State v. Wiley

• Court: Court of Appeal of Louisiana
• Writing for the Court: WICKER, J.
• Citation: State v. Wiley, 216 So.3d 393 (La. App. 2017)
• Decision Date: 12 April 2017
• Docket Number: 16–KA–645
• Parties: STATE of Louisiana v. Ahmad WILEY

216 So.3d 393

STATE of Louisiana

v.Ahmad WILEY

16–KA–645

Court of Appeal of Louisiana, Fifth Circuit.

April 12, 2017

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

Prentice L. White, COUNSEL FOR DEFENDANT/APPELLANT, AHMAD WILEY.

Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson

WICKER, J.

Defendant, Ahmad Wiley, appeals his convictions and sentences for manslaughter and obstruction of justice. Defendant's appointed appellate counsel has filed an appellate brief pursuant to Anders v. California¹ and has further filed a motion to withdraw as counsel of record. For the following reasons, we affirm defendant's convictions and grant counsel's motion to withdraw. However, an error patent review reflects that the trial court imposed indeterminate sentences. Accordingly, we vacate defendant's sentences and remand this matter to the trial court for resentencing.

STATEMENT OF THE CASE

On December 18, 2014, a Jefferson Parish Grand Jury indicted defendant with second degree murder in violation of La. R.S. 14:30.1 (count one) and obstruction of justice in violation of La. R.S. 14:130.1 (count two). On January 8, 2015, defendant was arraigned and pled not guilty to the charges against him.² Subsequently, in connection with a plea agreement, the State amended count one of the indictment to charge defendant with manslaughter in violation of La. R.S. 14:31. On June 24, 2016, defendant withdrew his not guilty pleas and pled guilty to the amended manslaughter charge and the obstruction of justice charge. On the same date, the trial court sentenced defendant to twenty-five years imprisonment at hard labor on count one and twenty years imprisonment at hard labor on count two. Defendant filed a timely motion for appeal.

FACTUAL BACKGROUND

Defendant pled guilty without proceeding to trial, but the State provided the following factual basis for each charge during defendant's guilty plea colloquy:

If the State would proceed to trial, it would prove beyond a reasonable doubt that the defendant, Ahmad Wiley, on September the 11th, 2014, while in Jefferson Parish, violated La. R.S. 14:31 in that he committed the manslaughter of Alontay Simmons. Furthermore...defendant violated La. R.S. 14:130.1 in that he intentionally removed a firearm from the location of that incident having good reason to believe that that firearm would have been the subject of an investigation by state and local law enforcement officers.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), defendant's appointed appellate counsel has filed an Anders brief 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, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles , the Louisiana 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.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. "When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal." State v. Dufrene , 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33. 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 this case, appointed appellate counsel's brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The State agrees and urges this Court to grant defense counsel's request to withdraw as counsel of record. An independent review of the record supports counsel's assertion that there are no non-frivolous issues to raise on appeal.

First, the amended indictment filed properly charged defendant with manslaughter in violation of La. R.S. 14:31 and obstruction of justice in violation of La. R.S. 14:130.1. As required, the indictment sufficiently identified defendant and clearly, concisely, and definitely stated the essential facts constituting the crimes charged. See La. C.Cr.P. arts. 464 –66. Second, the minute entries reflect that defendant appeared at each stage of the proceedings against him. Defendant and his counsel appeared in open court for defendant's arraignment, guilty plea proceeding, and sentencing.

Third, defendant pled guilty to the charges against him. 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. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon , 449 So.2d 463, 464 (La. 1984).

The record reflects that defendant was aware he was pleading guilty to the charged offenses, manslaughter and obstruction of justice. The trial court advised defendant of the nature of the offenses to which he pled guilty. Defendant was informed during the colloquy and in the waiver of rights form of the maximum sentence for both crimes and the actual sentences that would be imposed pursuant to the guilty pleas.³ The trial court advised defendant of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of these rights by means of the waiver of rights form, which he signed, and during the colloquy with the trial judge. During his guilty plea colloquy and in his waiver of rights form, defendant indicated that he had not been forced or coerced into entering his guilty plea. After the colloquy with defendant, the trial judge was convinced that defendant's pleas were knowingly, intelligently, and voluntarily made.

Last, defendant's sentences—imposed pursuant to a plea agreement—do not present any non-frivolous issues on appeal. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. C.Cr.P. art. 881.2(A)(2). Because defendant's sentences were imposed in conformity with a plea agreement which was set forth in the record at the time of the plea, defendant cannot seek review of his sentences on appeal. See State v. Smith , 09-1043 (La.App. 5 Cir. 6/29/10), 43 So.3d 261, 265.⁴

Moreover, defendant's plea agreement was beneficial to him in that he was originally charged with second degree murder for which, if convicted, he would have received a mandatory life sentence.⁵ Pursuant to the plea agreement, the State amended the second-degree murder charge to a manslaughter charge, for which he faced a forty year maximum sentence but received a twenty-five year sentence.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant's appointed appellate counsel has adequately demonstrated his review and analysis of the record in this case. An independent review of the record supports counsel's assertions set forth in his Anders brief. Therefore, we find that counsel's request to withdraw as counsel of record should be granted.

ERRORS PATENT DISCUSSION

Defendant requests an error patent review. This Court routinely reviews records 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. 5th Cir. 1990), regardless of whether a defendant makes such a request. The record reflects the following errors patent:

First, the commitment indicates that the trial judge advised defendant that he had "two (2) years after judgement of conviction and sentence has become final to seek post-conviction relief." However, the transcript reflects that the trial judge advised defendant that he had "two years after the judgment and sentence becomes final in which to seek post-conviction relief." The failure of the trial judge to advise a defendant that the prescriptive period for seeking post-conviction relief runs from the time his conviction and sentence become final renders the advisal incomplete. State v. Grant , 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. When there is a discrepancy between the minute entry or commitment and the transcript, the...