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State v. Kendall

Court of Appeals of Louisiana, First Circuit

September 15, 2017


         On Appeal from the 22nd Judicial District Court Parish of St. Tammany, State of Louisiana No. 560702 The Honorable Allison H. Penzato, Judge Presiding

          Warren L. Montgomery, DA Matthew Caplan, ADA Covington, Louisiana Attorneys for the State of Louisiana

          Gwendolyn K. Brown Baton Rouge, Louisiana Attorney for the Defendant/ Appellant, Thomas Arnold Kendall

          Thomas Arnold Kendall Angola, Louisiana In Proper Person


          CRAIN, J.

         The defendant, Thomas A. Kendall, pled guilty as charged to two counts of pornography involving juveniles and, after admitting to the allegations of a habitual offender bill of information, was adjudicated a second-felony habitual offender as to both counts. See La. R.S. 14:81.1. The trial court sentenced the defendant to fourteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on each count, to be served concurrently. We affirm the convictions, habitual offender adjudications, and sentences, and grant defense counsel's motion to withdraw.


         The bill of information charged the defendant with committing two counts of pornography involving juveniles by possessing pornography involving juveniles on or between December 16, 2014, and January 16, 2015. When the defendant pled guilty, the parties stipulated to a factual basis for each count.


         The brief filed by defense counsel contains no assignments of error and was filed in accordance With. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam). In Anders, the United States Supreme Court instructed that if counsel finds the defendant's case to be wholly frivolous, after a conscientious examination, he should so advise the court and request permission to withdraw. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished to the indigent, who should be allowed time to raise any points he chooses; the court, not counsel, then decides whether the case is wholly frivolous based upon a full examination of all the proceedings. Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

         In Jyles, the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), to comply with Anders. Appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but his brief must also contain "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 704 So.2d at 242 (quoting State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177). 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. State v. Thomas, 12-0177 (La.App. 1 Cir. 12/28/12), 112 So.3d 875, 878 (en banc).

         Here, defense counsel complied with the requirements necessary to file an Anders brief. He reviewed the procedural history and facts of the case and concluded there are no non-frivolous issues for appeal. He recognized the defendant is precluded from challenging his sentence on appeal and that no pre-trial rulings were preserved for appeal underrate v. Crosby, 338 So.2d 584, 588 (La. 1976). Additionally, defense counsel certified the defendant was served with a copy of both the Anders brief and the motion to withdraw as attorney of record. The motion to withdraw confirms the defendant was informed of his right to file a, pro se brief, which he filed, raising three assignments of error: (1) the state failed to give fair notice of which count was being enhanced under the habitual offender bill of information; (2) the defendant received ineffective assistance of counsel during plea bargaining; and (3) the sentences are unconstitutionally excessive.

         After reviewing the appellate record, including the pleadings, minute entries, bills of information, and transcripts, we find it supports defense counsel's assertion that there are no non-frivolous issues to raise on appeal. Under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects and precludes their review by either appeal or post-conviction relief. Crosby, 338 So.2d at 588; State v. Ricks, 13-612 (La.App. 5 Cir. 12/30/13), 131 So.3d 1117, 1122 (recognizing such a waiver in the context of habitual offender adjudications). Further, a defendant cannot appeal a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. Code Crim. Pro. art. 88l.2A(2); State v. Wiggins, 13-0649 (La.App. 1 Cir. 1/31/14), 139 So.3d 1, 4; see also State v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171, 1175. A defendant ...

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