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State v. Cuza

Court of Appeals of Louisiana, Fifth Circuit

April 24, 2019

STATE OF LOUISIANA
v.
ANTONIO CUZA

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-3977, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, ANTONIO CUZA Katherine M. Franks.

          DEFENDANT/APPELLANT, ANTONIO CUZA In Proper Person.

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

          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. Further, defendant filed a pro se supplemental brief. For the following reasons, we affirm defendant's multiple offender adjudication and sentence and grant counsel's motion to withdraw.

         Procedural History

         This is defendant's second appeal. On July 8, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with aggravated battery, in violation of La. R.S. 14:34. On October 18, 2017, after a two-day trial, the six-person jury found defendant guilty as charged. On November 9, 2017, the trial judge sentenced defendant to ten years imprisonment at hard labor with credit for time served. This Court affirmed his conviction and sentence. State v. Cuza, 18-187 (La.App. 5 Cir. 11/28/18), 260 So.3d 754, 756.

         On November 8, 2017, the State filed a multiple offender bill of information alleging defendant was a fourth-felony offender[2] pursuant to La. R.S. 15:529.1. On May 3, 2018, pursuant to a negotiated plea agreement, the State amended the multiple bill to charge defendant as a second-felony offender[3] and defendant stipulated to the amended multiple bill.[4] After vacating the sentence for defendant's underlying aggravated battery conviction, the trial court, in accordance with the plea agreement, imposed the enhanced sentence, pursuant to La. R.S. 15:529.1, of twenty years imprisonment at hard labor without benefit of probation or suspension of sentence, to run concurrently with any other sentence defendant is serving.

         On August 22, 2018, defendant filed an application for post conviction relief, which the trial court construed as a request for an out-of-time appeal and granted. In this second appeal, defendant's appointed appellate counsel has filed an Anders brief regarding his multiple offender stipulation and sentence. Defendant has also filed a pro se brief.

         Facts

         The underlying facts, which are not relevant to defendant's second appeal, can be found in this Court's opinion of defendant's first appeal. Cuza, supra, 260 So.3d at 756-57.

         Anders

         Under the procedure adopted by this Court in State v. Bradford, [5] appointed appellate counsel has filed a brief asserting that she 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, [6] appointed counsel requests permission to withdraw as counsel of record.

         In Anders, [7] 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."[8]

         In Jyles, [9] 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."[10]

         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.[11] 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 ...


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