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State v. Respert

Court of Appeal of Louisiana, Fifth Circuit

February 25, 2015

STATE OF LOUISIANA
v.
DAVID H. RESPERT

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 11-4367, DIVISION " D" . HONORABLE ROBERT M. MURPHY, 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.

DAVID H. RESPERT, Tallulah, Louisiana, MARGARET S. SOLLARS, ATTORNEY AT LAW, Thibodaux, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

OPINION

JUDE G. GRAVOIS, J.

Page 840

[14-769 La.App. 5 Cir. 2] Defendant, David H. Respert, appeals his convictions of one count of attempted second degree murder and one count of attempted armed robbery that resulted from his guilty pleas under the provisions of North Carolina v. Alford, 400 U.S. 25,

Page 841

91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On appeal, defendant's appointed appellate counsel has filed a brief in conformity with the provisions of 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 ), asserting that she has found no non-frivolous issues to raise on appeal. Appointed appellate counsel has filed a motion to withdraw as counsel of record for defendant. Defendant filed a pro se supplemental brief, asserting that he was not informed of the elements of the offense until after the trial court accepted his guilty pleas, thus arguing that his guilty pleas were not knowingly or voluntarily made. For the reasons that follow, we affirm defendant's convictions and sentences, grant appellate counsel's motion to withdraw as counsel of record for defendant, and remand the matter for correction of the commitment as noted herein.

[14-769 La.App. 5 Cir. 3] PROCEDURAL HISTORY

On September 29, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, David H. Respert, with attempted second degree murder of Anthony Rodriguez, in violation of La. R.S. 14:27 and 14:30.1 (count one), and attempted armed robbery with a firearm of Anthony Rodriguez, in violation of La. R.S. 14:27 and 14:64 (count two). In the same bill of information, two co-defendants were also charged with these same crimes. Defendant pleaded not guilty as to both counts at his arraignment on September 30, 2011. On November 18, 2011, defendant filed a motion for a preliminary examination.

Defendant and his counsel were present at a hearing on June 13, 2012, wherein the trial court denied the co-defendants' motions to suppress evidence and identifications. Defendant raised no motions of his own on that date. On July 10, 2012, defendant filed a motion to suppress identification.

On September 17, 2012, defendant withdrew his pleas of not guilty and pleaded guilty as charged as to both counts under Alford. Defendant was sentenced to twenty years imprisonment at hard labor on each count, to run concurrently with each another and with the sentence imposed on defendant in " Division J of the 24th JDC." On July 9, 2014, the district court granted defendant's request for an out-of-time appeal, pursuant to an application for post-conviction relief filed bye defendant.

FACTS

Defendant pleaded guilty to attempted second degree murder (count one) and attempted armed robbery (count two) instead of proceeding to trial. During the guilty plea colloquy, the State provided the following factual basis for the pleas:

[14-769 La.App. 5 Cir. 4] If we went to trial the State would prove that on or about July 20, 2011, Mr. Respert was in a car along with Mr. Vido [sic] and Mr. Cosey, and the victim, and that during the car ride in the City of Kenner, which is within Jefferson Parish guns were pulled, and the victim was shot multiple times. The victim exited the vehicle, was left in the street in Kenner and the victim survived. And also during the shooting the victim's wallet and other merchandise possibly marijuana were demanded of him by the people in the vehicle.

The bill of information adds that in Jefferson Parish on or about July 20, 2011, defendant violated La. R.S. 14:27 and 14:30.1 by attempting to commit the second degree murder of Anthony Rodriguez, and violated La. R.S. 14:27 and 14:64 by attempting to rob Anthony Rodriguez

Page 842

while armed with a dangerous weapon, a ...


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