APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 17-1851, DIVISION
"E" HONORABLE JOHN J. MOLAISON, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux
COUNSEL FOR DEFENDANT/APPELLANT, KEVIN M. PARNELL, JR. Lieu
T. Vo Clark
DEFENDANT/APPELLANT, KEVIN M. PARNELL, JR. In Proper Person
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Hans J. Liljeberg
FREDERICKA HOMBERG WICKER, JUDGE
Kevin Parnell, Jr., appeals his convictions and sentences for
one count of armed robbery with a firearm in violation of La.
R.S. 14:64.3(A), one count of aggravated second degree
battery in violation of La. R.S. 14:34.7, one count of
possession with the intent to distribute marijuana in
violation of La. R.S. 40:966(A), two counts of felon in
possession of a firearm in violation of La. R.S. 14:95.1 and
one count of possession of cocaine in violation of La. R.S.
40:967(C). Defendant's appointed counsel has filed an
appellate brief pursuant to Anders v.
California and has also filed a motion to withdraw as
counsel of record. Defendant has submitted a pro se
brief, asserting that his guilty plea is constitutionally
infirm and that his sentence was unconstitutionally
disproportionate and unreasonable in comparison with the
crime. For the following reasons, we affirm defendant's
convictions; affirm his sentences on counts two through six;
vacate his sentence as to his armed robbery with a firearm
conviction; remand to the district court for resentencing on
count one, with instructions to clarify defendant's
sentence for his armed robbery with a firearm conviction; and
grant appellate counsel's motion to withdraw.
of the Case
March 27, 2017, the Jefferson Parish District Attorney filed
a bill of information charging defendant and five
co-defendants with multiple offenses. Defendant was charged
with armed robbery with a firearm in violation of La. R.S.
14:64.3(A) (count one); aggravated second degree battery with
a dangerous weapon, by intentionally inflicting serious
bodily injury in violation of La. R.S. 14:34.7 (count two);
possession with the intent to distribute marijuana in
violation of La. R.S. 40:966(A) (count three); two counts of
felon in possession of a firearm in violation of La. R.S.
14.95.1(C) (counts four and six); and possession of cocaine
in violation of La. R.S. 40:967(C) (count five). Defendant
was arraigned on March 28, 2017, was assigned a public
defender and entered a plea of not guilty.
August 2, 2017, pursuant to a negotiated plea agreement,
defendant withdrew his not-guilty plea, and pled guilty to
all counts in the bill of information. In accordance with the
plea agreement, the district court sentenced defendant to
fifteen years at hard labor without benefit of parole,
probation, or suspension of sentence on count one; ten years
at hard labor on count two; five years at hard labor on count
three; ten years at hard labor without benefit of parole,
probation, or suspension of sentence on counts four and six;
and five years at hard labor on count five. The district
court further ordered defendant's sentences to run
concurrent with each other with the exception of count
five-possession of cocaine- which was ordered to run
consecutive to the other counts.
August 2, 2017, defendant pled guilty without proceeding to
trial. The factual basis provided by the State during the
guilty plea alleges that on or about February 4, 2017
defendant "committed armed robbery with a firearm in
violation of La. R.S. 14.64.3(A) of Carl Holloway of
approximately ninety-two thousand dollars in cash, as well as
other personal items, while in the Oasis Motel in
Gretna." Further as to count two, in violation of La.
R.S. 14:34.7, the State alleged that defendant committed
aggravated second degree battery when after the victim failed
to comply with defendant's demands, defendant hit the
victim "over the head with a lamp causing a laceration
to his head." Further as to count three, the State
announced it would prove "defendant violated Louisiana
Revised Statute 40:966(A) in that he did knowingly or
intentionally possess, with the intent to distribute, a
controlled dangerous substance, to wit, marijuana." As
to counts four and six, the "State would further prove
that the defendant violated Louisiana Revised Statute
14:95.1, two counts, in that he did have in his possession,
two different firearms, having been previously convicted on
May 19, 2016, of the crime of possession of cocaine in
violation of Louisiana Revised Statute 40:967(C) under Case
Number 16-2006, Division "F" in the Twenty Fourth
Judicial District Court for the Parish of Jefferson." As
to count five, "the State would further prove the
defendant also violated Louisiana Revised Statute 40:967(C)
in that he did knowingly or intentionally possess a
controlled dangerous substance, to wit, cocaine."
the procedure set in State v. Benjamin, 573 So.2d
528, 530 (La.App. 4 Cir. 1990), defendant's appointed
appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and State v.
Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per
curiam), asserting that she has thoroughly reviewed the trial
court record and could find no non-frivolous issues to raise
on appeal. Accordingly, appointed counsel requests to
withdraw as counsel of record. Defendant has also filed a
pro se supplemental brief, raising two assigned
errors. First, defendant contends that his guilty plea is
constitutionally infirm because he did not waive his right
against self-incrimination. Second, defendant claims that his
sentence is disproportionate and unreasonable.
Anders, the United States Supreme Court stated that
appointed counsel may request to withdraw from representation
if counsel finds the case to be wholly frivolous after a
conscientious examination of it. In Jyles, the
Louisiana 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."
Jyles, 704 So.2d at 241.
appellate court conducts an independent review of the record
to determine whether the appeal is wholly frivolous.
"When counsel files an Anders brief, an
appellate court reviews several items: a) the Bill of
Information to ensure that the charge is proper, b) all
minute entries to ensure that defendant was present at all
crucial states of the prosecution, c) all pleadings in the
record, and d) all transcripts to determine whether any
ruling of the trial court provides a basis for appeal."
State v. Dufrene, 07-823 (La.App. 5 Cir. 2/19/08),
980 So.2d 31, 33. If, after an independent review, the
reviewing court determines there are no non-frivolous issues
for appeal, the court may grant counsel's motion to
withdraw and affirm the defendant's conviction and
sentence. However, if the court finds a legal point arguable