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State v. Shelby

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

STATE OF LOUISIANA
v.
WILLIAM J. SHELBY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-4648, 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, WILLIAM J. SHELBY Bertha M. Hillman.

          Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg.

          STEPHEN J. WINDHORST JUDGE.

         On appeal, defendant's appointed appellate counsel filed an Anders[1] brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. For the reasons that follow, we grant defense counsel's motion to withdraw as counsel of record, and affirm defendant's convictions, habitual offender stipulation, sentence on count one and his enhanced sentence on count two. We amend and affirm as amended defendant's sentence on count three, and remand with instructions consistent with this opinion.

         PROCEDURAL HISTORY

         On August 6, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, William J. Shelby, with possession with the intent to distribute marijuana, in violation of La. R.S. 40:966 A (count one); possession with the intent to distribute cocaine, in violation of La. R.S. 40:967 A (count two); and possession with the intent to distribute methamphetamine, in violation of La. R.S. 40:967 A (count three). On October 13, 2015, defendant pled not guilty at his arraignment.

         On August 31, 2017, defendant withdrew his not guilty pleas and pled guilty as charged. The trial court sentenced defendant to fifteen years in the Department of Corrections[2] on all counts to run concurrent with each other and any and all other time imposed.[3] The court ordered defendant to comply with the schedule of "fines, fees, sentencing provision and probation requirements form," within twelve months of release, which included the payment of a $500 fine. The trial court also ordered that the first two years of counts two and three to be served without the benefit of probation, parole, or suspension of sentence.

         On the same day, the State filed a habitual offender bill of information alleging defendant to be a second felony offender on count two, to which defendant stipulated. The trial court vacated the original sentence on count two and resentenced defendant to fifteen years in the Department of Corrections with the first two years of the sentence to be served "without benefits and the entirety of his sentence shall be without the benefit of probation or suspension of sentence" and to run concurrently with any and all other sentences.

         On March 6, 2018, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted by the trial court on March 15, 2018. This appeal followed.

         FACTS

         Because defendant entered guilty pleas, the underlying facts were not fully developed at trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[T]he state would be able to prove beyond a reasonable doubt as to count one that on or about April 16, 2014, the defendant violated Revised Statute 40:966A in that he did knowingly or intentionally ...

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