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State v. Payne

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

STATE OF LOUISIANA
v.
ARTHUR L. PAYNE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-6035, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, ARTHUR L. PAYNE Lieu T. Vo Clark

          Panel composed of Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE

         Defendant appeals his conviction and sentence for possession of 28 grams or more but less than 200 grams of cocaine. For the following reasons, we affirm defendant's conviction, amend his sentence, and affirm the sentence as amended. We also grant appellate counsel's motion to withdraw as counsel of record.

         PROCEDURAL HISTORY

         On November 6, 2014, defendant, Arthur L. Payne, was charged in a bill of information with possession of 28 grams or more but less than 200 grams of cocaine, in violation of La. R.S. 40:967(F). He pleaded not guilty at his arraignment. Thereafter, on April 27, 2016, defendant withdrew his plea of not guilty and pleaded guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to 20 years imprisonment with the Department of Corrections without the benefit of probation, parole, or suspension of sentence. The trial court also imposed a $50, 000.00 fine and ordered that his sentence run concurrently with his sentences in case numbers 14-2956, 14-3039, and 14-2957.[1]Defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted by the trial court.

         FACTS

         Because defendant pleaded guilty, the facts were not fully developed at a trial. During the guilty plea colloquy, the State provided the following factual basis for the guilty plea:

[H]ad that matter proceeded to trial, the State was prepared to show that on or about the date listed on the bill of information this defendant, within the 24th Judicial District Court, did violate Louisiana Revised Statute 49:967(F) [sic] in that he knowingly or intentionally possessed a controlled dangerous substance, to wit, cocaine, the amount being between 28 and 200 grams.

         The bill information provides that defendant violated La. R.S. 40:967(F) on October 17, 2014.

         LAW AND DISCUSSION

         Pursuant to the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, [2] appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, under 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 counsel requests permission to withdraw as counsel of record.

         In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it.[3] The request must be accompanied by "'a brief referring to anything in the record that might arguably support the appeal'" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that ...


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