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State v. Lucia

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

STATE OF LOUISIANA
v.
CHRISTOPHER LUCIA

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-7511, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, CHRISTOPHER LUCIA Gwendolyn K. Brown

          DEFENDANT/APPELLANT, CHRISTOPHER LUCIA In Proper Person

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         On October 3, 2017, defendant, Christopher Lucia, pled guilty to one count of first degree robbery, a violation of La. R.S. 14:64.1. The trial court sentenced Mr. Lucia to eight years imprisonment at hard labor as per the plea agreement. Mr. Lucia was granted a pro se appeal. Mr. Lucia's appointed appellate counsel has filed an Anders[1] brief on his behalf, asserting there is no basis for a non-frivolous appeal. Further, Mr. Lucia has filed a pro se supplemental brief assigning errors. For the following reasons, we affirm Mr. Lucia's conviction and sentence and, further, grant appellate counsel's motion to withdraw as attorney of record.

         FACTS AND PROCEDURAL HISTORY

         In this case, Mr. Lucia's conviction resulted from a guilty plea, so the circumstances surrounding the offense were not fully developed at a trial. Here, the record reflects that on or about November 8, 2016, while in Jefferson Parish and armed with a firearm, Mr. Lucia robbed Chang Zou.

         On February 10, 2017, the Jefferson Parish District Attorney filed a bill of information charging Mr. Lucia with one count of armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A), respectively. At his arraignment on February 13, 2017, Mr. Lucia pled not guilty. Thereafter, Mr. Lucia filed omnibus motions seeking suppression of the evidence, statements, and identification, all of which were denied following a hearing on June 23, 2017.

         On October 3, 2107, pursuant to a negotiated plea agreement, the State agreed to refrain from filing a multiple offender bill against Mr. Lucia and amended the bill of information to a charge of first degree robbery, [2] a violation of La. R.S. 14:64.1, in exchange for which Mr. Lucia withdrew his former plea of not guilty and entered a plea of guilty to the amended charge.[3] During the plea colloquy, the trial court asked Mr. Lucia to explain what happened on November 8, 2016 that would lead him to plead guilty to first degree robbery. In response, Mr. Lucia stated that on that date, he robbed the Jade Buddha Restaurant while armed with a weapon, or caused the person whom he robbed to believe that he was armed with a weapon. After accepting Mr. Lucia's guilty plea as having been freely and voluntarily made, the trial court sentenced Mr. Lucia to eight years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence in accordance with the plea agreement.[4]

         Mr. Lucia timely filed a pro se motion for appeal on October 25, 2017, which was granted on November 8, 2017. The instant appeal followed.

         LAW AND DISCUSSION

         Anders Brief

         Under the procedure adopted by this Court, [5] 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, supra, and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel has filed a motion 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 he finds his case to be wholly frivolous after a conscientious examination of it.[6] 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) (internal citations omitted).

         In State v. Jyles, supra, 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, supra, 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. 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 counsel for the appellant. Id.

         In her brief, counsel for Mr. Lucia asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that prior to withdrawing his plea of not guilty and entering a plea of guilty, Mr. Lucia was fully informed of the legal consequences of changing his plea by both his trial counsel and the trial court.

         Appellate counsel provides that an examination of the plea colloquy revealed that prior to accepting his guilty plea, the trial court advised Mr. Lucia of his constitutional rights to a trial by jury, to remain silent, to confront witnesses, and to compel the attendance of witnesses, in order to ensure that Mr. Lucia was knowingly and intelligently waiving those rights. Further, counsel states that Mr. Lucia was advised that, by pleading guilty, he was also waiving his right to object or assert any defect, such as an illegal arrest, illegal confession or illegal line-up. Counsel notes that Mr. Lucia made no reservation to appeal any pre-trial rulings. Counsel further asserts that Mr. Lucia was informed of the sentencing range to which he was exposed for the crime of first degree robbery, and was advised of the sentence to be imposed by the trial court as a result of his guilty plea. Counsel concludes that there are no credible arguments to advance on appeal and, therefore, requests that this Court grant her request to withdraw and conduct an errors patent review.

         Appellate counsel has filed a motion to withdraw as attorney of record, which provides that she has notified Mr. Lucia of the filing of this motion and advised him of his right to file a pro se brief. Additionally, this Court sent Mr. Lucia a letter by certified mail informing him that an Anders brief had been filed and that he had until August 13, 2018 to file a pro se supplemental brief. [7] Mr. Lucia timely filed a pro se supplemental brief.

         The State responds that appellate counsel's brief shows a conscientious and thorough review of the record, and a complete description of the procedural history and facts of the case. The State requests that this Court affirm Mr. Lucia's conviction and sentence. It notes that the trial court engaged Mr. Lucia in a Boykin[8] colloquy, whereby Mr. Lucia was made aware of the rights he was waiving by pleading guilty, the sentencing range for his conviction, and that his sentence would be eight years at hard labor, without benefits, which sentence was within the statutory limits pursuant to La. R.S. 14:64.1. The State notes that the trial court fully explained to Mr. Lucia the time limitations for appeal and post-conviction relief. Further, the State agrees with appellate counsel that Mr. Lucia did not reserve any rights to appeal any pre-trial rulings of the trial court prior to pleading guilty and, consequently, has waived those rights. The State further agrees with appellate counsel that Mr. Lucia voluntarily and intelligently entered a plea of guilty and that the record does not contain any non-frivolous issues for appellate review. The State notes that appellate counsel has complied with the procedures set forth in Anders and Jyles and should be granted permission to withdraw.

         An independent review of the record supports appellate counsel's assertion that there are no ...


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