APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-3900, DIVISION
"O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA PAUL D.
CONNICK, JR., TERRY M. BOUDREAUX
COUNSEL FOR DEFENDANT/APPELLANT, LAWRENCE CHIRLOW JANE L.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Marc E. Johnson
FREDERICKA HOMBERG WICKER JUDGE.
Lawrence Chirlow, appeals his conviction for possession of
cocaine in excess of 28 to 200 grams, in violation of La.
R.S. 40:967(F) and possession with intent to distribute
marijuana in violation of La. R.S. 40:966(A). Appointed
counsel for Defendant has filed an appellate brief pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), and State v. Jyles,
96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per
curiam), seeking to withdraw as counsel of record for
Defendant asserting that after thoroughly reviewing the
district court record, she could find no non-frivolous issues
to raise on appeal.
following reasons, we affirm Defendant's convictions and
sentences, remand the case for correction of errors patent,
and grant appellate counsel's motion to withdraw as
counsel of record.
1, 2015, the Jefferson Parish District Attorney filed a bill
of information charging Defendant with possession of cocaine
in excess of 28 to 200 grams, in violation of La. R.S.
40:967(F) (count one), and with possession with intent to
distribute marijuana, in violation of La. R.S. 40:966(A)
(count two). At his June 6, 2015 arraignment, Defendant pled
not guilty as to both counts.
September 10, 2015, defense counsel filed a Motion to
Appoint a Sanity Commission to Determine Defendant's
Competence to Stand Trial. A competency hearing was held
on May 4, 2016, at which counsel for both parties requested
that the forensic psychiatrist and forensic psychologist who
initially evaluated Defendant be allowed to re-assess his
mental capacity. During a subsequent hearing on July 20,
2016, the district court found Defendant competent to stand
trial. At the same proceeding, Defendant withdrew
his not guilty plea and entered a plea of guilty as charged
to counts one and two. Defendant was then sentenced in
accordance with the plea agreement to serve "[eighteen]
years in the Department of Corrections as to each count, to
run concurrently." The district court further ordered
Defendant to comply with the schedule of fines, fees,
sentencing provisions, and probation requirements,
afforded him credit for time served, "to run
concurrently with district court case number15-4259, as well
as any other time imposed." Finally, the district court
recommended that Defendant participate in "any and all
self-help or substance abuse programs that may be
available" in the Department of Corrections.
this initial sentence, the State filed a Multiple Offender
Bill of Information alleging Defendant was a second time
felony offender as to count one, possession of cocaine in
excess of 28 to 200 grams. Defendant pled guilty and the
district court vacated Defendant's original sentence as
to count one and imposed a sentence of eighteen years hard
labor, to run concurrent with count two and "any or all
other time imposed." Defendant received credit for time
served and was ordered to comply with the schedule of fines,
fees, sentencing provisions, and probation requirements and
recommended any substance abuse and self-help treatments
available through the Department of Corrections.
February 26, 2018, Defendant filed an application for
post-conviction relief in the district court. The district
court dismissed his application without prejudice on March 2,
2018. Defendant filed a writ with this Court on
April 4, 2018, seeking review of the district court's
denial and was granted leave to seek an out-of-time appeal on
May 22, 2018. The Louisiana Appellate Project was
appointed as defense counsel on June 8, 2018. Defense counsel
has filed an Anders brief requesting an errors
patent review and a motion to withdraw as counsel of record
20, 2016, Defendant pled guilty without proceeding to trial.
As a result of Defendant's guilty plea, the underlying
facts regarding the crime of conviction were not fully
developed in the record. However, during Defendant's plea
colloquy, the State provided the following factual basis:
Your Honor, as to case 15-3900, if that matter were to go to
trial, the state would be able to prove beyond a reasonable
doubt that on or about May the 28th of 2015, as to
count one and two, the defendant violated Revised Statute
40:967[F]; that he did knowingly or intentionally possess
cocaine, between 28 and 200 grams; and as to count two on
that same date, that he violated Revised Statute 966[A] in
that he did knowingly or intentionally possess with the
intent to distribute marijuana.
appointed counsel has filed a brief pursuant to Anders v.
California, supra, and State v. Jyles,
supra, asserting that she has thoroughly reviewed
the district court record and could find no non-frivolous
issues to raise on appeal. Accordingly, appointed counsel
requests to withdraw as counsel of record.
Anders, supra, the United States Supreme
Court held that appointed counsel may seek to withdraw from
representation if counsel finds the case to be wholly
frivolous after a conscientious examination of the record. In
State v. Smith, infra, this Court further
held that 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." 18-142, 2018 La. App. LEXIS
1647, at *5 (La.App. 5 Cir. 8/29/18); citing 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).
Jyles, supra, 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." See Id. at
241. The court further held 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. Id.
comply with Anders, an appellate court must conduct
an independent review of the record to determine whether the
appeal is wholly frivolous. State v. Bradford,
95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. Thus,
"when counsel files an Anders brief, an
appellate court reviews several items: a) the Bill of
Information to ensure 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 ...