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State v. Ordon

Court of Appeals of Louisiana, Fifth Circuit

November 7, 2018

STATE OF LOUISIANA
v.
TIMOTHY M. ORDON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-4422, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, TIMOTHY M. ORDON Prentice L. White.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson

          SUSAN M. CHEHARDY, CHIEF JUDGE

         On appeal, defendant's appointed appellate counsel has filed an Anders[1]brief, asserting that there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant's convictions and sentences and grant counsel's motion to withdraw.

         Facts and Procedural History

         Because defendant pled guilty, the facts of this case were not fully developed at a trial. Nevertheless, the record before this Court reveals that, on or about May 8, 2014, Timothy M. Ordon, defendant-herein, violated La. R.S. 14:62.2 by committing simple burglary of an inhabited dwelling in Jefferson Parish and violated La. R.S. 14:26 and La. R.S. 14:62.2 by conspiring to commit simple burglary of the same structure.

         During the colloquy, the State provided the following factual basis for the pleas:

Your Honor, for Case Number 14-4422, the defendant was apprehended after running from the location of 2105 Elizabeth Street. On his person, deputies located property that was located from inside that residence as well as the defendant gave an audio/videotaped confession about going inside the home without permission and taking those things from the home.

         On March 5, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2; possession of stolen goods valued at over $1, 500.00, in violation of La. R.S. 14:69; and conspiracy to commit simple burglary of an inhabited dwelling, in violation of La. R.S. 14:26 and La. R.S. 14:62.2. On July 20, 2016 and August 1, 2016, the trial court heard defendant's motion to suppress evidence and statement. At the close of the August 1, 2016 hearing, the trial judge denied the motions.

         On December 12, 2016, defendant withdrew his pleas of not guilty and pled guilty, pursuant to North Carolina v. Alford, [2] to one count of simple burglary of an inhabited dwelling and one count of conspiracy to commit simple burglary of an inhabited dwelling.[3] In accordance with the plea agreement, the trial court sentenced defendant, for simple burglary of an inhabited dwelling, to six years at hard labor with the first year to be served without the benefit of parole, probation, or suspension of sentence, and ordered restitution to the victim in the amount of $1, 400.00; and for conspiracy to commit simple burglary of an inhabited dwelling, to six years at hard labor, to run concurrently.

         During that same hearing, the State filed a multiple offender bill of information alleging defendant to be a second-felony offender, [4] to which defendant stipulated. In accordance with the plea agreement, the trial court vacated defendant's sentence for simple burglary, adjudicated defendant to be a second-felony offender, and imposed an enhanced sentenced, pursuant to La. R.S. 15:529.1, of six years at hard labor without the benefit of probation or suspension of sentence, to run concurrently with all previously imposed sentences.

         On September 25, 2017, defendant filed an application for post-conviction relief alleging ineffective assistance of trial counsel. On October 5, 2017, the trial court denied defendant's application. On November 3, 2017, defendant sought supervisory review of that denial by this Court. On March 19, 2018, this Court, in the interest of justice, granted defendant's writ for the limited purpose of remanding the matter to the trial court for it to construe his application for post-conviction relief as one seeking an out-of-time appeal.[5] On March 20, 2018, the trial court granted defendant an out-of-time appeal. This appeal follows.

         Anders

         Under the procedure adopted by this Court in State v. Bradford, [6] appointed appellate counsel has filed a brief asserting that he 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, [7] appointed counsel requests permission to withdraw as counsel of record.

         In Anders, [8] the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. 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."[9]

         In Jyles, [10] the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial 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."[11]

         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.[12] 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 legal points identified by the court, or grant the motion and appoint substitute appellate counsel.[13]

         Discussion

         Defendant's appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel avers that defendant was advised, inter alia, of his right to a jury trial, his right to confront and cross-examine the witnesses against him, and his right to remain silent. Counsel notes that defendant acknowledged his constitutional rights and his willingness to waive those rights by pleading guilty. Counsel argues that defendant denied being threatened or coerced into entering his pleas and indicating his desire to enter guilty pleas.

         Counsel further articulates that the State provided a factual basis for defendant's Alford pleas, which was supported by the testimony of the investigating detective at the suppression hearing. Counsel provides that defendant was sufficiently informed of his constitutional rights as a multiple offender and of the sentencing range to which he was exposed before defendant stipulated to the allegations in the multiple offender bill of information. He avers that ...


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