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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. 16-4060, 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

         Defendant's appointed appellate counsel filed an Anders[1] brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we remand the matter with instructions for resentencing on count three. In all other respects, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw as counsel of record.

         PROCEDURAL HISTORY

         On June 24, 2016, 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 of a firearm while in possession of a controlled dangerous substance, in violation of La. R.S. 14:95 E (count two); possession with the intent to distribute MDMA, in violation of La. R.S. 40:966 A (count three); and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count four).[2] On July 8, 2016, the State filed an amended bill of information, adding a second predicate conviction on count four, defendant's possession of a firearm by a convicted felon charge. On June 12, 2017, defendant pled not guilty.

         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[3] on count one; ten years in the Department of Corrections without the benefit of probation, parole, or suspension of sentence on count two; fifteen years in the Department of Corrections on count three; and fifteen years in the Department of Corrections without the benefit of probation, parole, or suspension of sentence on count four. The trial court further ordered all of his sentences to run concurrently with each other and all other time imposed.[4] The trial court also 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. 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.

         FACTS

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

[T]he state would be able to prove beyond a reasonable doubt as to count one that on or about December 3, 2015, the defendant violated Revised Statute 40:966.A, in that he did knowingly or intentionally possess with the intent to distribute marijuana.
As to count two, on or about December 3rd, 2015, he violated Revised Statute 14:95.E, in that he did possess a Glock 45-caliber firearm while in possession of oxycodone.
As to count three on that same date, that he violated Revised Statute 40:966.A, in that he did knowingly or intentionally possess with the intent to distribute MDMA.
And as to count four on that same date, that he violated Revised Statute 14:951 [sic], in that having been previously convicted of a felony, he was in ...

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