APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-5895, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux
COUNSEL FOR DEFENDANT/APPELLANT, WILLIE B. RIMMER, JR.
Prentice L. White
DEFENDANT/APPELLANT, Willie Rimmer In Proper Person
composed of Jude G. Gravois, Marc E. Johnson, and Robert A.
A. CHAISSON JUDGE
Willie B. Rimmer, Jr., appeals his conviction and sentence
for driving while intoxicated, third offense. For the reasons
that follow, we affirm defendant's conviction, vacate the
sentence, and remand the matter with instructions. We also
grant appellate counsel's motion to withdraw as attorney
of record for defendant.
October 9, 2015, the Jefferson Parish District Attorney filed
a bill of information charging defendant with driving while
intoxicated, third offense, in violation of La. R.S. 14:98(A)
and 14:98.3(A). At the December 11, 2015 arraignment,
defendant pled not guilty. Defendant thereafter filed
pre-trial motions, including motions to suppress evidence and
statement. On July 1, 2016, the trial court heard and denied
defendant's motions to suppress. The matter proceeded to
trial before a six-person jury on July 26, 2016. After
considering the evidence presented, the jury found defendant
guilty as charged.
on July 29, 2016, the trial court sentenced defendant to five
years imprisonment, with four years to be served at hard
labor and with one year of the sentence
suspended. The trial court placed defendant on active
probation for one year upon his release from prison. As
conditions of probation, the trial court ordered defendant to
complete two hundred forty hours of community service,
complete a driver improvement program, obtain employment, and
participate in either an evaluation in an
inpatient/outpatient substance abuse treatment program or in
a court-approved substance abuse program. Defendant was
further placed on home incarceration for the term of his
probation. In addition, the trial court ordered defendant to
pay a fine of two thousand dollars. Defendant thereafter
filed a motion to reconsider sentence, which was denied. This
timely appeal followed.
the early morning hours of July 19, 2015, Sergeant Donald
Clogher, a patrol officer with the Jefferson Parish
Sheriff's Office, was positioned in a parking lot in the
400 block of Ames Boulevard. As he was attempting to exit the
parking lot, he observed a truck traveling at night without
its headlights on. Sergeant Clogher waited in the parking lot
to give the motorist the opportunity to turn on the
headlights; however, he did not. The officer additionally
observed that the truck was traveling without its taillights
illuminated. At that point, Deputy Clogher exited the parking
lot, pulled behind the truck, and initiated a traffic stop.
Clogher approached the vehicle and advised the driver,
subsequently identified as defendant, that he did not have
the headlights illuminated. Defendant debated this fact,
exited his truck, and walked to the front of his vehicle to
confirm that he did have the lights on. During his
interaction with defendant, Sergeant Clogher "noticed
that he had some alcohol on his breath" and was
"unsteady on his feet." Based on these
observations, Deputy Clogher believed that defendant was
intoxicated and asked for his driver's license. As
defendant was retrieving his license, Trooper Jason Bourgeois
of the Louisiana State Police pulled up to assist and took
over the investigation, as he had more experience and
training with handling driving while intoxicated
Trooper Bourgeois approached defendant, he smelled "the
odor of alcohol coming off of him" and also observed
that defendant was "unsteady on his feet" and had
slurred speech. Believing that defendant may be impaired,
Trooper Bourgeois conducted standardized field sobriety
testing. Trooper Bourgeois first administered the
horizontal gaze nystagmus test, which defendant "failed
with both eyes." Specifically, Trooper Bourgeois noted
the lack of smooth pursuit in both of defendant's eyes
and the presence of all six indicators of intoxication.
Trooper Bourgeois then instructed defendant as to the
walk-and-turn test; however, during the instructions,
defendant advised the trooper that he did not want to do any
more of the tests and to just arrest him. At that point,
Trooper Bourgeois advised defendant of his
Miranda rights and that he was under arrest for
driving while intoxicated.
Bourgeois transported defendant to the Jefferson Parish
Correctional Center, at which time he advised defendant of
his rights relating to chemical testing for intoxication.
According to Trooper Bourgeois, defendant appeared to
understand his rights and thereafter submitted to the
Intoxilyzer test. The results of that test registered
defendant's blood alcohol concentration at .221. Trooper
Bourgeois then conducted an interview with defendant, in
which defendant stated that he was operating a motor vehicle,
that he was coming from "the club, " and that he
had been drinking.
the procedure adopted by this Court in State v.
Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d
1108, 1110,  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, pursuant to 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), appointed appellate
counsel requests permission to withdraw as attorney of record
conducting a review for compliance with Anders, an
appellate court must conduct an independent review of the
record to determine whether the appeal is wholly frivolous.
If, after an independent review, the reviewing court
determines there are no non-frivolous issues for appeal, it
may grant counsel's motion to withdraw and affirm the
defendant's conviction and sentence. State v.
Bradford, 676 So.2d at 1110.
case, defendant's appellate counsel has complied with the
procedures for filing an Anders brief. He detailed
the procedural history of the case and set forth the facts as
brought out at trial. Further, appellate counsel reviewed the
record of the proceedings, including the bill of information,
the trial court's rulings on defendant's pre-trial
motions to suppress, and the sufficiency of the evidence
presented at trial. Based on his review of the entire record,