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State v. Chirlow

Court of Appeals of Louisiana, Fifth Circuit

December 12, 2018

STATE OF LOUISIANA
v.
LAWRENCE CHIRLOW

          ON 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. BEEBE

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

          FREDERICKA HOMBERG WICKER JUDGE.

         Defendant, 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.

         For the 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.

         PROCEDURAL HISTORY

         On July 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.

         On 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.[1] During a subsequent hearing on July 20, 2016, the district court found Defendant competent to stand trial.[2] 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, [3] and 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.

         After 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.

         On 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.[4] 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.[5] 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 for appellant.

         FACTS

         On July 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.

         ANDERS BRIEF

         Defendant's 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.

         In 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).

         In 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.

         To 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 ...


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