State v. Respert

• Decision Date: 25 February 2015
• Docket Number: No. 14–KA–769.,14–KA–769.
• Citation: 168 So.3d 839
• Parties: STATE of Louisiana, v. David H. RESPERT.
• Court: Court of Appeal of Louisiana — District of US

168 So.3d 839

STATE of Louisiana
v.
David H. RESPERT.

No. 14–KA–769.

Court of Appeal of Louisiana, Fifth Circuit.

Feb. 25, 2015.

168 So.3d 840

Paul D. Connick, Jr., District Attorney, Twenty–Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.

David H. Respert, Tallulah, LA, in proper person.

Margaret S. Sollars, Attorney at Law Louisiana, Appellate Project, Thibodaux, LA, for Defendant/Appellant.

Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.

Opinion

JUDE G. GRAVOIS, Judge.

Defendant, David H. Respert, appeals his convictions of one count of attempted second degree murder and one count of attempted armed robbery that resulted from his guilty pleas under the provisions of

168 So.3d 841

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On appeal, defendant's appointed appellate counsel has filed a brief in conformity with the provisions of 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), asserting that she has found no non-frivolous issues to raise on appeal. Appointed appellate counsel has filed a motion to withdraw as counsel of record for defendant. Defendant filed a pro se supplemental brief, asserting that he was not informed of the elements of the offense until after the trial court accepted his guilty pleas, thus arguing that his guilty pleas were not knowingly or voluntarily made. For the reasons that follow, we affirm defendant's convictions and sentences, grant appellate counsel's motion to withdraw as counsel of record for defendant, and remand the matter for correction of the commitment as noted herein.

PROCEDURAL HISTORY

On September 29, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, David H. Respert, with attempted second degree murder of Anthony Rodriguez, in violation of La. R.S. 14:27 and 14:30.1 (count one), and attempted armed robbery with a firearm of Anthony Rodriguez, in violation of La. R.S. 14:27 and 14:64 (count two). In the same bill of information, two co-defendants were also charged with these same crimes. Defendant pleaded not guilty as to both counts at his arraignment on September 30, 2011. On November 18, 2011, defendant filed a motion for a preliminary examination.

Defendant and his counsel were present at a hearing on June 13, 2012, wherein the trial court denied the co-defendants' motions to suppress evidence and identifications. Defendant raised no motions of his own on that date. On July 10, 2012, defendant filed a motion to suppress identification.

On September 17, 2012, defendant withdrew his pleas of not guilty and pleaded guilty as charged as to both counts under Alford. Defendant was sentenced to twenty years imprisonment at hard labor on each count, to run concurrently with each another and with the sentence imposed on defendant in “Division J of the 24th JDC.” On July 9, 2014, the district court granted defendant's request for an out-of-time appeal, pursuant to an application for postconviction relief filed by defendant.

FACTS

Defendant pleaded guilty to attempted second degree murder (count one) and attempted armed robbery (count two) instead of proceeding to trial. During the guilty plea colloquy, the State provided the following factual basis for the pleas:

If we went to trial the State would prove that on or about July 20, 2011, Mr. Respert was in a car along with Mr. Vido [sic] and Mr. Cosey, and the victim, and that during the car ride in the City of Kenner, which is within Jefferson Parish guns were pulled, and the victim was shot multiple times. The victim exited the vehicle, was left in the street in Kenner and the victim survived. And also during the shooting the victim's wallet and other merchandise possibly marijuana were demanded of him by the people in the vehicle.

The bill of information adds that in Jefferson Parish on or about July 20, 2011, defendant violated La. R.S. 14:27 and 14:30.1 by attempting to commit the second degree murder of Anthony Rodriguez, and violated La. R.S. 14:27 and 14:64 by attempting to rob Anthony Rodriguez

168 So.3d 842

while armed with a dangerous weapon, a firearm.¹

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 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, following Anders v. California, supra, and State v. Jyles, supra.

In Jyles, 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.” Jyles, 704 So.2d at 241.

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. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may 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. Bradford, 676 So.2d at 1110.

Defendant's appellate counsel asserts that after a thorough review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that there was no trial, and therefore, the record contains little factual information about the offenses other than the Boykin² examination and defendant's guilty plea colloquy. Counsel asserts that post-conviction relief is the only way that new evidence can be added to the record, specifically of defendant's claims in a previous application for post-conviction relief that a co-defendant has recanted his identification of defendant and his involvement in the subject crimes. Counsel asserts that it is in the best interest of defendant that this appeal be dismissed and that defendant proceed to seek post-conviction relief.

Appellate counsel notes that there were no issues preserved for appellate review during the guilty plea colloquy. Counsel asserts that the proposed sentences were clearly stated before defendant's guilty pleas were accepted, and defendant's “convictions and sentences on the face of this record were informed and not the result of a misunderstanding.” Counsel notes that the only possible issues for further review are defendant's assertions raised in his previous application for post-conviction relief. Counsel asserts that the record does not

contain any material evidence that questions the fairness of the proceeding. Appointed appellate counsel has accordingly filed a motion to withdraw as counsel of record for defendant.

168 So.3d 843

Defendant filed a pro se brief, wherein he asserts that his appointed appellate counsel did not conduct a conscientious and thorough review of the record. Defendant argues that the record of his Boykin colloquy plainly reflects that defendant was not informed of the elements of the crimes charged prior to entering his pleas, and thus his pleas are constitutionally infirm.

The State agrees with counsel that the record does not contain any non-frivolous issues to be raised on appeal. The State asserts that appellate counsel has conformed with and followed the procedures set forth in Anders, supra, and Jyles, supra.

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 in this case properly charged defendant. It plainly, concisely, and definitely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged. See generally La.C.Cr.P. arts. 464 –466. As reflected by the minute entries and transcript, defendant appeared at each stage of the proceedings against him, including his arraignment, guilty pleas, and sentencing.

Defendant pleaded guilty to attempted second degree murder and attempted armed robbery. Prior to his guilty pleas, defendant filed pre-trial motions for a preliminary examination and to suppress...