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State v. Lawrence

Court of Appeals of Louisiana, Fifth Circuit

May 15, 2019

STATE OF LOUISIANA
v.
GLENN LAWRENCE

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 08-1966, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, GLENN LAWRENCE Glenn Lawrence, Bruce G. Whittaker

          Panel composed of Judges Fredericka Homberg Wicker, 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. Defendant, Glenn Lawrence, filed a pro se supplemental brief arguing four assignments of error. For the reasons that follow, we affirm defendant's conviction, vacate defendant's habitual offender sentence, and remand for resentencing as provided herein. We further reserve defendant's right to withdraw his second felony offender stipulation upon the trial court's advice of the limitation on parole to be imposed at sentencing. We also grant appellate counsel's motion to withdraw as attorney of record.

         Procedural History

         On April 14, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Glenn Lawrence, with possession with intent to distribute MDMA, in violation of La. R.S. 40:966 A. On September 30, 2008, defendant pled not guilty.

         On May 26, 2016, defendant withdrew his plea of not guilty and pled guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for fifteen years with the first five years without the benefit of probation, parole, or suspension of sentence. The trial court ordered defendant's sentence to run concurrent with his sentences in case numbers 14-3654, 15-2280, 16-0184 and with "parole time" in case numbers 95-5681, 95-5900, and 95-6175.[2]

         On the same day, the State filed a habitual offender bill of information alleging defendant to be a second-felony offender, to which defendant stipulated. The trial court vacated the original sentence and resentenced defendant under the habitual offender statute to imprisonment at hard labor for fifteen years without the benefit of probation or suspension of sentence. The trial court ordered defendant's enhanced sentence to run concurrent with his sentences in case numbers 14-3654, 15-2280, 16-0184 and "parole time" in case numbers 95-5681, 95-5900, and 95-6175.

         On May 23, 2018, defendant filed a "Notice of Intent to Appeal and 30 Day Extension to File." The trial court granted defendant an out-of-time appeal. This appeal followed.

         Facts

         Because defendant pled guilty, the underlying facts were not fully developed at a trial. A factual basis was not provided at the guilty plea proceeding, therefore, the facts have been gleaned from the bill of information which provided that on or about March 26, 2008, in Jefferson Parish, defendant violated La. R.S. 40:966 A "in that he did knowingly and intentionally possess with intent to distribute a controlled dangerous substance, to wit: MDMA."

         Discussion

         Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 06/25/96), 676 So.2d 1108, 1110-1111, [3] appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, 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 (per curiam), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

         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. State v. Bradford, 676 So.2d at 1110. 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. Id.

         In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. Defendant's counsel asserts that after a conscientious and thorough review of the trial court record, he could find no non-frivolous issues to raise on appeal. Appellate counsel contends that defendant pled guilty and was sentenced pursuant to a counseled plea agreement and no rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). He asserts that defendant entered an unqualified guilty plea waiving all non-jurisdictional defects. Appellate counsel indicates that defendant did not object to (1) the charged offense during the plea proceeding; (2) the trial court's acceptance of the guilty plea; or (3) the sentence agreed upon and imposed. Therefore, he asserts that defendant waived his right to now seek review on direct appeal. Appellate counsel also contends that the sentence imposed was in conformity with the plea agreement, and thus, defendant is precluded from raising a claim of excessiveness on appeal. He further asserts that the plea agreement was "somewhat advantageous" to defendant in that he did not receive the maximum sentence, and the trial court did not order any of his sentences to run consecutively. Defendant's appellate counsel filed a motion requesting permission to withdraw as attorney of record.

         This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. However, we find there are issues regarding sentencing and the voluntariness of the plea agreement which will be discussed herein.

         The record reveals no constitutional infirmities or irregularities in defendant's guilty plea that would render it invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charge against him, that he was properly advised of his Boykin[4]rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading ...


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