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State v. Parnell

Court of Appeals of Louisiana, Fifth Circuit

May 16, 2018

STATE OF LOUISIANA
v.
KEVIN M. PARNELL, JR.

          ON 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 PRESIDING

          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

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

          FREDERICKA HOMBERG WICKER, JUDGE

         Defendant, 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[1] 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.

         Statement of the Case

         On 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.

         On 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.[2]

         Factual Background

         On 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."

         Anders Brief

         Under 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.

         In 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.

         An 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 ...


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