State v. Joseph

• Decision Date: 07 December 2016
• Docket Number: NO. 2016–KA–191,2016–KA–191
• Citation: 205 So.3d 1013
• Parties: STATE of Louisiana v. Ranell JOSEPH
• Court: Court of Appeal of Louisiana — District of US

205 So.3d 1013

STATE of Louisiana

v.Ranell JOSEPH

NO. 2016–KA–191

Court of Appeal of Louisiana, Fifth Circuit.

December 07, 2016

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

COUNSEL FOR DEFENDANT/APPELLANT, RANELL JOSEPH, Lieu T. Vo Clark

DEFENDANT/APPELLANT, Ranell Joseph #614546, IN PROPER PERSON

Panel composed of Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst

GRAVOIS, J.

Defendant, Ranell Joseph, takes this out-of-time appeal challenging his convictions on charges of attempted first degree robbery (count one); attempted simple robbery (count two); attempted armed robbery (count three); two counts of armed robbery (counts four and six); and two counts of first degree robbery (counts five and seven). On appeal, defendant's appointed appellate counsel has filed a brief in conformity with the procedure adopted by this Court in State v. Bradford , 95–929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110–11,¹ asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Counsel has also filed a motion to withdraw as counsel of record for defendant.

Defendant filed a pro se supplemental brief, arguing eight additional assignments of error, to-wit: 1) the trial court failed to inform defendant that he could withdraw his guilty plea; 2) the trial court failed to allow defendant his right to a fair full trial via withdrawal of his guilty plea; 3) defendant was subjected to ineffective assistance of trial and appellate counsel; 4) defendant was charged via an invalid and non-existent statute; 5) the named statute does not exist as a crime within the Code of Criminal Procedure, nor was it enacted as a crime within the code by the Louisiana legislature; 6) the trial court and district attorney improperly charged petitioner for something not found within the Code of Criminal Procedure as a crime; 7) any errors discovered on the face of the record; and 8) the trial court lacked jurisdiction to impose punishment.

After thorough review, we find no merit to defendant's pro se assignments of error. Additionally, we find that the record supports appellate counsel's assertions that the record reveals no non-frivolous assignments of error. Accordingly, we affirm defendant's convictions, and grant the motion to withdraw. Further, based upon our errors patent review, we vacate defendant's sentence on count two and remand the matter to the trial court for imposition of a determinate sentence on court two in accordance with La. C.Cr.P. Art. 879. We also remand the matter for correction of the Uniform Commitment Order. We further affirm defendant's remaining sentences on counts one, three, four, five, six, and seven.

FACTS AND PROCEDURAL HISTORY

On October 17, 2014, the Jefferson Parish District Attorney charged defendant with two counts of first degree robbery, in violation of La. R.S. 14:64.1 (counts one and six); one count of attempted first degree robbery, in violation of La. R.S. 14:27 and La. R.S. 14:64.1 (count two); two counts of armed robbery, in violation of La. R.S. 14:64 (counts three and five); one count of attempted armed robbery, in violation of La. R.S. 14:27 and La. R.S. 14:64 (count four); and one count of attempted simple robbery, in violation of La. R.S. 14:27 and La. R.S. 14:65 (count seven). Defendant was arraigned on October 23, 2014 and pled not guilty to all charges. On January 5, 2015, defendant filed omnibus motions, including motions to suppress identification, confession, and evidence.

On June 15, 2015, a superseding bill of information was filed, charging defendant with the same substantive crimes, but ordering the counts differently and amending the armed robbery counts to include a "tire iron" as a weapon. Defendant was rearraigned on June 22, 2015 and pled not guilty to all charges.²

On June 23, 2015, trial commenced with jury selection; however, the next day, before opening arguments, defendant withdrew his pleas of not guilty and pled guilty to all charges.³ That same day, the trial judge sentenced defendant to twenty years at hard labor on count one, three and one- half years on count two, and twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence each on counts three, four, five, six, and seven. The trial judge further ordered all of defendant's sentences to run concurrently.

On October 6, 2015, defendant filed an application for post-conviction relief, which was denied. On October 8, 2015, defendant filed a pro se motion to withdraw his guilty plea, which was also denied. On December 23, 2015, defendant filed another application for post-conviction relief, seeking an out-of-time appeal, which was granted on January 13, 2016. This appeal follows.

ANALYSIS

Under the procedure adopted by this Court in State v. Bradford , supra , 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 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 has requested permission to withdraw as counsel of record for defendant.⁴

In Anders , supra , 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." 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).

In State v. 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. 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 the independent review is conducted, 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.

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel asserts that before defendant changed his plea from not guilty to guilty, he was fully informed of the legal consequences of doing so by both his trial counsel and the trial court. While appellate counsel notes that discovery motions and a motion to suppress evidence were filed, the record does not reflect that either the State or defendant posed any objections that would support a decision from this Court to reject defendant's guilty plea. Further, appellate counsel contends that in addition to the extensive waiver and plea form filled out by defendant and his trial attorney, an examination of the plea colloquy reveals that the district court was thorough in explaining and assuring that defendant understood the rights he was waiving by pleading guilty. Appellate counsel states that the trial court informed defendant of the sentencing ranges for the offenses in which he was charged and further explained the specific sentence which it would impose on each of the seven counts per the plea agreement. She notes that although defendant filed a motion to withdraw his guilty plea alleging he was coerced by his trial attorney into pleading guilty, appellate counsel contends that there is nothing in the record to support this allegation.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history of the case, and that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles , and should be granted permission to withdraw. The State further agrees with appellate counsel that after a careful review of the record, there are no non-frivolous issues to raise on appeal.

An independent review of the record by this Court supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

Because defendant pled guilty at the commencement of his trial, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided a factual basis for the guilty plea.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. Arts. 462 –466. Further, the minute entries reflect that defendant and his counsel appeared at all crucial stages of the...