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State v. Marenco

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

STATE OF LOUISIANA
v.
BEN E. MARENCO

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-5074, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, BEN E. MARENCO Katherine M. Franks

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg.

          JUDE G. GRAVOIS, JUDGE.

         Defendant, Ben E. Marenco, appeals his conviction and sentence resulting from a guilty plea to forcible rape. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she 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 counsel of record for defendant. After thorough review of the record, we agree with counsel's assessment of the case and accordingly grant counsel's motion to withdraw. We affirm defendant's conviction and sentence, but remand the matter for correction of errors patent as noted in our errors patent review.

         PROCEDURAL HISTORY

         On January 12, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with forcible rape in violation of La. R.S. 14:42.1.[1]Defendant pleaded not guilty at his arraignment on February 23, 2015. Defense counsel also made an oral motion to appoint a sanity commission on that date. A sanity hearing was set for March 25, 2015. Thereafter, on March 25, 2015, the parties stipulated to the qualifications of experts in the fields of forensic psychiatry and psychology and their opinion of defendant's competency. The trial court accepted the stipulation and found defendant competent to stand trial.

         Later on that same day, defendant withdrew his plea of not guilty and pleaded guilty to the charge of forcible rape pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).[2] In accordance with the plea agreement, the trial court sentenced defendant to twenty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, to run concurrently with the sentences being served in case numbers 13-5008, 14-1370, and 14-5075.[3] The trial court also advised defendant of the sex offender notification/registration requirements.

         Defendant subsequently filed a pro se Motion to Correct Illegal Sentence, which was denied by the trial court on June 15, 2015. On March 28, 2017, defendant filed an Ex Parte Motion for Special Proceeding, wherein he sought reinstatement of his appeal rights. On April 3, 2017, the trial court granted defendant an out-of-time appeal.[4] This appeal followed.

         FACTS

         During the guilty plea proceeding, the State asserted that if the matter had proceeded to trial, it would have proved beyond a reasonable doubt that on or between September 13 and 14, 2014, in Jefferson Parish, defendant knowingly and intentionally violated La. R.S. 14:42.1 in that he had sexual intercourse with L.S.[5]without her consent and with use of force, threats, or physical violence.

         The bill of information similarly provides that on or between September 13 and 14, 2014, defendant violated La. R.S. 14:42.1 in Jefferson Parish by having sexual intercourse with L.S. without her consent and by force or threats of physical violence.

         ANDERS BRIEF

         Under the procedure adopted by this Court in State v. Bradford, supra, 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, pursuant to Anders v. California, supra, and State v. Jyles, supra, appointed counsel requests permission to withdraw as counsel of record for defendant.

         In Anders, 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. 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 counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

         In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the ...


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