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State v. Kelly

Court of Appeals of Louisiana, Fifth Circuit

December 29, 2017

STATE OF LOUISIANA
v.
JONAS KELLY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-4100, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, JONAS KELLY Mary Constance Hanes

          DEFENDANT/APPELLANT, JONAS KELLY, In Proper Person

          Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst

          STEPHEN J. WINDHORST, JUDGE

         On appeal, defendant's appointed appellate counsel filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. Defendant filed a pro se supplemental brief arguing one assignment of error. For the reasons that follow, defendant's convictions and habitual offender stipulation are affirmed, his original and enhanced sentences are vacated, and the matter is remanded to the trial court for resentencing. We further grant appellate counsel's motion to withdraw as counsel of record.

         Procedural History

         On August 5, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jonas Kelly, with attempted carjacking in violation of La. R.S. 14:27 and La. R.S. 14:64.2 (count one) and possession with intent to distribute cocaine in violation of La. R.S. 40:967 A (count two). On August 18, 2014, defendant pled not guilty at his arraignment.

         Omnibus motions, which included motions to suppress evidence and statements, were filed by defendant. On July 6, 2015, the trial court denied the motions to suppress evidence and statements. Subsequently, defense counsel filed a motion to rehear all previously denied motions, which was denied by the trial court on June 1, 2016.

         On June 2, 2016, defendant withdrew his not guilty pleas and pled guilty as charged pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court sentenced defendant to two years in the Department of Corrections without benefit of parole, probation, or suspension of sentence, a $500 fine and court costs on count one. The trial court also sentenced defendant to a term of fifteen years in the Department of Corrections, a $500 fine and court costs on count two. The trial court further ordered these sentences to run concurrently with one another and with any other time defendant was presently serving for a parole revocation and ordered credit for time served.

         On the same date, the State filed a habitual offender bill of information charging defendant as a second felony offender on count two, to which defendant stipulated. The trial court then vacated defendant's original sentence on count two and resentenced him as a second felony offender to fifteen years in the Department of Corrections without benefit of probation or suspension of sentence and ordered court costs. Defendant's enhanced sentence was ordered to run concurrently with the sentence on count one and with the parole revocation defendant had either received or was "facing."

         On October 27, 2016, defendant filed a pro se application for post-conviction relief. On November 2, 2016, the trial court dismissed defendant's application without prejudice and granted him an out-of-time appeal. This appeal followed.

         Facts

         Because defendant entered guilty pleas, the underlying facts were not fully developed at trial. Nevertheless, the bill of information provides that on or about July 12, 2014, defendant "violated La. R.S. 14:27:64.2 in that he did attempt to take a [sic] unmarked Jefferson Parish Sheriff's Office Police Car from Detective Patrick Evans by use of force or intimidation, " and on July 12, 2014, "violated La. R.S. 40:967.A in that he did knowingly or intentionally possess with intent to distribute a controlled dangerous substance, to wit: Cocaine."

         During the guilty plea proceeding, the State contended that if the matter proceeded to trial on count one, the State would have called witnesses and established beyond a reasonable doubt that defendant attempted to take an unmarked Jefferson Parish Sheriff's Office patrol car from an officer by use of force or intimidation in Jefferson Parish. As to count two, the State stated that it would have called witnesses and established beyond a reasonable doubt that defendant possessed cocaine in Jefferson Parish with the intent to distribute it.

         Discussion

         Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 06/25/96), 676 So.2d 1108, 1110-11, [1] 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, 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.[2] 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 Supreme 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 contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

         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. Bradford, 676 So.2d at 1110. 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. Id. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

         Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel contends that a review of the transcript and the waiver of rights forms show that defendant was advised and understood the rights he was waiving. She asserts that defendant was also advised of his rights when he stipulated to the habitual offender bill of information and defendant assured the trial court that he understood the rights he was waiving. Counsel contends that defendant was advised of the enhanced sentence he would receive, and defendant stated that he was not forced, threatened, or coerced into entering his pleas. She argues that the record lacks any indication that defendant did not knowingly, intelligently, and voluntarily enter his pleas.

         Counsel states that although the factual basis presented by the State was "meager, " the evidence presented at the suppression hearing can be reviewed in establishing the factual basis required for an Alford plea. She also concludes that defendant did not preserve his right to appeal the trial court's ruling regarding the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La. 1976).

         Appellate counsel filed a motion to withdraw as attorney of record wherein she stated that she notified defendant that she filed an Anders brief and that defendant had the right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until June 21, 2017 to file a pro se supplemental brief.[3]

         Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

         The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 462-466. Further, as reflected by the minute entries and the commitment, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty pleas, ...


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