text:
    STATE of Louisiana v. James DARBY
    NO. 17-KA-261
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Megan L. Gorman, Gretna, Thomas J. Butler, Kellie M. Rish
    COUNSEL FOR DEFENDANT/APPELLANT, JAMES DARBY, Holli A. Herrle-Castillo
    Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst
   GRAVOIS, J.

11 Defendant, James Darby, appeals his conviction for second degree murder, a violation of La. R.S. 14:30.1. On appeal, he argues that there was insufficient evidence to convict him. After thorough consideration of the evidence and the applicable law, we affirm defendant’s, conviction and sentence.

PROCEDURAL HISTORY

On April 7, 2016, a Jefferson Parish Grand Jury indicted defendant, James Darby, with the second degree murder of his former girlfriend, Tracey Marshall, a violation of La. R.S. 14:30.1. On April 8, 2016, defendant was arraigned and pled not guilty to said charge.

Defendant filed motions to suppress the evidence and statement, which were denied on September 9, 2016. Thereafter, on February 14-18, 2017, the case was tried before a twelve-person jury, which found defendant guilty as charged of second degree murder.

On February 21, 2017, defendant’s motions for a new trial and post-verdict judgment of acquittal were denied. On that, same date, after defendant waived sentencing delays, the trial court sentenced defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed a written motion, and also made an oral motion, for reconsideration of sentence, which were denied. Defendant then filed a timely motion for an appeal following sentencing on February 21, 2017, which was granted that same day. On appeal," defendant contests the sufficiency of the evidence used to convict "him of the second degree murder of Tracey Marshall.

FACTS

At approximately 9:40 p.m. on the evening of December 13, 2015, Deputy Henry Dejean of the Jefferson Parish Sheriffs Office responded to a call at 2409 Avenue Mont Marte in Terrytown, Louisiana, of shots fired in the area. Deputy LDejean canvassed the area where he was told the gunshots had originated, but due to inclement weather, could not locate any evidence of a shooting. The following morning, the victim Tracey Marshall’s neighbor, Kalie Alberti, called the police after she observed Ms. Marshall’s head hanging out of the shattered driver’s-side window of her vehicle in the parking lot of their condominium complex.

Ms. Marshall, who was employed by the Jefferson Parish Sheriffs Office as a deputy, had been in a long-term relationship with defendant before their break-up in November of 2015. As a result of their break-up, Ms; Marshall moved out of defendant’s residence in New Orleans and into a condominium next door to Ms. Al-berti. Ms. Alberti recalled that a few days before Ms. Marshall’s murder, she received a phone call from defendant, who asked her whether she had seen Ms. Marshall because he had been unable to reach her. Defendant then told Ms. Alberti that he believed Ms. Marshall was seeing someone else based on his seeing a silver Expedition parked in the parking lot of Ms. Marshall’s condominium. Ms. Alberti told defendant that the Expedition belonged to her (Ms. Alberti’s) boyfriend and not to Ms. Marshall. Defendant concluded their conversation by explaining to Ms. Alberti that' Ms. Marshall “owed” it to him to at least answer his phone call. Based on the information Ms. Alberti provided, defendant was developed as a suspect in Ms. Marshall’s murder.

Jefferson Parish Sheriffs Office Deputy Ian Donahue was the first officer to arrive on the scene of the homicide. Upon arrival, Deputy Donahue discovered that Ms. Marshall’s car window had been shattered and that she had been shot. Dr. Susan Garcia, an expert in the field of forensic pathology, conducted an autopsy on Ms. Marshall. Dr. Garcia testified that the cause of Ms. Marshall’s death was multiple gunshot wounds, and the manner of death was classified as a | ahomicide. Dr. Garcia noted five separate entrance wounds located on various parts of the victim’s body, including her chin, the.left side of her arm, the left,side of her head, and her upper back. Further, based on the imprints on Ms. Marshall’s chin, Dr. Garcia opined that she was likely turned to her left, as if looking out of the window, when the first shot was fired, the imprints having been caused by the shattered window glass.

Deputy Donahue secured the scene of the homicide and began searching for evidence. An empty black gun holster was found a block away in a neighbor’s yard and was submitted for DNA analysis, but had insufficient DNA for comparison. Detective Thomas Gai also participated in the recovery of evidence from the scene. A series of eight .45-caliber casings located near Ms. Marshall’s vehicle, a projectile located next to a nearby dumpster, two, projectiles located inside Ms. Marshall’s vehicle, and Ms. Marshall’s fully loaded service weapon were recovered, confirming that she had not fired her weapon at the time she was shot. Two cellular phones belonging to Ms. Marshall were also recovered. It was determined that, the .45-cali-ber casings had been fired from the same weapon and were consistent with a Glock automatic pistol, The projectiles were further found to be consistent with ,45-caliber class ammunition, and the gun holster discovered in the neighboring yard was determined to be capable of fitting a Glock .45-caliber pistol. Detective Gai testified that there was damage to the driver-side window, consistent with a projectile.entering the window, and several bullet holes found inside the vehicle, which, were consistent with gunshot rounds having been fired into the vehicle from the driver’s side and exiting on the passenger side, •

A neighbor, Gary Barnes, told the police that he had heard a series of gunshots around 9:30 p.m. on the night of December 13, 2015. When -lie glanced out of his window, he saw a vehicle cross his driveway at a high rate of speed, | ¿disregarding the posted stop sign. He described the vehicle as a four-door medium-sized vehicle, dark in color, bút that he could not see the driver.

The day following Ms. Marshall’s murder, her boyfriend, Gerald' Francis, contacted the Jefferson Parish Sheriffs Office after learning of her death. Pursuant to an interview with Mr. Francis, it was learned that Ms. Marshall and Mr. Francis had been dating for approximately two months prior to her murder; Around 6:15 p.m. on December 13, 2015, Ms. Marshall and Mr. Francis, met at the Walgreens on St., Charles Avenue in New Orleans, each in their own vehicles. From there, they walked across the street to Houston’s Restaurant for dinner, and then proceeded to the French Quarter where they listened to live music before concluding the evening at Club Good Times II. Mr. Francis then drove Ms. Marshall to her vehicle at the Walgreens where they parted ways. While on his way home, Mr. Francis spoke to Ms. Marshall on the phone until she reached her home, in Terrytown. At that point, because it was raining heavily, Ms. Marshall advised Mr. Francis that she was going to wait in her car until the rain stopped. They were still talking when during their conversation, Ms. Marshall suddenly said “boy” as if “somebody scared her,” and then her phone went dead.

Mr. Francis stated that he attempted to call Ms. Marshall back several times, and sent her text messages to see if everything was okay, but received no' response. The following morning around 6:00 a.m., Mr, Francis again attempted to call and text Ms. Marshall as they typically spoke during Ms. Marshall’s drive to work, but again he received no response. Later that day, Mr. Francis was watching the news when he learned that Ms. Marshall had been murdered. It was at that time that he contacted the policé.

| ¡^Elizabeth Memtsas, a friend of Ms. Marshall, recalled a phone conversation she had with Ms. Marshall one day in 2015, where Ms. Marshall was very upset and voiced her desire to leave defendant, but stated that she was unable to do so because defendant would never allow it due to his jealous nature. She further recollected a time in 2015 when she and Ms. Marshall were shopping and noticed that defendant had been following them. She stated that Ms. Marshall told her to “stay calm,” then “exchanged words” with defendant before he drove off. In another instance, Ms. Memtsas heard defendant arguing with Ms. Marshall while he was on speakerphone and told Ms. Marshall that she needed to come back to him or else he would file false claims against her with the Sheriffs Office’s Internal Affairs Department to ensure the loss of her job.

Gary Mitchell, a long-time friend of defendant, stated that he believed defendant and Ms. Marshall’s November 2015 break-: up was amicable and recalled that defendant helped Ms. Marshall move out of his house and into her condominium. Defendant had explained to Mr.-Mitchell that he and Ms. Marshall were separating for a while and that they planned on .using their time apart to get their finances in order. As time passed, Mr. Mitchell explained that Ms. Marshall stopped answering defendant’s phone calls and text messages and that defendant had wanted to. reconcile their relationship because he still loved her. Mr. Mitchell advised defendant to leave her alone and give her some space, to which defendant stated, “[djon’t be surprised if she wind up dead.”. Defendant further told Mr. Mitchell that he thought Ms. Marshall had “used” him and that “he wasn’t doing that no more ... and that he hoped she didn’t do him wrong,” or “you’d read about her.” On cross-examination, Mr. Mitchell explained that he could,not remember the exact day the statement was made, but believed it was within a month before Ms. Marshall was killed. He further stated that he did not respond to defendant’s statement because he knew defendant loved her and that his heart was broken.

IflMr. Mitchell also testified that on the morning of December 14, 2015, . defendant texted him asking if he could borrow, a car diagnostic tool to clear a code on a car he was working on. When he arrived at his house to pick the tool up, defendant advised him that he was leaving for Alabama the next day to renew his car registration. Mr. Mitchell offered to go with him, but defendant told him “no,” explaining that he was going to stay for a few days.

Christopher Boykin, also a long-time friend of defendant, testified that he knew defendant and Ms. Marshall were engaged, but then broke up when things did not work out. He recalled that defendant was “agitated” after the break-up because Ms. Marshall would not answer his' phone calls, and that defendant felt “played.” Mr. Boy-kin testified that defendant was aggravated to the point where he said, “if she keep messing with him like that, they will find her stinking,” which Mr. Boykin believed to mean “dead.” Mr. Boykin explained that he did not think much of defendant’s comment because “it was just guys talking.”

Mr. Boykin saw defendant on December 14, 2015 — the day following the murder— around 3:30-4:00 p.m., at which time defendant informed him that he was going to Alabama to take care of some paperwork for his car. On that same day, around 4:30-5:00 p.m., Mr. Boykin learned that Ms. Marshall had been murdered. He then called defendant, who was on his way to Alabama, and told him that Ms. Marshall had been found dead in her car. Defendant asked Mr. Boykin if he was serious, but Mr. Boykin thought defendant would have been “more distraught.” Mr. Boykin however was unable to continue their conversation because defendant’s phone cut out, and defendant never called him back.

Tanya Brumfield, a friend of defendant’s father and an acquaintance of Ms. Marshall, also recalled that near the time of Ms. Marshall’s murder, defendant |7called her to inquire if she could call Ms. Marshall on a three-way phone call for him because she had not been answering his calls. Ms. Brumfield told defendant she was not comfortable placing the call because she was aware they had just broken up, which prompted defendant to text Ms. Brumfield “who’s side you on? You know what she did me? She messed me over.”

An exigent circumstances request form was executed by Jefferson Parish Sheriffs Detective Donald Zanotelli for defendant’s cell phone records. Based on these records, Detective Zanotelli was able to determine defendant’s location and provided the information to the U.S. Marshals who ultimately apprehended defendant in Alabama. A search warrant for defendant’s residence was also obtained and several of Ms. Marshall’s personal belongings were seized.

Detective Gabriel Faucetta of the Jefferson Parish Sheriffs Office testified that analyses of Ms; Marshall’s and defendant’s cell phones were conducted. Based on the analysis.of defendant’s cell phone, a text message sent by defendant to his son, dated December 6, 2015, was retrieved, which stated, “I real [sic] need that heater. I’m going go hunting myself.” Testimony from long-time friends Mitchell and Boy-kin, as well as defendant’s recorded state-merit,- established that hunting was not one of defendant’s hobbies.

A web history analysis of defendant’s cell phone also showed that defendant accessed an application called “Android Lost” over three hundred times to determine Ms. Marshall’s location. Additionally, certain extractions from defendant’s cell phone revealed that on the afternoon of Ms. Marshall’s murder, a search was entered into defendant’s phone for a latitude and longitudé coordinate |smatching the location of Ms. Marshall’s residence. Also, at approximately 8:21 p.m. on December 13, 2015, it was established that defendant’s cell phone accessed Google Maps to pin point the location of the Walgreens and Houston’s Restaurant visited by Ms. Marshall on the night she was murdered. And an analysis of the cell phone tower information obtained from the use of defendant’s phone on the night of Ms. Marshall’s murder placed defendant’s cell phone near the .location where Ms. Marshall was on.her.date with Mr. Francis, then near Ms. Marshall’s residence at the time of her death, and finally traveling back over the Crescent City Connection Bridge towards defendant’s residence at a time after the murder.

After his arrest, defendant gave a statement to the police in which he stated that he was driving his aunt’s green Nissan Altima at approximately 8:00 p.m. down St. Charles Avenue when he saw Ms. Marshall with another man. He then observed Ms. Marshall get into her truck at the Wal-greens on St. Charles. He further admitted that upon seeing this, he drove to the Westbank where he then decided against driving all the way to Ms. Marshall’s house, and instead, elected to stop at a local Westbank SnoBall stand before turning around and driving home. However, defendant later admitted that he did in fact drive near-Ms. Marshall’s residence, where he parked in a neighboring driveway, exited his vehicle, but then decided against approaching Ms. Marshall and instead drove home, past Mr. Barnes’ residence. The driveway where defendant admitted he parked was approximately six car lengths from Ms. Marshall’s vehicle at the time of her death!"

The State presented prior convictions and bad acts committed by defendant. The first incident occurred on April 2, 2011, when Ms. Marshall went to the police station to report frightening text messages she had received from defendant, her ex-1¡^boyfriend at the time. In the text messages, summarized by Agent Sean Williams of the Jefferson Parish Sheriffs Office, defendant wrote that he was “getting ready to self-destruct,” that he was “very angry and upset” with Ms. Marshall, that he was on his way to Ms. Marshall’s house, and that he was “prepared to go to jail and suffer the consequences that his actions would cause.” On May 6, 2011, defendant was placed under arrest for cy-berstalking and making threatening phone calls to Ms. Marshall. The second documented incident occurred on April 12, 2011, when Ms. Marshall filed a police report, stating that defendant had broken into her residence armed with a firearm and would not leave when asked.

The State also presented evidence regarding an April 30, 2011 phone call defendant made to Ms. Marshall in which he asked why she was pressing charges against him, and an incident on July 27, 2011, where Ms. Marshall filed a complaint asserting that defendant had made harassing phone calls to her at her place of employment, again urging Ms. Marshall to drop the charges against him. As a result, a protective order was issued, prohibiting defendant from having any contact with Ms. Marshall.

Defendant pled guilty to cyberstalking Ms. Marshall in 2011 and to a separate incident for unauthorized entry of an inhabited dwelling in 1992 in which he broke into an ex-girlfriend’s house and, after two failed attempts at firing his gün at his ex-girlfriend’s new boyfriend, he struck the boyfriend with his firearm causing injury.

ASSIGNMENT OF ERROR

Sufficiency of the evidence

In his sole assignment of error, defendant argues the evidence was insufficient to uphold the conviction.' He maintains that the State’s evidence | inconsisted solely of circumstantial evidence that he was in the area at the time of the murder and shared a tumultuous past with Ms. Marshall. Accordingly, defendant concludes there was no corroborating evidence presented to identify him as the perpetrator and that the State failed to exclude at least one reasonable hypothesis of innocence— namely, that Mr. Francis committed’ the crime.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the reviewing court must decide, after'viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id., 443 U.S. at 319, 99 S.Ct. 2781. See also State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490 (La. App. 6 Cir. 3/10/99), 735 So.2d 687, 690.

Evidénce may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that ‘“assuming every fact to be proyed that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’ ” State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a separate test from the Jackson ■ standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, | i/must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Wooten, 738 So.2d at 675.

As it pertains to the instant case, second degree murder is defined as the killing of a human being when the offender has specific, intent to kill or to inflict great bodily harm. La. R.S. 14:30.1.

• Specific intent is defined as “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). Whether a defendant possessed the requisite intent in a criminal case is a .question for the trier of fact, and a review of the correctness of this determination is guided by the Jackson standard. State v. Spears, 05-0964 (La. 4/4/06), 929 So.2d 1219, 1224; State v. Gant, 06-232 (La. App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La. 5/4/07), 956 So.2d 599. Specific intent may be inferred from the circumstances and from the defendant’s actions,, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Id. The act of aiming a lethal weapon and discharging it in the victim’s direction supports a finding by the trier of fact that the defendant acted with specific intent to kill. Id. In addition, flight and attempt to avoid'apprehension are circumstances from which a trier of fact may infer a guilty conscience. Id.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant’s identity as the perpetrator. State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). “‘As a general matter, when the key issue is the defendant’s' identity as the perpetrator, rather than whether the crime was committed, the. [s]tate is required to negate any reasonable probability of 112misidentification.’ ” Id. (quoting State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)). Identification can be inferred from all the facts and circumstances that are in evidence. State v. Amato, 96-0606 (La. App. 1 Cir. 6/30/97), 698 So.2d 972, writs denied, 97-2626, 97-2644 (La. 2/20/98), 709 So.2d 772.

In the present matter, it is undisputed that, Tracey Marshall was the victim-of a homicide. Thus, defendant’s only contention is that .the evidence used to convict him of second degree murder is insufficient due to the lack of evidence identifying him as the perpetrator of the crime.

'Upon review, we find that the circumstantial evidence in this case is sufficient to identify defendant as the perpetrator of’Ms. Marshall’s murder beyond a reasonable doubt, and sufficient to negate any reasonable probability of misidentification. At trial, the State presented evidence that defendant and Ms. Marshall had been in a very tumultuous relationship leading up to their breák-up in November of 2015. Prior to their break-up, the State presented evidence that Ms. Marshall was the recipient of numerous harassing and threatening phone'calls and text messages sent by defendant in which he warned Ms. Marshall that he was going to “self-destruct” and was “prepared to go to jail and suffer the consequences.” As a result of defendant’s harassing behavior, defendant pled guilty to cyberstalking Ms. Marshall, and a protective order was issued. Defendant’s jealous nature and his control over Ms. Marshall was further recalled by Ms. Marshall’s friend, Ms. Memtsas, who testified about defendant following Ms. Marshall and another instance when defendant threatened 'that' if Ms. Marshall did hot come back to him, he would ensure the loss of her job.

Ms. Marshall moved out of defendant’s residence in November of 2015. According to defendant’s close friends, defendant wanted to reconcile their relationship, but Ms. Marshall would not, return, his phone calls or text messages. h/The testimony of the witnesses at trial established that in the weeks leading up to Ms. Marshall’s murder, defendant stalked her and made threats on her life, telling friends “don’t be surprised if she wind up dead,” “that you’d read about her,” and “if she keep messing with me like that, they will find her stinking.” Because Ms. Marshall would not return his calls, defendant he contacted her friends and neighbors in order to initiate contact with her. Ms. Alberti, a neighbor, testified that a few days before Ms. Marshall was murdered, defendant had reached out to her, inquiring as to whether Ms. Marshall was dating anyone, and questioning Ms. Alberti about an unfamiliar vehicle that he had seen parked in the lot of the condominium complex where Ms. Marshall lived. Ms. Brumfield, an acquaintance of Ms. Marshall, also testified that defendant had called her in hopes that she would place a three-way call to Ms. Marshall so he could speak to her because she had not been answering his phone calls.

Ms. Marshall was later found brutally shot five times while sitting in her vehicle outside of her residence. Defendant’s cell phone records from the night of Ms. Marshall’s murder showed that he had accessed an application on his phone called “Android Lost” to determine Ms. Marshall’s location at the Walgreens on St. Charles Avenue. This information was corroborated by defendant himself who, in his statement to the police, admitted that he was driving down St. Charles when he happened to see Ms. Marshall and another man at the Walgreens across from Houston’s Restaurant. The phone records along with defendant’s statement also establish that after having seen Ms. Marshall, defendant traveled to her residence on the Westbank where he sat in his vehicle in a neighboring driveway, approximately six car lengths away from the scene of the crime at the time of Ms. Marshall’s death. .The testimony further established that Ms. Marshall was sitting in her vehicle on the phone with her boyfriend, Mr. Francis, when she was startled by someone or something before her phone cut off.

1MThe timeline of events presented by the State further proved that immediately after Ms. Marshall’s phone hung up, shots were fired, and a call was placed to 9-1-1 by a neighbor to report the sound of gunfire. Further, the testimony of neighbor Mr. Barnes established that a dark-colored, four-door vehicle sped down his street following the gunfire, and defendant admitted that he had driven his aunt’s green four-door Nissan Altima down Mr. Barnes’ street on the night of the murder. The following day, defendant fled to Alabama, and while en route, was informed by Mr. Boykin that Ms. Marshall had been killed, provoking little emotional response.

Based on the foregoing, including the prior death threats made by defendant regarding Ms. Marshall, the history of defendant and Ms. Marshall’s relationship, defendant’s admissions regarding his whereabouts on the night of the murder, neighboring witnesses’ testimony, defendant’s cell phone records, and defendant’s flight to Alabama following the murder, we find that the State negated any reasonable probability of misidentification, and under the Jackson standard, hold that the evidence was sufficient to support the jury’s second degree murder verdict. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review indicates that the trial’court’s advisal to defendant regarding the time within which he may file for post-conviction relief is somewhat incomplete. Accordingly, defendant is advised by way of this opinion that no application for .post-conviction relief,- including applications which seek ah | ^out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed.'

AFFIRMED

      , Deputy Donahue recalled having met Ms. Marshall on a previous occásíon with regard to a battery complaint she wished to lodge against defendant on October 17, 2010, when defendant slapped her across the face after taking her phone arid accusing her 'of having an affair with another man.

      . Detective Donahue obtained Mr. Francis’ consent to search his cellular phone for text messages. The phone calls and text messages sent by Mr, Francis to Ms. Marshall on the evening of her murder and 'the following morning were admitted into evidence, corroborating his testimony.

      . Betty Ateman, defendant's aunt, testified th^t defendant had been working on her .four-door Nissan Altima on December 13, 2015. She.further testified that defendant returned her car to her on December 14,- 2015, and that pursuant to the investigation of this case, the police came to her house to. take pictures of her car.

      . Defendant’s ex-girlfriend, Nancy Jemison, testified that on December 15, 2015, defendant showed up at her house in Tuscaloosa, Alabama, unannounced and looking "rough.” A close friend of defendant, David Rhea, also testified that on December 11, 2015, he spoke to defendant and ’invited him to Tuscaloosa, Alabama, for a billiards tournament, an invitation defendant declined. However, on December 14, 2015, defendant contacted Mr. Rhea to inform him that he was coming to Tuscaloosa and needed his assistance in finding the office for vehicle registration. Mr. Rhea explained that on that same date, defendant stayed at his house, where defendant informed Mr. Rhea that he and Ms. Marshall had broken up. No mention of Ms. Marshall’s murder was made.

      . There was no testimony presented regarding the meaning of the word "heater”; however, in closing, the State argued that "heater” was a word used for "firearm.”

      . Defendant admitted in his statement to the police that he had his cellular phone with him the entire night leading up to and after Ms. Marshall’s murder.

      . The proper procedural vehicle for raising the issue of the sufficiency of the evidence is a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06), 934 So.2d 280, 289 n.18, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154 (citing State v. Allen, 440 So.2d 1330, 1331 (La. 1983)). Here, defendant raises the same sufficiency ground on appeal as he did for the basis of his motion for post-verdict judgment of acquittal.

      .The trial court instructed the jury that in order to find defendant guilty of second degree murder, it must find defendant killed Ms, Marshall and that he acted with specific intent to kill or inflict great bodily harm.

      . The transcript indicates that the trial judge advised defendant that he had "two years from the date of judgment and conviction when sentence becomes final in which to seek an application for Post Conviction Relief.” The minute entry indicates that defendant has "two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief.” The " transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

      . It is well settled that if a trial court provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La. 10/16/09), 19 So.3d 473.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Cindy PEREZ, THROUGH her natural tutrix and Administratrix of her Estate, Edis MOLINA v. Mary B. GAUDIN and LM General Insurance Company
    NO. 17-CA-211
    Court of Appeal of Louisiana, Fifth Circuit.
    November 29, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CINDY PEREZ, Ivan A. Gritada, Kenner
    COUNSEL FOR DEFENDANT/AP-PELLEE, MARY B. GAUDIN AND LM GENERAL INSURANCE • COMPANY, Pamela S. Croft, Metairie
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

hln this appeal, Plaintiff, Cindy Perez, seeks review of the trial court’s judgment, which found in favor- of, Defendants and dismissed her claims with prejudice. For the reasons that follow, we.affirm the trial court’s judgment.

Factual and Procedural History

On June 3, 2012, Ms. Perez filed suit against Defendants, Mary B. Gaudin and LM General Insurance Company, claiming that she had been injured as a result of a car accident. Ms. Perez’s Petition alleged that on June 4, 2011, she was a passenger in a vehicle which was rear-ended by a second vehicle, driven by Mary B. Gaudin. Ms. Perez’s Petition further alleged that Mary B. Gaudin was insured by LM General Insurance Company at the time of the accident.

The case proceeded to trial on July 20, 2016. In his opening statement, counsel for Ms. Perez conceded that “[t]he only real issue before the Court today is. whether or not Ms. Perez was- an occupant in the vehicle that was rear-ended by Ms. Gaudin at the time of the accident.” At trial, three witnesses testified: Ms. Perez, Ms, Gau-din, and Edis Molina, Ms. Perez’s mother, who was a passenger in the car at the time of the accident. Deputy Zlatko Brujic, who investigated the accident shortly after it happened, was unavailable to testify at trial. However, Deputy Brujic was deposed prior to trial and-his deposition was entered into evidence.

At his deposition, Deputy Zlatko Brujic testified that he had been employed by the Jefferson Parish Sheriffs Office (“JPSO”) for over thirty .years, twenty eight of those in JPSO’s traffic division. During his tenure with JPSO, Deputy Brujic estimated to have investigated between forty and sixty crashes per month. On the day of the accident in question, Deputy Brujic testified that he arrived approximately thirteen minutes after the accident; He testified that when he came to the scene of the accident, he observed two, vehicles. The first vehicle was operated by Mary B. Gau-din, who was the sole occupant. The second vehicle was operated by Reinaldo Martinez-Perez, and was also occupied by a passenger, Edis Molina. Deputy Brujic testified that there were no other passengers in the second vehicle when he arrived on the scene. Deputy Brujic acknowledged that he did not have any independént recollection of the accident, and that his testimony was based on his written report. He emphasized, however,' that had another person been in the vehicle, or if a witness had told him that another person had been in the vehicle, “it would have been added into the report accordingly.” He further testified that he recalled an unidentified older woman coming to the scene' of the accident after he arrived, but had no recollection of a person matching Ms. Perez’s description being present at any point during his investigation.

At trial, Edis Molina testified that she was a passenger in a vehicle driven by her husband, Reinaldo Martinez-Perez, at the time of the accident. She also testified that her daughter, Cindy Perez, was sitting in the back seat of the vehicle at the time of the accident. Ms. Molina, who speaks limited English, testified that Ms. Perez, who is bilinjgual, helped her' communicate with Deputy Brujic. She testified that after Deputy Brujic arrived, her sister-in-law brought her insurance cards to the scene of the accident;

At trial, Ms. Perez testified that at the time of the accident, she was a passenger in the vehicle with her parents. According to Ms. Perez, she was injured when a propane tank situated in the back seat of the car hit her arm at the time of the impact. Ms. Perez testified that she stayed in the vehicle until the police arrived, and then began translating for her mother, who was speaking to Deputy Brujic. She testified that the police officer “was Spanish ... but he didn’t want to speak Spanish.” Ms. Perez gave inconsistent answers about whether she was inside or outside of the) a vehicle when Deputy Brujic arrived. She further claimed that Deputy Brujic asked what her name was, but did not ask her for identification or any other information. She could not remember what Deputy Brujic looked like, and also testified that she “didn’t really talk” to him.

Ms. Gaudin testified at trial that following the accident, she immediately moved her vehicle to the side of the road and motioned the driver of the second vehicle to do the same. Ms. Gaudin testified that after calling the police, and her daughter, she approached the other vehicle and “saw two people, the man driving and the lady sitting in the front passenger seat.” According to Ms. Gaudin, after Deputy Brujic arrived, he approached her vehicle first to speak with her concerning the accident. She testified that Deputy Brujic subsequently approached the other vehicle. She testified that Deputy Brujic spoke to! the occupants of" the other vehicle while they were “in the "car.” She testified that she never saw anyone matching Ms. Perez’s description in the other vehicle at any point following the accident.

Following the.trial, the trial court rendered written judgment in favor of Ms. Gaudin and LM General Insurance Company, dismissing Ms. Perez’s suit .with prejudice. The instant appeal follows.

Discussion

In ,her sole assignment of error, Ms. Perez argues that the trial court erred when it rendered judgment in favor of Ms. Gaudin and LM General Insurance Company. Ms. Perez argues that neither the deposition of Deputy Brujic, nor the testimony of Ms." Gaudin is sufficient to refute her testimony or the testimony of her family members.

'It is equally well-settled that an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Further, where two permissible views of the evidence exist, the fact finder’s choice between them cannot .be manifestly erroneous or clearly wrong. Cole v. State Department of Public Safety & Corrections, 2001-2123 (La. 9/4/02), 825 So.2d 1134, 1144, citing Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). If the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1276-77 (La. 1991).

In Hasney v. Allstate Ins. Co., 2000-0164 (La. App. 4 Cir. 2/7/01), 781 So.2d 598, the Fourth Circuit Court of Appeal addressed a similar situation. In Hasney, a plaintiff sued a train’s operator after he was allegedly injured when the train struck his parked van. Id. at 600. At trial, a Lieutenant with the St. Bernard Parish Sheriffs Office testified that the plaintiff never advised investigating officers at the scene that he was a passenger in the van at the time of the accident. Id. at 601. The report generated by the St. Bernard Sheriffs Office with regard to the accident did not list a driver of the parked van. Id. However, the plaintiff and his brother both testified that the plaintiff was; in fact, in the van at the time of impact. Id at 601-602. Following a trial, the jury ultimately concluded that the plaintiff was not a passenger in the van at the time of the accident, and therefore was not injured by the named defendants. Id. at 605. In affirming the jury’s verdict on appeal, the Fourth Circuit found that the plaintiff “failed to prove by a preponderance of evidence that he was in the van at the moment of the collision” and that “[t]he jury’s verdict is in accord.” Id. at 606.

Similarly, in Leal v. Dubois, 00-1285 (La. 10/13/00), 769 So.2d 1182, the Louisiana Supreme Court reversed the intermediate appellate court and reinstated a trial court’s verdict which found that a plaintiff was not injured in an accident. In Leal, the plaintiff claimed she was injured in a car accident. Id. at 1183. Following a trial, the trial court found in favor of the defendants and dismissed the plaintiffs suit with prejudice. Id at 1184. The plaintiff appealed, and the Third Circuit Court |Bof Appeal reversed the trial court’s verdict. Id The Supreme Court reversed the Third Circuit and reinstated the trial court’s verdict. Id. at 1185. In its opinion, the Supreme Court specifically found that the Third Circuit had failed to give sufficient deference to the trial court’s verdict, which was “unequivocally based on a credibility determination.” Id.

Like the factual findings made by the trial courts in Hasney and Leal, the factual findings in the case at bar involve credibility determinations made by the trial court. As in both Hasney and Leal, those credibility determinations are entitled to great deference on appeal. A thorough review of the records shows that a reasonable finder of fact could easily have found Ms. Gaudin and Deputy Brujic’s testimony that Ms. Perez was not at the scene of the accident to be credible. Therefore, we find no manifest error in the trial court’s judgment in favor of Mary B. Gau-din and LM General Insurance Company. Accordingly, the trial court’s judgment is affirmed.

Conclusion

For the foregoing reasons, the trial court’s judgment dismissing Ms. Perez’s claims against the defendants in this matter is affirmed.

AFFIRMED

      . At the time the suit was filed, Ms, Perez was a minor, Accordingly, the suit was filed “through her natural tutrix and administra-trix of her estate, Edis Molina,” However, by the time of trial, Ms. Perez had attained the age of majority and was substituted as a plaintiff in her own name.


author: WINDHORSTjJ.

text:
    STATE of Louisiana v. Charles E. NELSON
    NO. 17-KA-191
    Court of Appeal of Louisiana, Fifth Circuit.
    November 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Gretna, Darren A. Allemand
    COUNSEL, FOR DEFENDANT/APPELLANT, CHARLES E. NELSON Gwendolyn K. Brown, Baton Rouge
    DEFENDANT/APPELLANT, CHARLES E. NELSON, New Orleans, In Proper Person
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORSTjJ.

hOn appeal, defendant’s appointed appellate counsel -filed an Anders brief on defendant’s behalf asserting that there are no non-frivolous issues to raise on appeal. Defendant filed, a pro se supplemental brief arguing one assignment of error. For the following reasons, defendant’s convictions and sentences are affirmed. We further grant appellate counsel’s motion to withdraw as counsel of record.

Procedural History

On February 1, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Charles E. Nelson, with, possession with intent to distribute cocaine in violation of La. R.S. 40:967 A (count one); possession with intent to distribute hydrocodone in violation of La. R.S. 40:967 A (count two); possession with intent to distribute Alprazolam in violation of La. R.S. 40:969 A (count three);, and simple, criminal damage to property in violation of La. R.S. 14:56 (count four). Defendant. was arraigned and pled not guilty. On February 12, 2016, defendant filed omnibus motions, including motions-to suppress evidence and statement. On February 16, 2016, the State filed a notice of intent to use other crimes evidence. On February 25, 2016, after a hearing, the trial court granted the State’s notice of intent to use other crimes. evidence and denied defendant’s motions to suppress evidence and statement.

On March 21, 2016, the State amended count four of the bill of information to allege that the criminal damage to property amounted “to $500.00 to $50,000” and the case proceeded .to trial. However, after the jury was.selected, defendant withdrew his not guilty pleas and pled guilty as charged. Defendant was sentenced to imprisonment at hard labor for twenty-two years with the first two years of theb sentence to be served without benefit of parole, probation, or suspension of sentence on count one; imprisonment at hard labor for five years on count two; imprisonment at hard labor for five years on count three; and imprisonment at hard labor for one year on count four.

Thereafter, the State filed a habitual offender bill of information on count one contending defendant was a second felony offender to which he stipulated. The trial court vacated the original sentence on count one and resentenced defendant under the habitual offender statute to imprisonment at hard labor for twenty-two years with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence and the remainder of the sentence to be served without benefit of probation or suspension of sentence. The trial court also ordered defendant’s sentence to r,un concurrently with the sentences on counts two, three, and four and with the sentences in case numbers 13-1528 and 16-518. Additionally, the trial court ordered defendant to pay restitution to the victim in the amount of $3,007.34.

On January 6, 2017, defendant filed an Application for Post-Conviction Relief requesting an out-of-time appeal which was granted on January 17, 2017.

Facts

Because defendant entered guilty pleas, the underlying facts were not fully developed at a trial. Nevertheless, the State contended in the amended bill of information that on November 19, 2015, defendant violated La. R.S. 40:967 A in that he knowingly or intentionally possessed with intent to distribute cocaine (count one); that on November 19, 2015, defendant violated La. R.S. 40:967 A in that he knowingly or intentionally possessed with intent to distribute hydrocodone (count two); that on November 19, 2015, defendant violated La. R.S. 40:969 A in that he knowingly or intentionally possessed with intent to distribute Alprazolam (count three); and that on November 19, 2015, defendant violated La. R.S. 14:56 in that he | ..¡committed simple damage to a vehicle with the damage amounting “to $500.00” belonging to the Jefferson Parish Sheriffs Office (count four).

Additionally, the State provided the following factual basis for the pleas:

If the State were to proceed, well, if the State were to continue with trial against Charles Nelson in 15-7082, the State would prove beyond a reasonable doubt that on November 19th, 2015, while in the confines of Jefferson Parish, the defendant committed three separate violations of Title, well, two separate vacations [sic] of Title 40, Section 967.A and that he did knowingly possess cocaine and knowingly possessed hydroco-done with the intent to distribute both of those substances. The State would further prove as alleged in count thee [sic] the defendant violated Revised Statute Title 40, Section 969.A and that he did knowingly possess Alprazolam with the intent to distribute it. And finally, the State would prove as alleged in count four that on that same date in Jefferson Parish the defendant violated Title 14, Section 56 and that he did commit simple criminal damage to a vehicle with the damage amounting to five-hundred dollars or more, but less than fifty-thousand dollars, and that vehicle belonged to the Jefferson Parish Sheriffs Office. Defendant stated he understood and agreed with the factual basis.

Discussion

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel filed a brief asserting that she thoroughly reviewed the trial court record and cannqt 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 she finds her case to be wholly frivolous after a conscientious’examination of it. The request' must bej4 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, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every mer-itless 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.” 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, 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. Id. 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.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She states that although a motion to suppress was filed and ruled upon, the pleas were entered without any| 5 reservation of rights to review the adverse rulings. Thus, any argument that the rulings were in error has been waived. Appellate counsel contends that prior to defendant’s decision to change his pleas from not guilty to guilty, the trial court thoroughly explained, and made sure defendant understood, the trial rights he would be waiving by pleading guilty. She further contends that the trial court reviewed the sentences available under the statutes and the sentences it would impose.

Appellate counsel asserts that defendant indicated that he understood the terms of the sentences, that the pleas were being entered of his own volition, and that he was satisfied with the representation that his attorney afforded him. The trial court sentenced- defendant in accordance with the terms to which defendant-agreed. Appellate counsel also states that the trial court reviewed with defendant his habitual offender rights. She contends that although the trial court did not articulate on the record his right to remain silent at the habitual offender hearing, it informed him that the rights previously articulated with respect to the underlying charges still applied to him. Defendant affirmed, his understanding of these rights. She further contends that the trial court stated the terms of the enhanced sentence it would impose and defendant stated he understood the terms.

Appellate counsel maintains that defendant affirmed on the record he was stipulating to his status as a-habitual offender of his own accord. She also asserts that after the trial court vacated the sentence on count one and imposed the enhanced sentence as agreed upon, defendant did not object, to the sentence. Accordingly, appellate counsel argues that defendant-is now restricted by law from appealing his sentences. She notes, however, that while the evidence to support the charges of possession of cocaine and simple criminal damage to property were developed at the suppression hearing, the record did-not provide a factual basis for the “with the intent to distribute” element of count one or the factual basis for counts two or three.

| ^Appellate counsel filed a motion to withdraw as attorney of record which stated that she notified defendant that she filed an Anders brief and that defendant had the right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief' had been- -filed and that he had until May 27, 2017, to file a pro se supplemental brief, which he timely filed with this Court.

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

The amended indictment properly charged defendant, and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 462-466. Further, as reflected in the minute entries, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment on the original bill of information, guilty pleas, habitual offender bill stipulation, and sentencing. Thus, there are no appealable issues regarding defendant’s presence.

Further, defendant pled guilty in this case. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects were waived. No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976), including the trial court’s denial of defendant’s motions to suppress evidence and statement.

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) 7 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 pleas. Defendant was aware he was pleading guilty to the crimes of possession with intent to distribute cocaine (count one), possession with intent to distribute hydro-codone (count two), possession with intent to distribute Alprazolam (count three), and simple criminal damage to property (count four). In the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial court, defendant also stated that he understood those rights.

During his guilty plea colloquy and on his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering’ his guilty pleas. He was informed during the colloquy and on the waiver of .rights form of the maximum sentences on all four counts and. of the actual sentences that would be imposed if his guilty pleas were accepted. After the colloquy with defendant, thejs trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

A review of the record also reveals no constitutional infirmity in defendant’s stipulation to the habitual offender bill. The waiver of rights form indicates that defendant was advised of his right to a hearing at which the State would have to prove his habitual offender, status and of his right to remain silent throughout the hearing. During the colloquy, the trial court advised defendant that he had the right to a hearing with regard to the allegations contained in the habitual offender bill. However, the trial court did not advise defendant during the colloquy that he had the right to remain silent throughout the healing. Nevertheless, although defendant was not completely advised of his habitual offender rights during the colloquy, the waiver of rights form, which was signed by defense counsel, the trial court, and defendant, reflects that defendant was advised of his right to remain silent prior to his stipulation as a habitual offender. Further, the trial court specifically mentioned the waiver of rights form prior to his acceptance of defendant’s stipulation. See State v. Jamison, 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908.

During the colloquy and in the waiver of rights form, defendant was also advised of the potential sentencing range as a second felony offender and the sentence that would be imposed. Defendant indicated in the waiver of rights form and during the colloquy that he had not been forced, coerced, or threatened into stipulating to the habitual offender bill. The trial court accepted the stipulation as being knowingly, intelligently, freely, and voluntarily made by defendant. A stipulation to a habitual offender bill bars a defendant from asserting on appeal that the State failed to produce sufficient proof at the habitual offender bill hearing. See State v. Crawford, 14-364 (La. App. 5 Cir. 12/23/14), 166 So.3d 1009, 1019; State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

| nWith 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. 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, 13-109 (La. 06/21/13), 118 So.3d 406. Here, defendant’s original sentences and enhanced sentence were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the pleas and stipulation.

Even if we were to review defendant’s sentences, they fall within the sentencing ranges set forth in the statutes. See La. R.S. 40:967 B(4)(b); La. R.S. 40:967 B(5); La. R.S. 40:969 B(2); La. R.S. 14:56 B(2); La. R.S. 15:529.1. Moreover, defendant’s plea agreement was beneficial to him in that the State agreed to file a habitual offender bill alleging defendant to be a second felony offender, even though defendant was actually a fourth felony offender, which would have increased defendant’s sentencing exposure.

Defendant’s appointed counsel argues that while the evidence to support the charges of possession of cocaine and simple criminal damage to property were developed at the suppression hearing, the record did not provide a factual basis for the “with the intent to distribute” aspect of count one or the factual basis for counts two or three. However, the record reflects that the State provided a factual basis for all counts during the colloquy. Moreover, the trial court was not required to ascertain a factual basis before accepting the guilty pleas. When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice! m that there is a need for such an inquiry. State v. Autin, 09-995 (La. App. 5 Cir. 4/27/10), 40 So.3d 193, 196-197, writ denied, 10-1154 (La. 12/10/10), 51 So.3d 725. Only in that event does due process require a judicial finding of significant factual basis for the defendant’s plea. State v. Smith, 09-769 (La. App. 5 Cir. 3/9/10), 38 So.3d 894, 896 n.1, writ denied, 10-843 (La. 11/5/10), 50 So.3d 812. Furthermore, defendant did not enter his guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 30, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which would have required a factual basis to support the pleas.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she reviewed the trial court proceedings and cannot identify any non-frivolous issues to raise on appeal, and an independent review of the record supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of record is granted.

Pro Se Assignment of Error

In his pro se brief, defendant contends that his “guilty plea is constitutionally infirm.” He argues five issues under that assignment: (1) Whether “appellant counsel” should be allowed to withdraw from this case; (2) Whether the appellant’s guilty plea was knowingly and intelligently .made; (3) Whether there was a factual basis for his pleas; (4) Whether the twenty-two (22) year sentence imposed in this case was disproportionate ■ and unreasonable; and (5) Whether this Court should authorize a downward departure from the mandatory minimum sentence.

Defendant argues that counsel’s brief “does not provide a full analysis of a felony conviction for which this Appellant received a 22-year sentence without the benefits of probation, parole or suspension of sentence.” He further argues that it-would not benefit him in ensuring his constitutional right to equal protection to grant counsel’s motion to withdraw. Defendant contends that counsel should not be excused from the duty and standards of representation merited by the trial court’s! n appointment as set forth in Anders v. California, supra, and State v. Jyles, supra. He further contends, therefore, that this Court should deny the motion to withdraw at this time and order counsel to specifically brief whether his convictions and sentence present any non-frivolous appealable issues.

As discussed above, our review of the record reveals no constitutional infirmity in defendant’s guilty pleas to the underlying charges or in his stipulation to the habitual offender bill. Also, our review supports appellate counsel’s assertion that there are no non-frivolous issues to raise on appeal.

Further, as previously explained, defendant is precluded from seeking review of'his'enhanced sentence as it was imposed in conformity with the plea agreement which was set forth in the record at the time of the plea. Moreover, the trial court is not required to comply with La. C.Cr.P. art. 894.1, when a defendant pleads guilty and agrees to the sentence imposed, as occurred in this case. See State v. Dickerson, 11-236 (La. App. 5 Cir. 11/15/11), 80 So.3d 510, 521.

Errors Patent Discussion

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with the mandates of 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 there are no errors patent that require corrective action.

Conclusion

For the reasons stated' above, defendant’s convictions and sentences are affirmed. We further grant appellate counsel’s motion to withdraw as counsel, of record. ■

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The bill of information alleged that defendant violated La. R.S. 14:56 “in that he did commit simple criminal damage to a vehicle, with the damage amounting to $500.00 to $5,000.00, belonging to Jefférson Parish Sheriff’s Office.”

      . 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 (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).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The trial court did not inform defendant of the minimum sentences on all four counts; however, it is noted that the minimum sentence is zero for counts two, three, and four. La. R.S. 40:967 B(4)(b) provides for a sentencing range of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years being without benefit of parole, probation, or suspension of sentence (count one). La. R.S. 40:967 B(5) provides for a sentence of imprisonment at hard labor of not-more than ten years (count two). La. R.S. 40:969 B(2) provides for a sentence of imprisonment at hard labor of not more than ten years (count three). Under La. R.S. 14:56 B(2), where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than two years, or both (count four). Based on the colloquy and the waiver of rights form, defendant pled guilty to and was sentenced under La. R.S. 14:56 B(2),
      La. C.Cr.P, art. 556.1 A(l) provides that, prior to accepting a guilty plea, the trial 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. "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” La. C.Cr.P. art. 556.1 E. Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64. In this case, any violation of Article 556.1 did not cause prejudice since defendant knew the sentences he would receive, and he received those sentences. Advisement of the agreed upon sentences was sufficient for compliance with La. C.Cr.P. art. 556.1. See Craig, 66 So.3d at 64; State v. Broadway, 40,569 (La. App. 2 Cir. 1/25/06), 920 So.2d 960, 963.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Keith STEWART
    NO. 17-KA-297
    Court of Appeal of Louisiana, Fifth Circuit.
    November 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, KEITH STEWART, Bruce G. Whittaker
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

1 iDefendant appeals his sentence of life imprisonment with parole eligibility, which was imposed on resentencing, for his 1982 second degree murder conviction. For the following reasons, we affirm defendant’s sentence, and we remand for correction of the uniform commitment order. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

This is defendant’s third appeal.

In 1982, defendant was convicted by a jury of second degree murder in violation of La. R.S. 14:30.1. The trial judge sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The Louisiana Supreme Court affirmed defendant’s conviction and sentence on September 8,1983. State v. Stewart, 437 So.2d 872 (La. 1983).

In 2012, in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. On August 14, 2012, defendant filed a “Motion to Vacate and Correct an Illegal Sentence” pursuant to Miller. After a hearing, the trial judge granted the motion, vacated the original sentence, and- resentenced defendant to life imprisonment at hard labor with the benefit of parole. Defendant filed a Motion to Reconsider Sentence, which was denied, and a motion for appeal, which was granted. State v. Stewart, 13-639 (La. App. 5 Cir. 1/31/14), 134 So.3d 636, 638, writ denied, 14-420 (La. 9/26/14), 149 So.3d 260.

"While defendant’s second appeal was pending, the Louisiana Supreme Court in State v. Tate, 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied, — U.S.—, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), held that Miller “sets forth a new rule of ^criminal constitutional procedure, which is neither a substantive nor a watershed rule implicative of the fundamental fairness and accuracy of the criminal proceeding,” and thus Milleds pronouncement was not retroactive. In defendant’s second appeal, he challenged his sentence of life imprisonment at hard labor with parole. This Court found that based on the Louisiana Supreme Court’s pronouncement in Tate, defendant’s sentence of life imprisonment .with eligibility for parole was illegally lenient. Stewart, 134 So.3d at 640. Accordingly, this Court amended the sentence to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence, as mandated by La. R.S. 14:30.1, and affirmed as amended. Id.

On January 25, 2016, the United States Supreme Court held in Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), that Miller announced a substantive rule of constitutional law that applies retroactively, thereby abrogating State v. Tate, supra. Thereafter, defendant filed a pro se “Motion to Vacate an [sic] Correct an Illegal Sentence” on February 2,2016.

On December 5, 2016, a hearing was held on defendant’s motion, after which the matter was taken under advisement. On January 19, 2017, the trial court vacated defendant’s life sentence without the benefit of parole and resentenced him to life imprisonment with the benefit of parole under the conditions established in La. R.S. 15:574.4(E). Defendant now appeals for the third time.

FACTS

In the opinion in defendant’s second appeal, Stewart, 134 So.3d at 637-638, this Court set forth the following underlying facts from the co-defendant’s appeal in State v. Robinson, 421 So.2d 229 (La. 1982):

On August 5, 1980, [Jimmy Robinson, co-defendant] and Keith Stewart knocked at the door of the apartment of Mrs. Is Joyce Waites, who managed an apartment complex. They told Mrs. Waites that they wanted to apply for a job, but they left when she advised that there were no positions available. Approximately 30 minutes later, Mrs. Waites answered another knock at the door and was confronted by the same two men, who drew guns and demanded money. When Mrs. Waites pointed to her purse, [Robinson] placed a gun against her head and told her to lie on the floor.
[Robinson] held the gun to Mrs. Waites’ head, while Stewart searched the house for valuables. Mrs. Waites warned that her husband was coming home for lunch soon and begged them to leave, but they did not do so. When [Mr. Waites] arrived, [Robinson] and Stewart used the gun to require him to lie on the floor next to Mrs. Waites. [Robinson] then made Mrs. Waites accompany him upstairs to search for more money. When they came back downstairs, [Robinson] again told her to lie on the floor next to her husband.
Mrs. Waites told [Robinson] that she could not stop shaking and asked for a cigarette, which [he] gave her. At [Robinson]’s instruction, she placed her head on the floor and closed her eyes. When she heard a shot, she looked up and started screaming when she saw that her husband had been shot. [Robinson] placed the gun against her head and told her to shut up or she would be next. Shortly thereafter, [Robinson] and Stewart left the apartment with the stolen money in the Waites’ car.
Mr. Waites died of a gunshot wound to the head. Later the same day, [Robinson] was arrested and confessed to the shooting.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 96-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he 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.

|4In 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. 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) (quotation omitted).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every mer-itless 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 east 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, 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.

DISCUSSION

Defendant’s appellate counsel asserts that after a detailed review of the record,' he could find no non-frivolous issues to raise on appeal. Although defendant alleged in his motion to reconsider sentence that his sentence was excessive, appellate counsel notes that the penalty for a conviction of second degree murder remains the same today as it was in 1980 when defendant committed the offense, namely, life imprisonment at hard labor without'the benefit of parole, probation, or suspension of sentence. Appellate counsel asserts that under Miller and Montgomery, and applying La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E), if the defendant was under the age of 18 at the time of the offense, there are now two potential sentences for second degree murder — life imprisonment without the benefit of parole eligibility or life imprisonment with the benefit of parole eligibility. He notes that of the two sentencing options available, defendant received the less severe of the two, life imprisonment with the benefit of parole eligibility. As such, appellate counsel maintains that although defendant’s sentence is severe, it is not constitutionally excessive.

The State responds that appellate counsel correctly- notes that this ease presents no non-frivolous issues for appellate review. It further responds that the sentence follows the -mandates of Miller and Montgomery, and is not constitutionally excessive.

Appellate counsel has filed a motion to withdraw as- attorney of record which states he has notified, defendant that he filed an Anders brief and that | ^defendant has a right to file a pro se brief in the appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until August 5, 2017, to file a pro se supplemental brief. Defendant, has not filed a supplemental brief in this matter.

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

The record reflects that on February 2, 2016, defendant filed a motion to-vacate and correct an .illegal sentence. Based on the United States. Supreme Court case of Montgomery, supra, a hearing was held, and on January 19, 2017, the trial judge vacated the previous sentence and resen-tenced defendant to life imprisonment with parole eligibility. Appellate counsel does not believe that defendant’s sentence is excessive; however, defendant in his motion to reconsider sentence argued that it is excessive.

As previously stated, in 2012 the United States Supreme Court in Miller held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. The Court indicated that the State must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller, 132 S.Ct. at 2469. Thereafter, in Tate, 130 So.3d at 844, the Louisiana Supreme Court held that Miller, which set forth, a new rule of constitutional procedure for sentencing, was not subject to retroactive application and was to be applied prospectively, only. .However, in January of 2016, the United States Supreme Court in Montgomery, 136 S.Ct. at 737, held that Miller retroactively applied' to defendants whose convictions and sentences became final prior to the Miller decision, thereby abrogating the Tate decision.

' On remand, in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, 607, the Louisiana Supreme Court stated as follows:

|7The Supreme Court held in Miller that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. The' Supreme Court found that *‘[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such' a scheme poses too great a risk of disproportionate punishment.” Miller, 132 S.Ct. at 2469. The Supreme Court clarified in Montgomery, 136 S.Ct. at 734, ‘“that Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption” and life without parole can only be a proportionate sentence for the latter.
# * ⅜?
To implement Miller's “meaningful opportunity to obtain release” for those juveniles who commit murder but are not found to be irreparably corrupt, the Legislature in 2013 La. Acts 239 enacted La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E), Article 878.1 requires the District Court to conduct a hearing “[i]n any case where an offender is to be sentenced to life imprisonment for a Conviction of first degree murder (R.S. 14:30) or second degree murder (R.S.. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense ...- to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).” La. R.S. 15;574,4(E) then provides the conditions under which any person serving a sentence of life impris-. onment for first or second degree murder committed under the age of 18 can become parole eligible, provided a judicial determination has been made the person is entitled to parole eligibility pursuant to Article 878.1.

In the instant case, at the resentencing hearing, several exhibits were admitted into evidence. The State argued that a “number to tack” against defendant was that there was a manifestation of deliberate cruelty to the victim in this case, though he acknowledged that defendant was upstairs when his co-defendant shot and killed the victim. The State also noted that defendant had committed several violations while imprisoned.

Defense counsel responded that the co-defendant who pulled the trigger was 24 years old and that defendant was only 16 years old and not in the room at the time of the killing. He indicated that the co-defendant was more persuasive, influential, and in control than defendant. Defense counsel argued that the trial judge should sentence defendant to a fixed term of years rather than a life sentence 18with or without parole eligibility, because Louisiana’s parole system did not offer a “meaningful opportunity for release” as set forth in Miller and Montgomery.

The State replied that Miller and Montgomery made clear that the single issue before the court was whether defendant would be sentenced to life imprisonment with or without parole' eligibility. It assert^ ed that any sentence to a fixed number of years would be illegal, as the statute mandates a life sentence. Afterward, the trial judge took the matter under advisement.

On January'19, 2017, the trial judge issued her ruling at a hearing. After setting forth several factors that she considered, the trial judge found that defendant had demonstrated maturity and rehabilitation and that his crime reflected an “unfortunate yet transient immaturity,” and therefore, he must be afforded parole eligibility. As such, the trial judge vacated the life sentence imposed without the benefit of probation, parole, or suspension of sentence and resentenced defendant pursüant to Article 878,1 to “life with the benefit of parole” and “the conditions” established in La. R.S. 15:574,4(E).

On January 27, 2017, defendant filed a pro se motion to reconsider sentence, which was denied by the trial court. In his motion, defendant argued that his sentence was excessive, it ignored the Miller and Montgomery mandates, and it did not reflect individualized-sentencing because every juvenile was exposed to the same sentence. He further contended that placing the decision with the parole board was not a substitute for a judicially imposed sentence.

In State v. Brown, 51,418, 2017 La. App. LEXIS 1132, at *11-12 (La. App. 2 Cir. 6/21/17), the Second Circuit found that eligibility for parole was the sole question to be answered in a Miller hearing. Accordingly, the Court noted that there was no consideration of whether the defendant was entitled to a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, |9the trial court was required to consider only whether that mandatory sentence should include parole eligibility.

In the instant case, the record shows that the trial judge adhered to the law set forth in Miller and Montgomery at the resentencing hearing. According to that law, the trial judge’s purpose at the hearing was to determine whether to resen-tence defendant to life imprisonment with pai-ole eligibility or life imprisonment without parole eligibility. After reviewing the law, the exhibits, and the facts of the case, the trial judge chose to vacate defendant’s sentence and resentence him to life imprisonment with parole eligibility, the less severe of the two potential penalties. Defendant’s sentence now provides him with a meaningful opportunity for release. In light of the foregoing, we find that defendant’s sentence was not excessive. Further, the law does not support defendant’s contention that he should have been sentenced to a set number of years.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he 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 grant appellate counsel’s motion to withdraw as counsel of record.

ERRORS PATENT

Defendant requests an error patent review of his case; however, he received such a review by this Court in his second appeal. Therefore, this error patent review is limited to the January 19, 2017 resen-tencing. See State v. Taylor, 01-452 (La. App. 5 Cir. 11/14/01), 802 So.2d 779, 783-784, writ denied, 01-3326 (La. 1/10/03), 834 So.2d 426. Our review reveals one error that requires corrective action.

The transcript and the commitment indicate that the trial judge imposed a life sentence with the benefit of parole; however, the State of Louisiana Uniform | ^Commitment Order only reflects that the trial judge imposed a life sentence. For accuracy and completeness, we remand this matter and order the trial court to correct-the uniform commitment order to reflect that defendant’s life sentence is imposed with the benefit of parole. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, 41, writ denied, 14-481 (La. 11/7/14), 152 So.3d 170. We also direct the Clerk of Court for the Twenty-Fourth Judicial District Court for the Parish of Jefferson to transmit the original of the corrected uniform commitment order to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ legal department. See State v. Barnes, 15-268 (La. App. 5 Cir. 11/19/15), 179 So.3d 885, 891.

DECREE

For the foregoing reasons, we affirm defendant’s sentence, and we remand for correction of the State of Louisiana Uniform Commitment Order. We also grant appellate counsel’s motion to withdraw as counsel of record.

AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER; MOTION TO WITHDRAW GRANTED.

      , Defendant was 16 years old at the time of the offense.

      . We note that La. R.S. 15:574.4(E) was subsequently amended by Act 2017, No. 277, effective August 1, 2017. Throughout this opinion, we refer to Subsection E as it existed at the time defendant filed his motion and before its amendment.

      . 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 (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).

      . Defendant’s conviction is final and is not before this Court at this time. However, defendant is entitled to review of his sentence, which was imposed on January 19, 2017.