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State v. Nelson

Court of Appeals of Louisiana, Fifth Circuit

November 7, 2018

STATE OF LOUISIANA
v.
CHARLES E NELSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-1528, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, CHARLES E NELSON Gwendolyn K. Brown.

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         Defendant, Charles E. Nelson, appeals his convictions and sentences for one count of possession with intent to distribute cocaine and one count of possession with intent to distribute hydrocodone, in violation of La. R.S. 40:967(A), and one count of possession of heroin, in violation of La. R.S. 40:966(C). Mr. Nelson's appointed counsel has filed an appellate brief pursuant to Anders v. California[1]asserting there is no basis for a non-frivolous appeal, and has also filed a motion to withdraw as counsel of record. For the following reasons, we affirm Mr. Nelson's convictions and sentences and remand this matter to the trial court for corrections of errors patent on the record. Further, we grant appellate counsel's motion to withdraw as counsel of record.

         FACTS AND PROCEDURAL HISTORY

         In this case, because Mr. Nelson's convictions resulted from guilty pleas, the circumstances surrounding the offenses were not fully developed at a trial. Here, the record reflects that on or about January 11, 2013, Mr. Nelson knowingly or intentionally possessed, with the intent to distribute, cocaine and hydrocodone, and that he knowingly or intentionally possessed heroin.

         On March 22, 2013, the Jefferson Parish District Attorney filed a bill of information charging Mr. Nelson with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count one), possession of heroin in violation of La. R.S. 40:966 (count two), and possession with intent to distribute hydrocodone in violation of La. R.S. 40:967(A) (count three). At his arraignment on April 9, 2013, Mr. Nelson pled not guilty. Thereafter, Mr. Nelson filed omnibus motions seeking suppression of the evidence, statements, and identification.

         On March 21, 2016, pursuant to a negotiated plea agreement, Mr. Nelson withdrew his not guilty pleas and entered pleas of guilty as charged on all three counts. During the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

If the Sate [sic] proceeded to trial against Charles Nelson in Clerk Number 13-1528, the State would prove beyond a reasonable doubt that Charles Nelson on January 11, 2013 committed two separate violations of Louisiana Revised Statute Title 40, Section 967.A. Specifically, he possessed with the intent to distribute cocaine and also possessed with the intent to distribute hydrocodone. The State would further prove that on that same date in Jefferson Parish, [Mr. Nelson] violated Louisiana Revised Statute Title 40, Section 966.C, in that he did knowingly possess heroin.

         Following the recitation by the State, Mr. Nelson indicated that he understood and was in agreement with the factual basis for his pleas. On that same date, after accepting Mr. Nelson's guilty pleas as having been knowingly, intelligently, freely and voluntarily made, the trial court sentenced Mr. Nelson as follows: (1) count one - fifteen years imprisonment at hard labor with the first two years to be served without benefit of parole, probation, or suspension of sentence; (2) count two - four years imprisonment at hard labor; and (3) count three - four years imprisonment at hard labor. Further, the trial court ordered that each sentence was to run concurrently with one another, as well as with the sentences imposed that same date in case numbers 15-7082 and 16-518.[2]

         Also, on March 21, 2016, the State filed a multiple offender bill alleging Mr. Nelson to be a second-felony offender to which Mr. Nelson stipulated. The trial court then vacated the original sentence on count one and resentenced Mr. Nelson pursuant to the multiple offender statute, La. R.S. 15:529.1, to fifteen years imprisonment at hard labor with the first two years to be served without the benefit of parole, probation, or suspension of sentence, and the remainder of the sentence to be served without the benefit of probation or suspension of sentence.[3] The sentences were ordered to run concurrently with the original sentence imposed as to counts two and three, and with the sentences imposed in cases 15-7082 and 16-518.

         Mr. Nelson filed an Application for Post-Conviction Relief ("APCR") on February 2, 2018, which the trial court dismissed without prejudice. On supervisory review, this Court vacated that ruling and remanded the matter to the trial court with instructions to construe Mr. Nelson's APCR as a timely filed request for an out-of-time appeal. State v. Nelson, 18-117 (La.App. 5 Cir. 3/22/81) (unpublished writ disposition). On March 27, 2018, the trial court granted Mr. Nelson an out-of-time appeal.

         LAW AND DISCUSSION

         Anders ...


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