State v. Ervin
| Decision Date | 21 June 2018 |
| Docket Number | NO. 2017 KW 1714,2017 KW 1714 |
| Parties | STATE OF LOUISIANA v. NICOLE ERVIN |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana
The defendant, Nicole Ervin, was charged by bill of information with simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2, and initially pled not guilty. On May 10, 2010, pursuant to a plea agreement, the defendant withdrew her not guilty plea and pled guilty to simple burglary, a violation of La. R.S. 14:62.1 On that same date, in conformity with the plea agreement, the trial court sentenced the defendant to twelve years of imprisonment at hard labor with credit for time served, suspended the remainder of the sentence, and imposed five years of supervised, active probation with conditions. On April, 18, 2012, the defendant stipulated to violating probation, her probation was revoked, and the May 10, 2010 sentence was made executory. On May 15, 2017, the defendant filed a pro se "motion to run sentences concurrent" in an attempt to have the May 10, 2010 sentence run concurrently with two additional sentences imposed in two other cases. On September 12, 2017, the motion was denied. On September 20, 2017, the defendant filed a notice of appeal of the trial court's denial of the motion, and the trial court granted the instant appeal and appointed the Louisiana Appellate Project to represent the defendant. Stating that there are no nonfrivolous issues upon which to support the appeal, the defense counsel filed a brief raising no assignments of error and requesting a patent error review pursuant to La. Code Crim. P. art. 920(2). The defense counsel also filed a motion to withdraw as counsel of record. For the following reasons, we hereby convert the appeal to a writ, deny the writ, and affirm the denial of the motion to run sentences concurrent. We further grant defense counsel's motion to withdraw.
Herein, the defendant filed a pro se motion seeking to run her sentences concurrently, pursuant to La. Code Crim. P. art. 822. We note that the denial of a motion to amend a sentence is not an appealable judgment. See La. Code Crim. P. arts. 912, 930.6; State v. Lee, 2011-1128 (La. App. 5th Cir. 7/31/12), 99 So.3d 721, 723; State v. Boudreaux, 2011-1345 (La. App. 4th Cir. 7/25/12), 98 So.3d 881, 884, writ denied, 2012-1907 (La. 11/9/12), 100 So.3d 841; State v. Hutchinson, 99-0034 (La. App. 4th Cir. 5/17/00), 764 So.2d 1139, 1140-41; State v. Benoit, 446 So.2d 921, 922 (La. App. 1st Cir. 1984), writ denied, 448 So.2d 113 (La. 1984). Further, in accordance with Article 822, "each motion to amend or modify a sentence imposed shall be filed, considered, and decided in compliance with Code of Criminal Procedure Articles 881 and 881.1." A trial court has no authority to amend or modify a hard labor, felony sentence after the defendant has begun serving the sentence unless the court grants a timely filed motion to reconsider sentence. See La. Code Crim. P. arts. 881(A) & 881.1(A)(1); see also State v. Gedric, 99-1213 (La. App. 1st Cir. 6/3/99), 741 So.2d 849, 851-52 (per curiam), writ denied, 99-1830 (La. 11/5/99), 751 So.2d 239. In this case the defendant has not suggested, nor is there any basis for finding, the motion the defendant filed was a timely filed motion to reconsider sentence. Therefore, the appeal delays for defendant's conviction and sentence imposed in 2010 have long since expired under Article 881.1(A)(1). See also La. Code Crim. P. art. 914. The defendant's conviction and sentence became final when the defendant failed to appeal timely, and the conviction and sentence are no longer subject to review under the ordinary appellate process.2
Thus, as the denial of a motion to amend or modify a sentence is not an appealable judgment and the defendant's appeal rights have expired, the appellant's proper remedy for raising any error relating to the ruling on the motion is by application for supervisory writs. La. Code Crim. P. art. 912.1(C)3; see also City of New Orleans v. Ballansaw, 475 So.2d 768 (La. 1985) (per curiam). A writ would be properly before this court since Uniform Rules of Louisiana Courts of Appeal, Rule 4-3 gives a party thirty days from the date of a ruling at issue in which to give notice of intent and request a return date to file a writ. We find that the defendant could have filed a timely writ, which this court could have considered by exercising its supervisory jurisdiction under La. Const. art. V, § 10; therefore, we shall accord this matter writ status on our own motion. See Boudreaux, 98 So.3d at 884; Benoit, 446 So.2d at 922; State v. Branch, 96-1626 (La. App. 3rd Cir. 5/21/97), 696 So.2d 81, 83.
Defense counsel has filed a brief containing no assignments of error and a motion to withdraw. Accordingly, the defendant has abandoned issues for review, if any, concerning the denial of the motion to run the May 10, 2010 sentence concurrently with other sentences. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(B)(4). Moreover, a defendant cannot appeal a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. Code Crim. P. art. 881.2(A)(2); State v. Wiggins, 13-0649, p. 4 (La. App. 1st Cir. 1/31/14), 139 So.3d 1, 4; see also State v. Young, 96-0195, p. 7 (La. 10/15/96), 680 So.2d 1171, 1175. Finally, as discussed above, the trial court was without authority to amend or modify the defendant's sentence in this case.4 Thus, we now turn to the Anders brief filed by counsel. See State v. Tickle, 2014-1155 (La. App. 4th Cir. 4/15/15), 2015 WL 1775521 (unpublished); State v. Lyons, 2013-180, (La. App. 5th Cir. 10/9/13), 128 So.3d 407, 411.
The defendant pled guilty in this case, thus the facts were not developed. At the Boykin5 hearing, the State presented the following factual basis for the plea. On or about May 27, 2008, police officers were investigating a break-in at a residence in East Baton Rouge Parish and received an anonymous tip indicating that the defendant had broken into the apartment of the victim, Eliezer Hernandez-Vargas. The tipster indicated that the defendant gained entry by breaking a window. The officers dusted the point of entry for fingerprints. After a comparison of the fingerprints lifted from pieces of glass from the window and the defendant's fingerprints, it was determined that the fingerprints matched. The defendant admitted to entering the apartment, explaining that she had an addiction to pain medication and that one of the ways she was able to maintain a supply of the medication was by breaking into residences and stealing items. A cell phone and other items were taken out of the residence during the offense. The defendant did not have permission, consent, or authority to enter the residence or to take the property.
The defense counsel filed a brief containing no assignments of error and a motion to withdraw. In the brief and motion to withdraw, referring to the procedures outlined in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), counsel indicated that after a conscientious and thorough review of the record, she could find no nonfrivolous issues to raise on appeal.
The procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), used in Louisiana, was discussed in State v. Benjamin, 573 So.2d 528, 529-31 (La. App. 4th Cir. 1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), and expanded by the Louisiana Supreme Court in Jyles, 96-2669 at p. 3, 704 So.2d at 242. According to Anders, 386 U.S. at 744, 87 5,Ct. at 1400, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles, appellate counsel must review not only the procedural history of the case and the evidence presented at trial, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 96-2669 at p. 3, 704 So.2d at 242 (quoting Mouton, 95-0981 at p. 2, 653 So.2d at 1177).
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, 17-1303, p. 3 (La. App. 1st Cir. 2/27/18), ___ So.3d ___, ___ (2018 WL 1060732). Under both state and federal jurisprudence, an unqualified plea of guilty waives all nonjurisdictional defects and precludes their review by either appeal or postconviction relief. State v. Crosby, 338 So.2d 584, 588 (La. 1976). We note that in this case no pretrial rulings were preserved for appeal under Crosby.
Herein, the trial court thoroughly explained the defendant's rights prior to accepting the guilty plea. The plea agreement (including the sentence to be imposed and the State's dismissal of a simple burglary charge in a separate case) was set forth in the record. The defendant was questioned as to her date of birth, education, and her understanding of the proceedings. The defendant indicated that she was not under the influence of drugs or alcohol, or coerced into pleading guilty. The trial court informed the defendant of her Boykin rights (right to trial by jury, right against compulsory self-incrimination, and right of confrontation), her right to an appeal, and...
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