MARC E. JOHNSON, Judge.
Defendant, Daniel Ott, appeals his convictions and sentences from the 24th Judicial District Court, Division "I", resulting from his guilty pleas, asserting the pleas were involuntary and unknowingly made. For the following reasons, we affirm Defendant's convictions; vacate his sentence on Count Two and remand for resentencing;
On December 18, 2008, Defendant was charged in a bill of information, by the Jefferson Parish District Attorney, with one count of possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1 (Count One); one count of attempted armed robbery while armed with a firearm, a violation of LSA-R.S. 14:27 and 14:64.3 (Count Two); and four counts of armed robbery while armed with a firearm, a violation of LSA-R.S. 14:64.3 (Counts Three, Four, Five and Six). On December 19, 2008, Defendant pleaded not guilty at the arraignment to all counts. On February 10, 2010, Defendant withdrew his not guilty pleas and pleaded guilty to the charged offenses. After waiving sentencing delays, Defendant was sentenced on Counts One and Two to 15 years imprisonment at hard labor, and on Counts Three, Four, Five and Six, to 30 years imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence on each count. The trial court further ordered all sentences to be served concurrently.
On July 1, 2011, Defendant filed a pro se application for post-conviction relief alleging ineffective assistance of counsel. The trial court denied Defendant's application for post-conviction relief, finding it premature. On October 7, 2011, Defendant filed a motion for out of time appeal, which the trial court granted on October 26, 2011. The instant appeal follows.
Given that the present matter involves guilty pleas, the specific facts underlying the charges are not contained in the record. However, the bill of information alleges that on October 13, 2008, Defendant violated LSA-R.S. 14:95.1 in that he did have in his possession a firearm, having been previously convicted of the crime of possession of ketamine, in violation of LSA-R.S. 40:968 C, under case number 07-6174, Division "A", in the 24th Judicial District Court, Jefferson Parish. The District Attorney further alleged that on September 29, 2008, Defendant attempted to rob Glenn Turnbull while armed with a firearm. On the same date, it was further alleged that Defendant robbed James Solis while armed with a firearm. Additionally, on October 1, 2008, it was alleged that Defendant robbed Justin Toussaint, Joe Howard, and Jeremy Woolridge while armed with a firearm.
Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4
In his supplement pro se brief, Defendant raises two assignments of error: 1) the trial court erred in advising him of the incorrect maximum penalties and in failing to inform him of the mandatory minimum penalties provided by law, rendering his guilty pleas involuntary; and 2) the trial counsel's failure to object to the trial court's failure to advise him of the minimum sentences on each count constituted ineffective assistance of counsel.
In Anders, 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.
In State v. Jyles, supra, 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." State v. Jyles, 96-2669; 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. State v. Bradford, 95-929 (La.App. 5 Cir.6/25/96); 676 So.2d 1108, 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
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 maintains that Defendant was properly advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, prior to pleading guilty. Defendant's appellate counsel further asserts that Defendant indicated that he understood his rights and voluntarily waived them. However, he further notes that pursuant to LSA-C.Cr.P. art. 556.1, Defendant was misinformed of the maximum sentencing range applicable to his armed robbery with a firearm counts and his attempted armed robbery with a firearm count. Specifically, Defendant's appellate counsel asserts that the trial court advised Defendant that he faced a possible sentencing range of up to 114 years on the armed robbery with a firearm counts, instead of the correct 104-year maximum; Defendant was further informed that he could receive up to 56 ½ years on the attempted armed robbery with a firearm count, instead of the correct 54 ½-year maximum. Nonetheless, Defendant's appellate counsel contends that it does not appear from the record that the error caused any misunderstanding as to the sentence Defendant actually received. Defendant's appellate counsel concludes that despite the trial court's misinformation regarding the maximum penalties, Defendant appeared to fully understand the consequences of his plea and still wished to proceed. However, for purposes of direct appeal, Defendant's appellate counsel maintains that even after taking the trial court's misinformation into account, Defendant appeared to understand the possible consequences of his guilty pleas and still wished to proceed.
Appellate counsel has filed a motion to withdraw as attorney of record, which states that he has mailed Defendant a copy of his brief and the pro se briefing notice. Additionally, this Court sent Defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until April 4, 2012, to file a pro se supplemental brief. On March 30, 2012, after considering Defendant's motion to file a supplemental pro se brief, this Court provided Defendant with an extension until April 29, 2012, to file a supplemental appellant's brief in this matter. Defendant timely filed his pro se supplemental brief. In his pro se brief, Defendant asserts that the trial court erred in advising him of the improper maximum sentencing ranges for the crimes charged. Defendant further maintains that the trial court erred in failing to advise him of the mandatory minimum sentences applicable to each count, thus, rendering his plea involuntary. Defendant contends that if he had been advised of the minimum sentencing exposure, he would not have pleaded guilty. Defendant further argues that his trial counsel was ineffective for failing to review the waiver of rights form with him and for not objecting to the trial court's failure to advise him of the minimum sentences that could be imposed on each count.
The State responds that Defendant's appellate counsel has shown a conscientious and thorough review and recitation of the procedural history of the case and has cast an advocate's eye over the record and determined that there are no significant non-frivolous issues upon which to base an appeal. The State asserts that Defendant signed a waiver of rights form that included his right to a trial by jury, his right to confront witnesses, and his right against
The bill of information in this case properly charged Defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly and concisely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crimes charged. See generally, LSA-C.Cr.P. arts. 464-66.
As reflected by the minute entries and commitment, Defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty pleas, and his sentencing. As such, Defendant's presence does not present any issue that would support an appeal.
Further, Defendant pleaded guilty as charged. 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. Wingerter, 05-697 (La.App. 5 Cir.3/14/06); 926 So.2d 662, 664. 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. 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 shows that Defendant was aware he was pleading guilty to one count of possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1, one count of attempted armed robbery with a firearm in violation of LSA-R.S. 14:27 and 14:64.3, and four counts of armed robbery with a firearm in violation of LSA-R.S. 14:64.3. Defendant was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama. He was advised of these rights by means of the waiver of rights form, where he signed his acknowledgment of these rights, and the colloquy between defendant and the judge. Defendant indicated that he understood that he was waiving his rights.
Defendant admitted that he committed the charged offenses. Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty pleas. He indicated that he understood the possible legal consequences of pleading guilty, but wished to plead guilty at that time. Defendant was also informed that his convictions could be used to enhance a penalty for any future conviction. The judge indicated that she was satisfied that there was a factual basis for the acceptance of the pleas and accepted them as knowingly, intelligently, freely, and voluntarily made.
However, Defendant contends in his pro se brief that his guilty pleas were involuntary because the trial court misinformed him of the maximum penalties prescribed by law and failed to advise him of the minimum penalties for each count as prescribed by LSA-C.Cr.P. art. 556.1. Defendant asserts that had he been informed of the minimum penalties for each count, he would not have pleaded guilty.
During the colloquy, the trial judge advised Defendant that he faced a maximum possible sentence of 114 years on the four armed robbery with a firearm counts, up to 56 ½ years on the attempted armed robbery with a firearm count, and up to 15 years on the felon in possession of a firearm count. The waiver of rights form also indicated the same maximum sentence exposure. The trial court misinformed Defendant of the maximum sentence exposure for the attempted armed robbery and armed robbery counts.
LSA-R.S. 14:64 provides that "[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence." Additionally, the firearm enhancement statute, LSA-R.S. 14:64.3, provides for an additional penalty of five years imprisonment without benefits, to be served consecutively to the sentence imposed under LSA-R.S. 14:64, when a dangerous weapon is used in the commission of the crime of armed robbery. Thus, the maximum sentence exposure on the armed robbery with a firearm convictions is up to 104 years imprisonment on each count. With respect to the attempted armed robbery count, LSA-R.S. 14:27 provides that a defendant shall be fined or imprisoned or both, in the same manner as the offense attempted, and that such fine or imprisonment shall not exceed one-half of the largest fine or longest term of imprisonment. Furthermore, when a firearm is used in the commission of an attempted armed robbery, the defendant shall be imprisoned for an additional five years, without benefits, to be served consecutively to the sentence imposed under the provisions of LSA-R.S. 14:27 and 14:64. Thus, the maximum sentence exposure on the attempted armed robbery with a firearm count is 54 ½ years.
LSA-C.Cr.P. art. 556.1 outlines the duty of the court when accepting a plea of guilty or nolo contendere, providing, in pertinent part:
The failure to fully comply with Article 556.1 is a statutory breach, rather than a constitutional breach, and thus, the defendant is required to show prejudice as a result of the error. State v. Jordan, 99-477 (La.App. 3 Cir. 11/24/99); 747 So.2d 193. Violations of Article 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Guzman, 99-1753 (La.5/16/00); 769 So.2d 1158, 1161; State v. Frickey, 00-294 (La.App. 5 Cir. 9/26/00); 769 So.2d 791, 798. The proper inquiry is whether the defendant's knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Guzman, 99-1753; 769 So.2d at 1165; State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01); 783 So.2d 568, 579. This Court has previously considered the same arguments presented by a defendant and concluded that the mere fact that the trial court failed to inform the defendant of the statutory minimum and maximum sentence and the possibility of the imposition of a fine under the statute charged does not render the plea involuntary. State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09); 15 So.3d 1076, 1079, writ denied, 09-1385 (La.2/12/10); 27 So.3d 842 (citing, State v. Gilliam, 01-748 (La.App. 5 Cir. 1/15/02); 807 So.2d 1024, 1027-28, writ denied, 02-0512 (La.11/1/02); 828 So.2d 562).
Here, while the record shows that the trial court misinformed Defendant regarding the maximum sentences and did not advise him of the statutory minimum sentences for the subject offenses, the record, as a whole, supports a finding that Defendant knew the consequences of his guilty pleas, as well as the sentence he would receive, and conferred with his attorney before entering his guilty pleas. Defendant's sentences were arrived at as part of a plea bargain, and the trial court clearly advised Defendant that he would receive 35-year sentences at hard labor for the armed robbery with a firearm convictions, and a 15-year sentence at hard labor for the attempted armed robbery with a firearm conviction. By signing the waiver of rights form, Defendant also indicated that he understood the sentences he would receive. Furthermore, Defendant made what can be considered a "highly successful" plea bargain, in that his concurrent 35-year and 15-year sentences for armed robbery and attempted armed robbery with a firearm is far less than the statutory maximum for the charged offenses. See State v. Pierce, 98-1074 (La.App. 5 Cir. 2/23/99); 729 So.2d 99. Additionally, it is noted that Defendant's armed robbery convictions arise out of two separate incidents; thus, the trial court could have ordered the sentences to run consecutively. However, pursuant to the plea agreement, all sentences were ordered to be served concurrently. See State v. Gilliam, supra; State v. Joseph, 99-1234 (La.App. 5 Cir. 3/22/00); 759 So.2d 136, 140; Pierce, 98-1074; 729 So.2d at 101.
After review, we find Defendant has not borne his burden of showing that the slight difference in the misinformed maximum
Thus, we find that the record demonstrates that Defendant's guilty pleas were constitutionally acceptable and were to his advantage as a result of effective plea-bargaining. As such, we grant appellate counsel's motion to withdraw as counsel of record.
Defendant argues in his pro se supplemental brief that his trial counsel was ineffective for neglecting to object to the trial court's failure to advise him of the statutory minimum penalties and for failing to review the waiver of rights form with him.
Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La. App. 5 Cir. 11/16/04); 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05); 897 So.2d 599. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05); 908 So.2d 60, 63.
Under the Strickland test, the defendant must show: (1) that counsel's performance was deficient; that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, 05-53; 908 So.2d at 63 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). This requires showing that counsel's errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. There is no precise definition of reasonably effective assistance of counsel, so any inquiry into the effectiveness of counsel must be specific to the facts of the case, and must take into consideration the counsel's perspective at the time. State v. LaCaze, 99-0584 (La.1/25/02); 824 So.2d 1063, 1078-79, cert, denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. Id.
A claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted, rather than on direct appeal. State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04); 866 So.2d 973, 983. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Demise, 98-0541 (La.4/3/01); 802 So.2d 1224, 1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).
Further, Defendant's allegation that trial counsel was ineffective for failing to review the waiver of rights form with him is unsupported by the record and also lacks merit. Defendant and his trial counsel both signed the waiver of rights form, acknowledging the reading of the form, the advisement of the requisite rights, and the consequences of waiver and the entering of a guilty plea. Additionally, prior to the colloquy, Defendant's trial counsel confirmed that he had gone over the "waiver of constitutional rights and a plea of guilty form," which was then signed by Defendant and his counsel. Moreover, when asked by the trial court whether his attorney had in fact advised him of his rights and the consequences of waiving his rights, Defendant replied in the affirmative.
Based on the foregoing, Defendant is not entitled to the relief he requests.
Defendant and his appellate counsel request an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920, regardless of whether defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990).
First, the commitment reflects that Defendant pleaded guilty to attempted armed robbery pursuant to "14:27:64," and armed robbery pursuant to "14:64." According to the transcript, Defendant actually pleaded guilty to attempted armed robbery with a firearm under LSA-R.S. 14:27 and 14:64.3, and armed robbery with a firearm under LSA-R.S. 14:64.3. Notably, the commitment does not reflect the firearm enhancement. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).
Accordingly, we remand this matter to allow the trial court to correct the commitment to conform to the transcript and other parts of the record because the commitment indicates that Defendant did not plead guilty to the firearm enhancements charged in Counts Two through Six. See State v. Addison, 05-378, (La.App. 5 Cir. 12/27/05); 920 So.2d 884, 898-99, writ denied, 06-1087 (La.11/9/06); 941 So.2d 36; and State v. Woolridge, 08-340 (La.App. 5
Second, Defendant's sentence as to Count Two, attempted armed robbery with a firearm, is indeterminate. The bill of information charged Defendant with attempted armed robbery while armed with a firearm in violation of LSA-R.S. 14:27 and 14:64.3. LSA-R.S. 14:64.3 provides for an additional penalty of five years without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under LSA-R.S. 14:27 and 14:64, when the dangerous weapon used in the commission of an attempted armed robbery is a firearm. However, the trial court sentenced Defendant under LSA-R.S. 14:27 and 14:64, to 15 years at hard labor. The trial judge did not reference LSA-R.S. 14:27 and 14:64.3 during sentencing, nor did she state that she was imposing an additional period of incarceration when imposing Defendant's attempted armed robbery sentence. Since the State intended to utilize the provisions of LSA-R.S. 14:27 and 14:64.3, Count Two is indeterminate because the trial judge did not state whether the sentence included the firearm enhancement.
Because we find the Count Two sentence indeterminate, we vacate the sentence and remand for resentencing according to law and for clarification of whether Defendant's sentence includes any additional, punishment under LSA-R.S. 14:27 and 14:64.3 as this Court did in State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10); 52 So.3d 89, 108-09, writ denied, 10-2556 (La.4/8/11); 61 So.3d 681, and State v. Price, 04-812 (La.App. 5 Cir. 3/1/05); 909 So.2d 612, 618. Additionally, in the event the trial court determines the five-year firearm enhancement was not included in Defendant's original 15-year sentence, then we find it necessary to reserve Defendant's right to withdraw his guilty plea because it was not a part of his negotiated plea agreement.
Third, we find that Defendant received indeterminate sentences in violation of LSA-C.Cr.P. art. 879 because the trial court ordered his sentences to run concurrently with his "parole time." The record is unclear as to Defendant's parole status at the time of sentencing.
Finally, we find that Defendant received indeterminate sentences, which requires clarification of the commitment in this case. LSA-C.Cr.P. art. 879. In State v. Sebastien, 31,750 (La.App. 2 Cir. 3/31/99); 730 So.2d 1040, 1045, writ denied, 99-1426 (La.10/29/99); 748 So.2d 1157, the court stated "the district court ... is required to express its intent concerning concurrent or consecutive sentences in accordance with La.C.Cr.P. art. 883." Here, the transcript reflects that the trial court ordered all of Defendant's sentences (Counts One-Six) to be served concurrently. The commitment
Because the commitment does not specify that Counts One through Six are to be served concurrently, it is impossible to determine from the record whether the trial judge intended for all six counts to be served concurrently, or if Counts One and Two are to be served consecutively to Counts Three-Six. Thus, given the requirements set forth in LSA-C.Cr.P. art. 883,
For the foregoing reasons, we affirm Defendant's convictions. Because appellant 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, we grant appellate counsel's motion to withdraw. Additionally, we vacate the sentence for Count Two and remand the matter for the following in conformity with this opinion: resentencing of Count Two, clarification of Defendant's sentences, and correction of the commitment.
