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State v. Gillin

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

STATE OF LOUISIANA
v.
BYRON DEVELLE GILLIN

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-7161, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, BYRON DEVELLE GILLIN Gwendolyn K. Brown

          Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst

          FREDERICKA HOMBERG WICKER JUDGE

         Defendant, Byron Gillin, appeals his convictions and sentences for possession with intent to distribute marijuana and possession of methamphetamine. Defendant's appointed appellate counsel has filed an appellate brief pursuant to Anders v. California[1] and has further filed a motion to withdraw as counsel of record. For the following reasons, we affirm defendant's convictions, vacate his sentences, remand to the trial court for clarification of the sentences, and grant appellate counsel's motion to withdraw.

         STATEMENT OF THE CASE

         On December 8, 2016, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant with possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A)(count one) and possession of a controlled dangerous substance, methamphetamine, in violation of La. R.S. 40:967(C). Defendant pled not guilty to the charges at his arraignment. On May 22, 2017, defendant withdrew his pleas of not guilty and pled guilty as charged.

         On June 14, 2017, the trial judge sentenced defendant in accordance with the plea agreement to five years at hard labor for his possession with intent to distribute marijuana conviction and five years at hard labor for his possession of methamphetamine conviction. The trial judge ordered that the sentences run concurrently and further imposed a $500.00 fine.[2] On July 14, 2017, defendant filed a motion to reconsider sentence, which the trial judge denied. This appeal follows.[3]

         FACTUAL BACKGROUND

         Defendant pled guilty without proceeding to trial. However, the state provided the following factual basis for the guilty pleas:

[I]f the State went to trial it would prove beyond a reasonable doubt that the Defendant Bryon Gillin did on or about September 22, 2016 violate Louisiana Revised Statute 40:966(A) and that he did knowingly or intelligently possess with the intent to distribute a controlled dangerous substance to wit Marijuana.
Additionally, the State would prove beyond a reasonable doubt that on or about September 22, 2016 that the Defendant, Byron Gillin did violate Louisiana Revised Statute 40:967(C) and that he did knowingly, intentionally possess a controlled dangerous substance to wit Methamphetamine, this occurring in the Parish of Jefferson.

         ANDERS ...


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