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State v. Anderson

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

STATE OF LOUISIANA
v.
BENJAMIN ANDERSON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-6338, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux

          COUNSEL FOR DEFENDANT/APPELLANT, BENJAMIN ANDERSON Lieu T. Vo Clark

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

          FREDERICKA HOMBERG WICKER JUDGE

         After filing an application for post-conviction relief, defendant, Benjamin Anderson, received leave to file this out-of-time appeal after pleading guilty to eight counts of monetary instrument abuse in violation of La. R.S. 14:72.2, to six counts of theft of U.S. currency valued over $750 and under $5, 000 in violation of La. R.S. 14:67, and to seven counts of bank fraud in violation of La. R.S. 14:71.1. [1]Defendant's appointed counsel has filed an appellate brief pursuant to Anders v. California and has further filed a motion to withdraw as counsel of record. Defendant has not submitted a pro se supplemental brief. For the following reasons, we grant defense counsel's motion to withdraw and affirm defendant's convictions. Because we find the district court imposed an indeterminate sentence, we vacate defendant's sentences and remand for resentencing in a manner consistent with this opinion.

         STATEMENT OF THE CASE

         On November 4, 2015, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant with eight counts of monetary instrument abuse in violation of La. R.S. 14:72.2 (counts one, two, seven, nine, ten, nineteen, twenty, and twenty-two), with seven counts of theft of U.S. currency "valued at over $750 under $1, 500" in violation of La. R.S. 14:67 (counts three, four, thirteen, fourteen, seventeen, eighteen, and twenty-one), and with seven counts of bank fraud in violation of La. R.S. 14:71.1 (counts five, six, eight, eleven, twelve, fifteen, and sixteen). The bill alleged (1) that counts one through six occurred on July 23, 2015, (2) that counts seven and eight occurred on August 25, 2015, (3) that counts nine through fourteen occurred on August 15, 2015, (4) that counts fifteen through twenty occurred September 28, 2015, and (5) that counts twenty-one and twenty-two occurred on June 3, 2015. On January 13, 2016, defendant appeared for his arraignment and pled not guilty to these charges.

         On March 1, 2016, the State amended the bill of information in open court, reducing count three to a misdemeanor charge of theft of U.S. currency valued under $750 and correcting a typographical error with respect to counts four, thirteen, fourteen, seventeen, eighteen, and twenty-one such that these counts properly reflected the offense set forth in La. R.S. 14:67(3), involving theft of a value $750 or more, but less than the value of $5, 000. During this March 1, 2016 hearing, defendant withdrew his pleas of not guilty and pled guilty to all offenses charged in the amended bill of information. The record reflects that defendant's guilty pleas were pursuant to a plea agreement. According to defendant's Acknowledgment and Waiver of Constitutional Rights form which was signed by the defendant, the State, and the district court, defendant indicated that he understood his sentence would be as follows:

5 years and to be eligible for any and all self-help programs. And to be given credit for all time served. All sentences are to be run concurrent. Pay restitution in the amount of $8, 045.77.

         At this same hearing, the district court sentenced defendant, as follows:

Having waived all legal delays regarding sentencing, at this time, Mr. Anderson with regard to counts 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 that's every charge except for the misdemeanor. With regard to all those counts, sir, the Court sentences you to five years in Department of Corrections and a $500 fine, plus court costs, as well as, restitution…in the amount of $8, 045.77. …
With regard to Count 3, that is the misdemeanor charge the Court sentences you to six months parish prison and a $250 fine, plus court costs with regard to that charge or I should say with regard to each count they shall run concurrent with one another, including the misdemeanor charge. The restitution shall also be concurrent on each count.

         The district court also gave defendant credit for time served. Immediately thereafter, the State filed a multiple bill of information, alleging defendant to be a second time offender who previously pled guilty to one felony count of tampering with a governmental record with the intent to defraud or harm in violation of Texas Penal Code §37.10 on September 23, 2013. Defendant pled guilty to the multiple bill, and the district court sentenced defendant, as follows:

Having waived all legal delays regarding sentencing at this time, Mr. Anderson, the Court will vacate its sentence previously issued to you on Case No. 15-6338 as to Count 1 only and resentence you as a second felony offender pursuant to Louisiana Revised Statute 15:529.1 to five years in Department of Corrections without the benefit of probation or suspension of sentence, a $500 fine, plus court costs and restitution in the amount of $8, 045.77. That sentence as a second offender on Count 1 is to run concurrent with the sentence I previously gave you on the remaining counts of Case No. 15-6388.

         The district court once again gave defendant credit for time served.

         According to the district court, defendant filed an application for post-conviction relief on August 2, 2016. Therein, defendant argued that his multiple bill sentence was excessive and that he was denied the effective assistance of counsel because his attorney did not inform him that this sentence was excessive. On August 8, 2016, the district court granted defendant leave ...


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