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State v. Lewis

Court of Appeals of Louisiana, Fifth Circuit

April 11, 2018

STATE OF LOUISIANA
v.
ANTHONY J. LEWIS

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 11-2231, DIVISION "E" HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY J. LEWIS Katherine M. Franks

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

          SUSAN M. CHEHARDY CHIEF JUDGE

         Defendant, Anthony J. Lewis, appeals from sentences imposed pursuant to the revocation of his probation. 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 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, appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After a thorough review of the record, we agree with counsel's assessment of the case, affirm defendant's sentences, and grant counsel's motion to withdraw.

         PROCEDURAL HISTORY

         On May 6, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Anthony J. Lewis, with possession with the intent to distribute marijuana, a violation of La. R.S. 40:966(A) (count one), possession of codeine, a violation of La. R.S. 40:967(C) (count two), and possession of diazepam, a violation of La. R.S. 40:969(C) (count three).

         Defendant initially pled not guilty to these charges, but later withdrew this plea and entered a plea of guilty on December 1, 2011. In accordance with his plea agreement, he was sentenced that day to ten years at hard labor on count one and five years at hard labor on each of counts two and three. The court suspended these sentences and placed defendant on two years of active probation followed by three years of inactive probation. Defendant did not seek an appeal and his convictions and sentences became final. See State v. Williams, 16-32 (La.App. 5 Cir. 8/24/16), 199 So.3d 1205, 1209.

         About a year later, on March 4, 2013, the Louisiana Department of Corrections moved to revoke defendant's probation, alleging that he had failed to comply with the conditions of his probation and had failed to report to his probation officer since June of 2012. The motion was set for hearing on April 10, 2013, and an attachment was issued for defendant's arrest when he failed to appear. The attachment was satisfied over three years later when defendant was arrested on June 24, 2016. At the probation revocation hearing that followed on July 14, 2016, defendant stipulated to the grounds for the revocation and his probation was revoked. The court then sentenced him to ten years at hard labor on each of the three counts.

         A little over a year later, in light of ameliorative amendments to the pertinent drug laws that took effect on August 1, 2017, [1] defendant filed a pro se motion to reconsider sentence on August 7, 2017. On August 9, 2017, the district court denied relief on the two bases that this motion was untimely under La. C.Cr.P. art. 881.1 and that La. C.Cr.P. art. 881 precludes amendment of defendant's felony sentences at hard labor because he had already started serving them.

         On September 18, 2017, the court vacated defendant's sentences on counts two and three, and resentenced him to five years at hard labor on each, in accordance with his plea agreement.[2] On October 5, 2017, defendant filed a pro se motion for appeal, alleging that "the record herein shows error to his prejudice." The court granted defendant's appeal on October 16, 2017.

         FACTS

         Because defendant pled guilty, the underlying facts were not developed at a trial; however, the State alleged in the bill of information that on or about April 9, 2011, defendant possessed marijuana with the ...


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