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State v. Guinn

Court of Appeal of Louisiana, Third Circuit

November 5, 2014

STATE OF LOUISIANA
v.
KERRY M. GUINN

APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ALLEN, NO. CR-2013-2478. HONORABLE PATRICIA C. COLE, DISTRICT JUDGE.

H. Todd Nesom, District Attorney, Thirty-Third Judicial District Court, Joe Green, Assistant District Attorney, Thirty-Third Judicial District Court, Oberlin, LA, COUNSEL FOR APPELLEE: State of Louisiana.

Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, COUNSEL FOR APPELLANT: Kerry M. Guinn.

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

OPINION

[14-678 La.App. 3 Cir. 1] GREMILLION, Judge.

On January 3, 2014, Defendant, Kerry M. Guinn, was found in possession of cocaine, hydrocodone, and paraphernalia. Defendant was charged with possession of a Schedule II controlled dangerous substance (CDS), a violation of La.R.S. 40:967(C)(2); possession of a Schedule III CDS, a violation of La.R.S. 40:968(C); and possession of drug paraphernalia, first offense, violations of La.R.S. 40:1023(C) and 40:1025, on July 24, 2013. Defendant originally entered a plea of not guilty to all charges, but he changed his plea to no contest for possession of a Schedule II CDS (cocaine) on January 14, 2014. The State agreed not to charge Defendant as a habitual offender, and it dismissed the remaining charges. Defendant waived his right to appeal.

In sentencing Defendant, the trial court found that Defendant had five prior convictions and sentenced him to three years at hard labor with credit for time served and payment of court costs, including an additional $100 for the D.A.R.E. program. The sentence is to run " consecutive to any time backing up."

Prior to the plea, Defendant filed a motion to suppress items seized during a warrantless search of his room at the Oakdale Inn. He admitted that he signed a consent to search form. The trial court found Defendant's consent to search was freely and voluntarily given, and it denied the motion.

Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging no non-frivolous issues exist on which to base an appeal and seeking to withdraw as Defendant's counsel. We grant counsel's motion to withdraw and affirm Defendant's conviction and sentence.

[14-678 La.App. 3 Cir. 2] ANDERS ANALYSIS

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit explained the analysis based on Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information

Page 1074

or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Benjamin, 573 So.2d at 531.

While it is not necessary for Defendant's counsel to " catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit[,]" counsel's Anders brief must " 'assure the court that the indigent defendant's constitutional rights have not been violated.'" State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241 (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)). Counsel must fully discuss and analyze the trial record and consider " whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Jyles, 704 So.2d at 241 (citing United States v. Pippen, 115 F.3d 422 (7th Cir. 1997)). Thus, counsel's Anders brief must review the procedural history and the [14-678 La.App. 3 Cir. 3] evidence presented at trial and provide " a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and Jyles, 704 So.2d 241, Defendant's appellate counsel filed a brief considering potential issues for appeal. First, counsel examined the motion to suppress and found Defendant waived his right to appeal the denial of the motion pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

Next, counsel considered Defendant's sentence and noted that Defendant received a mid-range sentence of three years within a possible sentencing range of up to five years. Defendant was considered a sixth felony offender with an extensive criminal history. Counsel determined that Defendant understood the proceedings and the possible sentence and made his plea freely and voluntarily. Counsel concluded that the record contained no possible issues to offer Defendant relief. Accordingly, counsel seeks to withdraw.

Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts and have confirmed the statements by counsel. Defendant was present and represented by counsel at all crucial stages of the proceedings, and he acknowledged his plea of no contest on the plea form. The trial court correctly informed Defendant of his Boykin rights and discussed his possible sentence for possession of cocaine.

[14-678 La.App. 3 Cir. 4] Our review of the record reveals no issues that would support an assignment of error on appeal. Therefore, we grant appellate counsel's motion to withdraw and affirm Defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

Page 1075

MOTION TO WITHDRAW GRANTED.


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