author: CHEHARDY, C.J. WICKER, J.,

text:
    STATE of Louisiana v. Farrell W. WILLIAMS, Jr.
    NO. 16-KA-600
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STÁTE OF.LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Seth W. Shute
    COUNSEL FOR.. DEFENDANT/APPELLANT, FARRELL W. WILLIAMS, JR., Lieu T. Vo Clark
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   CHEHARDY, C.J.

hDefendant, Farrell W. Williams, Jr., appeals his sentence- as a second felony offender. For the reasons that follow, we affirm defendant’s conviction and-sentence.

STATEMENT OF THE CASE

On July 31, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of heroin, a violation of La. R.S. 40:966(C). A twelve-person jury found defendant guilty as charged on May 3, 2016. He was sentenced to ten years imprisonment at hard labor on May 26, 2016, after which he filed a motion to reconsider sentence and a motion for appeal. On June 3, 2016, the district court denied the former and granted the latter.

Thereafter, on July 21, 2016, the state filed a multiple offender bill of information alleging defendant to be second felony offender. At the hearing on the bill, the court .adjudicated defendant a second felony offender, vacated his original sentence, and imposed an enhanced sentence of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence. Defendant filed a motion to reconsider his enhanced sentence and a motion for appeal. On July 27, 2016, the district court denied the motion to reconsider and granted defendant’s appeal.

FACTS

Around 10:30 p.m. on the night of June 26, 2016, Detectives William Whittington and John Wiebelt of the Jefferson Parish Sheriffs Office (“JPSO”) were conducting undercover surveillance as part of a narcotics investigation in and around the intersection of South Jamie Boulevard and U.S. Highway 90 in Avondale, Louisiana. From their separate unmarked vehicles, both detectives observed a Ford Ranger pickup truck enter a McDonald’s parking lot without “too many cars” and park at a distance from the restaurant’s entrance. This aroused the | ^detectives’ suspicions since a patron of the restaurant would typically park close to the entrance in an uncrowded lot. But the driver of the truck, a female, remained in her vehicle and seemed to be waiting for something.

Approximately ten minutes later, a red Chrysler Sebring convertible entered the lot and parked next to the truck. The female exited her truck and entered the passenger side of the Sebring. The Sebr-ing then “idled through” the parking lot and pulled up next to a fuel pump at a nearby gas station. The car remained next to the pump for approximately one or two minutes, but no one exited the vehicle and no gas was pumped. The Sebring then “idled back” next to the truck in the McDonald’s parking lot. The female exited the Sebring, entered her truck, and drove off.

Suspecting that a narcotics transaction had occurred, Detective Whittington decided to stop the Sebring. His decision to stop the Sebring rather than the truck, he explained, was motivated in part by a recently-received tip from a confidential informant that defendant drove a red Chrysler Sebring convertible and was “known to sell quantities of heroin throughout Avondale.” Detective Whittington requested the assistance of JPSO Deputy Joseph Waguespack to conduct the stop with his marked police vehicle. With lights and sirens, Deputy Waguespack stopped the Sebring several blocks away from the McDonald’s. Upon contact with the vehicle, Detective Whit-tington immediately recognized the driver as defendant who had an outstanding attachment for his arrest. Defendant was placed under arrest and a search incident thereto turned up three grams of heroin in his pocket.

DISCUSSION

On appeal, defendant does not challenge his conviction, but assigns two errors regarding his sentence. He argues that the district court erred in denying his motion to reconsider his enhanced sentence and that his enhanced sentence is unconstitutionally excessive. We address these interrelated assignments together.

UThe failure to make or to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional ex-cessiveness only. State v. Brown, 15-96 (La. App. 5 Cir. 9/15/15), 173 So.3d 1262, 1269. Here, because defendant’s motion to reconsider merely argued that his enhanced sentence was excessive, we accordingly limit our review to excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. McGowan, 16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1162. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hill, 12-495 (La. App. 5 Cir. 12/18/12), 106 So.3d 1209, 1212.

An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); McGowan, supra. In reviewing a sentence for excessiveness, the appellate court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice, while recognizing the sentencing court’s broad discretion. Id. at 1162-63. IVhen reviewing the sentencing court’s discretion, three factors are considered: (1) the nature of the crime, (2) the nature and background of the offender, and (3) the sentence imposed for similar crimes by the same court and other courts. Id. at 1163. Before considering these three factors, we choose to note that defendant’s sentence was within the statutory limits and was less than his potential sentencing exposure.

|4Under the law in effect at the time of the offense, possession of heroin carried a mandatory penalty of imprisonment at hard labor for not less than four nor more than ten years. La. R.S. 40:966(C). Defendant was sentenced to the maximum ten years, but this sentence was vacated when defendant was adjudicated a second felony offender on the basis of his predicate conviction for possession of heroin in 24th JDC No. 03-2308. Pursuant to La. R.S. 15:529.1, defendant’s second felony offender status carried a mandatory penalty of imprisonment at hard labor for not less than five nor more than twenty years without benefit of probation or suspension of sentence. Defendant was sentenced to the maximum twenty years.

This maximum sentence was due in part to defendant’s refusal to accept plea bargains ft’om the state. Prior to trial of this matter, the state offered defendant a plea deal that was put on the record. It was acknowledged that defendant was a quadruple felony offender facing a possible life sentence if convicted of the instant offense, and that in exchange for a guilty plea, the state would charge defendant as a second felony offender for which he would receive a twelve-year sentence. In exchange for this plea, the state further offered defendant a concurrent ten-year sentence and agreed not to multiple bill him on additional charges pending against him in 24th JDC No. 13-1818—felon in possession of a firearm (La. R.S. 14:95.1), possession with intent to distribute heroin (La. R.S. 40:966(A)), and possession with intent to distribute cocaine (La. R.S. 40:967(A)).

Defendant did not accept the offered plea deal, proceeded to trial, and was convicted. The state did not bill defendant as a quadruple felony offender, but billed him as a second felony offender. At the hearing on this bill, defendant was advised that if he stipulated to the bill as a second felony offender, he would receive an enhanced sentence of fifteen years. But if he denied the allegation and forced the state to prove his second felony offender status, he would receive an ^enhanced sentence of twenty years. Defendant elected the latter option, was adjudicated a second felony offender, and was sentenced to twenty years. The state then dismissed the pending charges in 24th JDC No. 13-1818 and 24th JDC No. 13-2056.

With the foregoing in mind, we now turn to the three factors of our excessiveness inquiry. First, regarding the nature of the crime, defendant was sentenced to twenty years on the basis of two felony convictions for heroin possession. Though defendant was convicted of simple possession, the facts of this case and defendant’s history suggest that he is involved in heroin distribution. It is difficult to overstate the serious nature of any crime involving heroin given the danger, the substance presently poses to public health. According to. the Centers for Disease Control and Prevention, “[h]eroin-related overdose deaths [in the United States] have more than quadrupled since 2010.”

Second, regarding defendant’s background, the record indicates that defendant has a criminal history, including a felony conviction for heroin possession and several felony drug charges. In fact, defendant’s reputation for selling “quantities of heroin throughout Avondale” contributed to his arrest in this case.

Lastly, regarding sentences for similar crimes, the Louisiana Supreme Court has approved a twenty-year enhanced sentence for a second felony offender with an underlying conviction for possession of heroin. In State v. Thompson, 02-333 (La. 4/9/03), 842 So.2d 330, the defendant, who had been convicted of two counts of heroin possession and adjudicated á second felony offender, received an enhanced sentence of twenty years on one of the counts, to be served concurrently with his ten-year sentence on thé other. On appeal, the Fourth Circuit reversed one Rof the convictions and the corresponding enhanced sentence, but on certiorari review, the Louisiana Supreme Court reinstated both, finding the sentence was within the sentencing court’s discretion in view of the defendant’s previous twenty-three felony and six misdemeanor arrests, as well as a conviction for possession of cocaine. Id. at 338.

Our review of the three foregoing factors as well as the facts and circumstances of this case- leads us to conclude that the district court did not abuse its broad discretion in sentencing defendant to. the maximum twenty years as a second felony offender. Accordingly, we likewise find that the district court did not err in denying defendant’s motion to reconsider his enhanced sentence. These assignments of error are without merit. '

ERRORS PATENT

The record was reviewed for errors patent according to La. C.C.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). Our review indicates that defendant was not advised of the applicable prescriptive period in which to seek post-conviction relief. Accordingly, by way of this opinion, defendant is hereby advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has'become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.

DECREE

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

CONVICTION AND SENTENCE AFFIRMED

WICKER, J.,

CONCURS WITH REASONS

|7I agree fully with the analysis and the majority’s conclusion that Mr. Williams’ sentence is not constitutionally excessive. I write separately to highlight the practical and the economic inefficiencies resulting from the decision to multiple bill a nonviolent drug offender like Mr. Williams. La. R.S. 15:529.1 places the decision to multiple bill an offender squarely within the discretion of the district attorney. See La. R.S. 15.529.1(D)(1)(a). While the authority to multiple bill an offender may prove a very useful tool to prolong the incarceration of a dangerous offender, according to the PEW Charitable Trust, that authority is most often used to prolong the incarceration of those whose most serious offense is a conviction for a drug offense or a property offense. Indeed, for nearly three-fourths of those sentenced under La. R.S. 15:529.1 in 2015, their most serious convictions were drug or property offenses. Only 14% of those sentenced under La. R.S. 15:529.1 had a violent crime conviction. In the instant case, Mr. Williams has never been arrested for or convicted of a crime of violence. There is no evidence in the record that the State suspected Mr. Williams of committing such a crime. Although it may not be immediately obvious as La. R.S. 15:529.1 itself only limits sentencing benefit eligibility and eligibility for political office, a habitual offender conviction carries with it serious collateral consequences that can have a profound impact on the State’s ability to rehabilitate offenders and to facilitate their successful reentry into the community. In an effort to encourage more cost-conscious . decision-making in this area, I will outline the obstacles to rehabilitation • that Mr. Williams—who was billed as a second felony offender with two possession of heroin convictions—is subject to as a result of his conviction under La. R.S. 15:529.1.

| «The most obvious consequence of a conviction under La. R.S. 15:529.1 is the increased sentencing range to which Mr. Williams is subject. Upon his conviction for possession of heroin, in violation of La. R.S. 40:966(0), Mr. Williams received the maximum sentence of ten years at hard labor. Thereafter, the State filed a multiple offender bill of information, alleging that Mr. Williams was a second felony offender with a 2004 conviction for possession of heroin. As a result of his conviction under La. R.S. 16:529.1(A)(1), the statute required the'district court to-sentence the habitual offender to “a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” Accordingly, Mr. Williams faced a sentencing range between five years and twenty years at hard labor, without benefit of probation or suspension of sentence. The district court sentenced Mr. Williams to the maximum sentence of twenty years at hard labor without .benefit of probation or suspension of sentence. Thus, as a consequence of his habitual offender conviction, Mr. Williams received a sentence that was twice as long as the sentence he would have received if the State had not multiple billed him. Pursuant to recent amendments to La. R.S. 15:574.4 which will beeomé effective. on November 1, 2017, Mr. Williams will become parole eligible after serving twenty-five percent of his sentence. Acts 2017, No. 280. If Mr, Williams is never granted parole, he will not be released from prison until June 27, 2035, when he will be sixty-two years of age.

Unfortunately, this is not a zero sum game either for the State or for Mr. Williams. Incarcerating Mr. ■ Williams— whose three felony convictions have all concerned possession of narcotics—is costly. According to the Department of Corrections, it currently costs $24.39/day to house an offender. Per year, that is 19a cost of $8,902.35. The cost to imprison Mr. Williams for twenty years will be approximately $178,047. That total does not include any additional costs, such as Mr. Williams’ healthcare needs as he ages behind bars. Given this State’s budget crisis, prolonged incarceration of a non-violent offender like Mr. Williams, whose latest arrest resulted from possession of three grams of heroin, would seem to be fairly low on the State’s list of priorities.

While the State bears high costs for incarcerating Mr. Williams, it does not seem to reap even roughly equivalent concomitant benefits. Since at least 1993, Mr. Williams has had drug problems. Under these circumstances, it is not likely that a prolonged term of imprisonment accomplishes much in the way of deterrence. Indeed, on the margin, the risk of a lengthy prison sentence is unlikely to deter a multiple drug offender ex ante—that is, at the time he makes the decision to possess drugs. If Mr. Williams is an addict, as it appears he is based on his criminal record, his demand for drugs is relatively inelastic. As such, he will seek to possess drugs even at increased personal cost (i.e., even if he faces the risk of more severe criminal penalties). Thus, at the moment Mr. Williams is making this decision, the risk of a twenty-year prison sentence, as opposed to a ten-year prison sentence, is unlikely to effectively deter him from engaging in this undesirable behavior. While the community does obtain some satisfaction from incarcerating those who break its laws, this satisfaction would seem to be nominal in the case of drug offenders whose drug use causes them to repeatedly victimize themselves.

Because Mr. Williams will conceivably be released from prison one day, the State does have an interest in rehabilitating him and facilitating his reentry into society. The Legislature explicitly expressed the State’s interest in | ^rehabilitating the incarcerated in La. R.S. 15:828(A)(1) which provides in pertinent part,

Persons committed to and in the physical custody of the department shall be treated in a humane manner, and the department shall direct efforts toward the rehabilitation of such persons in order to effect their return to the community as promptly as practicable.

To facilitate rehabilitation and reentry, the Legislature has created numerous programs and initiatives aimed at incentiviz-ing offenders to develop the habit of living by the rules while in prison and to obtain the education and the skills needed to succeed once they are released. Nevertheless, despite the State’s interest in rehabilitating offenders, the Legislature has barred those who have been convicted as habitual offenders under La. R.S. 15:529.1 from participating in many of these programs. For example, La. R.S. 15:571.3(B)(1)(a) provides a felony offender, “[u]nless otherwise prohibited,” with the opportunity to earn “diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as ‘good time.’” If eligible to receive good time, an inmate may earn diminution of his sentence at “the rate of one and one half-day for every one day in actual custody served on the imposed sentence.” However, if an offender has been convicted as a habitual offender under La. R.S. 15:529.1, La. R.S. 15:571.3(C)(1) limits the amount of good time he may accrue and the manner in which he may earn it. While most other offenders can also earn good time for their good behavior, habitual offenders cannot. Those convicted as multiple offenders under La. R.S. 15:529.1 may only earn up to 360 days of good time for participation in certified treatment and rehabilitation programs, which may include basic education, job skills training, values development and faith-based initiatives, therapeutic programs, and treatment programs. La. R.S. 15:571.3(E), 15:828(B). The opportunity to [^receive behavior-related good time provides a significant incentive to those who are eligible to receive it to improve themselves and to develop the habit of living in an ordered manner. Unfortunately, a habitual offender conviction denies an inmate this important and valuable behavioral incentive.

Similarly, as a convicted habitual offender, Mr. Williams is also barred'from participating in the Workforce Development Sentencing Program pursuant to La. R.S. 13:5401(b)(1)(f). This relatively new and innovative program provides eligible offenders with educational and vocational train-mg, moral rehabilitation, basic social and life skills, and community and faith-based support systems to help facilitate their reentry into society. By virtue of his habitual offender conviction, Mr. Williams is also barred from participating in work release programs until “the last year of his term.” . La. R.S. 15:1111. Because Mr. Williams will be parole eligible after he serves twenty-five percent of his sentence, this means that, if the Louisiana Board of Pardons & Parole decides to parole Mr. Williams earlier than one year from the time he becomes full term, Mr. Williams may never become eligible to participate in work release programs because of his habitual offender status. This program serves to help offenders accumulate some kind of financial cushion to fácilitate their reentry into the community. The law inanely limits the degree to which those most likely to recidivate may take advantage of this benefit. Although the Legislature established both the Workforce Development Sentencing Program and work release programs to help offenders gain meaningful and transferable job skills that may help them obtain employment upon their release, habitual offenders—| igthose who are most likely to need this help—are further handicapped because the law limits their access to these important programs.

As taxpaying members of an ordered society, we pay to incarcerate individuals as punishment for their crimes, and we demand that offenders turn their lives around such that they can once again join the community of contributing members. However, the collateral ’consequences attending a habitual offender conviction extend the time of incarceration—and, therefore, the amount of taxpayer dollars spent—but limit the tools the offender has at his disposal to successfully reenter the community upon release. While La. R.S. 15:529.1 places the discretion to multiple bill solely within the hands of the district' attorney, given the high cost of incarceration, the low impact on deterrence, and the limitations it places , on access to rehabilitation programs, restrained, limited, and thoughtful exercise of that discretion would seem to best promote justice, the public interest, and the offender’s prospects for. successful reentry.

      . In 24th JDC No. 13-2056, defendant was charged with the misdemeanor offenses of resisting an officer (La. R.S. 14:108) and battery of a police officer (La. R.S. 14:34.2).

      . https://www.cdc.gov/drugoverdose/data/ heroin.html (last visited June 27, 2017).

      . Effective November 1, 2017, the Legislature has shortened the sentencing range for a second felony offender to “one-third the longest term and not more than twice the longest term prescribed for a first conviction.” Acts 2017, No. 282.

      . Prior to these amendments, La. R.S. 15:574.4(A)(1)(a) denied parole eligibility to Mr. Williams because he has been convicted of three felonies, all of which are drug related.

      . See Henry N. Butler et al., Economic Analysis for Lawyers 420 (3d ed. 2014).

      . Effective November 1, 2017, the rate at which an inmate may earn good time will increase to thirteen days for every seven days in actual custody on the imposed sentence. Acts 2017, No. 280, § 3.

      . La. R.S. 15:1111 governs work release programs established and administered by the Department of Corrections. This statute limits a habitual offender's work release eligibility to the “last year of his term.” In contrast, La. R.S. 15:711 governs work release programs established and administered by the sheriff in each parish. This statute limits habitual offenders' work release eligibility to the "last six months of their terms.” Thus, prisoners in parish custody have an even shorter window during which they may be eligible for work release participation.

      . As a practical matter, the Board of Pardons & Parole will often hold a parole hearing six months before the offender becomes parole eligible. If the Board grants parole, it will then often set a parole release date six months after the parole hearing such that a habitual offender may at least take advantage of six months of work release.

      .As Butler, Drahozal, and Bailey point out, “Serving time in jail may reduce legal opportunities so that the opportunity cost of future criminal activity is lower.” Butler et al., supra, 386. This point is important and makes sense. Based on the economic model of rational choice, the degree to which an offender is likely to recidivate depends heavily on the alternatives to criminal behavior available to him such that the opportunity cost of criminal behavior is higher. Work release programs are an effective rehabilitation measure because they expand these legal alternatives. Given the damage a single felony conviction does to one’s job prospects outside the prison walls, it makes no sense to limit a habitual offender’s access to job programs within the prison walls which may help increase the opportunity cost of future criminal activity and to decrease his desire to recidivate.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    STATE of Louisiana v. Arturio RODRIGUEZ
    NO. 16-KA-606
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, James W. Myers
    COUNSEL FOR DEFENDANT/APPELLANT, ARTURIO RODRIGUEZ, Bertha M. Hillman
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   GRAVOIS, J.

| defendant, Arturio Rodriguez, appeals his convictions and sentences resulting from guilty pleas to two counts of forcible rape and two counts of aggravated burglary. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After thorough review of the record, we agree with counsel’s assessment of the case and accordingly grant the motion to withdraw. We affirm defendant’s convictions and sentences, but remand the matter for correction of errors patent as noted in our errors patent review.

PROCEDURAL HISTORY

On April 6, 2012, a Jefferson Parish Grand Jury indicted defendant, Arturio Rodriguez, with aggravated rape in violation of La. R.S. 14:42 (count one) and aggravated burglary in violation of La. R.S. 14:60 (count two). On April 9, 2012, defendant was arraigned and pled not guilty. On April 11, 2012, defendant filed omnibus motions that were set for a hearing. Thereafter, in October of 2012, a Jefferson Parish Grand Jury returned a superseding bill of indictment charging defendant with two counts of aggravated rape in violation of La. R.S. 14:42 (counts one and three) and two counts of aggravated burglary in violation of La. R.S. 14:60 (counts two and four). On October 30, 2012, defendant appeared for arraignment and entered a plea of not guilty as to counts three and four only.

li>On August 12, 2014, the Jefferson Parish District Attorney amended the indictment as to counts one and three to allege forcible rape in violation of La. R.S. 14:42.1. On that same date, defendant withdrew his previously entered plea of not guilty as to both of his cases and pled guilty as charged to all counts. As to counts one and three, the trial court sentenced defendant to forty years at hard labor on each count, with the sentences to run concurrently with each other and with any other sentence defendant was serving. The first two years of defendant’s sentences were to be served without the benefit of probation, parole, or suspension of sentence. As to counts two and four, defendant was sentenced to thirty years at hard labor on each count, with those sentences to also run concurrently with each other and with any other sentence defendant was serving. Defendant was also ordered to register as a sex offender for the remainder of his life.

On June 27, 2016, defendant filed a uniform application for post-conviction relief requesting an out-of-time appeal, arguing that he was denied a direct appeal. On June 29, 2016, the trial court granted defendant an out-of-time appeal. Defendant’s appeal follows.

FACTS

Because defendant pled guilty, the underlying facts were not fully developed at a trial. In the amended indictment, the State alleged that on February 7, 2009, defendant violated La. R.S. 14:42.1 in that he did forcibly rape a known female (D.O.B. 9/9/1981) (count tine) and violated La. R.S. 14:60 in that he did commit aggravated burglary of 1924 Faith Place, Apartment A, Gretna, Louisiana, belonging to a known female (D.O.B. 9/9/1981) (count two). It further alleged that on March 8, 2009, defendant violated La. R.S. 14:42.1 in that he did forcibly rape a known female (D.O.B. 8/5/1977) (count three) and violated La. R.S. 14:60 in that |3he did commit aggravated burglary of 1912 South Forest Lawn, Apartment A, in Gretna, belonging to a known female (D.O.B. 8/5/1977) (count four).

Additionally, during the colloquy, defendant stated that on February 7, 2009, within Jefferson Parish, he forced his victim to have sex with him “[b]y threats and such” and moved her from one room of the residence to another without her desire to be moved when he did not have the authority to enter the residence. Also during the colloquy, defendant admitted that on March 8, 2Q09, within Jefferson Parish, he entered a residence without authority armed with a shotgun with which he threatened the victim and had sexual intercourse with the victim.

ANDERS BRIEF

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

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

ANALYSIS

Defendant’s appellate counsel asserts that after a detailed review of the record, she ■ could find no non-frivolous issues to raise'on appeal. Counsel submits that defendant was fully informed of the consequences of changing his plea. Counsel notes that-defendant entered guilty pleas to two counts of forcible rape and to two counts of aggravated burglary and that the trial court explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of rights. Counsel avers that the trial court advised defendant that he could be sentenced to not less than five and not more than forty years on each charge of forcible rape and that two years-of the sentences would be served without the benefit of parole, ^probation, or suspension of sentence. As to the charges of aggravated burglary, counsel indicates that the trial court informed defendant that he could be sentenced to not less than one year nor. more than thirty years on each count. Counsel provides that defendant was sentenced in accordance with the plea agreement and he is now restricted by law from appealing his sentence.

Appellate counsel has filed a motion to withdraw as counsel of record for 'defendant which states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal. Counsel asserts that she has notified defendant of the filing of this motion and has advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court notified defendant by certified mail that an Anders brief had been filed and that he had until March 8, 2017 to file a pro se supplemental brief. As of the date of the case’s submission for decision, defendant had not filed a brief with this Court!

The State filed a response to defendant’s appeal, agreeing that counsel has provided a diligent and complete procedural history of the case and found no non-frivolous issues to be raised on appeal. It submits that counsel has conformed with the procedures set forth in Anders and Jyles. It contends that counsel’s motion to withdraw should be granted, -and it believes that there are no discoverable patent errors on the face of the record.

An 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. 464-466. As reflected by the minute entries and the commitment,' defendant appeared at each stage of. the | (^proceedings against him. As such, defendant’s presence does not present any issues supporting an appeal.

Further, defendant pled guilty as charged to forcible rape in violation of La. R.S. 14:42.1 (counts one and three), and to aggravated burglary in violation ’ of La. R.S. 14:60 (counts two and four). 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. Wingerter, 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Defendant also .entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived. No rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La. 1976).

At his second arraignment, defendant’s not guilty pleas to only counts three and four in the subsequent indictment is an irregularity in his arraignment that he waived by later pleading guilty. Here, the State filed a subsequent indictment charging defendant with two counts of aggravated rape and two counts of aggravated burglary. The record indicates that when defendant was arraigned on this subsequent indictment, he entered a plea of not guilty as to counts three and four only. This Court has held that a superseding indictment implicitly dismisses a first. State v. Para, 11-495 (La. App. 5 Cir. 12/13/11), 81 So.3d 140, 142, n.1; State v. Alo, 06-473 (La. App. 5 Cir. 12/27/06), 948 So.2d 275, 278-79. Because of this, it appears that the State’s subsequently-filed indictment wherein it added new charges against defendant was a superseding indictment which vitiated the earlier indictment, and defendant should have been arraigned on all four counts, rather than only on counts three and four. Nonetheless, defendant waived any irregularity in the arraignment or lack thereof by pleading later guilty. La. C.Cr.P. art. 555. See State v. Lee, 15-08 (La. App. 5 Cir. 6/30/15), 171 So.3d 1214, 1219; State v. Clofer, 11-494 (La. App. 5 Cir. 11/29/11), 80 So.3d 639, 643.

A review of the record reveals no irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. 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. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows that defendant was aware he was pleading guilty to two counts of forcible rape in violation of La. R.S. 14:42.1 (counts one and three) and two counts of aggravated burglary in violation of La. R.S. 14:60 (counts two and four). Defendant was properly advised of his Boykin rights. In the waiver of rights form, defendant placed his initials next to a provision indicating that his attorney had advised him of his right to a trial by jury, to confront his accusers, and his privilege against self-incrimination, indicating that he understood he was waiving these rights. During the colloquy with the trial judge, defendant was again informed of these rights. During the colloquy, defendant indicated that he understood that he was waiving these rights.

Defendant stated that he had discussed the matters fully with his attorney, and was satisfied with her representation of him. He denied being under the influence of alcohol or any drugs and reported that he was twenty-four years old. He stated that he had completed eleventh grade and knew how to read and write. |RPefendant acknowledged that he had reviewed and read the waiver of rights form with his attorney, understood what he had read, and that his signature appeared on the bottom of the form. He was advised of his right to an attorney and his right to appeal upon conviction or to appeal his sentences if they were not imposed pursuant to the plea agreement. The trial judge explained that if defendant pled guilty, he was waiving his right to assert any allegation of defect. Defendant suggested that he understood this.

Defendant specified that he wanted to plead guilty and acknowledged that by doing so he was admitting that he committed the crimes to which he was pleading guilty. Defendant indicated that he believed the pleas were in his best interest. Defense counsel stated that she believed that the pleas were knowingly, intelligently, freely, and voluntarily entered by defendant and were in his best interest.

Defendant indicated that he understood the nature of the charges against him and the possible penalties and confirmed that neither he nor his family had been forced, intimidated, coerced, threatened, or promised anything for entering his guilty pleas. The waiver of rights form reflects that if the trial court accepted his pleas of guilty, defendant would be sentenced to “40 yrs concurrent as to all counts w/CTS concurrent w/11-2048.” Therefore, the form does not contain the specific sentences defendant would receive on each count or that the first two years of his forcible rape sentences would be served without the benefit of parole, probation, or suspension of sentence. However, defendant was informed during the colloquy of the full sentencing ranges for the offenses, and the actual penalties that would be imposed upon acceptance of his guilty pleas, including that “[t]he first two years I nwould be without the benefit of probation, parole or suspension of sentence.” The trial judge stated that he was convinced that defendant understood the nature of each of the charges against him and the possible penalties, found a basis for the pleas, and accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily entered, in compliance with La. C.Cr.P. art. 556.1(A)(1).

Defendant’s sentences do not present issues for appeal. His sentences fall within the sentencing ranges prescribed by the statutes. See La. R.S. 14:42.1; La. R.S. 14:60. Further, defendant’s sentences were imposed pursuant to and in conformity with the plea agreement. 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. Defendant was advised during the colloquy that for his convictions of forcible rape, he would receive forty years at hard labor on each count with the first two years being without the benefit of probation, parole, or suspension of sentence, and thirty years at hard labor as to the two counts of aggravated burglary, with those sentences to run concurrently with each other and with any other sentence defendant might be serving.

As to the two counts of aggravated burglary, the trial judge stated:

With regard to your pleas of guilty to counts two and four in matter number 12-1863 and the crimes of aggravated burglary, the Court does hereby sentence you to serve thirty years at hard labor in the custody of the Department of Corrections of the State of Louisiana. Those sentences shall run concurrently with each other and concurrently with any other sentence you might be serving, the Court would give you credit for time served.

Despite the trial judge’s failure to specifically state that defendant received a thirty-year sentence on each count, we find that a thirty-year sentence on each | incount was imposed since the trial judge stated that “those sentences” were to run concurrently “with each other.”

Further, contrary to the waiver of rights form, it appears that the trial judge failed to expressly order the instant sentences to run concurrently with the sentence in district court case number 11-2048. Nonetheless, the trial judge implicitly ordered defendant’s sentences in the instant matter and his sentence in district court case number 11-2048 to run concurrently since he stated that the sentences were to be served concurrently with any other sentence defendant would be serving.

Therefore, we find that' defendant was sentenced in accordance with the plea agreement. Moreover, defendant’s plea agreement was beneficial to him in that he was originally indicted with two counts of aggravated rape for which he could have received life sentences; however, the State-amended those charges to forcible rape.

Because 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, appellate counsel’s motion to withdraw as attorney of record is hereby granted.

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. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).

The transcript and the commitment of the sentencing contain discrepan-’ cies. When there is a discrepancy between the minute entry and the transcript, the’ Intranscript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983), The transcript indicates that the trial judge sentenced defendant as follows:

With regard to your pleas of guilty,in matter number 12-1863 to counts one and. three, the crimes of forcible rape,, the Court does hereby sentence you as. to each of those counts to forty years at hard labor in the custody of the Department of Corrections of the State of Louisiana. The Court runs those sentences concurrently with each other and concurrently with any other sentence you might be serving, and the Court gives you credit for time served,
With-regard to your pleas of guilty to counts two and four in matter number 12-1863 and the crimes of aggravated burglary, the Court does hereby sentence you to serve thirty years at hard labor in the custody of the Department of Corrections of the State of Louisiana, Those sentences shall run concurrently with each other and concurrently with any other sentence 'you might be serving, the Court would give you credit for time served.
With regard to your sentences as to ' forcible rape, the' first two years of those sentences are without benefit of probation, parole or suspension of sentence.

The minute entry/commitment reflects that “[t]he Defendant is sentenced to 40 years on counts 1, 3.concurrently. 30 years, on counts 2, 4 concurrently.” It further states that defendant was sentenced to imprisonment at hard labor for forty years and that two years of the sentence was to be served without the benefit of parole, probation, or suspension of sentence. Lastly, it provides that defendant’s “above sentence” was to run concurrently with the sentence in district court case number 11-2048 and with any time already serving.

The commitment therefore does not clearly reflect that all of defendant’s sentences were to be- served at hard labor and the two-year restriction- of benefits for both of defendant’s sentences for forcible rape. Further, according to the transcript, the trial judge did not explicitly order that the instant sentences were to run concurrently with the sentence in district court case number 11-2048 as reflected by the commitment.

The record also reveals inconsistencies between,the transcript and the Uniform Commitment Order. The Uniform Commitment Order does not contain 112the dates of all of the offenses. It merely provides the offense date(s) as February 7, 2009, and does not include the March 8, 2009 offense dates for counts three and four. Defendant pled guilty as charged, and the amended indictment lists both February 7, 2009 and March 8,2009 as the dates of the offenses. Thus, we remand the matter for correction of the Uniform Commitment Order as to the dates of the’ offenses. See State v. Castillo, 13-552 (La. App. 5 Cir. 10/29/14), 167 So.3d 624, 654, writs denied, 14-587 (La. 11/7/14), 152 So.3d 172, and 14-2567 (La. 9/18/15), 178 So.3d 145. The Uniform Commitment Order also incorrectly provides that “2 years of sentence to be served without benefit of parole, probation or suspension.” It also contains a comment that defendant’s sentence was to run concurrently with the sentence in 11-2048 and does not indicate that defendant’s sentences were to be served concurrently with any other sentence defendant was serving, as stated by the trial judge at sentencing according tothe transcript.

Accordingly, we remand this matter for correction of the commitment and Uniform Commitment Order as noted in this errors patent review to ensure accuracy of the record. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied, 14-481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142). Further, the 24th Judicial District Court Clerk of Court is directed to transmit the corrected commitments 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, 106 So.3d at 1142 (citing La. C.Cr.P. art. 892(B)(2)).

I ^CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw as counsel for defendant is granted. The matter is remanded to the district court for correction of the minute entry, minute entry/commitment, and Uniform Commitment Order as noted herein.

AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS

      . La. R.S. 14:42 was recently amended in 2015 by Act No. 184 and Act No. 256, which renamed the crime as first degree rape.

      . Also on August 12, 2014, defendant entered a guilty plea and was sentenced in district court case number 11-2048 to one count of carnal knowledge of a juvenile. Defendant has also appealed that conviction, which has been docketed in this Court as case number 17-KA-36.

      . The record indicates that defendant filed several omnibus motions before the subsequent indictment was filed, which do not appear to have been ruled upon, readopted, or reurged prior to the time defendant entered his guilty pleas. Nevertheless, defendant waived any argument regarding these outstanding motions by pleading guilty without raising the issue. See State v. Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

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

      . During the colloquy, defendant also indicated that he reviewed the Notification of Sex Offender document with his attorney, discussed the requirement that he register as a sex offender for life for his convictions of forcible rape, and signed the document.

      . In North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the Court held that "[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Although defendant agreed that the pleas were in his best interest, he also admitted his guilt in this matter. This is therefore clearly not a guilty plea made pursuant to Alford.

      . The trial court must impose a separate sentence for each separate count on which the defendant was convicted. La. C.Cr.P. art. 879; State v. Cambre, 04-1317 (La. App. 5 Cir. 4/26/05), 902 So.2d 473, 485, writ denied, 05-1325 (La. 1/9/06), 918 So.2d 1039.

      . It is noted that the waiver of rights form and the colloquy indicate the dates of the offenses as February 7, 2009 on counts one and two, and March 8, 2009 on counts three and four.

      . The Uniform Commitment Order contains the name of the offense and the statutory citation for defendant's convictions of aggravated burglary. For defendant’s convictions of 'forcible rape, it contains the correct statutory citation but not the name of the offense.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. LaShawn DAVIS
    NO. 17-KA-81
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Douglas W. Freese
    COUNSEL FOR DEFENDANT/APPELLANT, LASHAWN DAVIS, Lieu T. Vo Clark
    DEFENDANT/APPELLANT, La-shawn Davis, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   CHEHARDY, C.J.

hOn appeal, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf asserting that there is no basis for a non-frivolous appeal. Further, defendant has filed a pro se supplemental brief alleging one assignment of error. For the following reasons, we affirm defendant’s convictions and sentences.

Facts and Procedural History

Because defendant pled guilty, the facts were not fully developed in the record. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty plea:

On April 22nd, 2013, Lashawn Davis, Charlie Gumms, Davante Robertson, and Frankie Hookfin decided they would travel to the Lapalco Apartments with multiple firearms for the purpose of making a violent attack upon Vincent Jones using the firearms in their possession. All four men understood the purpose for their visit to the Lapalco Apartments.
Following their arrival an attack was perpetrated upon the apartment where Vincent Jones was located using an assault rifle and a handgun. Five people were shot during this attack.
Lashawn Davis engaged in conduct that furthered the aims of an enterprise by engaging in a pattern of racketeering activity and conspired with members of the Enterprise to distribute controlled dangerous substances that included cocaine, heroin and marijuana. This conduct which occurred between 2006 and 2015 including participating in the operation of a narcotics distribution network on the Westbank of Jefferson Parish wherein Enterprise members obtained controlled dangerous substances, including cocaine, heroin and marijuana, from associates and Enterprise members who transported the drugs into the New Orleans-metropolitan New Orleans area. This drug product was then sold on the streets for the profit of Enterprise members.
Members of the Enterprise who engaged in this activity on a daily basis, other than when one or more of them were in jail, included Lashawn Davis, Charlie Gumms, and other persons charged in the indictment.

On February 26, 2016, the Jefferson Parish grand jury indicted LaShawn Davis, defendant-herein, and twenty other co-defendants on thirty criminal counts for acts committed in furtherance of a narcotics distribution network in Jefferson I ^Parish, operated by a street gang known as the “Harvey Hustlers.” Specifically, defendant was charged with eight counts, including one count of racketeering, in violation of La. R.S. 16:1852; one count of conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A); one count of conspiracy to distribute heroin and marijuana, in violation of La. R.S. 40:979 and La. R.S. 40:966(A); and five counts of attempted second degree murder, violations of La. R.S. 14:27 and La. R.S. 14:30.1.

On March 9, 2015, defendant filed motions to suppress evidence, confession, and identification. Defendant pled not guilty to the charged offenses at his arraignment on March 16, 2015.

On November 30, 2015, defendant withdrew his prior pleas of not guilty, and pled guilty as charged. In accordance with the plea agreement, the court sentenced defendant as follows: for racketeering, twenty years imprisonment at hard labor; for conspiracy to distribute cocaine, fifteen years imprisonment at hard labor; for conspiracy to distribute heroin, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence; and for five counts of attempted second degree murder, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on each count. The court ordered that all of defendant’s sentences be served concurrently.

That same day, the State filed a multiple offender bill of information on count two alleging defendant to be a second felony offender. After defendant stipulated to the allegations of the multiple offender bill of information, the trial court vacated defendant’s sentence for conspiracy to distribute cocaine, and imposed an enhanced sentence of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence pursuant to La. R.S. 15:529.1, concurrent with his other sentences.

[iiOn December 28, 2016, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which was granted by the trial court on January 6, 2017. This appeal follows.

Anders brief

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 has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues-.to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if 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 th.eir 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, supra, 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 Lsupreme 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. 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, she could find no non-frivolous issues to raise on appeal. Appellate counsel asserts that, before defendant pled, guilty, he was fully informed of the legal consequences of doing so by both his trial counsel and the trial court. While appellate counsel notes that discovery motions and motions to suppress were filed, the record reflects that neither the State nor defendant posed any objections regarding defendant’s guilty plea., Further, appellate counsel contends that, in addition to the extensive waiver and plea form filled out by defendant and his trial attorney, 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 and the sentencing ranges for the charged offenses, Appellate counsel notes that defendant is restricted from appealing his sentence.

| .^Appellate counsel has filed a motion to withdraw as attorney of record, stating that she filed an Anders brief and that defendant has a right to file his own brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing defendant of his right to file a pro se supplemental brief, which he timely filed with this Court.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history of the case and that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles and should be granted permission to withdraw. The State further agrees with appellate counsel that, after a careful review of the record, there are no non-frivolous issues to raise on appeal. The State maintains that defendant was properly charged in a valid bill of indictment, and he was present and represented by counsel at each crucial stage of the proceedings against him.

Further, the State asserts that defendant entered knowing and voluntary pleas of guilty after the trial court conducted a thorough and comprehensive colloquy wherein he was fully informed of the nature of the charges against him, his potential sentencing exposure, and his constitutional rights. Also, the State notes that defendant was informed of his multiple offender rights before he stipulated to being a second felony offender. As such, the State contends that defendant’s convictions, habitual offender adjudication, and sentences should be affirmed.

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

The 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, the minute entries reflect that defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea, multiple billj^ stipulation, and sentencing. As such, there are no appealable issues surrounding 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. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived.

Although defendant filed several omnibus motions which were not ruled on, the motions are considered waived 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. See State v. Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Further, as there were no rulings, none were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976). Thus, no issues were preserved for appeal.

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. 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. 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 pleas. The record reflects that defendant acknowledged reviewing the waiver of rights form with his attorney. The record shows that defendant was aware he was charged with and pleading guilty to a number of felony charges: one count of racketeering, one count of conspiracy to distribute cocaine, one count of |7conspiracy to distribute heroin and marijuana, and five counts of attempted second degree murder.

Further, in the waiver of rights form and by the trial judge during the colloquy, 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 that he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood those rights.

During his guilty plea colloquy and in his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant was informed during the colloquy of the minimum and maximum sentences and of the sentences that would be imposed on each count if his guilty pleas were accepted. After the colloquy with defendant, the 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 multiple bill. The record indicates that defendant reviewed the multiple offender waiver of rights form with his attorney. The waiver of rights form and the colloquy between the trial judge and defendant indicate 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 and the sentence that would be imposed. Defendant indicated that he had not been forced 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 defendant. By stipulating [s to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects. Defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple offender adjudication when he waived the hearing. See State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

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. 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. 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 plea.

Even if we were to review defendant’s sentences, they all fall within the sentencing ranges set'forth in the statutes. See La. R.S. 15:1354(A); La. R.S. 40:979; La. R.S. 40:967(B)(4)(b); La. R.S. 14:27(D)(1)(a); La. R.S. 14:30.1(B); and La. R.S. 15:529.1. Moreover, defendant’s plea agreement was beneficial to him because he received midrange sentences for his convictions for conspiracy to distribute heroin and five counts of attempted second-degree murder. Also, on his enhanced sentence, defendant received a twenty-year sentence, which was less than the thirty-year maximum exposure.

Although our review of the record reflects that defendant may have received inadequate information regarding the restriction Of benefits for his enhanced sentence, the omission does not require correction so it does not warrant an assignment of error. Specifically, defendant was not informed that parole was restricted during the first' two years of his enhanced sentence.

The restrictions on parole eligibility imposed on- habitual offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n.24, writ denied, 02-1540 (La. 12/13/02), 831 So.2d 983. When the underlying offense carries a parole restriction, the habitual offender sentence is to likewise be imposed without parole. See State v. Smith, 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied, 09-2102 (La. 4/5/10), 31 So.3d 357.

Here, the trial judge imposed defendant’s enhanced sentence without the benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1(G), but did not also restrict parole during the first two years of the sentence as required by La. R.S. 40:967(B)(4)(b). Thus, the trial court imposed an illegally lenient sentence.

However, La. R.S. 15:301.1(A) provides that the statutory restrictions, even if they are not recited at sentencing, are deemed to be contained in the sentence, and are, therefore, statutorily effective. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 799. Thus, the omission does not require corrective action. See State v. Young, 13-745, p. 2 (La. App. 5 Cir. 4/9/14), 140 So.3d 136, 140 n.2, writ denied, 14-1002 (La. 12/8/14), 153 So.3d 439. More importantly, this issue did not affect the voluntariness of defendant’s guilty plea or multiple offender stipulation. See State v. Harrell, 09-364 (La. App. 5 Cir. 5/11/10), 40 So.3d 311, writ denied, 10-1377 (La. 2/10/12), 80 So.3d 473.

Because 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, we will grant appellate counsel’s motion to withdraw as attorney of record by separate Order.

Pro Se Assignment of Error

In his pro se assignment of error, defendant first argues that his appellate counsel should not be allowed to withdraw pursuant to Anders because he claims his counsel did not provide a full analysis of his felony convictions. He contends there were omissions in his appellate counsel’s brief and requests that this Court order counsel to specifically brief whether his conviction and sentence present any non-frivolous ap-pealable issues. Defendant next argues that his guilty plea was invalid as he claims that he asserted his innocence and did not make an admission of guilt. He further avers that he was never advised of the option to plead guilty under Alford, and his guilty plea should not have been accepted over his claim of innocence. He claims that the record only contains a waiver of trial, but no admission of guilt, and that there was no factual basis for the plea.

As discussed above, our review of the record reveals no constitutional infirmity in defendant’s guilty pleas to the underlying charges and in his stipulation Into the multiple offender bill of information. Also, our review supports appellate counsel’s assertion that there is no. basis for a non-frivolous appeal.

Further, with respect to defendant’s claim that he asserted his innocence, we find no merit in that claim. Specifically, the record does not reflect any mention by defendant or his counsel that this was an Alford plea so the following factual basis that the State presented during allo-cution was not required. During the colloquy, the State provided a lengthy factual basis for the charges, namely, defendant’s involvement in various acts of racketeering committed in furtherance of a narcotics distribution network on the Westbank of Jefferson Parish, including conspiracy to distribute cocaine, conspiracy to distribute heroin and marijuana, and five counts of attempted second degree murder, Furthermore, defendant agreed with the factual basis and stated that he was “guilty.”

In sum, we find that there were no non-frivolous appealable issues. Moreover, we find that the record does not reveal any assertion by defendant of his innocence, but rather an agreement with the State’s factual basis and an admission of guilt. This pro se assignment lacks merit.

Errors Patent

Defendant requests an error patent review, which this Court routinely performs 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).

Here, the sentencing transcript reflects that defendant’s sentences for conspiracy to distribute heroin and five counts of attempted second degree murder were imposed without benefit of probation, parole, or suspension of sentence, yet neither the commitment nor the uniform commitment order reflect the restriction of benefits.

If a discrepancy exists between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983). While the statutory restriction |]2of benefits is self-activating, we remand for correction of the commitment and uniform commitment order, and further direct the district court to make the entries in the commitment and uniform commitment order reflecting this change and direct the Clerk of Court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ legal department. See La. C.Cr.P. art. 892(B)(2); State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15), 169 So.3d 473, 492.

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

      . While defendant was charged with and pled guilty to one count of conspiracy to distribute heroin and marijuana, he was sentenced on conspiracy to distribute heroin only.

      . 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).

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

      . La. R.S. 15:1354(A) provides, in pertinent , part: "any person who violates any provision of R.S. 15:1353 shall be fined not more than one' million dollars, or imprisoned at hard' labor for not more than fifty years, or both.”

      . La. R.S. 40:979 provides:
      A. Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy,
      B. Any person who attempts or conspires to distribute or possess with intent to distribute any substance classified in Schedule I, as provided for in R.S, 40:963 and R.S, 40:964, which is a narcotic drug (all substances in Schedule I preceded by an asterisk "*") shall, upon conviction, be imprisoned at hard labor for not less than eight nor more than fifty years without, benefit of parole, probation or suspension of sentence and may, in addition, be required to pay a fine of not more than ten thousand dollars.
      Defendant’s sentence for conspiracy to distribute heroin falls under the penalty provision of La. R.S. 40:979(B), as heroin is classified as a “Schedule I narcotic drug.

      . La. R.S. 40:967(B)(4)(b) provides in pertinent part:
      Distribution'.. .[of] cocaine.,, shall be sentenced to a term of imprisonment at-hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars:

      . La. R.S. 14:27(D)(1)(a) provides: "If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more'than fifty years without benefit of parole, probation, or suspension of sentence.”

      . La. R.S. 14:30.1(B) provides: "Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence,"

      . La. R.S. 15:529.1 provides in pertinent part that upon a second felony' conviction, "the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction,”

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The "best interest” or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. McCoil, 924 So.2d at 1122-1123.

      . See Williams, 800 So.2d at 799 and La. R.S. 15:301.1.


author: WICKER, J.

text:
    STATE of Louisiana v. Misty EIERMANN
    NO. 17-KA-44
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, MISTY EIERMANN, Gwendolyn K. Brown
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   WICKER, J.

11 Defendant, Misty Eiermann, appeals her convictions and sentences for manslaughter, obstruction of justice, illegally supplying a felon with a firearm, possession of a legend drug, and possession of certain controlled dangerous substances. Defendant’s appointed appellate counsel has filed an appellate brief pursuant to Anders v. California and has further filed a motion to withdraw as counsel of record. For the following reasons, we affirm defendant’s convictions and sentences as amended and grant counsel’s motion to withdraw.

STATEMENT OF THE CASE

On January 15, 2015, a Jefferson Parish Grand Jury indicted defendant, Misty Eiermann, with second degree murder in violation of La. R.S. 14:30.1 (count one), obstruction of justice in violation of La. R.S. 14:130.1 (count two), illegally supplying a felon with a firearm in violation of La. R.S. 14:95.1.1 (count three), possession of morphine in violation of La. R.S. 40:967(C) (count five), possession of Zoloft in violation of La. R.S. 40:1238.1 (count six), possession of morphine in violation of La. R.S. 40:967(C) (count seven), and possession of alprazolam in violation of La. R.S. 40:969(6) (count eight). Defendant was arraigned the next day and pled not guilty.

On April 25, 2016, pursuant to a negotiated plea agreement, the State amended count one of the indictment to charge defendant with manslaughter in violation of La. R.S. 14:31. On that same date, defendant withdrew her not guilty pleas and pled guilty to the amended charge of manslaughter on count one and guilty as charged on the remaining counts. Thereafter, on that same date, the trial judge sentenced defendant to imprisonment at hard labor for forty years on count Lone, imprisonment at hard labor for twenty years on count two, and imprisonment at hard labor for five years each on counts three, five, six, seven, and eight, with the sentences on all counts to run concurrently. This appeal follows.

FACTUAL BACKGROUND

Defendant pled guilty to the charges against her without proceeding to trial. However, either the State or defendant provided a factual basis for each charge. As to the manslaughter charge, the defendant stated the following:

That night, me and my co-defendant, we had been drinking and taking pills, and I wanted to go rob my mom for her pills, morphine and Xanax. Walked to her house. When we got there, he had the gun with him and had it pointed at-her at first, and then he pointed it at me and told me, “You kill her or I will,” and so I did...

With respect to the obstruction of justice charge, defendant, admitted that she took off the clothes she wore the night of the murder, placed them in a garbage bag, and gave them to her co-defendant to dispose of them. Defendant further admitted to the possession of controlled dangerous substances, morphine and alprazolam, and agreed to the State’s factual basis that she possessed the legend drug Zoloft in violation of La. R.S. 40:1238.1.

As to the charge that defendant illegally supplied a felon with a firearm, the State indicated that, if the matter proceeded to trial, it would prove that “between August 28[sic], 2014, and September 11, 2014[sic], that Misty Eiermann did violate Revised Statute 14:95.1.1, in that she did’ give, sell or donate, provide, lend or deliver, or otherwise transfer a firearm to Mr. Bryan Schwartz when she. |3admitted to police that she knew that Mr. Schwartz had been convicted of a felony....”

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), defendant’s appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that áppellate 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.” Jyles, 704 So.2d at 241.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel flies an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a I ¿basis for appeal.” State v. Dufrene, 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In this case, appointed appellate counsel’s brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The State agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record. An independent review of the record supports counsel’s assertion that there are no non-frivolous issues to raise on appeal.

First, the amended indictment properly charged defendant and clearly, concisely, and definitely stated the essential facts constituting the offenses charged and sufficiently identified defendant and the crimes charged. See La. C.Cr.P. art. 464-466. Second, the minute entries reflect that defendant appeared at each stage of the proceedings against him. Defendant physically made an appearance in open court for her arraignment, her guilty plea proceeding, and her sentencing.

Third, defendant pled guilty to the charges against her. 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 Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what she justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely Land knowingly. State v. Goff, 13-866 (La. App. 5 Cir. 4/09/14), 140 So.3d 146, 150-51; State v. Dixon, 449 So.2d 463, 464 (La. 1984).

The record reflects that defendant was aware she was pleading guilty to the charged crimes—manslaughter, obstruction of justice, illegally supplying a felon with a firearm, unlawful possession óf Zoloft, possession of alprazolam, and two counts of possession of morphine. Defendant was advised of her right to a jury trial, her right to confrontation, and her privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of these rights by means of the waiver of rights form, which she signed, and during the colloquy with the trial judge.

During her guilty plea colloquy and on her waiver of rights form, defendant indicated that she had not been forced, coerced, or threatened into entering her guilty pleas. The trial judge informed defendant during the colloquy and on the waiver of rights form of the sentencing ranges for manslaughter, obstruction of justice, and illegally supplying a felon with a firearm; the maximum sentences for possession of morphine, Zoloft, and al-prazolam; and of the actual sentences that would be imposed if her guilty pleas were accepted. After the thorough colloquy with defendant, during which the trial judge informed her of the nature of the charges by additionally reading the relevant portions of the applicable statutes for | Reach crime charged, the trial judge accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

As 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. In the instant case, defendant’s sentences were imposed in accordance with the terms of the plea agreements set forth in the record at the time of the pleas. Defendant’s sentences also fall within the sentencing ranges set forth in the statutes. See La. R.S. 14:31; La. R.S. 14:130.1; La. R.S. 14:95.1; La. R.S. 40:967(C); La. R.S. 40:1238.1; La. R.S. 40:969(C). Moreover, defendant’s plea agreement was beneficial to her in that the second-degree murder charge, for which if convicted she would have received a mandatory life sentence, was amended to a manslaughter charge, for which, pursuant to her plea agreement, she received a forty-year sentence.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant’s appointed appellate counsel has adequately demonstrated her review and analysis of the record in this case. An independent review of the record supports counsel’s assertions set forth in her Anders brief. Therefore, counsel’s request to withdraw as counsel of record is hereby granted.

ERRORS PATENT

Defendant requests an error patent review. This Court routinely reviews records for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether a defendant makes such a request. The record reflects the following errors patent:

First, the sentencing transcript reflects that the trial judge imposed defendant’s sentence on count three, illegally-supplying a felon with a firearm, to be served at hard labor. La. R.S. 14:95.1.1 provides in pertinent part that whoever commits the crime of illegally supplying a felon with a firearm shall be imprisoned for not more than five years. It does not provide that the sentence is to be served at hard labor. Because 14:95.1 does not authorize a sentence to be served at hard labor, we delete the portion of defendant’s sentence on her illegally supplying a felon with a firearm conviction, to delete the order of hard labor. See State v. Anderson, 09-105, (La. App. 5 Cir. 10/27/09), 28 So.3d 324, 338, writ denied, 09-2596 (La. 5/21/10), 36 So.3d 229.

Second, the record reflects inconsistencies between the transcript arid the commitment. The transcript reflects that the trial judge ordered the first year of defendant’s sentence on count three to be served without benefit of parole, probation, or suspension of sentence. However, the commitment does not provide this restriction as to count three. The transcript prevails. Lynch, supra. Additionally, the uniform commitment order provides one offense date—September 9, 2014. However, the indictment as well as the factual basis provided by the State in the transcript reflect that the offenses occurred on multiple dates: count one—on or about September 9, 2014; count two—on or between September 9 and 16, 2014; count three—on or between August 28, 2014, and September 11, 2014; counts five, six, and eight—September 11, 2014; and count seven—September 10, 2014.

| «Accordingly, we remand this matter for correction of the commitment to conform to the transcript, as stated above. We further order the Clerk of Court for the 24th Judicial District Court 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. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2)).

For the reasons provided herein, defendant’s convictions and sentences are affirmed as amended and appellate counsel’s motion to withdraw is hereby granted. This matter is remanded to the trial court for,correction, of the.uniform commitment order in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED; REMANDED

      . Co-defendant, Bryan A. Schwartz, was also charged with those same crimes in that same indictment in counts one, two, five, six, and eight, and was indicted with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 in count four.

      . Defendant filed motions to suppress the evidence, statement, and identification, which the trial court denied.

      . The trial judge also ordered that the first year of the sentence on count three was to be served without benefit of parole, probation, or suspension of sentence. See Error Patent Discussion, infra.

      . Defendant indicated that she’ in fact had a prescription for the legend drug,-Zoloft. However, the State provided a factual basis and indicated that, if the matter proceeded to trial, it would prove that the Zoloft recovered belonged to defendant’s mother, the victim, and was taken from the victim "during those transactions.” Defendant implicitly agreed with the factual basis and proceeded with her plea on that charge, additionally stating that the plea was in her best interest. The trial court asked defendant:
      Court: And do you understand, Ms. Eier-mann, that by entering your pleas of guilty, you're telling the Court that you, in fact, committed the crimes to which you’re pleading guilty?
      Defendant: Yes, sir.

      . Defendant admitted supplying her co-defen- ■ dant with a firearm but initially denied that she knew he was a convicted felon. Defendant proceeded with the plea agreement, acknowledging that she understood that by pleading guilty, she was informing the court that she did, in fact, commit the crimes to which she was pleading guilty. Defendant further acknowledged that the pleas were in her best interest.

      . The trial judge did not inform defendant of the sentencing ranges on counts five, six, seven, and eight, related to possession of a legend drug and controlled dangerous substances. There are no mandatory minimum sentences with respect to those statutes, all of which provide for a penalty in the instant case of imprisonment with or without hard labor for not more than five years. See La. R.S. 40:967(C)(2); La. R.S. 40:1238.1(C); La. R.S. 40:969(C)(2). 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 penally. However, “[a]ny 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 the instant case, the trial judge advised defendant of the maximum sentences under the statutes as well as the sentences that she would receive pursuant to the plea agreement, and she received those sentences. The 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.

      . Defense counsel also stated to the Court that he discussed the matter with defendant and that it is his opinion that the plea agreement was entered into freely and voluntarily.

      . Although the .commitment does not reflect that the sentence on count three was to be served at hard labor, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).