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State v. Stamps

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

STATE OF LOUSIANA
v.
THEODORE STAMPS, III

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-5714, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, THEODORE STAMPS, III Christopher A. Aberle

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

          ROBERT A. CHAISSON, JUDGE.

         Defendant, Theodore Stamps, III, appeals his convictions and sentences for driving while intoxicated, fourth or subsequent offense. For the reasons that follow, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw as attorney of record for defendant.

         PROCEDURAL HISTORY

         On October 7, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of driving while intoxicated, fourth or subsequent offense, [1] in violation of La. R.S. 14:98(A) and 14:98.4(A).[2]At the October 9, 2015 arraignment, defendant pled not guilty.

         Thereafter, on March 16, 2016, defendant withdrew his not guilty pleas and, after being advised of his rights, pled guilty as charged to both counts. In accordance with the plea agreement, the trial court sentenced defendant to twenty-five years at hard labor on each count with the first two years to be served without benefit of probation, parole, or suspension of sentence. The trial court ordered the sentences to run concurrently with each other and also imposed a fine of $5, 000.00 on defendant. Subsequently, on February 10, 2017, the trial court granted defendant an out-of-time appeal.

         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, 1110-11, [3] 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 sets forth the procedural history of the case as well as the circumstances surrounding defendant's guilty pleas and sentencing. In particular, appellate counsel points out that during the plea proceedings, defendant was adequately advised of his rights and the consequences of his guilty pleas and acknowledged that by pleading guilty, he was waiving certain rights, including the right to trial by judge or jury, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. In his Anders brief, appellate counsel recognizes that the trial court sufficiently explained the nature of the charges, and defendant acknowledged his guilt for both counts. Further, appellate counsel notes that defendant's pleas were not the result of promises, force, intimidation, or coercion, and that the trial court sentenced defendant in accordance with the terms of the plea agreement.

         In his brief, defendant's appellate counsel points out that the trial court, just prior to correctly advising defendant that the mandatory minimum sentence is ten years, inadvertently informed defendant that the maximum penalty under the statute is ten years; however, counsel then explains that the error can be deemed harmless since the record shows that defendant was apprised of the correct sentencing range in the waiver of rights form and by the trial court at the end of the guilty plea proceedings. Defendant's appellate counsel concludes that after a conscientious and thorough review of the trial court record, he can find no non-frivolous ...


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