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State v. Rimmer

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

STATE OF LOUISIANA
v.
WILLIE B. RIMMER, JR.

         ON 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

          Panel composed of Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson.

          ROBERT A. CHAISSON JUDGE

         Defendant, 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.

         PROCEDURAL HISTORY

         On 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.

         Subsequently, 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.[1] 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.

         FACTS

         During 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.

         Sergeant 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 investigations.

         As 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.[2] 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[3] rights and that he was under arrest for driving while intoxicated.

         Trooper 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.

         ANDERS BRIEF

         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, [4] 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 for defendant.

         When 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.

         In this 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, ...


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