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State v. West

Court of Appeals of Louisiana, First Circuit

May 31, 2019

STATE OF LOUISIANA
v.
DANIEL A. WEST

          On Appeal from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Trial Court No. 31, 568 Honorable Alvin Turner, Jr., Judge Presiding

          Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Attorney for Defendant -Appellant, Daniel A. West

          Daniel A. West St. Gabriel, LA Defendant -Appellant, In Proper Person

          Ricky L. Babin District Attorney Donaldsonville, LA Donald David Candell Kenneth J. Dupaty Lindsey D. Manda Assistant District Attorneys Gonzales, LA Attorneys for Appellee, State of Louisiana

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          HIGGINBOTHAM, J.

         The defendant, Daniel A. West, was charged under two separate amended bills of information with two counts of armed robbery, violations of La. R.S. 14:64, and initially pled not guilty. Pursuant to sentencing agreements and in exchange for the State nol-prossing the other charges in the bills of information, the defendant withdrew his former pleas and pled guilty as charged to two counts of armed robbery.[1] In district court case number 31568, the trial court sentenced the defendant, as agreed, to ten years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. In district court case number 31697, the trial court sentenced the defendant, as agreed, to forty years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. In accordance with the respective plea agreements, the trial court ordered that the sentences be served consecutively. The defendant subsequently filed a pro se motion to withdraw his guilty pleas, and the motion was denied after a hearing.

         Stating that there are no non-frivolous issues to support the appeal, the appellate counsel filed a brief raising no assignments of error and a motion to withdraw as counsel of record.[2] Subsequently, the defendant filed a pro se brief raising the following five assignments of error: (1) the punishment is cruel and unusual; (2) an increase in the punishment offered during plea negotiations may have been the result of the public defender's disclosure to the State of a privileged attorney/client communication; (3) the plea was accepted without consideration of documentary evidence of the defendant's mental health; (4) the trial court failed to consider the terms of the original plea bargain offered to the defendant; and (5) the appellate court's granting of the defendant's application for supervisory review evidences a due process violation. For the following reasons, we affirm the convictions and sentences and grant the appellate counsel's motion to withdraw.

         STATEMENT OF FACTS

         Since the defendant pled no contest, the facts were not fully developed. In accordance with the bills of information and the factual basis statement in the guilty plea forms stipulated to at the Boykin[3]hearing, the following occurred. On or about August 21, 2013, at Domino's Pizza in Gonzales, while armed with a firearm, the defendant committed armed robbery by taking a vehicle from Louis Wright. On or about August 22, 2013, at New Orleans Daiquiris in Ascension Parish, while armed with a firearm, the defendant committed armed robbery by taking money from Emily Guardalabene.[4]

         DISCUSSION

         The appellate counsel has filed a brief containing no assignments of error and a motion to withdraw. In the brief and motion to withdraw, referencing the procedures outlined in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), the appellate counsel indicated that after a conscientious and thorough review of the record, appellate counsel could find no non-frivolous issues to raise on appeal, and found no ruling of the trial court that arguably supports the appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Benjamin, 573 So.2d 528, 529-31 (La.App. 4th Cir. 1990).

         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. Dyke, 2017-1303 (La.App. 1st Cir. 2/27/18), 244 So.3d 3, 6. Herein, the appellate counsel has complied with all the requirements necessary to file an Anders brief. The appellate counsel has detailed the procedural history, the plea colloquy, and sentencing in this case. Further, the appellate counsel certifies that the defendant was served with a copy of the Anders brief. The appellate counsel's motion to withdraw notes that the defendant has been notified of the motion to withdraw and his right to file a pro se brief which he has filed, as noted herein.

         At the Boykin hearing, the trial court conducted a colloquy with the defendant by asking a series of questions regarding his age, education, and state of mind. The defendant indicated that he was thirty-three years old, had completed the ninth grade, could read and write the English language, understood the Boykin form, and was not under the influence of any substance or suffering from a mental or physical disability. Prior to the acceptance of the guilty pleas, the trial court informed the defendant of his Boykin rights (right to trial by jury, right against compulsory self-incrimination, and right of confrontation), and his right to an appeal. The trial court further informed the defendant that by pleading guilty he would be waiving these rights. The defendant indicated that he understood and waived his rights. He confirmed that he agreed with the factual bases provided by the State in the written Boykin forms signed by the defendant. The defendant also confirmed that he understood and did not have any questions regarding the statutory elements and the sentencing range for the offenses. He stated that he understood the agreed upon ...


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