Opinion
NO. 19-KA-435
01-29-2020
STATE of Louisiana v. Mark ELLIS
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Thomas J. Butler, Anne M. Wallis, New Orleans COUNSEL FOR DEFENDANT/APPELLANT, MARK ELLIS, Prentice L. White
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Thomas J. Butler, Anne M. Wallis, New Orleans
COUNSEL FOR DEFENDANT/APPELLANT, MARK ELLIS, Prentice L. White
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
LILJEBERG, J.
Defendant, Mark Ellis, appeals his conviction and sentence for simple burglary. For the reasons that follow, we affirm defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw as attorney of record for defendant.
PROCEDURAL HISTORY
On January 18, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Mark Ellis, with one count of simple burglary in violation of La. R.S. 14:62. On February 24, 2017, defendant pled not guilty at his arraignment.
A September 20, 2017 minute entry indicates that the trial court ordered the appointment of a sanity commission on that date. On October 11, 2017, defendant was found incompetent by the trial court to proceed to trial, and he was committed to the custody of a mental health institution for forensic inpatient competency restorative services.
On October 2 and 9, 2017, defendant filed written Motions for Mental Examination. He alleged in those motions that he was insane at the time of the alleged offense. The record does not contain a written motion challenging his competency to proceed to trial and the September 20, 2017 minute entry states that defendant did not file a sanity motion.
On March 7, 2018, a review hearing was held, and the trial court found defendant competent to proceed. On that same day, defendant withdrew his plea of not guilty and pled guilty as charged. After conducting a colloquy with defendant, the trial court accepted his guilty plea and sentenced defendant in accordance with the plea agreement to a suspended eight-year sentence at hard labor, two years of active probation, and one year of inactive probation. Defendant was ordered to pay restitution to the victim in the amount of $3,500.00 within one hundred eighty days. On March 15, 2019, a civil money judgment in the amount of $3,654.00 was entered against defendant for his failure to pay the full amount of the costs, fines, fees, and restitution imposed.
In addition to the general conditions of probation and the assessment of fines, fees, and costs, defendant was also ordered to undergo an evaluation and complete any treatments recommended for substance abuse and mental health issues, undergo random drug screening, complete 100 hours of community services, and obtain a GED or vo-tech training if he did not have a high school diploma.
On March 22, 2019, defendant filed a Uniform Application for Post-Conviction Relief. In its response, the State argued that defendant's application was premature due to his failure to exhaust his appellate rights, and he should be permitted to seek an out-of-time appeal. On May 6, 2019, the trial court dismissed defendant's application without prejudice due to its prematurity and noted that defendant was within the time limitation to seek an out-of-time appeal. On May 28, 2019, defendant filed a second Uniform Application for Post-Conviction Relief, this time requesting an out-of-time appeal. On June 4, 2019, the trial court ordered the State to respond with any procedural objections within thirty days. On June 28, 2019, the State filed its response, again indicating that it did not oppose defendant's request for an out-of-time appeal. On July 1, 2019, the trial court dismissed the application without prejudice and granted defendant an out-of-time appeal.
FACTS
Since defendant pled guilty, the facts were not fully developed at a trial. Nevertheless, the bill of information alleges that on or about March 15, 2016, in Jefferson Parish, defendant committed simple burglary of 4037 Woodbine Street belonging to Glenn Hampton in violation of La. R.S. 14:62. During the guilty plea proceeding, the State provided the following factual basis:
In regards to Mr. Ellis, if the case were to proceed to trial, the State would prove beyond a reasonable doubt that on or about March 15th of 2016, within Jefferson Parish, Mark Ellis violated Louisiana Revised Statute 14:62 in that he did commit simple burglary of 4037 Woodbine Street belonging to Glenn Hampton.
Following the factual basis, the trial judge asked defendant if he committed the crime described by the prosecutor, and defendant responded, "Yes, sir."
ANDERS BRIEF
Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel filed a brief asserting that he 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 counsel requests permission to withdraw as counsel of record.
In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).
In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his 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." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).
The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
In Jyles , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial 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." Id.
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. 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. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.
In the present case, defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. He avers that the bill of information properly charged defendant, and he was fully advised of the constitutional rights he would be waiving by pleading guilty. Appellate counsel notes that the only pretrial ruling in the record was as to defendant's competency to proceed, and his competency was not contested by him or his trial counsel prior to the signing of the plea agreement. He notes that while the trial court did not question defendant about his educational background or his mental competence, an understanding was reached on defendant's ability to enter a guilty plea, as well as defendant's understanding of the sentence. He states that defendant answered the trial court's questions and indicated his understanding of the waiver of his rights. Appellate counsel articulates that defendant was advised of the sentencing range for the instant offense and of the potential fines he would be required to pay if the plea was accepted. Appellate counsel has filed a motion to withdraw as attorney of record which states he has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings which would arguably support an appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 4, 2019, to file a pro se supplemental brief.
An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.
The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 464 - 466. Further, the record shows that there are no appealable issues surrounding defendant's presence. The minute entries reflect that defendant appeared at each stage of the proceedings against him, including his arraignment, guilty plea proceeding, and sentencing. No rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976). Also, prior to defendant's guilty plea, the trial court found him competent to stand trial. Defendant's guilty plea waived his right to challenge his competency on appeal. See State v. Chirlow , 18-360 (La. App. 5 Cir. 11/7/18), 259 So.3d 604, 609 ; State v. Marenco , 17-418 (La. App. 5 Cir. 12/27/17), 236 So.3d 784, 789.
Defendant pled guilty as charged to the bill of information. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.
Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
A review of the record reveals no constitutional infirmity or any irregularity in defendant's guilty plea that would render it invalid. The record shows that defendant was aware he was pleading guilty as charged to one count of simple burglary in violation of La. R.S. 14:62. On the waiver of rights form and during the guilty plea colloquy, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin , supra . Defendant was also informed of his right to an attorney and to have an attorney appointed to him if he could not afford one. Defendant acknowledged that he had reviewed the waiver of rights form with his attorney and that the form bore his signature. Defendant placed his initials next to individual advisals of his rights and placed his signature at the end of the waiver of rights form, thus indicating that he understood he was waiving these rights. He also articulated to the trial court during the colloquy that he understood he was waiving his rights by pleading guilty.
Additionally, defendant was informed that his guilty plea could be used to enhance penalties for future convictions. Defendant confirmed that he had not been forced, coerced, or intimidated into entering his guilty plea. Contrary to appellate counsel's assertion, defendant was asked by the trial judge about his mental competence. Defendant denied that he was suffering from any physical or mental impairment that would affect his competency to enter his plea. He further indicated that he was able to read, write, and understand English and was satisfied with the way his attorney had handled his case. In addition, defendant was correctly informed of the sentencing range for the offense and of the sentence he would receive if the trial court accepted his plea. Defendant acknowledged that he was pleading guilty because he was guilty of the crime charged. After his colloquy with defendant, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely and voluntarily made.
La. R.S. 14:62 provides for a term of imprisonment, with or without hard labor, for not more than twelve years, a fine of not more than two thousand dollars, or both. During the colloquy, the trial judge advised defendant that simple burglary "has a sentencing range of zero to twelve years at hard labor[.]" (R., p. 103). Therefore, the trial court did not advise defendant of the possible fine and that his sentence could be served without hard labor. However, the trial judge's omissions are included on the waiver of rights form executed by defendant on the date he pled guilty. Further, the trial court advised defendant of the suspended eight-year sentence at hard labor, two years of active probation, and one year of inactive probation he would receive as part of the plea agreement. The advisement of the agreed upon sentence was sufficient for compliance with La. C.Cr.P. art. 556.1. See State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64. Defendant subsequently received the agreed upon sentence, which did not include a fine.
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Finally, defendant's sentence does not present any issues for appeal. Defendant's sentence is within the sentencing range prescribed by La. R.S. 14:62. Further, the sentence was imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.
Appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel's assertion. Accordingly, we affirm defendant's conviction and sentence and we grant appellate counsel's motion to withdraw as attorney of record.
ERROR PATENT DISCUSSION
Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. Our review reveals no errors patent in this case.
DECREE
For the foregoing reasons, we affirm defendant's conviction and sentence for simple burglary. We also grant appellate counsel's motion to withdraw as counsel of record.