APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 21,363 HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE.
Van H. Kyzar, District Attorney, Natchitoches, Louisiana, Counsel for Appellee: State of Louisiana.
Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, Counsel for Defendant/Appellant: Jamarlon Pierre.
Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
[14-1333 La.App. 3 Cir. 1]
PHYLLIS M. KEATY, J.
Defendant, Jamarlon Pierre, appeals his habitual offender adjudication and sentence. 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), requesting that this court grant his accompanying motion to withdraw. For the following reasons, we affirm Defendant's habitual offender adjudication but vacate his life sentence, remanding it to the trial court for the appointment of defense counsel and for resentencing. Appellate counsel's motion to withdraw is granted.
FACTS AND PROCEDURAL BACKGROUND
On December 12, 2011, Conswayla Mitchell was residing at her house in Natchitoches, Louisiana, where she lived with her fiancé , Tyrell Thomas. Thomas, a drug dealer, was out of town at the time. At approximately 9:00 a.m., two men kicked in her front door and entered her house. They proceeded into her bedroom where one of the men shot Mitchell. Before leaving, the men confiscated a gun and $2,200 in cash. After the police received a tip, Defendant and other individuals were arrested.
Defendant was convicted of attempted second degree murder and armed robbery in Docket Number C18733-1 and was charged as a habitual offender in Docket Number C21363A. He was adjudicated a habitual offender and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant is before us appealing his habitual offender adjudication and sentence. Appellate counsel has filed a brief pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, alleging that the record contains no non-frivolous issues for appeal; thus, he requests this court grant his accompanying motion to withdraw.
[14-1333 La.App. 3 Cir. 2] DISCUSSION
I. Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find it contains one error patent requiring that Defendant's life sentence be vacated and the case remanded for resentencing.
Defendant was convicted of attempted second degree murder and armed robbery. He was originally sentenced on March 26, 2014, to serve forty-five years at hard labor for attempted second degree murder and forty-five years at hard labor without benefit of parole, probation, or suspension of sentence for armed robbery. The sentences were to run concurrently. In April 2014, the State filed a habitual offender bill alleging the following:
COUNT 1: COMMIT THE OFFENSE OF BEING A HABITUAL OFFENDER, HAVING BEEN CONVICTED OF ATTEMPTED 2ND DEGREE MURDER AND ARMED ROBBERY ON JANUARY 23, 2014, IN THE 10TH JDC; AND HAVING PREVIOUSLY BEEN CONVICTED OF POSSESSION OF SCHEDULE II WITH INTENT TO DISTRIBUTE ON JANUARY 23, 2006, IN THE 10TH JDC; AND HAVING PREVIOUSLY BEEN CONVICTED OF ARMED ROBBERY ON OCTOBER 26, 1998, IN THE 10TH JDC, IN VIOLATION OF R.S. 15:529.1, A FELONY.
At the habitual offender hearing, the State indicated that Defendant was charged pursuant to La.R.S. 15:529.1 (A)(3)(b), which provides:
If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person ...