author: CHAISSON, J.

text:
    STATE of Louisiana v. Jason EUGENE
    NO. 18-KA-258
    Court of Appeal of Louisiana, Fifth Circuit.
    November 7, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, JASON EUGENE, Cynthia K. Meyer
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

Defendant, Jason Eugene, appeals his convictions and sentences for four counts of distribution of cocaine as well as his multiple offender adjudication and enhanced sentence. For the reasons that follow, we affirm defendant's convictions and sentences, and we further grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On February 1, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with four counts of distribution of cocaine occurring on four different dates in April of 2013, violations of La. R.S. 40:967(A). Defendant pled not guilty at his arraignment.

On March 10, 2016, defendant withdrew his pleas of not guilty, and after being advised of his rights, pled guilty as charged. In accordance with the plea agreement, defendant was sentenced to fifteen years imprisonment with the Department of Corrections on each count to run concurrently. The State then filed a bill of information, pursuant to the provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second felony offender. After being advised of his rights, defendant stipulated to the allegations in the multiple bill. The trial court then vacated defendant's sentence on count one and resentenced defendant, in accordance with the plea agreement, to fifteen years imprisonment with the Department of Corrections without benefit of probation or suspension of sentence.

On March 26, 2018, the trial court granted defendant an out-of-time appeal.

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 appellate counsel requests permission to withdraw as attorney of record for defendant.

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. 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. State v. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. She details the procedural history of the case as well as the circumstances surrounding defendant's guilty pleas and sentencing. She particularly notes that there were no pretrial rulings which could arguably support an appeal, and that defendant entered unqualified guilty pleas, thereby waiving any non-jurisdictional defects. Appellate counsel further sets forth that defendant's guilty pleas to the original and multiple offender bills of information were not constitutionally infirm because defendant was advised of and indicated that he understood the rights that would be waived by pleading guilty. Further, appellate counsel recognizes that defendant was not forced, coerced, or threatened to enter the guilty pleas, and that the sentences were imposed in conformity with the plea agreements. Defendant's appellate counsel concludes that after a conscientious and thorough review of the trial court record, she can find no non-frivolous issues to raise on appeal and no ruling of the trial court that arguably supports an appeal. Therefore, she requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bills of information, and transcripts in the appellate record. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmities or irregularities in defendant's guilty pleas to the four counts of distribution of cocaine that would render them invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty.

In addition, the record reflects that defendant was informed by the trial court and in the waiver of rights form of the maximum sentences on all counts and of the actual sentences that would be imposed upon acceptance of his guilty pleas. Further, during the guilty plea colloquy and in the waiver of rights form, defendant confirmed that he had not been forced, coerced, or intimidated into entering his guilty pleas. After his colloquy with defendant, the trial judge accepted defendant's guilty pleas as knowingly, intelligently, freely, and voluntarily made.

With respect to the multiple offender proceeding, the record shows that defendant was likewise adequately advised of his rights. The waiver of rights form and the transcript 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 actual sentence he would receive. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill, that he understood his rights and the legal consequences of pleading guilty to the multiple offender bill of information, and that he wished to plead guilty. The trial judge thereafter accepted defendant's stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made.

Further, defendant's sentences were imposed in accordance with the plea agreements. 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 that 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. Likewise, this Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Williams , 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-109 (La. 6/21/13), 118 So.3d 406. In addition, defendant's sentences fall within the sentencing ranges set forth in the applicable statutes. See La. R.S. 40:967(B)(4)(b) ; La. R.S. 15:529.1.

Based on the foregoing, we find that defendant's guilty pleas to the original and multiple offender bills of information and the sentences imposed pursuant to the plea agreements do not present any issues for appeal.

Lastly, we have reviewed the record for errors patent and have found none that require corrective action. See La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

DECREE

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 affirm defendant's convictions and sentences, and we grant appellate counsel's motion to withdraw as attorney of record for defendant.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      This Court has previously held that when the trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. See State v. Jamison , 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909, n.2.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      In addition, defendant was notified of his right to file a pro se brief in this appeal. As of this date, defendant has not filed a pro se brief.

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

      It is noted that defendant was not advised of the mandatory minimum penalty set forth in La. R.S. 40:967(B)(4)(b). La. C.Cr.P. art. 556.1(A)(1) provides that prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. This Court has held that an advisement of an agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Lawrence CHIRLOW
    NO. 18-KA-360
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, LAWRENCE CHIRLOW, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   WICKER, J.

Defendant, Lawrence Chirlow, appeals his conviction for possession of cocaine in violation of La. R.S. 40:967(C). Appointed counsel for Defendant filed an appellate 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), seeking to withdraw as counsel of record asserting that after thoroughly reviewing the district court record, she could find no non-frivolous issues to raise on appeal. For the following reasons, we grant appellate counsel's request to withdraw as counsel of record, affirm Defendant's conviction and sentence, and remand this case to the district court for correction of an error patent. We further order that a copy of this opinion be delivered to the Clerk of Court for the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information on July 24, 2015, charging Defendant with possession of cocaine in violation of La. R.S. 40:967(C).

During Defendant's July 27, 2015 arraignment, he entered a plea of not guilty. On September 10, 2015, defense counsel filed a Motion to Appoint a Sanity Commission to Determine Defendant's Competency to Stand Trial. Subsequently, on May 4, 2016, a competency hearing was held where attorneys for the parties jointly requested that the forensic psychiatrist and forensic psychologist who initially evaluated Defendant be allowed to re-assess his mental capacity. On July 20, 2016, the district court found Defendant competent to stand trial. On that date, Defendant withdrew his not guilty plea and entered a plea of guilty. The district court sentenced Defendant, in accordance with the plea agreement, to five years hard labor with the provision that he not be multi-billed. The district court ordered that Defendant's sentence run concurrently with case 15-3900 and "any and all other time imposed" and that he receive credit for time served. Finally, the district court recommended Defendant be afforded self-help or substance abuse programs available through the Department of Corrections, and ordered Defendant to pay $1,417.50 in accordance with the court's schedule of fines, fees, sentencing provisions, and probation requirements.

On February 26, 2018, Defendant filed an application for post-conviction relief in the district court. His application was dismissed without prejudice on March 2, 2018. Defendant filed a writ with this Court on April 4, 2018, seeking a review of the district court's denial and was granted leave to seek an out-of-time appeal on May 22, 2018. On June 8, 2018, the Louisiana Appellate Project was appointed as defense counsel. Defense counsel has filed an Anders brief requesting an errors patent review and a motion to withdraw as Defendant's counsel of record.

FACTS

On July 20, 2016, Defendant pled guilty to possession of cocaine in violation of La. R.S. 40:967(C) without proceeding to trial. As a result of Defendant's guilty plea, the underlying facts regarding the crime of conviction were not fully developed in the record. However, at the time of Defendant's guilty plea and sentence, the State alleged that it could prove beyond a reasonable doubt that on or about June 26, 2015, Defendant did knowingly or intentionally possess cocaine in violation of La. R.S. 40:967(C).

ANDERS BRIEF

Defendant's appointed appellate counsel filed a brief pursuant to Anders v. California , supra , and State v. Jyles , supra , asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel seeks to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court held that appointed counsel may seek to withdraw from representation if counsel finds the appeal to be wholly frivolous after a conscientious examination of the record. In State v. Smith , infra , this Court held that 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." 18-142, 253 So.3d 1314, 2018 WL 4100782, at *2, 2018 La. App. LEXIS 1647, at *5 (La. App. 5 Cir. 8/29/18) ; citing 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 , supra , the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id. at 241. The court further held 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. Id.

To comply with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. Therefore, an appellate court reviews several items when counsel files an Anders brief: a) the Bill of Information to ensure 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 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, the Court may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the Court finds a legal point arguable on the merits, it may either deny the motion and order the court-appointed counsel 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 indicates that she has prepared an appellate brief in accordance with Anders , supra , and Jyles , supra , and after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal nor could she find a ruling of the district court which arguably supports an appeal. The State agrees with appellate counsel, and in its brief urges this Court to grant appointed counsel's motion to withdraw as counsel of record. On July 6, 2018, this Court notified Defendant via certified mail that an Anders brief had been filed on his behalf and that he had until August 5, 2018 to file a pro se supplemental brief. As of the date of this case's submission for decision, Defendant had not filed a brief with this Court.

This Court's independent review of the record confirms appointed counsel's assertion that there are no non-frivolous issues to raise on appeal. First, the bill of information properly charged Defendant and clearly, concisely, and definitely stated the essential facts constituting the offense charged and sufficiently identified Defendant and the crime charged. See La. C.Cr.P. arts. 463 - 466. The bill charged Defendant, Lawrence Chirlow, with one count of possession of a controlled dangerous substance, cocaine, in violation of La. R.S. 14:967(C). Second, the minute entries in the record reflect that Defendant, and his counsel, appeared at each stage of the prosecution against him, including his arraignment, guilty plea proceeding, and sentencing. Therefore, his presence does not present any issues supporting an appeal. See Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990).

Third, Defendant entered a guilty plea to the charge filed against him. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and review of such defects either by appeal or post-conviction relief is precluded. State v. Wingerter , 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664 ; State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Only guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate or when the defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In that case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Goff , 13-866 (La. App. 5 Cir. 4/9/14), 140 So.3d 146, 150-51.

Here, Defendant entered a guilty plea essentially waiving all non-jurisdictional defects. No rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976). Also, prior to Defendant's guilty plea, the district court found him competent to stand trial. Defendant's guilty plea waived his right to challenge his competency on appeal. See State v. Lyons , 13-180 (La. App. 5 Cir. 10/9/13), 128 So.3d 407, 415 ; State v. Marenco , 17-418 (La App. 5 Cir. 12/27/17), 236 So.3d 784, 789.

A review of the record in the present case reflects that Defendant was aware he was pleading guilty to the crime of possession of cocaine. During the July 20, 2016 plea colloquy with the district judge, Defendant was advised of his right to trial by judge or jury, his right to confrontation, and the privilege against self-incrimination as required under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct.1709, 23 L.Ed.2d 274 (1969). Defendant verbally indicated to the district court his understanding that by pleading guilty he was waiving the aforementioned rights and provided his initials and signature on the Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty- Felony Boykin form as further evidence of his understanding that he was waiving said rights by pleading guilty.

During Defendant's plea colloquy, he implied that he felt in some way forced to plead guilty, at which point defense counsel requested to speak with Defendant. After consulting Defendant, defense counsel clarified Defendant's statement and informed the court that Defendant was referring to his feeling that his drug addiction was controlling his actions, not that a specific individual was forcing him to enter a guilty plea. Defendant attested that this is what he meant by his statement. Based on his attestation, the district court found that Defendant had not been forced or coerced into entering into a guilty plea.

Despite informing Defendant that a guilty plea would allow the court to impose the maximum sentence allowable under La. R.S. 40:967(C), the district court failed to state the sentencing range or maximum fine imposable under the law during the colloquy. However, this information was contained on the Defendant's Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of A Plea of Guilty - Felony Boykin form, and the district court informed Defendant of the actual sentence that would be rendered if the court accepted his plea. Defendant was also informed that his guilty plea could be used to enhance a penalty for any future conviction under the Habitual Offender Law.

After a thorough colloquy with Defendant, the district court accepted Defendant's guilty plea as knowingly and voluntarily made. Louisiana Code of Criminal Procedure Article 881.2 sets forth the procedure for the review of criminal sentences. Subsection (A)(2) of the aforementioned article provides: "[t]he defendant cannot appeal or seek 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. Augustine , 14-747 (La. App. 5 Cir. 5/14/15), 170 So.3d 1123 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In this case, Defendant's sentence was imposed in conformity with the terms of a plea agreement, and Defendant's sentence falls within the sentencing range set forth in La. R.S. 40:967(C).

Upon a review of the record, we find no non-frivolous issues for appeal. Defendant's appointed counsel has adequately shown review and analysis of the record in this case. Our independent review of the record confirms counsel's assertions set forth in her Anders brief. Accordingly, counsel's request to withdraw as counsel of record is granted.

ERRORS PATENT

Defendant requests an errors patent review of his conviction and sentence. This Court routinely reviews an appellate record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether a defendant requests an errors patent review. Upon review, the following error patent requires corrective action.

A discrepancy exists between the minute entry, the State of Louisiana Uniformed Commitment Order (U.C.O.), and the transcript. When there is a discrepancy between the minute entry and the transcript, the transcript generally prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). In the transcript of the proceedings, the district court ordered that Defendant's sentence "run concurrently with any and all other time imposed, including case 15-3900." However, the minute entry and U.C.O. reflect that Defendant's sentence is to run concurrently with case number 15-3900 and "any and all other sentences Defendant may be currently serving." Thus, the transcript provides ambiguity regarding the consecutive nature of Defendant's sentence, in that the term "imposed" in the transcript may be interpreted in a manner broader than what the district court intended. Specifically, the use of "imposed" may be construed to mean Defendant's sentence is to run concurrent with the other sentences given during that specific proceeding or it may provide an interpretation similar to that of the minute entry and U.C.O. in allowing Defendant's sentence to run concurrent with the sentences Defendant is currently serving . Therefore, we remand the matter to the 24th Judicial District Court and order the trial court to clarify the Defendant's commitment as to the concurrent nature of the sentences, and the specific case numbers to which they apply, and to amend the minute entry accordingly.

DECREE

Defendant's conviction and sentence are affirmed and appellate counsel's motion to withdraw as attorney of record is hereby granted. We remand this matter to the trial court for correction of an error patent in accordance with this opinion.

CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      During the May 4, 2016, competency hearing, Dr. Richoux, a forensic psychiatrist, was questioned about the results of his and Dr. Rafael Salcedo's competency evaluation of Defendant on October 21, 2015. Dr. Richoux noted that although Defendant mentioned some issues with substance abuse, neither Dr. Richoux nor Dr. Salcedo found any active symptoms which would prevent Defendant from assisting his counsel or understanding the proceedings. However, Dr. Richoux noted that his examination of Defendant was, at that time, six months old and had no bearing on Defendant's current mental status or competency.

      The parties stipulated that the examining psychiatrist and psychologist were experts, would testify that they examined Defendant to determine whether or not he was competent to proceed to trial, and that their recommendation to the court was that Defendant be found competent to proceed.

      La. R.S. 15:529.1, Habitual Offender Law, permits the enhanced sentence for offenders with previous convictions.

      The district court cited prematurity and Defendant's ability to seek an out-of-time appeal under La. C.Cr.P. art 930.8(A) as the basis for dismissing his application for post-conviction relief.

      On May 16, 2018, this Court granted Defendant's writ for the limited purpose of remanding the matter to the trial court with instruction to consider Defendant's APCR as a request for an out-of-time appeal.

      La. C.Cr.P. art. 556.1(A)(1) provides that a court must, prior to accepting a plea of guilty or nolo contendere, inform the defendant of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." However, subsection "E" states "any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." Thus, the district court's failure to inform Defendant of the sentencing range did not invalidate his guilty plea since Defendant was informed of his actual sentence should he plead guilty. This court has held that an advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Faggard , 15-585 (La. App. 5 Cir. 1/13/16), 184 So.3d 837, 847, writ denied , 16-338 (La. 2/10/17), 215 So.3d 701 ; State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.


author: MOLAISON, J.

text:
    STATE of Louisiana v. Charles E. NELSON
    NO. 18-KA-260
    Court of Appeal of Louisiana, Fifth Circuit.
    November 7, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, CHARLES E. NELSON, Gwendolyn K. Brown, Baton Rouge
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant, Charles E. Nelson, appeals his convictions and sentences for one count of possession with intent to distribute cocaine and one count of possession with intent to distribute hydrocodone, in violation of La. R.S. 40:967(A), and one count of possession of heroin, in violation of La. R.S. 40:966(C). Mr. Nelson's appointed counsel has filed an appellate brief pursuant to Anders v. California asserting there is no basis for a non-frivolous appeal, and has also filed a motion to withdraw as counsel of record. For the following reasons, we affirm Mr. Nelson's convictions and sentences and remand this matter to the trial court for corrections of errors patent on the record. Further, we grant appellate counsel's motion to withdraw as counsel of record.

FACTS AND PROCEDURAL HISTORY

In this case, because Mr. Nelson's convictions resulted from guilty pleas, the circumstances surrounding the offenses were not fully developed at a trial. Here, the record reflects that on or about January 11, 2013, Mr. Nelson knowingly or intentionally possessed, with the intent to distribute, cocaine and hydrocodone, and that he knowingly or intentionally possessed heroin.

On March 22, 2013, the Jefferson Parish District Attorney filed a bill of information charging Mr. Nelson with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one), possession of heroin in violation of La. R.S. 40:966 (count two), and possession with intent to distribute hydrocodone in violation of La. R.S. 40:967(A) (count three). At his arraignment on April 9, 2013, Mr. Nelson pled not guilty. Thereafter, Mr. Nelson filed omnibus motions seeking suppression of the evidence, statements, and identification.

On March 21, 2016, pursuant to a negotiated plea agreement, Mr. Nelson withdrew his not guilty pleas and entered pleas of guilty as charged on all three counts. During the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

If the Sate [sic] proceeded to trial against Charles Nelson in Clerk Number 13-1528, the State would prove beyond a reasonable doubt that Charles Nelson on January 11, 2013 committed two separate violations of Louisiana Revised Statute Title 40, Section 967.A. Specifically, he possessed with the intent to distribute cocaine and also possessed with the intent to distribute hydrocodone. The State would further prove that on that same date in Jefferson Parish, [Mr. Nelson] violated Louisiana Revised Statute Title 40, Section 966.C, in that he did knowingly possess heroin.

Following the recitation by the State, Mr. Nelson indicated that he understood and was in agreement with the factual basis for his pleas. On that same date, after accepting Mr. Nelson's guilty pleas as having been knowingly, intelligently, freely and voluntarily made, the trial court sentenced Mr. Nelson as follows: (1) count one - fifteen years imprisonment at hard labor with the first two years to be served without benefit of parole, probation, or suspension of sentence; (2) count two - four years imprisonment at hard labor; and (3) count three - four years imprisonment at hard labor. Further, the trial court ordered that each sentence was to run concurrently with one another, as well as with the sentences imposed that same date in case numbers 15-7082 and 16-518.

Also, on March 21, 2016, the State filed a multiple offender bill alleging Mr. Nelson to be a second-felony offender to which Mr. Nelson stipulated. The trial court then vacated the original sentence on count one and resentenced Mr. Nelson pursuant to the multiple offender statute, La. R.S. 15:529.1, to fifteen years imprisonment at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence, and the remainder of the sentence to be served without the benefit of probation or suspension of sentence. The sentences were ordered to run concurrently with the original sentence imposed as to counts two and three, and with the sentences imposed in cases 15-7082 and 16-518.

Mr. Nelson filed an Application for Post-Conviction Relief ("APCR") on February 2, 2018, which the trial court dismissed without prejudice. On supervisory review, this Court vacated that ruling and remanded the matter to the trial court with instructions to construe Mr. Nelson's APCR as a timely filed request for an out-of-time appeal. State v. Nelson , 18-117 (La. App. 5 Cir. 3/22/18) (unpublished writ disposition). On March 27, 2018, the trial court granted Mr. Nelson an out-of-time appeal.

LAW AND DISCUSSION

Anders Brief

Under the procedure adopted by this Court, 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 , supra , and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel has filed a motion to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the defendant's 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) (internal citations omitted).

In State v. Jyles , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." 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 counsel for the appellant. Id.

In the brief filed by Mr. Nelson's appointed appellate counsel in the present case, she asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that prior to withdrawing his pleas of not guilty and entering pleas of guilty, Mr. Nelson was fully informed of the legal consequences of changing his pleas by both his trial counsel and the trial court. She further avers that the trial court explained to Mr. Nelson the rights necessary to ensure a knowing and intelligent waiver of rights, including the right to a trial by jury, the right to remain silent, and the right to confront witnesses. In connection with the multiple offender adjudication, appellate counsel avers that Mr. Nelson was informed of his right to a hearing and his right to remain silent. She claims that the trial court fully explained to Mr. Nelson the sentences it intended to impose if the guilty pleas were accepted. Further, appellate counsel maintains that the trial court sentenced Mr. Nelson in accordance with the plea agreements and, therefore, pursuant to La. C.Cr.P. art. 881.2(A)(2), Mr. Nelson is prohibited from appealing his sentences.

Appellate counsel has filed a motion to withdraw as attorney of record, which provides that she has notified Mr. Nelson of the filing of this motion and advised him of his right to file a pro se brief. Additionally, this Court sent Mr. Nelson a letter by certified mail informing him that an Anders brief had been filed and that he had until July 2, 2018 to file a pro se supplemental brief. Mr. Nelson has not filed a pro se supplemental brief in this matter.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history of the case. The State acknowledges that appellate counsel has "cast an advocate's eye" over the record and determined that there are no non-frivolous issues to raise on appeal. According to the State, appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles , supra , and should be granted permission to withdraw. The State further avers that it agrees with appellate counsel that the trial court conducted a colloquy with Mr. Nelson and explained to him the rights he was waiving by pleading guilty, and notes that Mr. Nelson acknowledged to the trial court that the pleas were in his best interest. Moreover, the State asserts that the trial court elucidated for Mr. Nelson the time limits for filing an appeal and post-conviction relief. Additionally, the State notes that the trial court advised Mr. Nelson regarding the sentences to be imposed, and that sentences imposed were within the statutory limits. The State agrees with appellate counsel that Mr. Nelson voluntarily and intelligently entered guilty pleas and that there are no non-frivolous issues to be raised on appeal.

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

We find that the bill of information in this case properly charges Mr. Nelson and that it plainly, concisely, and definitively states the essential facts constituting the offenses charged, and cites the statutes Mr. Nelson violated. It also sufficiently identifies Mr. Nelson and the crimes charged. See generally La. C.Cr.P. arts. 462 - 466.

As reflected by the minute entries contained in the record, Mr. Nelson and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty pleas, stipulation to multiple bill, and sentencing. Consequently, we find that Mr. Nelson's presence does not present any issues which would support an appeal.

Moreover, Mr. Nelson pled guilty as charged and stipulated to the allegations of the multiple offender bill of information. 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. Additionally, an unconditional guilty plea, knowingly and willingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304. Here, Mr. Nelson entered unqualified guilty pleas and a stipulation to the multiple bill; consequently, all non-jurisdictional defects are waived. No rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Although Mr. Nelson filed omnibus motions, including motions to suppress evidence, statement, and identification, the record does not indicate that the trial court ruled upon Mr. Nelson's motions prior to the time he pled guilty. Also, the record reflects that Mr. Nelson did not object to the trial court's failure to do so. When the trial court does not hear or rule on a pretrial motion, and the defendant does not object prior to pleading guilty, the motion is considered waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon , 449 So.2d 463, 464 (La. 1984).

Our review of the record in this case reveals no constitutional infirmity in Mr. Nelson's guilty pleas. The record shows that Mr. Nelson was aware that he was pleading guilty to possession with intent to distribute cocaine and hydrocodone and possession of heroin, and also that he was pleading guilty on the multiple offender bill of information as a second-felony offender. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin , on both the charges for possession with intent to distribute cocaine and hydrocodone and with possession of heroin, and with regard to the multiple offender bill. Mr. Nelson was advised of these rights by means of the Waiver of Constitutional Rights Plea of Guilty Form (waiver of rights form). Mr. Nelson confirmed that he had the opportunity to review the waiver of rights form with his counsel and that he signed it. In the waiver of rights form, Mr. Nelson initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. Mr. Nelson was also advised of these rights during the colloquy with the trial court in which the trial court separately advised Mr. Nelson of his rights with regards to his guilty pleas on the possession with intent to distribute cocaine and hydrocodone and possession of heroin charges, and with the multiple offender bill. With regards to the multiple bill, Mr. Nelson was advised of his right to a hearing at which the State would have to prove his multiple offender status, and was advised of his right to remain silent throughout the hearing. Mr. Nelson indicated during the colloquy with the trial court that he understood that he was waiving those rights. Mr. Nelson further indicated that he had not been forced, threatened, or coerced into pleading guilty or stipulating to the multiple offender bill.

Further, during the colloquy and by the waiver of rights form, Mr. Nelson was informed of the maximum and actual sentences that would be imposed if his guilty pleas were accepted and that the sentences were to be served at hard labor. Mr. Nelson was advised that, if the court accepted his plea agreement, he would be sentenced on the multiple bill as to the possession with intent to distribute cocaine charge to fifteen years, the first two years to be served without benefit of parole, probation, or suspension of sentence, and the remainder of the sentence to be served without benefit of probation or suspension of sentence. On the waiver of rights form, Mr. Nelson indicated that he understood he would be sentenced to fifteen years at hard labor at the Department of Corrections and he signed the form, indicating that he understood his sentence and his status as a second-felony offender.

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." La. C.Cr.P. art. 556.1(E). Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Guzman , 99-1528, 99-1753 (La. 5/16/00), 769 So.2d 1158 ; State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64. The Louisiana Supreme Court has held that the core Boykin requirements have never been extended to include advice with respect to sentencing. State v. Guzman , 769 So.2d at 1164. Although the record in the instant case reflects that the trial judge did not advise Mr. Nelson as to the minimum sentences on each count upon which he was charged, we find this error to be harmless, as there is no indication that Mr. Nelson was prejudiced in any way. In State v. Broadway , 40,569 (La. App. 2 Cir. 1/25/06), 920 So.2d 960, 963, the defendant argued that his guilty plea was involuntary because the court erred in failing to adequately apprise him of the sentencing range for the attempt crime for which he pled guilty. The Second Circuit noted that advice regarding sentencing exposure was not part of the core Boykin requirements and that, moreover, the court advised the defendant of the agreed sentence, which satisfied the notice requirement of La. C.Cr.P. art. 556.1. In the present case, the trial court explained to Mr. Nelson the sentences he would receive and he, in fact, received those sentences. We find the advisement of the agreed upon sentences was sufficient for compliance with La. C.Cr.P. art. 556.1.

The trial court found that Mr. Nelson had made a knowing, intelligent, free, and voluntary act of tendering his guilty pleas. Accordingly, the trial court accepted those guilty pleas. Further, the trial court accepted Mr. Nelson's stipulation to the multiple bill as having been knowingly, intelligently, freely, and voluntarily made. Our review of the record supports the trial court's findings.

Finally, we find that Mr. Nelson's sentences do not present any issue for appeal. We note that the sentences fall within the sentencing range prescribed by statute. See La. R.S. 40:967(B), La. R.S. 40:966(C) ( (1), and La. R.S. 15:529.1(A). Further, Mr. Nelson's sentences were imposed pursuant to a 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. See State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, Mr. Nelson's plea agreements were beneficial to him in that although he was a fourth-felony offender, the State agreed to bill Mr. Nelson as a second-felony offender, which reduced his sentencing exposure.

Based on the foregoing, the proceedings surrounding Mr. Nelson's pleas of guilty and his sentences do not appear to present any non-frivolous issues to be raised on appeal. 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, counsel's motion to withdraw as attorney of record is granted.

ERRORS PATENT REVIEW

As is our routine practice, we have reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). The following matter was discovered.

The transcript reflects that the trial court erroneously ordered that the first two years of all three of Mr. Nelson's sentences were to be served without benefit of parole, probation, or suspension of sentence, even though there should have been no restrictions on counts two and three. The sentencing minute entry, however, reflects that the trial court ordered those restrictions with regard to only count one. Moreover, the Uniform Commitment Order ("UCO") reflects that the first two years of the sentence on count one is to be served without benefit of parole, probation, or suspension of sentence, and the remainder of the sentence is to be served without the benefit of probation or suspension of sentence. The UCO, however, does not reflect that the restriction applies only to the enhanced sentence on count one. In light of the foregoing, we remand this matter to the trial court with instructions to correct the UCO as noted above and direct the 24th Judicial District Court Clerk of Court to transmit the corrected UCO to the appropriate authorities, in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Garcie , 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1290.

DECREE

For the foregoing reasons, Mr. Nelson's convictions and sentences are affirmed. We remand this matter for the limited purpose: (1) of correcting the Uniform Commitment Order to reflect that the restriction that the first two years of Mr. Nelson's sentence is to be served without benefit of parole, probation, or suspension of sentence, and the remainder of the sentence is to be served without benefit of probation or suspension of sentence, applies to Mr. Nelson's enhanced sentence on count one only; and (2) for the 24th Judicial District Court Clerk of Court to transmit the corrected UCO to the appropriate authorities in accordance with La. C.C.P. art. 892(B)(2) and to the Department of Corrections' legal department. The motion to withdraw as counsel for defendant is hereby granted.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED FOR CORRECTION OF UCO; MOTION TO WITHDRAW GRANTED

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

      In case 15-7082, as to count one (possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A) ), Mr. Nelson was sentenced as a second-felony offender to twenty-two years imprisonment at hard labor, the first two years to be served without benefit of probation, parole, or suspension of sentence, with the remainder to be served without benefit of probation or suspension of sentence; as to counts two (possession with intent to distribute hydrocodone, a violation of La. R.S. 40:967(A) ) and three (possession with intent to distribute Alprazolam, a violation of La. R.S. 40:969(A) ), Mr. Nelson was sentenced to five years imprisonment at hard labor on each count; and, as to count four (simple criminal damage to property with a value between $500 to $50,000, a violation of La. R.S. 14:56 ), Mr. Nelson was sentenced to one year imprisonment. Mr. Nelson was also ordered to pay restitution in the amount of $3,007.34 to the Jefferson Parish Sheriff's Office. In case 16-518, Mr. Nelson was sentenced to six months imprisonment on count one (resisting arrest, a violation of La. R.S. 14:108 ). The sentence imposed in case 13-1528 was ordered to run concurrently with the sentences imposed in cases 15-7082 and 16-518.

      The trial court also ordered Mr. Nelson to pay a $45.00 fine to the Indigent Defense Board in accordance with La. R.S. 15:168. Additionally, the trial judge recommended that, during his incarceration, Mr. Nelson be given the opportunity to participate in substance abuse treatment and in all available self-help programs.

      In State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, 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).

      La. C.Cr.P. art. 881.2(A)(2) provides that "[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea."

      By stipulating to the multiple bill, Mr. Nelson waived his right to a hearing, as well as to any possible jurisdictional defects. Consequently, Mr. Nelson is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing when he waived the hearing. See Schaefer , supra .


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Timothy M. ORDON
    NO. 18-KA-295
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, TIMOTHY M. ORDON, Prentice L. White
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   CHEHARDY, C.J.

On appeal, defendant's appointed appellate counsel has filed an Anders brief, asserting that there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant's convictions and sentences and grant counsel's motion to withdraw.

Facts and Procedural History

Because defendant pled guilty, the facts of this case were not fully developed at a trial. Nevertheless, the record before this Court reveals that, on or about May 8, 2014, Timothy M. Ordon, defendant-herein, violated La. R.S. 14:62.2 by committing simple burglary of an inhabited dwelling in Jefferson Parish and violated La. R.S. 14:26 and La. R.S. 14:62.2 by conspiring to commit simple burglary of the same structure.

During the colloquy, the State provided the following factual basis for the pleas:

Your Honor, for Case Number 14-4422, the defendant was apprehended after running from the location of 2105 Elizabeth Street. On his person, deputies located property that was located from inside that residence as well as the defendant gave an audio/videotaped confession about going inside the home without permission and taking those things from the home.

On March 5, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2 ; possession of stolen goods valued at over $1,500.00, in violation of La. R.S. 14:69 ; and conspiracy to commit simple burglary of an inhabited dwelling, in violation of La. R.S. 14:26 and La. R.S. 14:62.2. On July 20, 2016 and August 1, 2016, the trial court heard defendant's motion to suppress evidence and statement. At the close of the August 1, 2016 hearing, the trial judge denied the motions.

On December 12, 2016, defendant withdrew his pleas of not guilty and pled guilty, pursuant to North Carolina v. Alford , to one count of simple burglary of an inhabited dwelling and one count of conspiracy to commit simple burglary of an inhabited dwelling. In accordance with the plea agreement, the trial court sentenced defendant, for simple burglary of an inhabited dwelling, to six years at hard labor with the first year to be served without the benefit of parole, probation, or suspension of sentence, and ordered restitution to the victim in the amount of $1,400.00; and for conspiracy to commit simple burglary of an inhabited dwelling, to six years at hard labor, to run concurrently.

During that same hearing, the State filed a multiple offender bill of information alleging defendant to be a second-felony offender, to which defendant stipulated. In accordance with the plea agreement, the trial court vacated defendant's sentence for simple burglary, adjudicated defendant to be a second-felony offender, and imposed an enhanced sentenced, pursuant to La. R.S. 15:529.1, of six years at hard labor without the benefit of probation or suspension of sentence, to run concurrently with all previously imposed sentences.

On September 25, 2017, defendant filed an application for post-conviction relief alleging ineffective assistance of trial counsel. On October 5, 2017, the trial court denied defendant's application. On November 3, 2017, defendant sought supervisory review of that denial by this Court. On March 19, 2018, this Court, in the interest of justice, granted defendant's writ for the limited purpose of remanding the matter to the trial court for it to construe his application for post-conviction relief as one seeking an out-of-time appeal. On March 20, 2018, the trial court granted defendant an out-of-time appeal. This appeal follows.

Anders

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

In Jyles , the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration."

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. 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 legal points identified by the court, or grant the motion and appoint substitute appellate counsel.

Discussion

Defendant's appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel avers that defendant was advised, inter alia , of his right to a jury trial, his right to confront and cross-examine the witnesses against him, and his right to remain silent. Counsel notes that defendant acknowledged his constitutional rights and his willingness to waive those rights by pleading guilty. Counsel argues that defendant denied being threatened or coerced into entering his pleas and indicating his desire to enter guilty pleas.

Counsel further articulates that the State provided a factual basis for defendant's Alford pleas, which was supported by the testimony of the investigating detective at the suppression hearing. Counsel provides that defendant was sufficiently informed of his constitutional rights as a multiple offender and of the sentencing range to which he was exposed before defendant stipulated to the allegations in the multiple offender bill of information. He avers that defendant understood the original and enhanced sentences to be imposed and was sentenced in accordance with the plea agreement.

Appellate counsel has filed a motion to withdraw as attorney of record, which states that he has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal. Additionally, this Court sent defendant a letter by certified mail informing him that his counsel had filed an Anders brief and that defendant had until August 1, 2018, to file a pro se supplemental brief. As of the date of this opinion, this Court has not received a supplemental brief from defendant.

The State responds that appellate counsel is correct that there are no non-frivolous issues to be raised on appeal, and under the procedure enunciated in Anders and Jyles , supra , appellate counsel's motion to withdraw should be granted.

Most importantly, our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. First, the amended, superseding bill of information in this case properly charged defendant and plainly, concisely, and definitely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged. See generally , La. C.Cr.P. arts. 464 -66.

Next, the minute entries and commitment reflect that defendant was present at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceeding, his multiple offender proceeding, and his sentencing.

Further, defendant pled guilty as charged to the amended superseding bill of information and stipulated that he was a second-felony offender as alleged in the multiple offender bill of information. Where, as here, 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. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

Furthermore, defendant did not reserve his right to appellate review of the denial of his motions to suppress evidence and statements under State v. Crosby , 338 So.2d 584 (La. 1976). With respect to defendant's motion to suppress identification that was not ruled on by the trial judge prior to defendant pleading guilty, that motion was 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, the motion is considered waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Turning to defendant's guilty plea, we find that the record does reveal one irregularity that does not present an issue for appeal. Defendant pleaded guilty to both counts pursuant to Alford , supra , which requires the establishment of a factual basis for the plea when a defendant protests that he is innocent. State v. Respert , 14-769 (La. App. 5 Cir. 2/25/15), 168 So.3d 839, 844, writ denied , 15-0604 (La. 1/25/16), 184 So.3d 1288. The "best interest," or Alford plea, is one in which the defendant pleads guilty while maintaining his innocence. McCoil , supra . According to Alford, a defendant may plead guilty, without foregoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." State v. Jones , 07-512 (La. App. 5 Cir. 12/27/07), 975 So.2d 21, 24-25, writ denied , 08-325 (La. 09/26/08), 992 So.2d 982. When a defendant pleads guilty under Alford , constitutional due process requires that the record contain strong evidence of actual guilt. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1123.

Here, defendant's attorney stated that defendant was pleading guilty under Alford because it was in his best interest to do so, and the waiver of rights form also reflects that defendant's pleas were Alford pleas. The State offered a factual basis for the defendant's guilt of simple burglary of an inhabited dwelling.

However, the State's factual basis as to defendant's guilty plea of conspiracy to commit simple burglary of an inhabited dwelling was deficient. This Court has held that where the evidence presented at the suppression hearing demonstrated strong evidence of the defendant's actual guilt, the defendant's Alford plea was supported. See State v. Jones , 07-512 (La. App. 5 Cir. 12/27/07), 975 So.2d 21, 26-27, writ denied , 08-0325 (La. 9/26/08), 992 So.2d 982.

Our review of the testimony presented at the suppression hearing reveals that the record demonstrates strong evidence of defendant's actual guilt of conspiracy to commit simple burglary. At the July 20, 2016 suppression hearing, Detective Wayne Augillard testified that, on May 8, 2014, two men kicked in the front door of the residence at 2105 Elizabeth Avenue to burglarize the home. Defendant was one of the men in the house and was eventually apprehended. A third man, who was waiting in the driver's seat of a nearby vehicle, fled on foot when a responding officer attempted to speak to him.

On his person, defendant had his cell phone and property belonging to the owner of 2105 Elizabeth Avenue. The rental agreement found in the getaway vehicle indicated it was rented by defendant. A subsequent search warrant for the rental vehicle revealed two smart phones and one high school class ring with the initials "MSR." Detective Augillard investigated the ring and discovered that it was stolen from another residence that had been burgled on the previous day.

One of the smart phones belonged to the co-defendant that fled from the vehicle. Further, a second co-defendant was apprehended and found with a pair of gloves and a window punch in his possession. From these facts, one could infer that the three men conspired to commit simple burglary of an inhabited dwelling where one man in the vehicle acted as either the lookout or the getaway driver while defendant and the second man burgled the residence. Based upon this, we find that the record reveals strong evidence of actual guilt, which is a sufficient factual basis for the Alford plea to conspiracy to commit simple burglary of an inhabited dwelling; therefore, the lack of a factual basis by the State does not present an issue that should have been raised on appeal.

Returning to our review of the record, we note that, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. McCoil , supra . A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. Id.

The record reflects that, during the guilty plea proceeding, defendant was informed in writing through the waiver of rights form and verbally by the trial judge that he was charged with and pleading guilty to one count of simple burglary of an inhabited dwelling and one count of conspiracy to commit simple burglary of an inhabited dwelling. Further, on the waiver of constitutional rights form and during the colloquy with the trial judge, defendant was advised of his Boykin rights - his right to a trial, to confrontation, and to remain silent. On the waiver of rights form, defendant initialed next to each of these rights and signed the 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 that he was waiving these rights.

During this proceeding, defendant stated that he had not been forced, coerced, or threatened to enter a guilty plea. Defendant indicated that he was satisfied with the representation of his attorney and understood the nature of the offense. Defendant further indicated that he understood the possible legal consequences of pleading guilty, and wished to plead guilty at that time. After a thorough examination, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely, and voluntarily tendered.

In this case, the waiver of rights form reflect that, at the time of his guilty plea, defendant was 45 years old, had obtained a GED, and could read and write the English language. The waiver of rights form was signed by defendant, his counsel, and the trial judge. Defendant acknowledged on the record that he had gone over the form with his counsel and understood it.

Additionally, during the colloquy and on the waiver of rights form, defendant was advised that, if he was convicted of simple burglary of an inhabited dwelling, the maximum sentence he would face was twelve years at hard labor and the minimum sentence was one year at hard labor, without the benefit of parole, probation, or suspension of sentence. Defendant was further advised that the maximum sentence he could receive for a conviction of conspiracy to commit simple burglary of an inhabited dwelling was six years at hard labor and a minimum penalty did not exist.

Although defendant was not advised as to the mandatory six-month restriction of benefits he faced for conspiracy to commit simple burglary of an inhabited dwelling, this Court has noted that the omission of an advisal regarding the restriction of benefits does not present an issue for appeal. See State v. Landfair , 07-751 (La. App. 5 Cir. 3/11/08), 979 So.2d 619, 622-23, writ denied , 08-1143 (La. 1/9/09), 998 So.2d 713. Further, defendant was informed during the colloquy that his sentence would be six years at hard labor, with the first year to be served without the benefit of parole, probation, or suspension of sentence, and of the $1,400.00 owed in restitution, for simple burglary of an inhabited dwelling. He was also informed that, if his plea for conspiracy to commit simple burglary of an inhabited dwelling was accepted, his sentence would be six years at hard labor.

Further, upon review, we find no constitutional infirmity in defendant's stipulation to the multiple bill. The record reveals that defendant reviewed the multiple offender waiver of rights form with his attorney. Further, the waiver of rights form and the stipulation colloquy reflect 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 such a hearing. The record also demonstrates that defendant understood that he was waiving his right to plead "not guilty" to the charge, and that he was satisfied with the way his attorney had handled his case. Defendant was also advised of the potential sentencing range he faced as a second-felony offender and the term of six years imprisonment that would be imposed for his enhanced sentence. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill.

Afterward, the trial judge accepted defendant's stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made. By stipulating to the multiple bill, defendant waived his right to a hearing and any 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. Schaefer , supra .

Furthermore, defendant's sentence was imposed pursuant to a plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Fifi , 12-158 (La. App. 5 Cir. 10/16/12), 102 So.3d 970, 974 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Even if review was not precluded, we find no appealable issue because defendant's sentence falls within the sentencing range set forth in the relevant statute. Based on the foregoing, we find that defendant's guilty pleas and sentences imposed pursuant to his plea agreements do not present any non-frivolous issues for appeal.

Conclusion

For the foregoing reasons, defendant's convictions and sentences are affirmed. Further, since appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

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

      400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      In exchange for defendant's plea, the State nolle prossed counts two and three and agreed to allege that defendant was only a second felony offender in its multiple offender bill of information.

      The multiple offender bill alleged that defendant had a 2011 predicate conviction of attempted possession in felon of a firearm in violation of La. R.S. 14:27 and La. R.S. 14:95.1 in Section "K" of Orleans Parish Criminal District Court.

      See also State v. Ordon , 17-703 (La. App. 5 Cir. 3/19/18) (unpublished writ decision).

      95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. The Bradford Court adopted its procedure from that of the Fourth Circuit, set forth in State v. Benjamin , 573 So.2d 528, 530 (La.App. 4 Cir.1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      96-2669 (La. 12/12/97), 704 So.2d 241, 242 (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).

      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).

      704 So.2d at 241.

      Id.

      Bradford , supra at 1110.

      Id.

      To convict a defendant of conspiracy, the State must prove: (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, plus (2) an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26 ; State v. Davis , 12-512 (La. App. 5 Cir. 4/24/13), 115 So.3d 68, 82, writ denied , 13-1205 (La. 11/22/13), 126 So.3d 479.

      La. R.S. 14:62.2(B) provides: "Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years." In State v. Boowell , 406 So.2d 213, 215-16 (La. 1981), the Louisiana Supreme Court held, due to the ambiguity of La. R.S. 14:62.2, that only the first year of a sentence imposed for simple burglary of an inhabited dwelling may be imposed without benefits. See also State v. Capers , 51,092 (La. App. 2 Cir. 12/21/16), 211 So.3d 589, 592, a recent decision by the second circuit which relied upon the holding of Boowell to amend the defendant's illegal sentence of six years at hard labor without benefits to six years at hard labor with one year to be served without benefits.

      La. R.S. 14:26(D) provides:
      Whoever is a party to a criminal conspiracy to commit any other crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half the longest term of imprisonment prescribed for such offense, or both.

      In Landfair , supra , defendant's Boykin colloquy and the written waiver of rights form failed to inform the defendant that his guilty plea would result in a sentence without benefit of parole, probation, or suspension of sentence. This Court recognized that the defendant did not assign any errors relating to his sentence, did not make any allegations that his plea was involuntary, and did not move to withdraw his guilty plea. This Court reasoned that the sentence imposed was not inconsistent with the plea agreement and that the restriction of benefits was mandatory in accordance with law. Id.

      La. R.S. 15:529.1(1) states:
      If the second felony offense is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence of 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.
      Therefore, defendant was correctly advised that he faced a sentencing range of six to twenty-four years imprisonment as a second-felony offender on his underlying conviction of simple burglary of an inhabited dwelling.

      The trial judge imposed defendant's sentence to run concurrently to the sentence imposed in an unrelated matter. See , La. C.Cr.P. art. 883.


author: Judge Tiffany G. Chase

text:
    Mubashir MAQUBOOL, Daniel Eaglin II, and David P. Lockett v. SEWERAGE AND WATER BOARD OF NEW ORLEANS
    NO. 2018-CA-0572
    Court of Appeal of Louisiana, Fourth Circuit.
    November 14, 2018
    William D. Aaron, Jr., DeWayne L. Williams, AARON & GIANNA, PLC, 201 St. Charles Avenue, Suite 3800, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Sewerage and Water Board of New Orleans (hereinafter "the Board"), seeks review of the trial court's April 17, 2018 judgment denying its motion to transfer and consolidate, exceptions of res judicata, no right of action and no cause of action, as well as the granting in part of the temporary restraining order and preliminary injunction . For the reasons that follow, we dismiss the appeal and remand for further proceedings consistent with this opinion.

Facts and Procedural History

Following the October 23, 2017 flood, the Board issued a request for proposals to obtain Contract Staff Augmentation and Support Services from a qualified consultant. Six employees of the Board filed a petition, seeking a temporary restraining order, preliminary and permanent injunction, alleging that their jobs were in jeopardy if the request for proposal was allowed to continue. In response, the Board filed exceptions of no right of action, insufficiency of service of process, vagueness and/or ambiguity and lack of subject matter jurisdiction. The matter was allotted to the Honorable Sidney Cates, IV and heard on November 21, 2017. The trial court denied the request for preliminary injunction and granted the exceptions filed by the Board.

The Board reissued the request for proposal seeking to fill the same positions, in the form of a request for qualifications, because it only received one response from the initial request. Following the reissuance of the request, three employees of the Board, namely, Mubashir Maqubool, Daniel Eglin, II and David P. Lockett (hereinafter "the petitioners"), filed a temporary restraining order and preliminary injunction seeking an order preventing the Board from accepting bids or awarding contracts under the request for qualifications. This matter was allotted to the Honorable Kern Reese. By judgment dated April 17, 2018, the trial court denied the request for a temporary restraining order and set the preliminary injunction for hearing by affidavit only. The Board filed a motion to transfer and consolidate, exceptions of res judicata, no right of action, no cause of action, vagueness and/or ambiguity and lack of subject matter jurisdiction. The trial court denied the motion to transfer and consolidate, denied the exceptions and granted in part and denied in part the verified petition for a temporary restraining order and preliminary injunction. The Board timely appealed.

On October 17, 2018, this Court issued an order directing the trial court to clarify the April 17, 2018 judgment, within seven days, to include the proper decretal language and the Clerk of Civil District Court to supplement the record with the clarified judgment. On November 6, 2018, the date of oral argument, this Court received a copy of the October 23, 2018 "amended judgment" from counsel for the Board.

Discussion

A portion of the judgment for which the Board seeks review is the partial grant of the preliminary injunction. It is well settled that a judgment which grants or denies a preliminary injunction is an interlocutory judgment. Yokum v. Pat O'Briens Bar, Inc. , 2015-0946, p. 2 (La.App. 4 Cir. 3/2/16), 190 So.3d 352, 354. Review of an interlocutory judgment is properly sought through an application for supervisory writ when the judgment is not immediately appealable. Alabama Great S. R. Co. v. Landry , 2013-0183, p. 3 (La.App. 4 Cir. 7/31/13), 120 So.3d 952, 954. However, an appeal can be taken from an order or judgment relating to a preliminary or final injunction as a matter of right. Yokum , 2015-0946, 190 So.3d at 354. Therefore, we find the trial court's ruling on the preliminary injunction an appealable judgment.

The Board also seeks review of the trial court's denial of its motion to transfer and consolidate, exceptions of res judicata, no right of action and no cause of action. This ruling constitutes an interlocutory judgment because it does not determine the merits of the case but only preliminary matters. See La. C.C.P. art. 1841. Although the partial grant of the preliminary injunction is the only appealable portion of the judgment in this matter, the appellant is entitled to have this Court review the interlocutory portions of the judgment. "An appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to them, in addition to the review of the final judgment when an unrestricted appeal is taken." Orleans Par. Sch. Bd. v. Lexington Ins. Co. , 2011-1720, p. 10 (La.App. 4 Cir. 8/22/12), 99 So.3d 723, 729. As this appeal relates to the trial court's partial issuance of injunctive relief, we may consider the interlocutory portions of the judgment because it directly relates to the trial court's ruling on injunctive relief. As such, this Court may review the entire judgment.

However, an appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter, even when the issue is not raised by litigants. See Urquhart v. Spencer , 2015-1354, p. 3 (La.App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (quoting Moon v. City of New Orleans , 2015-1092, 2015-1093, p. 5 (La.App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ). A final, appealable judgment must contain the proper decretal language. The judgment must name the party against whom and the party in favor of whom the ruling is ordered, as well as the relief denied or granted. Id. (quoting Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C. , 2014-0506, p. 3 (La.App. 4 Cir. 10/15/14, 151 So.3d 908, 910 ).

The April 17, 2018 judgment does not name the party in favor of whom and the party against whom the ruling regarding the preliminary injunction is ordered. Additionally, the October 23, 2018 "amended judgment" incorrectly identifies the party who filed the temporary restraining order and preliminary injunction. Therefore, the jurisdiction of this Court has not been properly invoked as neither judgment is properly appealable.

Conclusion

The April 17, 2018 judgment lacks the proper decretal language as it does not name the party in favor of whom and the party against whom the ruling regarding the preliminary injunction is ordered. The October 23, 2018 "amended judgment" incorrectly identifies the party who filed the temporary restraining order and preliminary injunction. In the absence of the proper decretal language, the judgment is not a final appealable judgment and this Court lacks jurisdiction to consider the merits of the appeal. As such, the matter is remanded for the trial court to render a final appealable judgment with the proper decretal language and correctly identify the party who filed the temporary restraining order and preliminary injunction. Accordingly, this appeal is dismissed and remanded for further proceedings consistent with this opinion. Once a valid final judgment is rendered, a new appeal may be filed with this Court.

APPEAL DISMISSED; REMANDED

      The judgment also denied the Board's exceptions of vagueness and ambiguity and lack of subject matter jurisdiction. However, the Board does not assign errors to that portion of the judgment and does not brief those issues. Issues not briefed are considered abandoned. See State v. Foy, 439 So.2d 433 (La.1983) ; Bell v. Dep't of Police , 2013-1529 (La.App. 4 Cir. 5/21/14), 141 So.3d 871.