ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 07-6813, DIVISION " L" . HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ASSISTANT DISTRICT ATTORNEY, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
POWELL W. MILLER, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson and Stephen J. Windhorst.
[14-813 La.App. 5 Cir. 2] STEPHEN J. WINDHORST,
Defendant, Raymone Gayden, pled guilty as charged to felon in possession of a firearm in violation of La. R.S. 14:95.1 (count one); possession with intent to distribute heroin in violation of La. R.S. 40:966A (count two); and possession of cocaine " in excess of 28 to 199 grams" in violation of La. R.S. 40:967F (count three) and was sentenced to imprisonment at hard labor for [14-813 La.App. 5 Cir. 3] fifteen years without benefit of parole, probation, or suspension of sentence on count one; imprisonment
at hard labor for fifteen years with the first five years to be served without benefit of parole, probation, or suspension of sentence on count two; and imprisonment at hard labor for fifteen years on count three. Thereafter, pursuant to a habitual offender bill, defendant stipulated to second felony offender status, his sentence on count three was vacated and he was resentenced to imprisonment at hard labor for fifteen years without benefit of probation or suspension of sentence. Defendant was subsequently granted an out-of-time appeal. In this appeal, defendant seeks an error patent review of his convictions and sentences.
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 he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly appointed counsel requests permission to withdraw as counsel of record.
After receiving appellant counsel's brief and motion to withdraw, this Court performed a full examination of the entire appellate court record to determine whether the appeal is frivolous in accordance with 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 ). Our independent review of the record in this case consisted of (1) a review of the bill of information to ensure that defendant was properly charged; (2) a review of all minute entries to ensure that defendant was present at all crucial stages of the proceedings and that the conviction and sentence are legal; and (3) a review of the guilty plea and sentencing transcript to determine if there was an arguable basis for appeal. In our review, we found no non-frivolous issues regarding defendant's convictions and sentences.
[14-813 La.App. 5 Cir. 4] In his application for post-conviction relief, defendant asserted that he was entitled to an out-of-time appeal alleging that (1) due to the ineffectiveness of his trial attorney he was denied his right to appeal; and (2) due to the ineffectiveness of his trial attorney he would not have pleaded guilty but would have gone to trial.
The trial court granted defendant relief by ordering the out-of-time appeal. As stated by appellate counsel, defendant's second issue of ineffective assistance of counsel at trial is best addressed by the trial court as an application for post-conviction relief, where an evidentiary hearing may be conducted, if necessary, to determine the merits of the defendant's allegations. State v. Reeves, 06-2419 (La. 5/5/09), 11 So.3d 1031.
We find however, that defendant's sentence on count one is illegally lenient. The trial judge ...