when two armed African-American men kicked in the locked front door and entered the apartment. Ms. Poret recognized one of the men as “Noonie,” who she had known for many years, since they were in grade school together. Noonie was later identified as defendant-herein.

Ms. Poret recalled that, after the men entered, defendant said, “b*tch, come here and give me everything you got.” When she reached defendant, he threw her onto the ground then dragged her by her hair toward the kitchen as the other man kicked her. After more physical abuse, the intruders dragged her down the hallway into a bedroom. Defendant again demanded “everything she had,” so Ms. Poret gave him a wallet she found in the dresser drawer. Defendant told his accomplice to shoot Ms. Poret then defendant himself shot Ms. Poret in her right cheek.

Ms. Poret recalled that, defendant and the other man kept shooting her. Ms. Po-ret tried to fight but had sustained several gunshot wounds. She heard defendant pull the trigger again, but nothing came out. Ms. Poret testified that she could not move and that she heard defendant say, “I think she is dead let’s go.” After she heard them leave, she stood' up, stumbled, and ran as best as she could to her neighbor’s house. Ms. Poret recalled walking into her neighbor’s house then collapsing. When the neighbors asked her to name the shooter, she told them “Noonie” several times. At trial, Ms. Poret testified that she was “a million percent certain” that defendant was one of the two individuals that shot her on January 13, 2014.

| ¡¡Cory Poche, who was a deputy with the Jefferson Parish Sheriffs Office (“JPSO”) on January 13, 2014, responded to a call for service at 133 Madeira Drive. Deputy Poche testified that he was advised there was a female bleeding from the mouth and dying there. When he approached the front door, he noticed there was a blood trail from the front door leading through the house to the victim in the hallway. Deputy Poche testified that the victim had multiple gunshot wounds and blood all over her, and she was in and out of consciousness. Once the medical personnel arrived and stabilized the victim, he was able to talk to her. While in the ambulance, he asked Ms. Poret who shot her and she mumbled the name “Noonie,” which he heard clearly. While on the scene, he learned that the shooting had occurred at 117 Madeira, which was about four houses down on the same side of the street.

Dr. Alan Marr, a trauma surgeon at University Hospital, was qualified as an expert in the field of trauma, surgical, and critical care. Dr. Marr testified that he treated Ms. Poret when she came into the emergency room at University Hospital, He recalled that she had sustained multi-pie ballistic wounds to multiple, areas of her body, including her face, neck, chest, and extremities. He explained that she had internal injuries from the gunshot wounds, including injuries to her hypo-pharynx where the esophagus started and to her carotid artery, the main artery bringing blood to the brain. Dr. Marr asserted that the victim underwent multiple surgeries by him, a vascular surgeon, and a specialist in facial reconstruction. He testified that initially she was not able to walk, talk, or eat on her own, and, during that long period of recovery, he saw her daily while she was at the hospital. He described her wounds as “horrible and life threatening” and thought she was a “severely traumatized individual,”

|4In January of 2014, Deputy Gerald Fa-valoro of JPSO was assigned to the “shoot squad,” which investigates non-homicide shootings. On January 13, 2014, he responded to a call for service at 133 Madeira Drive involving a shooting and assumed responsibility for the investigation as a detective of the “shoot squad.” Deputy Favaloro - learned that the shooting occurred at 117 Madeira so he instructed Crime Scene to collect evidence and photograph the scenes at both addresses. D¿puty Favaloro’s team found casings and a projectile in a bedroom.

Deputy Favaloro léarned that the suspect had the nickname of “Noonie” and, 'through investigation, learned that an individual’ with that nickname lived in the Avondale aréa. A photographic lineup with that individual’s picture was compiled. On January 30, 2014, Deputy Favaloro showed the lineup to the victim, and she positively identified defendant as the perpetrator. He also collected a letter that the victim wrote describing the incident and identifying “Noonie” as the shooter. Afterward, Deputy Favaloro obtained an arrest warrant for defendant. In April of 2014, defendant was arrested in Texas and extradited to Jefferson Parish.

Jené Rauch, the Supervisor of the Firearm and Tool Mark Section of the Jefferson Parish Crime Lab, was qualified as an expert in the field of firearm examination and identification. Ms. Rauch reviewed eight 9-mm caliber fired cartridge casings and two projectiles connected with this incident. Ms. Rauch testified that, based on the markings, all of the casings were fired from the same weapon. Further, both copper-jacketed projectiles were fired from the same weapon. Moreover, both projectiles were consistent with .38-class ammunition, and were marked with six lands and grooves with a right twist. No firearm was recovered in this case.

1 (After hearing the testimony and reviewing the evidence, the twelve-person jury found that defendant was guilty of attempted second degree murder, being a felon in possession of a firearm, and home invasion.

Discussion

On appeal, defendant raises two assignments of error: first, the trial judge erred in denying the Motion to Declare Article 782(A) unconstitutional for allowing a non-unanimous verdict in a felony trial; and, second, the evidence was insufficient to support the verdict.

In his second assignment of error, defendant argues that the evidence was insufficient to support the verdict. He contends that the victim identified him and Léster Stevenson as the perpetrators, but, because the State did not charge Mr. Stevenson, the State did not trust the victim’s identification of Mr. Stevenson. Defendant argues that, if the State believes that the victim is wrong about one co-perpetrator, it is irrational and illogical to trust her identification of another perpetrator in the same incident. Defendant argues that the victim identified Mr. Stevenson after randomly seeing him at the courthouse about eight months after the incident, which was completely free of any improper influence or suggestion as- might occur in a law enforcement-initiated identification procedure.

Defendant also contends that the evidence was insufficient to support the verdict because the weapon used to assault the victim was in the hands of some other perpetrator on December 31, 2013, a date on which he was in jail. Defendant argues that this fact serves to further undermine the rationality of crediting the victim’s identification of him beyond a reasonable doubt.

| nIn reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135, p. 4 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Ray, 12-684, p. 5 (La.App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13), 124 So.3d 1096. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717, p. 6 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 203, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297.

IvThe credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

In the instant case, defendant was convicted of attempted second degree murder, possession of a firearm by a convicted felon, and home invasion. On appeal, defendant does not argue that the State failed to prove the elements of the crimes; rather, he contends that the State failed to negate any reasonable probability of mis-identification of him as the perpetrator.

Identification

With respect to the victim’s identification of defendant as the perpetrator, the record reflects that Ms. Poret testified that she recognized one of the perpetrators as “Noonie,” whom she later identified as defendant. She asserted that she knew defendant from grade school and had known him for more than ten years. Ms. Poret was clear from the earliest moments after the incident that there were two assailants, who both shot her. Ms. Poret never wavered in her identification of defendant as the shooter. We find that a rational trier of fact could have found that the State negated any reasonable probability of raisidentification of defendant as the perpetrator.

Further, on appeal, defendant contends that if the victim’s identification of the co-perpetrator could be so unequivocally wrong, it is irrational and illogical to believe beyond a reasonable doubt her identification of defendant in the exact same incident. However, it is clear that the identity of the other perpetrator was not at issue at trial and is not at issue on appeal. This assignment of error lacks merit.

Moreover, a rational trier of fact could have found that there was sufficient evidence under the Jackson standard to prove the elements of each of defendant’s convictions.

^Attempted Second Degree Murder

Under La. R.S. 14:30.1, second degree murder is defined as the killing of a human being when the offender: 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. See State v. Lewis, 05-170, p. 8 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-757 (La. 12/15/06), 944 So.2d 1277.

The crime of attempted second degree murder requires proof, beyond a reasonable doubt, of the specific intent to kill a human being and the commission of an overt act in furtherance of that goal. State v. Bannister, 11-602, p. 7 (La.App. 5 Cir. 2/14/12), 88 So.3d 628, 634, writ denied, 12-628 (La. 6/15/12), 90 So.3d 1060. This Court has recognized that although specific intent to inflict great bodily harm is sufficient to support a second degree murder conviction, attempted second degree murder requires a specific intent to kill. Id.

La. R.S. 14:27 provides that any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and, it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific intent is a question of fact. State v. Durand, 07-4, p. 9 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753.

With respect to the attempted second degree murder conviction, specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person, State v. Hoffman, 98-3118, pp. 48-49 (La. 4/11/00), 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869, p. 6 (La.App. 5 Cir. 4/11/07), 958 So.2d 24, 27, and from the extent and severity of the victim’s injuries, State v. Stacker, 02-768, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-411 (La. 10/10/03), 855 So.2d 327.

In the instant case, Ms. Poret testified that defendant shot her multiple times. Additionally, Dr. Marr testified that Ms. Poret was the victim of multiple ballistic wounds to multiple areas of her body, including her face, neck, chest, and extremities. He explained that she had internal injuries from the gunshot wounds, including injuries to her hypopharynx where the esophagus started and to her carotid artery, the main artery bringing blood to the brain. Dr. Marr asserted that the victim underwent multiple surgeries by him, a vascular surgeon, and a specialist in facial reconstruction. We find that a rational trier of fact could have found .that the evidence was sufficient under the Jackson standard to prove the elements of the crime of attempted second degree murder.

Possession of a Firearm by a Convicted Felon

La. R.S. 14:95.1 provides that it is unlawful for any person who has been convicted of a crime of violence as defined in La, R.S. 14:2(B), or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon. La. R.S. 14:95.1(A).

ImLa. R.S. 14:2(B) defines, “crime of violence” as an offense that has, as. an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The statute thereafter provides a list of enumerated offenses, including but not limited to aggravated second degree battery, as “crimes of violence.”

To support a conviction under La. R.S. 14:95.1, the State must prove that the defendant possessed the firearm, that the defendant has a prior conviction for an enumerated felony, that the defendant possessed the firearm within ten years of the prior conviction, and that the defendant had the general intent to commit the crime. State v. Hernandez, 11-146, p. 5 (La.App. 5 Cir. 11/29/11), 82 So.3d 327, 331, writ denied, 12-33 (La. 8/22/12), 97 So.3d 357.

With respect to defendant’s conviction of being a felon in possession of a firearm, the record shows that: 1) defendant possessed the firearm; 2) defendant has a prior conviction for a felony; 3) defendant possessed the firearm within ten years of the prior conviction; and 4) defendant had the general intent to commit the crime. See Hernandez, supra.

At trial, the victim testified that defendant had a gun in his possession when he shot her multiple times causing her serious injuries, thus satisfying the first and fourth elements. As to the second element, the record reflects that defendant has a prior conviction for aggravated second degree battery, a crime of violence as defined in La. R.S, 14:2(B)(31). The record further shows that defendant | n possessed the firearm within ten years of the prior conviction, thus satisfying the third element.

The record reflects that the State and the defense stipulated that the fingerprint expert would have testified that she took fingerprints from defendant the morning of trial and compared those fingerprints with, a certified packet of conviction under case number. 11 — 819, wherein defendant pled guilty on May 23, 2011, to possession of a firearm while committing a crime of violence, a violation of La. R.S. 14:95(E), and that defendant was the same person who pled guilty on that date to that charge.

Based on the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to prove the elements of the crime of felon in possession of a firearm.

Home Invasion

Defendant was also convicted of home invasion in violation of La. R.S. 14:62.8. To convict defendant of home invasion, as defined by that statute, the State had to prove beyond a reasonable doubt the following elements: (1) defendant entered 117 Madeira Drive without permission or authorization; (2) the place he entered was an inhabited dwelling or a place used in whole or in part as a home by another person; (3) a person was present in the home when defendant made entry; and (4) defendant had the intent to use force or violence against a person in the home or to vandalize, deface, or damage the property. See State v. Hart, 10-1614, p. 6 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 30, writ denied, 14-1334 (La. 4/17/15), 168 So.3d 393.

With respect to defendant’s conviction of home invasion, the record reflects that the victim indicated defendant entered her home without permission or authorization, that the place he entered was used as a home, that the victim was present in the home when defendant entered it, and that defendant had the intent to 112use force or violence against the victim in the home. We find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to prove the elements of the crime of home invasion.

Based on the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient to support - the convictions and that the State negated any reasonable probability of misidentification of defendant as the perpetrator. This assignment of error lacks merit.

Returning to defendant’s first assignment of error, he argues that the trial court erred in denying his motion to declare La. C.Cr.P. Article 782(A) unconstitutional for allowing a non-unanimous verdict in a felony trial. Defendant points out that Article 782(A) provides that ten of twelve jurors must concur to render a verdict in cases where punishment is necessarily confinement at hard labor. Defendant argues that a non-unanimous verdict violates due process and the U.S. Sixth and Fourteenth Amendments.

The record reflects that defendant filed his Motion to Declare Article 782(A) Unconstitutional in the trial court before trial. We further note that the jury unanimously convicted defendant of attempted second degree murder and lacks standing to challenge the constitutionality of La. C.Cr.P. art. 782(A) with respect to that count. In State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 545-46, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied, 568 U.S. 838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012), the defendant was convicted of two counts of second degree murder under La. R.S. 14:30.1 by a unanimous twelve-person jury verdict. This Court found that the defendant did not have standing to challenge the constitutionality of La. C.Cr.P. art. 782(A) because he was convicted by a unanimous jury verdict on both counts. Jacobs, 67 So.3d at 535 (citing Burch v. Louisiana, 441 U.S. 130, 132 n.4, 99 S.Ct. 1623, 1624, 60 L.Ed.2d 96 (1979)).

11sWith respect to defendant’s two remaining convictions which require confinement at hard labor, the jury did return a verdict of eleven in favor of guilty as charged and one in favor of not guilty and, thus, defendant has standing to raise this challenge.

La. C.Cr.P. art. 782 provides, in pertinent part, that:

A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.

Statutes are presumed to be constitutional and the party challenging the validity of the statute bears the burden of proving it is unconstitutional. State v. Hatton, 07-2377, p. 13 (La. 7/1/08), 985 So.2d 709, 719. As a result of this presumption, a party wishing to challenge the constitutionality of a statute must do so properly. Id. While there is no single procedure for attacking the constitutionality of a statute, the Louisiana Supreme Court has held that in order to properly confect a constitutional challenge, a party must raise the issue in the trial court in a pleading asserting the grounds for the alleged unconstitutionality. Id.

La. C.C.P. art. 1880 provides that if a statute is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard. While the attorney general is not a necessary party that must be joined in the suit, he must be served in actions seeking a declaration of unconstitutionality of a statute. State v. Veal, 11-44, p. 6 (La.App. 5 Cir. 12/28/11), 83 So.3d 211, 214, writ denied, 12-2373 (La. 4/5/13), 110 So.3d 1072 (citing Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864). The defendant complied with the correct procedure of notifying the attorney general of his challenge to the constitutionality of the statute.

In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court, in a plurality decision, determined that the | ^United States Constitution did not mandate unanimous jury verdicts in state court felony criminal trials. Bonilla, supra. In his brief, defendant submits that “the Apodaca decision was wrong, a wrong which will be rectified by the Supreme Court.” He argues that the decision was “deeply fractured” and “internally contradictory.”

Nevertheless, this issue has been addressed numerous times by the Louisiana Supreme Court, this Court, and other appellate courts in this State, and all have rejected the argument. These cases include, but are not limited to: State v. Bertrand, 08-2215 (La. 3/17/09), 6 So.3d 738, 743; State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030; Bonilla, supra; State v. Barbour, 09-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, 1151, writ denied, 10-934 (La. 11/19/10), 49 So.3d 396, cert. denied, 562 U.S. 1217, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011); State v. Baumberger, 15-1056 (La.App. 3 Cir. 6/1/16), 200 So.3d 817, 832-34; and State v. Blueford, 48,823 (La.App. 2 Cir. 3/5/14), 137 So.3d 54, 69, writ denied, 14-0745 (La. 11/21/14), 160 So.3d 968, cert. denied, — U.S. —, 135 S.Ct. 1900, 191 L.Ed.2d 770 (2015).

In Bertrand, supra, the Louisiana Supreme Court reversed the district court, which held Article 782 was unconstitutional and explained the following:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12-person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

State v. Bertrand, 08-2215 at 8, 6 So.3d at 743.

As an intermediate appellate court, this Court is obliged to follow the precedent established by the Louisiana Supreme Court. See State v. Thomas, 10-220, pp. 12-13 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 10-2758 (La. 4/25/11), 62 So.3d 89 and 10-2752 (La. 5/20/11), 63 So.3d 974. In light of the foregoing, we find that the trial judge did not err in denying defendant’s motion to declare Article 782(A) unconstitutional.

Errors Patent

As we routinely do, we have reviewed the record for errors patent, according to 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) and found the following errors patent in this case.

Mandatory Fine

The trial judge failed to impose the mandatory fines on count two (possession of a firearm by a convicted felon) and count three (home invasion). La. R.S. 14:95.1(B) provides for a mandatory fine of “not less than one thousand dollars nor more than five thousand dollars.” La. R.S. 14:62.8(B)(2) provides for a mandatory fine of “not more than seven thousand dollars.”

Although this Court has the authority to correct an illegal sentence at any time, La. C.Cr.P. art. 882, the authority to correct an illegally lenient sentence is permissive rather than mandatory. While this Court has held that statutes providing for a fine of “not more than” a specified amount do require a mandatory fine, this Court has also recognized that the matter is not free from doubt. State v. Kerlec, 06-838 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La. 12/7/07), 969 So.2d 626. In the instant case, defendant is represented by the Louisiana Appellate Project. Therefore, we decline to exercise our authority to remand for correction of the illegally lenient sentences due to defendant’s indigent | ^status. See State v. Ruffin, 13-393 (La.App. 5 Cir. 12/12/13), 131 So.3d 330, 341, writ denied, 14-0066 (La. 6/13/14), 140 So.3d 1194.

Commitment/Consistency — Adjudication Date

Both the original commitment order and the multiple offender commitment order list defendant’s adjudication date as July 18, 2016; however, his adjudication date was the final day of trial, which was June 23, 2016. Because there is an inaccuracy in the uniform commitment orders, we remand the matter and instruct the trial judge to correct the uniform commitment orders to conform to the transcript. Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected uniform commitment orders to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ legal department. See State v. Long, 12-184, pp. 10-11 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2)).

Conclusion

Based on the foregoing, we affirm defendant’s convictions and sentences and remand for correction of the uniform commitment orders.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDERS

      . Ms. Poret explained that, she received fifteen gunshot wounds that night and, at the time of trial, she had undergone more than ten surgeries to remove shrapnel, to repair wounds, and to reconstruct her face and other injured areas. Further, she still had bullets and bullet fragments in her body and she was slated for more surgery, Ms. Poret testified that, after she got out of the hospital, she used prescription pain medication; Xanax, for her frequent nightmares; and heroin.

      . Ms. Rauch discovered that the markings on the cartridges and projectiles in this case are consistent with markings on the cartridges and projectiles from a shooting on December 31, 2013, just two weeks before this incident. In sum, the same gun fired bullets in an incident in December and in this incident, but no gun was recovered in either case. The State and the defense, thereafter, stipulated that, because defendant was incarcerated on December 31, 2013, he was not the shooter in the December case.

      . When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the' evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed before defendant's other assignment. See also State v. Nguyen, 05-569, p. 6 (La.App. 5 Cir. 2/3/06), 924 So.2d 258, 262.

      . La. R.S. 14:10 provides that .general intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the 'prescribed criminal consequences as reasonably certain to result from his act or failure to act.

      . The Louisiana Attorney General was notified of this assignment of error and declined to respond at this time.

      . However, it is noted that the Louisiana Supreme Court has held that “a habitual offender hearing should not be considered part of the record for purposes of error patent review and that a defendant must assign as error any perceived defect in the proceedings to preserve appellate review of the claimed error.” State v. Moore, 12-0102 (La. 5/25/12), 90 So.3d 384, 385 (per curiam ).


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    STATE of Louisiana v. Arthur L. PAYNE
    NO. 17-KA-12
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis
    COUNSEL FOR DEFENDANT/APPELLANT, ARTHUR L. PAYNE, Lieu T. Vo Clark
    Panel composed of Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

      . The State has filed a brief in this matter, concurring in appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal,

   LILJEBERG, J.

|! Defendant appeals his conviction and sentence for possession with intent to distribute cocaine. For the following reasons, we affirm defendant’s conviction, amend his sentence, and affirm the sentence as amended. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On June 6, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Arthur L. Payne, with possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A). On June 18, 2014, a plea of not guilty was entered on his behalf in abstentia. Thereafter, on April 27, 2016, defendant withdrew his plea of not guilty and pleaded guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to 20 years imprisonment with the Department of Corrections without the benefit of probation, parole, or suspension of sentence. The trial court further ordered that his sentence run concurrently with his sentences in case numbers 14-3039, 14-6035, and 14-2957. Defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted by the trial court.

FACTS

Because defendant pleaded guilty, the facts were not fully developed at a trial. During the guilty plea colloquy, the State provided the following factual basis for the guilty plea: “[H]ad that matter proceeded to trial, the State was prepared to show that on or about the date listed on the bill information this defendant, within the 24th Judicial District Court, did violate Louisiana Revised Statute 40:967(A), possession with intent to distribute cocaine, within Jefferson ^Parish.” The bill of information provides that the date of the offense was on or about March 25,2014. ,

LAW AND DISCUSSION

Pursuant to 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, 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, under 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 she finds her case to be wholly frivolous after a conscientious examination of it. 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.” 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).

In 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 | Robjections lack merit. The 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.” Id.

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 appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel asserts that before defendant changed his plea from not guilty to guilty, he was fully informed of the legal consequences of doing so by both his trial counsel and the trial court. Further, appellate counsel contends that in addition to the extensive waiver and plea form filled out by defendant and his trial counsel, an examination of the plea colloquy reveals that the trial court was thorough in explaining and making sure defendant understood the rights he was waiving by pleading guilty.

Appellate counsel has filed a motion to withdraw as attorney of record, in which she states that she has notified defendant that she filed an Anders brief and a motion to withdraw from the case. Appellate counsel also indicates that she | ¿informed defendant of his right to file a pro se supplemental brief in this appeal. Defendant has not filed a pro se supplemental brief in this matter.

An independent, review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged "defendant and plainly and concisely stated the essential facts constituting.the offense charged. It also sufficiently identified defendant-and the crime charged. See La. C.Cr.P. arts. 462-466.

The record shows that there are no ap-pealable issues surrounding defendant’s presence. Although defendant did not appear at his arraignment, he filed a “Motion, Affidavit and Order to Waive Defendant’s Presence at Arraignment,” and the trial court granted the motion, allowing défendant to waive his presence and ap-péar through counsel. At the arraignment, defense counsel entered a not guilty plea on defendant’s behalf. Defendant and his counsel appeared at all other crucial stages of the proceedings against him, including the guilty plea hearing and sentencing.

Further, defendant pleaded guilty in this case. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal. State v. Johnson, 08-449 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-787 (La. 12/18/09), 23 So.3d 932. In the present case, because defendant entered an unqualified guilty plea, he waived any non-jurisdictional defects.

IsThe record reveals that defendant filed a motion to suppress evidence, which was denied by the trial court. Defendant did' not preserve this ruling for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). Although defendant also filed omnibus pre-trial motions, the record does not reflect any rulings on those motions, aside from the motion to suppress evidence. Defendant did not object to the trial court’s failure to hear- or rule on his pre-trial motions prior to his guilty plea. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Therefore, defendant’s motions are considered waived.

’ Next, 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.

A review of the record reveals no constitutional infirmity in defendant’s guilty plea. The record shows that defendant was aware he was charged with and pleading guilty to one count of possession with intent to distribute cocaine. On the waiver of rights form and during the guilty plea colloquy with the trial judge, defendant was advised of' his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama, supra. Defendant signed the waiver of rights form indicating that he understood he was | (¡waiving these rights by pleading guilty. Hé also indicated during the colloquy that he understood he was waiving these rights.

During his guilty plea colloquy, defendant indicated that his guilty plea was knowing, intelligent, free and voluntary, and no promises or threats were made to encourage him to plead guilty. Defendant also indicated during the guilty plea colloquy that he understood his guilty plea could be used to enhance penalties for any future convictions. He was informed during the colloquy and by means of the waiver of rights form that he faced a minimum sentence of five years imprisonment and' a maximum sentence of 30 years imprisonment and a $50,000 fine, and that the actual sentence that would be imposed if his guilty plea was accepted was 20 years imprisonment without the benefit of probation, parole, or suspension of sentence. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, and voluntarily made.

Although defendant was advised on the waiver of rights form and during the guilty plea colloquy that he faced a minimum sentence of five years imprisonment, this advisal was incorrect. Pursuant to La. R.S. 40:967(B)(4)(b), defendant faced a term of imprisonment at hard labor for not less than two years.nor more than 30 years, with the first two years of said sentence being without benefit of probation, parole, or suspension of sentence. The statute also provides for a possible fine of not more than $50,000.

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. State v. Kent, 15-323 (La.App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165. Further, La. C.Cr.P. art. 556.1(E) provides that; “[a]ny variance from the procedures required by this 17Article which does not affect substantial rights of the accused shall not invalidate the plea.” Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to a harmless error analysis. Kent, supra; State v. Craig, 10-854 (La.App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

In the present case, although the trial court failed to advise defendant of the correct minimum sentence, the trial court informed defendant before his guilty plea was accepted that he would receive a 20-year sentence without the benefit of probation, parole, or suspension of sentence, and defendant later received that sentence. Further, by signing the waiver of rights form, defendant indicated that he understood that he would receive a 20-year sentence without the benefit of probation, parole, or suspension of sentence. Any violation of Article 556.1 did not cause prejudice since defendant knew the sentence he would receive, and he received that sentence. The advisement of the agreed upon sentence was sufficient for compliance with La. C.Cr.P. art. 556.1. See Craig, 10-854 at 7-8, 66 So.3d at 64; State v. Broadway, 40,569, p. 7 (La.App. 2 Cir. 1/25/06), 920 So.2d 960, 963. Accordingly, no substantial rights of defendant were affected by the trial court’s incorrect advi-sal of the minimum sentence.

With regard to defendant’s sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In the present case, defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. We also note that the term of defendant’s sentence falls within the sentencing range prescribed by the statute. See La. R.S. 40:967(B)(4)(b). Moreover, defendant’s plea agreement was |8beneficial to him in that he received a sentence ten years less than the maximum he could have received.

Appellate 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. Accordingly, we affirm defendant’s conviction, and we grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

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. One error requiring corrective action was noted.

Defendant was sentenced to 20 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant’s conviction for possession with intent to distribute cocaine, La. R.S. 40:967(A), only provides for a restriction of probation, parole, or suspension of sentence for the first two years. See La. R.S. 40:967(B)(4)(b). Thus, defendant received an illegal sentence due to the restriction of benefits imposed.

When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the appellate courts “should not rely on La. R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’” State v. Sanders, 04-17 (La. 5/14/04), 876 So.2d 42.

laAccordingly, we amend defendant’s sentence to reflect that only two years of the sentence imposed are to be served without the benefit of probation, parole, or suspension of sentence, and we affirm the sentence as amended. We further order the clerk of the trial court to transmit notice of this amended sentence to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department. See State v. Richard, 12-310, p. 13 (La.App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied, 13-1220 (La. 12/2/13), 126 So.3d 497.

DECREE

For the foregoing reasons, we affirm defendant’s conviction for possession with intent to distribute cocaine. We amend the sentence and affirm the sentence as amended. We also grant appellate counsel’s motion to withdraw as counsel of record.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED

      . On the same date that he pleaded guilty in the instant matter, April 27, 2016, defendant entered guilty pleas and was sentenced in case numbers 14-3039, 14-6035, and 14-2957. Defendant has filed appeals in this Court in connection with case numbers 14-3039 and 14-6035. In case number 14-2957, defendant pleaded guilty to the misdemeanor offense of possession of marijuana.

      . In 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).

      . 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).

      . This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief.

      . Defendant filed a writ application with this Court, seeking review of the denial of his motion to suppress. This Court denied the writ application, State v. Payne, 15-758 (La. App. 5 Cir. 1/11/16) (unpublished writ disposition).

      . See Errors Patent discussion, infra, regarding the restriction of benefits.


text:
    STATE of Louisiana v. Arthur L. PAYNE
    NO. 17-KA-13
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Walks
    COUNSEL FOR DEFENDANT/APPELLANT, ARTHUR L. PAYNE, Lieu T. Vo Clark
    Panel composed of Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

| defendant appeals his convictions and sentences for two counts of distribution of cocaine within 2,000 feet of a playground. For the following reasons, we affirm defendant’s convictions on both counts and his enhanced sentence on count one. We amend his sentence on count two and affirm the sentence as amended. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On June 10, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Arthur L. Payne, with two counts of possession with intent to distribute cocaine within 2,000 feet of a playground, in violation of La. R.S. 40:981.3. Defendant entered a plea in ab-sentia of not guilty at his arraignment on June 18, 2014. On February 29, 2016, the State amended the bill of information on both counts to charge defendant with distribution of cocaine within 2,000 feet of a playground, in violation of La. R.S. 40:981.3(A)(1).

Thereafter, on April 27, 2016, defendant withdrew his pleas of not guilty and pleaded guilty to the charges in the amended bill of information. In accordance with the plea agreement, the trial court sentenced defendant to 22½ years imprisonment with the Department of Corrections on count one and to 20 years imprisonment with the Department of Corrections on count two, with both sentences to be served without benefit of probation, parole, or suspension of sentence. The trial court also ordered that defendant’s sentences run concurrently with each other and with his sentences in case numbers 14-2956, 14-6035, and 14-2957.

| pAlso on April 27, 2016, the State filed a multiple bill of information alleging defendant to be a second felony offender on count one, to which defendant stipulated. On the same date, the trial court vacated the original sentence on count one and resentenced defendant under the multiple bill statute to 22½ years imprisonment with the Department of Corrections without benefit of probation or suspension of sentence. The trial court ordered that defendant’s enhanced sentence run concurrently with his sentence on count two and with his sentences in case numbers 14-2956, 14-6035, and 14-2957. Defendant filed an application for post-ponviction relief seeking an out-of-time appeal, which was granted by the trial court.

FACTS

Because defendant pleaded guilty, the facts were not fully developed at a trial. During the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[H]ad this matter proceeded to trial, the State was prepared to show that on or about the date listed on the bill of information this defendant, within the 24th Judicial District Court, did violate Louisiana Revised Statute 40:967(C), distribution of cocaine, Judge, and that’s more properly under 40:981.3. That’s distribution of C.D.S. within 2,000 feet of a playground.

The amended bill of information provides that the dates of the offenses were March 20, 2014, for count one and March 21, 2014, for count two.

LAW AND DISCUSSION

Pursuant to 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, 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, under 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 she finds her case to be wholly frivolous after a conscientious examination of it. 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.” 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).

In 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 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.” Id.

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 appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the'record, she could find no nón-frivolous issues to raise on appeal. Appellate counsel asserts that before defendant changed his pleas from not guilty to guilty, he was fully informed of the legal consequences of doing so by both his trial counsel and the trial court. Further, appellate counsel contends that in addition to the- extensive waiver and plea form filled out by defendant and his trial counsel, an examination of the plea colloquy reveals that the trial court was thorough in explaining and making sure defendant understood the rights he was waiving by pleading guilty. Also, appellate counsel notes that defendant stipulated to the multiple bill of information charging him as a second felony offender, and the trial court completed another colloquy with defendant reviewing his right to a hearing and the sentencing range under the multiple bill.

Appellate counsel has filed a motion to withdraw as attorney of record, in which she states that she has notified defendant that she filed an Anders brief and a motion to withdraw from the case. Appellate counsel also indicates that she informed defendant of his right to file a pro se supplemental brief in this appeal. Defendant has not filed a pro se supplemental brief in this matter.

RAn independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 462-466.

The record shows that there are no ap-pealable issues surrounding defendant’s presence. Although defendant did not appear at his arraignment, he filed a “Motion, Affidavit and Order to Waive Defendant’s Presence at Arraignment,” and the trial court granted the motion, allowing defendant to waive his presence and appear through counsel. At the arraignment, defense counsel entered not guilty pleas on defendant’s behalf. Defendant and his counsel appeared at all other crucial stages of the proceedings against him, including the guilty plea hearing and sentencing, - as well as his multiple offender proceedings and enhanced sentencing.

Defendant pleaded guilty in this case. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal, State v. Johnson, 08-449 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-787 (La. 12/18/09), 23 So.3d 932. Because defendant entered unqualified guilty pleas, he waived any non-jurisdictional defects.

The record reveals that defendant filed a motion to suppress identification, which was denied by the trial court. Defendant did not preserve this ruling for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). Although defendant also filed omnibus pre-trial motions, the record does not reflect any rulings on those motions, aside from the motion to suppress identification. Defendant did not ^object to the trial court’s failure to hear or rule on his pretrial motions prior to his guilty pleas. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Therefore, defendant’s motions are considered waived.

Next, 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.

A review of the record reveals ho constitutional infirmity in defendant’s guilty pleas. The record shows that defendant was aware he was charged with and pleading guilty to two counts of distribution of cocaine within 2,000 feet of a playground, in violation of La. R.S. 40:981.3. On the waiver of rights form and'during the guilty plea colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to .confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama, supra. Defendant signed the waiver of rights form indicating that he understood he was waiving these rights by pleading guilty. He also indicated during the colloquy that he understood he was waiving .these rights.

fyDuring his guilty plea colloquy, defendant indicated that his guilty, pleas were knowing, intelligent, free and voluntary, and no promises or threats were made to encourage him to plead guilty. Defendant also indicated during the guilty plea colloquy that he understood his guilty pleas could be used to enhance penalties for any future convictions. He was informed during the colloquy and by means of the waiver of rights form that, on each count, he faced a minimum sentence of two years imprisonment and a maximum sentence of 45 years imprisonment, as well as a $50,000 fine. He was also advised that if his guilty pleas were accepted, the actual sentences imposed would be 22½ years imprisonment on count one and 20 years imprisonment on count two, with both sentences to be served without benefit of probation, parole, or suspension of sentence. Defendant later received these sentences. By signing the waiver of rights form, defendant indicated that he understood the sentences he would receive. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, and voluntarily made.

A review of the record also reveals no constitutional infirmity in defendant’s stipulation to the multiple bill. The waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicates that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender as well as the actual sentence that would be imposed. Defendant indicated that he was satisfied with his attorney and that he had not been forced, threatened, or coerced into stipulating to the multiple bill.

Afterward, the trial judge accepted his stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made. By stipulating to the | ^multiple bill, defendant waived his right to a hearing and any non-jurisdictional defects. Also, because defendant waived his right to a hearing, he is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing. See State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

Lastly, defendant’s sentences do not present any issues for appeal. With regard to defendant’s sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, this Court has consistently recognized that La. C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams, 12-299 (La.App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied, 13-0109 (La. 6/21/13), 118 So.3d 406.

In the present case, defendant’s original and enhanced sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. We also note that the term of defendant’s sentence on each count is within the sentencing range prescribed by statute. See La. R.S. 40:981.3; La. R.S, 40:967(B)(4)(b); and La. R.S. 15:529.1. Moreover, defendant’s plea agreement was beneficial to him in that he received a 22½-year enhanced sentence as a second felony offender, which was the minimum enhanced sentence, when he could have received 90 years. Also, on count two, defendant received a 20-year sentence, when he could have received 45 years.

1 ¡Appellate 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. Accordingly, we affirm defendant’s convictions, and we grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

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. The following errors were noted.

First, defendant’s original sentence on count one and his sentence on count two were illegal because the trial court did not impose the required fine for each count. Defendant was convicted of violations of La. R.S. 40:981.3. La. R.S. 40:981.3(D)(1) provides, in pertinent part, as follows, “whoever violates a provision of this Section shall be punished by the-imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.” La. R.S. 40:967(B)(4)(b) provides that the maximum fine that may be imposed for distribution of cocaine is $50,000.00. Hence, defendant faced a mandatory fine of $50,000.00 on each of his two counts for a total of $100,000.00.

However, only defendant’s sentence on count two is relevant, because his sentence on count one was vacated and he was resentenced pursuant to La. R.S. 15:529.1. The multiple offender statute does not authorize the imposition of a fine but only provides for enhanced sentences relating to the term of imprisonment. State v. Dickerson, 584 So.2d 1140 (La. 1991) (per curiam); State v. Mendez, 13-909 (La.App. 5 Cir. 4/23/14), 140 So.3d 284, 293, writ denied, 14-1085 (La. 1/9/15), 157 So.3d 596.

An appellate court may correct an illegal sentence at any time regardless of whether either party raises the issue. See La. C.Cr.P. art. 882; State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La. 2/12/10), 27 So.3d 842. This authority is permissive rather than mandatory. State v. Cosie, 09-933 (La.App. 5 Cir. 6/29/10), 44 So.3d 314, 321.

In the present case, defendant appears to be indigent, as he is represented by the Louisiana Appellate Project. Accordingly, due to defendant’s indigent status, we decline to correct his illegal sentence by imposing the required fine. See State v. Ventris, 10-889 (La.App. 5 Cir. 11/15/11), 79 So.3d 1108, 1128; State v. England, 09-746 (La.App. 5 Cir. 3/9/10), 38 So.3d 383, 391.

Defendant’s sentence on count two is also illegal due to the restriction of benefits imposed. On count two, defendant was convicted of violating La. R.S. 40:981.3 and sentenced to 20 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Pursuant to La. R.S. 40:981.3(D)(2) and La. R.S. 40:967(B)(4)(b), probation, parole, and suspension of sentence should only have been restricted for the first two years.

When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the appellate courts “should not rely on La. R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own | ^authority under La. C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’” State v. Sanders, 04-17 (La. 5/14/04), 876 So.2d 42 (per curiam).

Accordingly, we amend defendant’s sentence on count two to reflect that only two years of the sentence imposed are to be served without the benefit of probation, parole, or suspension of sentence, and we affirm the sentence as amended. We further order the clerk of the trial court to transmit notice of this amended sentence to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department. See State v. Richard, 12-310 (La.App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied, 13-1220 (La. 12/2/13), 126 So.3d 497.

DECREE

For the foregoing reasons, we affirm defendant’s convictions for two counts of distribution of cocaine within 2,000 feet of a playground, as well as defendant’s multiple offender sentence on count one. We amend the sentence on count two and affirm the sentence as amended. We also grant appellate counsel’s motion to withdraw as counsel of record.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT TWO AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED

      . Also on April 27, 2016, defendant entered guilty pleas and was sentenced in case numbers 14-2956, 14-6035, and 14-2957. Defendant has filed appeals in this Court in connection with case numbers 14-2956 and 14-6035. In case number 14-2957, defendant pleaded guilty to the misdemeanor offense of possession of marijuana.

      . In 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 fcer curiam).

      . 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).

      . This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief.

      . The State has filed a brief in this matter, concurring in appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

      . La. R.S. 40:981.3 was amended in 2010 to expand the drug-free zone from an area within 1,000 feet to within 2,000 feet of any property used for school purposes by any school. In the present case, it is noted that while defendant was charged in the bill of information with two counts of distribution of cocaine within 2,000 feet of a playground, both the guilty plea form and the guilty plea colloquy incorrectly identify the offenses as distribution of cocaine within 1,000 feet of a playground. However, this error requires no corrective action. Because 1,000 feet is necessarily included in 2,000 feet, defendant pleaded guilty to a narrower description of the crime and did not suffer any prejudice by this discrepancy.

      . See Errors Patent discussion, infra, regarding the restriction of benefits.

      . It is noted that defendant's original sentence on count one was vacated before he was sentenced as a multiple offender.

      . At the time of the offenses, this provision was located in La. R.S. 40:981.3(E). Subsection (E) was repealed and Subsection (D) was amended and reenacted by Acts 2014, No. 289, effective May 28, 2014.

      . Defendant's original sentence on count one was also illegal due to the restriction of benefits imposed. However, no corrective action is required, as this sentence was later vacated, and defendant was resentenced in accordance with La. R.S. 15:529.1.


text:
    STATE of Louisiana v. Arthur L. PAYNE
    NO. 17-KA-14
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis
    COUNSEL FOR DEFENDANT/APPELLANT, ARTHUR L. PAYNE, Lieu T. Vo Clark
    Panel composed of Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

| defendant appeals his conviction and sentence for possession of 28 grams or more but less than 200 grams of cocaine. For the following reasons, we affirm defendant’s conviction, amend his sentence, and affirm the sentence as amended. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On November 6, 2014, defendant, Arthur L. Payne, was charged in a bill of information with possession of 28 grams or more but less than 200 grams of cocaine, in violation of La. R.S. 40:967(F). He pleaded not guilty at his arraignment. Thereafter, on April 27, 2016, defendant withdrew his plea of not guilty and pleaded guilty as charged. In accordance with - the plea agreement, the trial court sentenced defendant to 20 years imprisonment with the Department of Corrections without the benefit of probation, parole, or suspension of sentence. The trial court also imposed a $50,000.00 fine and ordered that his sentence run concurrently with his sentences in case numbers 14-2956, 14-3039, and 14-2957. Defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted by the trial court.

FACTS

Because defendant pleaded guilty, the facts were not fully developed at a trial. During the guilty plea colloquy, the State provided the following factual basis for the guilty plea:

[H]ad that matter proceeded to trial, the State was prepared to show that on or about the date listed on the bill of information this defendant, within the 24th Judicial District Court, did violate Louisiana Revised Statute 49:967(F) [sic] in that he knowingly or intentionally possessed a controlled dangerous substance, to wit, cocaine, the amount being between 28 and 200 grams.

|aThe bill information provides that defendant violated La. R.S. 40:967(F) on October 17, 2014.

LAW AND DISCUSSION

Pursuant to 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, 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, under 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 she finds her case to be wholly frivolous after a conscientious examination of it. 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.” 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).

In 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 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.” Id.

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 appellate counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel asserts that before defendant changed his plea from not guilty to guilty, he was fully informed of the legal consequences of doing so by both his trial counsel and the trial court. Further, appellate counsel contends that in addition to the extensive waiver and plea form filled out by defendant and his trial counsel, an examination of the plea colloquy reveals that the trial court was thorough in explaining and making sure defendant understood the rights he was waiving by pleading guilty.

Appellate counsel has filed a motion to withdraw as attorney of record, in which she states that she has notified defendant that she filed an Anders brief and a motion to withdraw from the case. Appellate counsel also indicates that she ^informed defendant of his right to file a pro se supplemental brief in this appeal. Defendant has not filed a pro se supplemental brief in this matter.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 462-466. Further, the minute entries reflect that defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea, and sentencing. Thus, there are no appealable issues surrounding defendant’s presence.

Further, defendant pleaded guilty in this case. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal. State v. Johnson, 08-449, p. 4 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-787 (La. 12/18/09), 23 So.3d 932. In the present case, because defendant entered an unqualified guilty plea, he waived any non-jurisdictional defects.

Although defendant filed omnibus pre-trial motions, the record does not reflect that the motions were heard or ruled upon. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Here, defendant did not object to the | atrial court's failure to hear or rule on his pre-trial motions prior to his guilty plea. Therefore, the motions are considered waived.

Next, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdraw by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believés was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

A review of the record reveals no constitutional infirmity in' defendant’s guilty plea, The record shows that defendant was aware he was charged with and pleading guilty to one count of possession of 28 grams or more but less than 200 grams of cocaine. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama, supra. Defendant signed the waiver of rights form indicating that he understood he was waiving these rights by pleading guilty. He also indicated during the colloquy with the trial judge that he understood that he was waiving these rights.

During his guilty plea colloquy, defendant indicated that his guilty plea was knowing, intelligent, free and voluntary, and no promises or threats were made to encourage him to plead guilty. Defendant also indicated during the guilty plea colloquy that he understood that his guilty plea could, be used to enhance penalties for any future convictions. He was informed during the colloquy and by means of the waiver of rights' form of the > minimum and maximum sentences of imprisonment he faced and of the actual sentence that would be imposed if his | nguilty plea was accepted. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, and voluntarily made.

Although defendant was accurately advised both by means of the waiver of rights form and during the guilty plea colloquy that he faced a minimum sentence of five years imprisonment and a maximum sentence of 30 years imprisonment, the trial, court incorrectly advised defendant of the mandatory, fine he -faced. The trial court advised defendant he faced a maximum fine of $50,000.00. La. R.S. 40:967(F) provides for a mandatory fine of not less than $50,000.00 nor more than $150,000.00.

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. State v. Kent, 15-323 (La.App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied, (La. 12/16/16), 211 So.3d 1165. Further, La. C.Cr.P. art. 556.1(E) provides that: “[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” Violations of La. C.Cr.P. art. 556.1 that do not rise to the- level of Boykin violations are subject to a harmless error analysis. Kent, supra; State v. Craig, 10-854 (La.App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

In the present case, although the trial court incorrectly advised defendant regarding the-maximum fine he faced, the trial court informed defendant before his guilty plea was accepted that he would receive a $50,000.00 fíne, and defendant later received a $50,000.00 fíne. Any violation of Article 556.1 did not cause prejudice since defendant knew the sentence he would receive, and he received that sentence. The advisement of the agreed upon sentence was sufficient for |7compliance with La. C.Cr.P. art. 556.1. See Craig, 10-854 at 7-8, 66 So.3d at 64; State v. Broadway, 40,569, p. 7 (La.App. 2 Cir. 1/25/06), 920 So.2d 960, 963.

With regard to defendant’s sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of á sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In the present case, defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. We also note that the term of defendant’s sentence falls within the sentencing range prescribed by the statute. See La. R.S. 40:967(F). Moreover, defendant’s plea agreement was beneficial to him in that he received a sentence ten years less than the maximum he could have received.

Appellate 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. Accordingly, we affirm defendant’s conviction, and we grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

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. One error requiring corrective action was noted.

Defendant was sentenced to 20 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant’s conviction of hpossession of 28 grams or more, but less than 200 grams, of cocaine does not provide for the restriction of probation, parole, or suspension of sentence. Thus, defendant received an illegal sentence due to the restriction of benefits imposed.

When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the appellate courts “should not rely on La. R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’” State v. Sanders, 04-17 (La. 5/14/04), 876 So.2d 42 (per curiam).

Accordingly, we amend defendant’s sentence to eliminate the restriction of probation, parole, or suspension of sentence for the entire 20-year sentence, and we affirm the sentence as amended. We further order the clerk of the trial court to transmit notice of this amended sentence to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department. See State v. Richard, 12-310, p. 13 (La.App. 5 Cir. 4/24/13), 115 So.3d 86, 94, writ denied, 13-1220 (La. 12/2/13), 126 So.3d 497.

DECREE

For the foregoing reasons, we affirm defendant’s conviction for possession of 28 grams or more, but less than 200 grams, of cocaine. We amend the sentence and affirm the sentence as amended. We also grant appellate counsel’s motion to withdraw as counsel of record.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED

      . Also on April 27, 2016, defendant entered guilty pleas and was sentenced in case numbers 14-2956, 14-3039, and 14-2957. Defendant has filed appeals in this Court in connection with case numbers 14-2956 and 14— 3039. In case number 14-2957, defendant pleaded guilty to the misdemeanor offense of possession of marijuana.

      . In 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).

      . 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).

      . This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief.

      . The State has filed a brief in this matter, concurring in appellate counsel's assertion .that there are no non-frivolous issues to be raised on appeal.

      . See Errors Patent discussion, infra, regarding the restriction of benefits.