author: WINDHORST, J.

text:
    Kim FACIANE v. GOLDEN KEY DIVISION LIMITED PARTNERSHIP, formerly known as Creekwood Golden Key Limited Partnership, Ohio Management L.L.C. and Allied World Assurance Company (US), Inc.
    NO. 2017-CA-636
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, KIM FACIANE, Darleen M. Jacobs
    COUNSEL FOR DEFENDANT/APPELLEE, GOLDEN KEY DIVISION LIMITED PARTNERSHIP AND OHIO MANAGEMENT, L.L.C., Jefferson R. Tillery, Jeanne L. Amy
    COUNSEL FOR DEFENDANT/APPELLEE, ALLIED WORLD ASSURANCE COMPANY, INC., James W. Hailey, III, James V. King, III
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

Appellant/plaintiff, Kim Faciane, appeals the trial court's September 25, 2017 grant of summary judgment in favor of appellees/defendants, Golden Key Division Limited Partnership, formerly known as Creekwood Golden Key Limited Partnership ("Golden Key"), Ohio Management, L.L.C. ("Ohio Management"), and Allied World Assurance Company (US), Inc. ("AWAC"), and dismissing Ms. Faciane's case with prejudice. For the reasons that follow, we reverse the trial court's September 25, 2017 summary judgment and remand for further proceedings.

Facts and Procedural History

Ms. Faciane resided at the Golden Key Apartments, apartment number 327, located at 4209 Division Street from November 9, 2013 until she moved out in May 2014. On March 16, 2016, Ms. Faciane filed suit against defendants/lessors, Golden Key (owner of the apartment complex) and Ohio Management (manager of the apartment complex) and Ohio Management's insurer, AWAC. Ms. Faciane argued that on April 14, 2015, while she was sleeping in her apartment, sheetrock fell from the apartment's ceiling due to a leak in the ceiling. In her petition, she claimed that "sheet rock fell from the apartment's ceiling, striking [her] on her left leg and body and causing her to slip down on floor thereby wetted by rain water [sic ] injuring her neck and back." Ms. Faciane contended that defendants were liable for allowing their apartments to remain in disrepair, failing to properly repair the ceiling after being informed that it was leaking, failing to properly maintain the apartments and failing to institute proper inspection procedures to ensure repairs in her apartment were properly made.

On August 18, 2017, defendants, Golden Key and Ohio Management, filed a motion for summary judgment arguing that the lease agreement between defendants and Ms. Faciane contained a provision requiring Ms. Faciane to hold defendants harmless for any personal injury or property claims. Defendants claimed that pursuant to La. R.S. 9:3221, Ms. Faciane assumed responsibility for the condition of the premises, including the roof of the apartment, except in case of defendants' neglect or failure to take action to remedy such defect after lessee's written notification of the defect. Defendants further argued that they were not informed of any defect with Ms. Faciane's ceiling/roof until after the alleged accident occurred. Defendants contended that because they did not have actual or constructive knowledge of the defect in the roof, as required under the terms of the lease, they were entitled to summary judgment because they could not be held liable for Ms. Faciane's damages. On August 24, 2017, AWAC, as the insurer of Ohio Management, filed a motion to adopt the motion for summary judgment filed by Golden Key and Ohio Management.

Ms. Faciane filed an opposition arguing that several genuine issues of material fact existed precluding summary judgment. She argued that defendants admitted that there were at least two instances of prior notice of a hole in her apartment ceiling. Ms. Faciane contended that the only evidence of an alleged repair was her testimony that defendants only sprayed paint over the hole, not that defendants repaired the hole. She stated that after the initial attempted repair, she called the manager and told her that the ceiling had not been adequately fixed. Ms. Faciane further told the manager that the technician sprayed the "popcorn substance on her furniture." Ms. Faciane claimed that there was no proof that defendants performed inspections and/or adequately inspected their premises. Moreover, she argued that there was evidence of prior notice of the defective condition. Ms. Faciane stated that defendants were liable for her damages under both negligence and strict liability theories. Therefore, she contended that defendants were not entitled to summary judgment.

On September 25, 2017, the trial court granted the motions for summary judgment in favor of defendants and against Ms. Faciane, dismissing her case with prejudice. This appeal followed.

Discussion

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547. Summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 A (3).

Generally, the owner or lessor of a building is liable for the condition of the leased premises. See La. C.C. arts. 2317, 2322, 2696, and 2697 ; Pillow v. Roymar Ltd. P'ship, 15-730 (La. App. 5 Cir. 06/30/16), 197 So.3d 348, 354, writ denied, 16-1465 (La. 11/15/16), 209 So.3d 780 ; Simon v. Hillensbeck, 12-87 (La. App. 4 Cir. 09/19/12), 100 So.3d 946, 951. Under La. C.C. art. 2696, the lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee. La. C.C. art. 2697 provides that this warranty also encompasses vices or defects that are not known to the lessor.

Under La. C.C. art. 2699, the warranties owed by a lessor, as provided in La. C.C. arts. 2696 and 2697, may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee. Nevertheless, a waiver of warranty is ineffective: (1) to the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have known; (2) to the extent it is contrary to the provisions of article 2004; or (3) in a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety. (Emphasis added). La. C.C. art. 2699. Therefore, "to the extent that a waiver purports to encompass those vices or defects that seriously affect health or safety, the waiver is ineffective." Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So.3d 977, 985-986.

However, the lessee may contractually assume responsibility for the condition of the premises in a lease contract. La. R.S. 9:3221 ; Pillow, 197 So.3d at 354. La. R.S. 9:3221 provides:

Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of the premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

La. R.S. 9:3221 relieves the owner or lessor of strict liability under La. C.C. arts. 2317, 2322, 2696, and 2697 ; and thus, the owner or lessor is liable only for negligence. Chau v. Takee Outee of Bourbon, Inc., 97-1166 (La. App. 4 Cir. 02/11/98), 707 So.2d 495, 498.

Nevertheless, a lessor is not entitled to claim the exculpatory benefits of La. R.S. 9:3221 for defects in common areas or common accessories, such as stairwells. See Shubert v. Tonti Dev. Corp., 09-348 (La. App. 5 Cir. 12/29/09), 30 So.3d 977, 986 ; Dorion v. Eleven Eleven Bldg., 98-3018 (La. App. 4 Cir. 05/12/99), 737 So.2d 878, 880-881. The rationale for this conclusion is that no single, individual lessee normally assumes exclusive responsibility for the care and maintenance of common areas or common accessories. Shubert, 30 So.3d at 986 ; Dorion, 737 So.2d at 881. Therefore, a lessee may maintain an action for damages flowing from an injury caused by a defect in a common area or common accessory, notwithstanding his contractual assumption of responsibility for defects in the leased premises. Dorion, 737 So.2d at 880-881 ; Ostrander v. Parkland Villa Apartments, 511 So.2d 1293, 1295 (La. App. 2 Cir. 1987).

On appeal, Ms. Faciane contends that the trial court erred in granting summary judgment in favor of defendants and dismissing her case with prejudice. She argues that 1) defendants had actual and constructive notice of the defect in their premises; 2) defendants are strictly liable to her for the defect to their building pursuant to La. C.C. art. 2322 ; and 3) her own affidavit is not contrary to her deposition. Ms. Faciane contends that genuine issues of material fact exist to preclude summary judgment.

In this case, Ms. Faciane allegedly suffered injuries caused by a leak in the ceiling of her apartment. Although a tenant may notice a leak on the interior of his or her apartment's ceiling, a tenant is not likely, nor reasonably expected, to inspect or have knowledge of leaks or holes on the exterior roof of the apartment complex. Nor do we find that a tenant would have sufficient expertise or knowledge of the history of the roof, i.e. , prior damage or repairs, to assume responsibility for the roof of the apartment complex. There is no doubt that Ms. Faciane's ceiling is part of a solid, shared roof covering the entire apartment complex, shared by multiple tenants, and is a common accessory not subject to waiver under La. R.S. 9:3221.

Therefore, the law controlling the lessor-lessee relationship applies in this case. Under La. C.C. art. 2696, a lessor warrants the thing suitable for use for its intended purpose. In a residential lease, a lessee cannot waive the warranty for vices or defects that seriously affect health or safety. La. C.C. art. 2699. We find that a waiver of a defect in a solid, shared roof covering an entire apartment complex that results in damages to a tenant/lessee clearly affects health and safety, and is therefore not enforceable.

Upon our de novo review of the record, we find that the trial court erred in granting defendants' motions for summary judgment and dismissing Ms. Faciane's claims. Under the general code articles controlling the lessor-lessee relationship, Ms. Faciane has a viable claim of strict liability under La. C.C. arts. 2696 and/or 2697, since her injuries resulted from an alleged defect in a common accessory of the apartment complex, i.e. , the solid, shared roof, and her claim is not affected by the contractual waiver signed pursuant to La. R.S. 9:3221. Ms. Faciane does not need to prove notice and therefore, summary judgment is not appropriate. See Barnes v. Riverwood Apartments Partnership, 38,331 (La. App. 2 Cir. 04/07/04), 870 So.2d 490.

Conclusion

For the reasons stated above, we reverse the trial court's September 25, 2017 judgment and remand for further proceedings.

REVERSED AND REMANDED

      The apartment lease contains the following provision:
      Lessee assumes responsibility for the condition of the premises. Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes by freezing, fire, theft, flooding, smoke damage, vandalism, water escape from toilets or water heaters, or otherwise, or any vices or defects of the leased property, or the consequences thereof, except in case of positive neglect or failure to take action toward the remedying of such defects and the damage caused thereby.
      * * *
      In accordance with the provisions of Louisiana Revised Statutes 9:3221, the lessee does hereby agree and stipulate that he will assume responsibility for the condition of the leased premises including defects in common areas, adjacent premises or the roof. By this stipulation, the landlord and lessee agree that the landlord shall not be liable for [sic] injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee.

      In support of their motion for summary judgment, defendants filed the affidavit of Naomi Regan, complaint/report entries entered for appellant's apartment, invoices from Odenwald (roofer), the affidavit of Jaime Dheming, excerpts from Ms. Faciane's deposition, and the apartment lease to show that they did not have actual or constructive notice of the alleged defect until after the accident.

      Ms. Faciane objected to hearing AWAC's motion for summary judgment because it was untimely. However, the trial court allowed AWAC's motion to be heard on the same date as Golden Key and Ohio Management's motion because AWAC only adopted the arguments and exhibits of the other defendants and did not put forth any additional evidence.

      In support of her opposition to the motion, Ms. Faciane attached her own affidavit and photographs attesting that appellees had prior notice of the alleged defect and did not adequately repair the prior defect.

      Prior to the 1996 tort reform legislation, La. C.C. art. 2317 provided for strict liability in a broader context, i.e. , an owner or custodian of a thing was strictly liable for damages occasioned by that thing. Barnes v. Riverwood Apts. P'ship, 38,331 (La. App. 2 Cir. 04/07/04), 870 So.2d 490,493. The 1996 legislation enacted La. C.C. art. 2317.1 which added a notice or knowledge component to La. C.C. art. 2317 effectively changing liability in this area from strict liability to negligence. Acts 1996, 1st Ex. Sess., No. 1, § 1, effective April 16, 1996.

      Similar to La. C.C. art. 2317, prior to the 1996 tort reform legislation, La. C.C. art. 2322 provided for strict liability in a general context, i.e. , an owner of a building was strictly liable for damages occasioned by its ruin, when this was caused by neglect to repair it, or when it was the result of a vice in its original construction. The 1996 legislation modified the article to provide for a notice or knowledge component to La. C.C. art. 2322 effectively changing liability from strict liability to negligence. Acts 1996, 1st Ex. Sess., No. 1, § 1, effective April 16, 1996.

      Former La. C.C. art. 2695 was revised and its principles codified in La. C.C. arts. 2696 and 2697.

      In Shubert, this Court found that "insofar as the clause purports to waive liability for defects in common areas or common accessories, it is inapplicable. Landlords are not entitled to claim the exculpatory benefits of La. R.S. 9:3221 for such areas." Shubert, 30 So.3d at 986.

      In Dorion, the court found that a "landlord is not entitled to the exculpatory benefits of La. R.S. 9:3221" for defects to common areas. Dorion, 737 So.2d at 881.

      Some courts have indicated that, as to common areas, the general premise liability law applies because common areas, such as pool areas, parking garages, or stairwells that are outdoors, are not part of the "leased premises" itself. See Dorion, 737 So.2d at 881 (in which the court stated, "In effect, the courts of this state have consistently treated common areas the same way that they treat non-leased premises, i.e. , the landlord is not entitled to claim the exculpatory benefits of La. R.S. 9:3221."). In the present case, however, the alleged defect is a shared roof which damaged the ceiling in appellant's apartment. Therefore, we find that the roof and the ceiling of appellant's apartment are obviously part of the "leased premises," but since the roof is shared by all tenants, it is a common accessory for which one tenant cannot and would not assume exclusive responsibility.

      Nevertheless, upon de novo review, Ms. Faciane's affidavit in opposition to defendants' motions for summary judgment arguably creates a genuine issue of material fact if notice was required , which we are not concluding it is, and therefore, summary judgment would still be inappropriate.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Bernard J. LAMPTON
    NO. 17-KA-489
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, BERNARD J. LAMPTON, Bruce G. Whittaker
    DEFENDANT/APPELLANT, BERNARD J. LAMPTON, In Proper Person
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

On appeal, defendant's appointed appellate counsel filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. Defendant, Bernard Lampton, filed a pro se supplemental brief arguing two assignments of error. For the reasons that follow, we affirm defendant's convictions and sentences on counts one through five and counts seven through nine, affirm defendant's conviction on counts six, vacate defendant's sentence on count six, and remand to the trial court for resentencing on count six. We further grant appellate counsel's motion to withdraw as counsel of record.

Procedural History

On August 27, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Bernard J. Lampton, with two counts of attempted first degree murder in violation of La. R.S. 14:27:30 (counts one and two), two counts of felon in possession of a firearm in violation of La. R.S. 14:95.1 (counts three and four), possession of a stolen firearm in violation of La. R.S. 14:69.1 (count five), aggravated flight from an officer in violation of La. R.S. 14:108.1C (count six), conspiracy to distribute heroin in violation of La. R.S. 40:979 and La. R.S. 40:966A (count seven), possession with the intent to distribute cocaine in violation of La. R.S. 40:967A (count eight); and possession with the intent to distribute heroin in violation of La. R.S. 40:966A (count nine). On August 28, 2014, defendant pled not guilty at his arraignment. Defendant filed numerous motions, including a motion for preliminary hearing, and motions to suppress evidence, statement, and identification.

On February 9, 2015, defendant withdrew his not guilty pleas and pled guilty as charged. The trial court sentenced defendant to twenty-five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on counts one and two; twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on counts three and four; five years imprisonment at hard labor on counts five and six; twenty-five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count seven; twenty-five years imprisonment at hard labor with the first two years without the benefit of probation, parole, or suspension of sentence on count eight; twenty-five years imprisonment at hard labor with the first ten years without the benefit of probation, parole, or suspension of sentence on count nine. The trial court ordered all sentences to run concurrently with one another and with his sentence in district court case number 14-4626.

On April 5, 2017, defendant filed an application for post-conviction relief, seeking an out-of-time appeal. On June 26, 2017, the trial court granted defendant's request for an out-of-time appeal. This appeal followed.

Facts

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

[O]n July 8th, 2014, Mr. Lampton went to a location to complete a heroin sale that was arranged before the time he arrived with an individual whom he had previously, within that preceding week, engaged in a heroin transaction. Police officers approached him upon arrival. As he sat in his car, the police officers exited their car. Mr. Lampton fired a shot at one of the officers, missing him, striking the officer's vehicle. Mr. Lampton then began driving his car through the police officers and their vehicles striking one of the police officers and knocking him to the side. All officers then began a pursuit with lights and sirens-And, by the way, all those officers had identified themselves as police officers and had their identification clearly displayed. All the officers began pursuit, and that pursuit included more vehicles that had lights and sirens going. During the course of the pursuit, Mr. Lampton made a left to run away, disregarding multiple traffic signals and traveled in excess of thirty miles an hour over the speed limit. Ultimately his car was stopped. When his car was stopped, a quantity of drugs was found in the car. Search along the pathway revealed that one gun was recovered and other drugs were recovered along the path that the vehicle followed. A second gun was fired but not recovered, according to the police investigation. The amounts of drugs that were found, which were both heroin and cocaine, were consistent with an intent to distribute. The only gun that was recovered was a .40 caliber Glock, and that gun was established to have been stolen. At the time that he possessed that Glock and the second gun, which was the gun that was fired at Lieutenant Donald Meunier, Mr. Lampton had previously been convicted of the crime of possession of Ecstasy.

Discussion

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 06/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. 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 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. Id. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel contends that defendant pled guilty and was sentenced pursuant to a counseled plea agreement and that he did not reserve the right to seek review of any trial court rulings. He argues that there does not appear to be a basis in the record to support a claim that the guilty plea was constitutionally infirm as the plea colloquy and guilty plea form properly advised defendant of his rights. Appellate counsel states that defendant was advised that by pleading guilty he was giving up his rights to an appeal and that his plea is supported by a detailed executed waiver of rights form, including a colloquy with the trial court. Appellate counsel asserts that defendant's plea agreement was advantageous and defendant was sentenced in accordance with the plea agreement.

Appellate counsel filed a motion to withdraw as counsel of record wherein he stated he notified defendant that he filed an Anders brief and that defendant had a right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until October 19, 2017 to file a pro se supplemental brief. Defendant filed a pro se supplemental brief.

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

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

Further, defendant pled guilty in this case. When a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading 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. 03/14/06), 926 So.2d 662, 664. Therefore, it appears that all non-jurisdictional defects were waived.

No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976). Although defendant filed several pre-trial motions, including motions to suppress evidence, statement, and identification, the record does not show that the trial court ruled upon defendant's motions prior to the time defendant pled guilty and defendant did not object. 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. 02/15/05), 896 So.2d 1101, 1102. Therefore, defendant's motions are waived.

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. 02/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity in defendant's guilty pleas. Defendant was aware he was pleading guilty to two counts of attempted first degree murder, two counts of possession of a firearm by a convicted felon, one count of possession of a stolen firearm, one count of aggravated flight from an officer, one count of conspiracy to distribute heroin, one count of possession with the intent to distribute cocaine, and one count of possession with the intent to distribute heroin. In the waiver of rights form and 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. Defendant signed the waiver of rights form indicating that he understood he was waiving his Boykin rights by pleading guilty. During the colloquy, defendant also stated that he understood he was waiving those rights.

Also during his guilty plea colloquy, defendant stated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant stated that he understood these convictions could be used against him in the future to enhance or increase any future penalties. He was advised during the colloquy and by the waiver of rights form of the minimum and maximum sentences of imprisonment and the actual sentences that would be imposed if his guilty pleas were accepted. After the colloquy, the trial court accepted defendant's pleas as knowingly, intelligently, and voluntarily made.

Defendant's sentences were imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2A(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. 04/11/07), 958 So.2d 36, 46 ; State v. Washington, 05-211 (La. App. 5 Cir. 10/06/05), 916 So.2d 1171, 1173. Further, defendant's sentences for all counts except count six fall within the sentencing range prescribed by the statutes. See La. R.S. 14:27D(1)(a); La. R.S. 14:30 ; La. R.S. 14:95.1B; La. R.S. 14:69.1B(1); La. R.S. 14:108.1E ; La. R.S. 40:797B; La. R.S. 40:967(4)(b) ; La. R.S. 40:966B. Moreover, defendant's plea agreement was beneficial to him in that the sentences were ordered to run concurrently and with district court case number 14-4626, and the State agreed not to file an habitual offender bill of information.

However, the trial court erred in sentencing defendant on count six, aggravated flight from an officer. The transcript reflects that the trial court sentenced defendant on count six to five years imprisonment at hard labor. While the transcript reflects that defendant was advised that the sentencing range had a maximum of two years, his plea agreement and the guilty plea colloquy show that he was advised he would receive five years imprisonment on count six. At the time of the offense, the statute provided for a penalty of imprisonment at hard labor of not more than two years. See La. R.S. 14:108.1E. Therefore, we find that the sentence on count six is illegally harsh because it is beyond the maximum allowed by law.

Pursuant to La. C.Cr.P. art. 882, an appellate court can correct an illegal sentence at any time. An appellate court is authorized to correct an illegal sentence when the exercise of sentencing discretion is not involved. State v. Durapau, 01-511 (La. App. 5 Cir. 10/30/01), 800 So.2d 1052, 1054 ; State v. Ross, 09-431 (La. App. 5 Cir. 11/24/09), 28 So.3d 475, 489-90. The sentence on count six is illegal because it exceeds the two-year statutory maximum allowed under La. R.S. 14:108.1. Because the correction of this error necessarily involves the discretion of the trial court, we vacate defendant's sentence on count six and remand to the trial court for resentencing.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record is granted.

Pro Se Assignments of Error

In his pro se supplemental brief, defendant contends that "there are legal points arguable on the merits that trial counsel and appellate counsel overlooked." He argues that he had a viable entrapment defense. He contends that the confidential informant in this case, with the aid and inducement of "Agent Clements," persuaded him to commit the crime of conspiracy to distribute heroin, distribution of cocaine, and possession with intent to distribute heroin. He argues that trial and appellate counsel were ineffective because had they investigated or even read the police reports, they would have urged an entrapment defense.

Entrapment is a defense that arises when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of a crime, originates the idea of the crime and then induces the person to engage in conduct constituting the offense when that person is not otherwise disposed to do so. State v. Brand, 520 So.2d 114, 117 (La. 1988) ; State v. Petta, 98-745 (La. App. 5 Cir. 02/10/99), 729 So.2d 29, 32, writ denied, 99-0692 (La. 09/03/99), 747 So.2d 533, cert. denied, 528 U.S. 1125, 120 S.Ct. 956, 145 L.Ed.2d 830 (2000).

The defense of entrapment is composed of two elements, which are (1) an inducement by a state agent to commit an offense, and (2) the lack of defendant's predisposition to commit the offense. State v. Lewis, 01-1084 (La. App. 5 Cir. 03/13/02), 815 So.2d 166, 171, writ denied, 02-1053 (La. 11/15/02), 829 So.2d 424. The defendant has the burden of proving by a preponderance of evidence that a state agent induced him to commit a crime. Id. Once the defendant meets this burden, the State has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to government involvement. Id. On appeal, contentions of entrapment are reviewed according to the constitutional standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Petta, 729 So.2d at 32.

As discussed above, defendant pled guilty and our review of the record reveals no constitutional infirmity in defendant's guilty pleas. Also, our review supports appellate counsel's assertion that there is no basis for a non-frivolous appeal.

Further, defendant argues that both his trial counsel and appellate counsel were ineffective by not investigating his entrapment defense. Defendant does not argue that he would not have pled guilty if his attorney had properly asserted his entrapment defense.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Crochet, 10-387 (La. App. 5 Cir. 02/15/11), 61 So.3d 725, 728-79, writ denied, 12-1158 (La. 11/21/12), 102 So.3d 52 ; State v. Cambre, 05-888 (La. App. 5 Cir. 07/25/06), 939 So.2d 446, 461, writ denied, 06-2121 (La. 04/20/07), 954 So.2d 158. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Armstead, 07-741 (La. App. 5 Cir. 02/06/08), 980 So.2d 20, 24, writ denied, 08-601 (La. 10/03/08), 992 So.2d 1010 ; State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. However, when there is sufficient evidence to consider some, but not all, of the allegations of ineffectiveness of counsel before it, this Court has declined to address any of the claims on grounds that they should be addressed in their entirety by the district court on post-conviction relief at an evidentiary hearing. Crochet, 61 So.3d at 728-29 ; State v. Allen, 06-778 (La. App. 5 Cir. 04/24/07), 955 So.2d 742, 750-52, writ denied, 08-2432 (La. 01/30/09), 999 So.2d 754.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that 1) his attorney's performance was deficient, and 2) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Allen, supra. The error is prejudicial if it is so serious as to deprive the defendant of a fair trial, or of "a trial whose result is reliable." Strickland, supra ; Crochet, supra. In order to show prejudice, the defendant must demonstrate that, but for counsel's unprofessional conduct, the outcome of the case would have been different. Id.

In order to prevail, the accused must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel, because "opinions may differ on the advisability of such a tactic." State v. Singleton, 05-634 (La. App. 5 Cir. 02/14/06), 923 So.2d 803, 811, writ denied, 06-1208 (La. 11/17/06), 942 So.2d 532.

Decisions relating to failure to investigate certain theories or other trial preparation issues require an evidentiary hearing, and cannot be decided in the appeal. State v. Simmons, 13-258 (La. App. 5 Cir. 02/26/14), 136 So.3d 358, 370, writ denied, 14-674 (La. 10/31/14), 152 So.3d 151. Further, only in an evidentiary hearing in the trial court, if warranted, where the defendant can present evidence beyond that contained in the record on appeal, can the allegations be sufficiently investigated. Id. In the present case, upon review, we find the limited record on appeal before us is insufficient to consider defendant's ineffective assistance of counsel claim. Accordingly, we decline to address this assignment of error, which may be raised in post-conviction relief.

Errors Patent Discussion

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

The transcript reflects that the trial judge failed to impose the mandatory fine of not less than $1,000.00 nor more than $5,000.00, for counts three and four as required by La. R.S. 14:95.1B. While an appellate court has the authority to correct an illegal sentence, this authority is permissive rather than mandatory. La. C.Cr.P. art. 882. Defendant pled guilty and is indigent, as evidenced by his representation by the Louisiana Appellate Project. Even though defendant's sentences are illegally lenient because of the lack of a fine, we decline to disturb defendant's sentences on counts three and four. See State v. Boston, 14-632 (La. App. 5 Cir. 12/16/14), 167 So.3d 82, 88, writ denied, 15-0155 (La. 01/08/16), 184 So.3d 691.

Conclusion

For the reasons stated above, we affirm defendant's convictions and sentences on counts one through five and counts seven through nine, affirm defendant's conviction on counts six, vacate defendant's sentence on count six, and remand to the trial court for resentencing on count six. We further grant appellate counsel's motion to withdraw as counsel of record.

CONVICTIONS AND SENTENCES ON COUNTS ONE THROUGH FIVE AND COUNTS SEVEN THROUGH NINE AFFIRMED; CONVICTION ON COUNT SIX AFFIRMED; SENTENCE ON COUNT SIX VACATED; REMANDED FOR RESENTENCING ON COUNT SIX; MOTION TO WITHDRAW GRANTED

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

      On February 9, 2015, defendant also pled guilty and was sentenced in district court case number 14-4626.

      In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 04/28/95), 653 So.2d 1176, 1177 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      Defendant's pro se supplemental brief was not filed until November 27, 2017. His brief was postmarked on November 21, 2017, but does not indicate when it was signed. However, since defendant's pro se brief was filed prior to submission of the case to this Court, we will consider his assignments of error in our opinion.

      Further, the record reflects that on January 6, 2015, defense counsel "waived the motions," specifically the motion to suppress evidence.

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

      The record reflects that July 8, 2014 was the offense date in this case. La. R.S. 14:108.1 was subsequently amended, with an effective date of August 1, 2014, to provide a penalty of imprisonment at hard labor for not less than five years. The law in effect at the time of the commission of the offense dictates the penalty a defendant faces at the time of his conviction. State v. Sugasti, 01-3407 (La. 06/21/02), 820 So.2d 518, 520.

      We find defendant's claim that appellate counsel was ineffective for failing to raise the entrapment defense on appeal is now moot, as defendant was presented with opportunity to raise this error and he in fact raised this alleged error himself in his pro se supplemental brief. State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 232, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165 (citing State v. Roberson, 94-1570 (La. App. 3 Cir. 11/02/95), 664 So.2d 687, 692 ).


text:
    STATE of Louisiana v. Bernard J. LAMPTON
    NO. 17-KA-490
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, BERNARD J. LAMPTON, Bruce G. Whittaker
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Defendant's appointed appellate counsel filed an Anders brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant's convictions and sentences. We further grant appellate counsel's motion to withdraw as counsel of record.

Facts and Procedural History

On August 27, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Bernard J. Lampton, with theft valued at more than $500 but less than $1,000 in violation of La. R.S. 14:67 (count one), bank fraud in violation of La. R.S. 14:71.1 (count two), and forgery in violation of La. R.S. 14:72 (count three). On August 28, 2014, defendant pled not guilty at his arraignment. Defendant filed several motions, including motions to suppress identification, confession, and evidence.

On February 2, 2015, defendant withdrew his not guilty pleas and pled guilty as charged. The trial court sentenced defendant to five years imprisonment at hard labor on count one, ten years imprisonment at hard labor on count two, and ten years imprisonment at hard labor on count three. The trial court ordered these sentences to run concurrently with each other and with his sentences in district court case number 14-3877. On April 5, 2017, defendant filed an application for post-conviction relief, seeking an out-of-time appeal, which was denied by the trial court as untimely. On June 26, 2017, the trial court granted defendant's request for an out-of-time appeal. This appeal followed.

Because defendant pled guilty, the underlying facts were not fully developed at trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[T]he State would present evidence establishing that the Defendant forged a check in the name of Cynthia St. Romaine, who then put that forged check, presented it for payment at Capitol One-that's the party and that institution-received a hundred and fifty-seven dollars and sixty-four cents, which he took with the intent to permanently deprive Capitol One Bank of that sum.

Further, the bill of information alleged that on or about April 9, 2014, defendant violated La. R.S. 14:67 in that he did commit theft of U.S. Currency, valued at more than $500.00 and less than $1,000.00, from Capital One Bank; that he violated La. R.S. 14:71.1 in that he did engage in bank fraud by defrauding Capital One Bank and/or obtaining a sum of money from Capital One Bank by means of false or fraudulent pretenses, practices, transaction representations or promise; and that he violated La. R.S. 14:72 in that he did commit forgery by issuing or transferring a forged check known by defendant to be a forgery.

Discussion

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 06/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. 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 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. Id. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel contends that defendant pled guilty and was sentenced pursuant to a counseled plea agreement and that he did not reserve the right to seek review of any trial court rulings. He argues that there does not appear to be a basis in the record to support a claim that the guilty plea was constitutionally infirm as the guilty plea colloquy and Boykin form properly advised defendant of his rights. Appellate counsel notes that defendant was advised that by pleading guilty he was giving up his rights to an appeal and that his plea is supported by a detailed executed waiver of rights form, including a colloquy with the trial court. Appellate counsel contends that defendant's plea agreement was advantageous and defendant was sentenced in accordance with the plea agreement.

Appellate counsel filed a motion to withdraw as counsel of record in which he stated he notified defendant that he filed an Anders brief and defendant had a right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until October 19, 2017 to file a pro se supplemental brief. Defendant did not file a pro se brief in this case.

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

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

Further, defendant pled guilty in this case. When a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading 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. 03/14/06), 926 So.2d 662, 664.

No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976). Although defendant filed several pre-trial motions, including motions to suppress evidence, statement, and identification, the record does not indicate that the trial court ruled upon defendant's motions prior to the time defendant pled guilty and defendant did not object. 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. 02/15/05), 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. 02/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity in defendant's guilty pleas. Defendant was aware he was pleading guilty to one count of theft, one count of bank fraud, and one count of forgery. In the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin. Defendant signed the waiver of rights form indicating that he understood he was waiving his Boykin rights by pleading guilty. During the colloquy, defendant also stated that he understood that he was waiving those rights.

Also during his guilty plea colloquy, defendant stated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant stated that he understood these convictions could be used against him in the future to enhance or increase any future penalties. He was advised during the colloquy and by the waiver of rights form of the minimum and maximum sentences of imprisonment and the actual sentences that would be imposed if his guilty pleas were accepted. After the colloquy with defendant, the trial court accepted defendant's pleas as knowingly, intelligently, and voluntarily made.

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. 04/11/07), 958 So.2d 36, 46 ; State v. Washington, 05-211 (La. App. 5 Cir. 10/06/05), 916 So.2d 1171, 1173. Defendant's sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea. Nevertheless, defendant's sentences fall within the sentencing range prescribed by the statutes. See La. R.S. 14:67 B(2); La. R.S. 14:71.1(A) ; La. R.S. 14:72 D. Moreover, defendant's plea agreement was beneficial to him in that although he received maximum sentences, the sentences were ordered to run concurrently with his sentences in district court case number 14-3877, and the State agreed not to file an habitual offender bill of information.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record is granted.

Errors Patent Discussion

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals no errors patent in this case.

Conclusion

For the reasons stated above, defendant's convictions and sentences are affirmed. Appellate counsel's motion to withdraw as counsel of record is granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

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

      On February 9, 2015, defendant also pled guilty and was sentenced in district court case number 14-3877.

      In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 04/28/95), 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).

      Further, the record reflects that on January 6, 2015, defense counsel "waived the motions," specifically the motion to suppress evidence.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Terrance P. HUDSON a.k.a. "Pepper"
    NO. 2017-KA-621
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, TERRANCE P. HUDSON A.K.A. "PEPPER", Jane L. Beebe
    DEFENDANT/APPELLANT, TERRANCE P. HUDSON A.K.A. "PEPPER", In Proper Person
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
   JOHNSON, J.

Defendant/Appellant, Terrance P. Hudson a/k/a "Pepper," appeals his sentences for manslaughter, attempted second degree murder, and intimidation of a witness from the 24th Judicial District Court, Division "O". For the following reasons, we affirm Defendant's convictions and sentences on counts one and two, vacate Defendant's sentence on count three, and remand the matter for resentencing consistent with this opinion. Additionally, we remand the matter for correction of the uniform commitment order.

FACTS AND PROCEDURAL HISTORY

On March 26, 2015, a Jefferson Parish Grand Jury indicted Defendant with second degree murder, in violation of La. R.S. 14:30.1. Defendant was arraigned on March 27, 2015, and pleaded not guilty. On January 12, 2017, a Jefferson Parish Grand Jury returned a superseding indictment charging Defendant with second degree murder, in violation of La. R.S. 14:30.1 (count one), attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27 (count two), and intimidation of a witness, in violation of La. R.S. 14:129.1 (count three). Defendant was re-arraigned on January 13, 2017, and pleaded not guilty. On September 11, 2017, the State amended the indictment as to the dates of occurrence in count three. On September 12, 2017, the State amended count one of the indictment to manslaughter, in violation of La. R.S. 14:31.

Afterward, on that same date, Defendant withdrew his not guilty pleas and pleaded guilty as charged. Because Defendant pleaded guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the amended superseding indictment that on or about December 7, 2014, Defendant, in Jefferson Parish, violated La. R.S. 14:31, in that he committed the manslaughter of Maurcell Mitchell (count one). The State also alleged in that same indictment that on or about December 7, 2014, Defendant, in Jefferson Parish, violated La. R.S. 14:30.1 and La. R.S. 14:27, in that he attempted to commit the second degree murder of Kentrell Riley (count two). The State further alleged that on or between December 7, 2014 and September 11, 2017, Defendant, in Jefferson Parish, violated La. R.S. 14:129.1, in that he "intimidate[d], impede[d], by force or threats of force to Israel Jones" with the intent to influence his testimony in a judicial proceeding, reporting of criminal conduct, or appearance at a judicial proceeding (count three).

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

Your Honor, if this matter would go to trial, the State would be able to prove beyond a reasonable doubt as to count 1, that on or about December the 7th of 2014, the defendant violated Revised Statute 14:31, in that he did commit manslaughter, being responsible for the murder of Marcel Mitchell.
As to count 2, that on that same date of December the 7th, 2014, the defendant violated Revised Statute 14:2730.1 [sic] in that he did attempt to commit second degree murder of Kentrell Riley.
And as to count 3, on or between December the 7th, 2014, and September the 11th of 2017, the defendant violated Revised Statute 14:129.1 in that he did intimidate, impede by force or threats of force Israel Jones with the intent of influencing his testimony in judicial proceedings reporting criminal conduct or appearance at a judicial proceeding.

After hearing the factual basis, Defendant indicated that he committed those crimes. The trial judge, thereafter, sentenced Defendant to imprisonment at hard labor for 30 years on each count, with the sentences to run concurrently with each other and with any other sentence Defendant may have been serving at the time. On September 13, 2017, the trial judge vacated those sentences, resentenced Defendant to imprisonment at hard labor for 30 years on each count to run concurrently with each other and with any other sentence Defendant may have been serving at the time, and gave him credit for time served. The trial judge also ordered the sentence on count two to be served without benefit of parole, probation, or suspension of sentence. On October 10, 2017, Defendant filed a timely pro se motion for appeal, which was granted. The instant appeal followed.

ASSIGNMENTS OF ERROR

In his counseled assignment of error, Defendant requests that this Court review the record for any errors patent. In pro se assignments of error, Defendant alleges the trial court erred in imposing three concurrent 30-year sentences for his convictions, as those sentences were not in conformity with his plea agreement; his sentence for the intimidation of a witness conviction is illegal; and, the trial court erred in restricting parole for his attempted second degree murder conviction.

LAW AND ANALYSIS

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 their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).

In Jyles , supra 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 , supra 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.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues concerning Defendant's conviction 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. Furthermore, the minute entries reflect that Defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty pleas, and sentencing. As such, there are no appealable issues surrounding Defendant's presence.

Further, Defendant pleaded guilty in this case. Generally, when a defendant pleads guilty, the defendant 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. No rulings were preserved for appellate review under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Defendant filed a pro se motion to suppress the evidence; however, the record does not indicate it was ruled upon. When a defendant does not object to the trial court's failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Defendant did not object to the trial court's failure to rule on his motion to suppress the evidence prior to pleading guilty. As such, we find that motion was waived.

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 shows that Defendant was aware he was charged with and pleading guilty to the crimes of manslaughter, attempted second degree murder, and intimidation of a witness. On the waiver of rights form and during the colloquy with the trial judge, Defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin , supra . Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial 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 or coerced into entering his guilty plea. After the colloquy with Defendant, the trial court accepted Defendant's pleas as knowingly and voluntarily made.

As to the sentences, Defendant was informed during the colloquy and in the waiver of rights form of the maximum sentences for the offenses of manslaughter, attempted second degree murder, and intimidation of a witness (counts one, two, and three, respectively). In the waiver of rights form, he was informed of the actual sentences that would be imposed if his guilty pleas were accepted. The trial judge informed Defendant that the maximum sentence that could be imposed on each count was 40 years. She did not inform Defendant of the minimum sentences for each count; however, the penalty for manslaughter is not more than 40 years. See , La. R.S. 14:31. The trial judge incorrectly informed Defendant of the maximum sentence for attempted second degree murder. She advised Defendant that the maximum sentence for that offense was 40 years; however, the sentencing range for attempted second degree murder under La. R.S. 14:30.1 and La. R.S. 14:27, is ten to 50 years without benefit of parole, probation, or suspension of sentence.

As to the conviction for intimidation of a witness (count three), the trial judge imposed an illegal sentence. At the time of the offenses, La. R.S. 14:129.1(C) provided the sentencing ranges for a violation of that statute as follows, in pertinent part:

(2) Whoever violates the provisions of this Section in a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both.
(3) Whoever violates the provisions of this Section in a criminal proceeding in which a sentence of imprisonment necessarily served at hard labor for any period less than a life sentence may be imposed, the offender shall be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both.
(4) Whoever violates the provisions of this Section in a criminal proceeding in which any other sentence may be imposed, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.

In the instant case, the trial judge sentenced Defendant to imprisonment at hard labor for 30 years on count three. However, because the instant case involves a criminal proceeding where a sentence of imprisonment is necessarily at hard labor for less than a life sentence, Defendant should have been sentenced under La. R.S. 14:129.1(C)(3), which provides for a possible sentence of a fine of not more than $50,000, or imprisonment for not more than 20 years, or both. The trial judge imposed an illegal sentence on count three, since she sentenced Defendant to 30 years on count three when the applicable sentencing provision only provides for a maximum sentence of 20 years. Because the sentence on count three is illegal, we vacate that sentence and remand for resentencing on that count only.

We further note, 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. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

In the instant case, any violation of Article 556.1 did not cause prejudice, since Defendant knew the sentences he would receive on counts one and two, and he received those sentences. Thus, we find that the advisement of the agreed upon sentences on counts one and two was sufficient for compliance with La. C.Cr.P. art. 556.1. See Id. , at 64 ; State v. Broadway , 40,569 (La. App. 2 Cir. 1/25/06), 920 So.2d 960, 963.

Additionally, 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. The record reflects that Defendant was sentenced in conformity with the plea agreement that was set forth in the record at the time of the plea. However, as was discussed above, although his sentences on counts one and two fall within the sentencing ranges set forth in the statutes, the sentence on count three does not fall within the sentencing range set forth in the statute. See , La. R.S. 14:31 ; La. R.S. 14:30.1 ; La. R.S. 14:27 ; La. R.S. 14:129.1. In any event, Defendant's plea agreement was beneficial to him in that he was originally indicted in count one with second degree murder for which he could have received a life sentence; however, the State amended that charge to manslaughter, and he received a 30-year sentence on that count to run concurrently with the sentences on counts two and three.

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, except for the sentence on count three that can be addressed by this Court in an error patent review, appellate counsel's motion to withdraw as attorney of record is granted.

30-year concurrent sentences

Defendant claims that he instructed his trial counsel to inform the prosecutor that, in addition to reducing the second degree murder charge to manslaughter in count one, Defendant also wanted the prosecutor to consider a counteroffer of 25 years on each count to run concurrently. He also claims that his trial counsel approached the prosecutor who tentatively agreed to those terms pending final approval from his supervisor. Defendant argues that as a consequence, he was improperly induced to enter guilty pleas. In support of his position, he points to the September 11, 2017 transcript, which he says reflects that the defense approached the State with a plea offer and the prosecutor said he intended to recommend to his supervisor. Defendant acknowledges, however, that at the sentencing hearing the next day, the State and his counsel omitted any specific reference to Defendant's proposed sentencing counteroffer of 25 years. He contends that as a result of the prejudicial omission of this material information from the record, the State prosecutor and trial counsel, through their silence, induced him to plead guilty on the erroneous assumption that the 25-year sentence had been approved by implication. Defendant states that when he was resentenced on the following day, he believed that the trial court was going to correct his sentences. However, Defendant notes that the prosecutor failed to clarify to the court whether the 25-year sentences had been approved by the district attorney. He also notes that trial counsel did not consult with him to explain the State's final decision on the proposed counteroffer of 25 years.

A review of the record reveals no constitutional infirmity in Defendant's guilty pleas. The record reflects that Defendant was aware of the crimes to which he was pleading guilty and that he was advised of and waived his rights. He indicated that he was not forced or coerced into entering his guilty pleas. The record also reflects that Defendant was informed by the waiver of rights form of the actual sentences that would be imposed if his guilty pleas were accepted, i.e. , 30 years on each count to run concurrently, and that he received those sentences. Neither the transcript nor the waiver of rights form reflects that Defendant was to be sentenced to three concurrent 25-year sentences. There is nothing in the record to support Defendant's claim that his guilty pleas were contingent upon him receiving three concurrent 25-year sentences. As such, we find that this claim is without merit.

Illegal sentence

Defendant argues that his sentence on count three is illegal. Because we have previously determined in this opinion that his sentence on count three is illegal and vacated the sentence, we hold that this issue is moot.

Parole restriction

Defendant argues that the trial court erred by restricting parole on count two, attempted second degree murder, citing La. C.Cr.P. art. 890.1 and Louisiana's Justice Reinvestment Reform Act.

La. C.Cr.P. art. 890.1 provides for the waiver of minimum mandatory sentences, in pertinent part:

A. Notwithstanding any other provision of law to the contrary, if a felony or misdemeanor offense specifies a sentence with a minimum term of confinement or a minimum fine, or that the sentence shall be served without benefit of parole, probation, or suspension of sentence, the court, upon conviction, in sentencing the offender shall impose the sentence as provided in the penalty provisions for that offense, unless one of the following occurs:
(1) The defendant pled guilty pursuant to a negotiated plea agreement with the prosecution and the court, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
(2) In cases resulting in trial, the prosecution, the defendant, and the court entered into a post-conviction agreement, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
***
E. At the time the sentence is imposed pursuant to this Article, the Uniform Commitment Sentencing Order shall specify that the sentence is imposed pursuant to the provisions of this Article.

In the instant case, the transcript reflects that Defendant pleaded guilty to attempted second degree murder in count two in violation of La. R.S. 14:27 and La. R.S. 14:30.1 and was sentenced to imprisonment in the Department of Corrections for 30 years without benefit of parole, probation, or suspension of sentence. A review of those statutes indicates that the trial judge correctly ordered the sentence on count two to be served without benefit of parole, probation, or suspension of sentence. Also, the record does not indicate that the plea was entered pursuant to La. C.Cr.P. art. 890.1. As such, we find that Defendant's claim is without merit.

Errors Patent Review

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

The date of offense for all counts on the uniform commitment order (UCO) is December 7, 2014. However, the State indicated in the factual basis that the date of offense on count one was on or about December 7, 2014, the date of offense on count two was December 7, 2014, and the dates of offense on count three were on or between December 7, 2014 and September 11, 2017. The amended indictment indicates that counts one and two occurred on or about December 7, 2014, and that count three occurred on or between December 7, 2014 and September 11, 2017. This Court has previously remanded cases for correction of the UCO in its errors patent reviews. See , State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-0481 (La. 11/7/14), 152 So.3d 170. In light of the foregoing, we remand this matter for correction of the September 13, 2017 UCO, as identified above, to ensure accuracy of the record 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. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, we affirm all of Defendant's convictions and the sentences on counts one and two. Furthermore, we vacate Defendant's sentence on count three and remand the matter for resentencing. Additionally, we grant the motion to withdraw and remand the matter for correction of the uniform commitment order.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED ON COUNTS ONE AND TWO; SENTENCE ON COUNT THREE VACATED; MOTION TO WITHDRAW GRANTED; REMANDED FOR RESENTENCING AND CORRECTION OF THE UNIFORM COMMITMENT ORDER

      La. R.S. 14:129.1 provides in pertinent part:
      A. No person shall intentionally:
      (1) Intimidate or impede, by threat of force or force, or attempt to intimidate or impede, by threat of force or force, a witness or a member of his immediate family with intent to influence his testimony, his reporting of criminal conduct, or his appearance at a judicial proceeding.

      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 , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

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

      La. C.Cr.P. art. 882(A) provides, "An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review."

      Appellate counsel's motion to withdraw is granted, despite the remand for resentencing. Defendant was represented by different counsel at trial, the Indigent Defender Board, than the counsel representing him on appeal, the Louisiana Appellate Project. Thus, the trial court shall appoint trial counsel for Defendant at resentencing on remand. See , State v. Anderson , 16-537 (La. App. 5 Cir. 5/17/17), 222 So.3d 935, 948 n. 6.

      It appears Defendant is referring to the criminal justice reforms implemented by La. Acts 2017, Nos. 258, 260, 261, 262, 264, 265, 277, 280, 281, and 282.

      The factual basis is somewhat different in that the State indicated that the date of offense on count one was on or about December 7, 2014, the date of offense on count two was December 7, 2014, and the dates of offense on count three were on or between December 7, 2014 and September 11, 2017.