Opinion
19-813
05-13-2020
STATE OF LOUISIANA v. BRADLEY JAMES BOUDREAUX A/K/A BRADLEY BOUDREAUX
Bruce G. Whittaker Louisiana Appellate Project 1215 Prytania Street, Suite 332 New Orleans, LA 70130 (504) 554-8674 COUNSEL FOR DEFENDANT/APPELLANT: Bradley James Boudreaux M. Bofill Duhe District Attorney Sixteenth Judicial District 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 17-839
HONORABLE SUZANNE M. DEMAHY, DISTRICT JUDGE
VAN H. KYZAR JUDGE
Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.
Bruce G. Whittaker
Louisiana Appellate Project
1215 Prytania Street, Suite 332
New Orleans, LA 70130
(504) 554-8674
COUNSEL FOR DEFENDANT/APPELLANT:
Bradley James Boudreaux M. Bofill Duhe
District Attorney
Sixteenth Judicial District
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana
Kyzar, Judge.
Defendant, Bradley James Boudreaux, was charged by bill of information filed on August 11, 2017, with second degree battery, a violation of La.R.S. 14:34.1, and simple criminal damage to property between $500 and $50,000, a violation of La.R.S. 14:56. On September 10, 2018, Defendant entered an open-ended plea to second degree battery. As part of the plea, the State agreed not to charge Defendant as a habitual offender and to dismiss the criminal damage to property charge. Defendant was sentenced on January 10, 2019, to serve five years at hard labor, to run concurrently with the sentence for attempted second degree murder imposed in trial court docket number 17-840. Defendant filed a Motion to Reconsider Sentence on February 7, 2019. A hearing on the motion was held on August 13, 2019, and the motion was denied. A Motion for Appeal was filed on September 13, 2019, and was subsequently granted.
The conviction for attempted second degree murder is before this court in docket number 19-814.
Defendant's appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no non-frivolous issues for appeal and requests this court grant his motion to withdraw. Defendant was advised, via certified mail, that counsel filed an Anders brief, and he was given until February 3, 2020, to file a pro se brief. No pro se brief was filed. For the following reasons, Defendant's conviction and sentence for second degree battery are affirmed, and appellate counsel's motion to withdraw is granted.
FACTS
On or about May 16, 2017, Defendant beat household member Pamela Tignor during an argument in which Defendant alleged she was talking to another man on Facebook. While outside the home, Defendant broke Tignor's cell phone. He then dragged her inside by the hair and beat her. Tignor sought medical attention five days after the incident and was diagnosed with a rib fracture.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.
ANDERS ANALYSIS
Pursuant to Anders, Defendant's appellate counsel filed a brief stating he could find no non-frivolous issues upon which to base an appeal. Thus, counsel seeks to withdraw.
In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the Anders analysis:
When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
Counsel's Anders brief must "'assure the court that the indigent defendant's constitutional rights have not been violated.' McCoy [v. Court of Appeals of Wisconsin], 486 U.S. [429] at 442, 108 S.Ct. [1895] at 1903 [(1988)]." State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241. Hence, counsel's Anders brief must 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." State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.
In his Anders brief, counsel discusses the procedural history and the facts of the case. Counsel notes Defendant entered into a counseled plea and did not reserve his right to seek review of any of the trial court's rulings pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). Counsel further points out that, in the plea form signed by Defendant and in the plea colloquy, Defendant acknowledged he understood that by pleading guilty he was giving up any right to appeal the sentence imposed. Counsel then addresses Defendant's background, the rights he waived, and the plea form. He alleges there is no basis in the record to support a claim that the plea was constitutionally infirm. Counsel maintains the plea was advantageous, as Defendant received a five year sentence when the offense carried a maximum sentence of eight years. Additionally, the State agreed not to seek enhancement of the sentence under La.R.S. 15:529.1, and, by agreement, the sentence runs concurrently with the sentence imposed in another docket number. Counsel asserts the deal Defendant made appears to have been followed to the letter by the sentencing court. Counsel states the sentence Defendant received was "exactly as appellant bargained for in his plea agreement. There thus does not appear to be a valid claim of sentence excessiveness."
Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including the transcripts, pleadings, minute entries, and the charging instrument. Defendant was properly charged in a bill of information. He was present and represented by counsel at all crucial stages of the proceedings. Additionally, Defendant entered an unqualified guilty plea, and that plea was freely and voluntarily entered after he was advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). The entry of that plea waived all pre-plea non-jurisdictional defects, and no rulings were preserved for appeal under the holding in Crosby. See State v. Aguilar, 14-714 (La.App. 5 Cir. 1/14/15), 167 So.3d 862. Although counsel for Defendant asserts the sentence was exactly as bargained for, and, by agreement, the sentence runs concurrently with that imposed in another docket number, Defendant actually entered an open-ended plea, which means there was no agreed upon sentence or sentencing cap, and the plea agreement did not address the concurrent nature of the sentence to be imposed. Nevertheless, the sentence imposed for second degree battery is legal and runs concurrently with Defendant's twenty-year sentence for attempted second degree murder. Furthermore, Defendant waived his right to seek appellate review of his sentence.
We have found no issues which would support an assignment of error on appeal. Accordingly, Defendant's conviction and sentence are affirmed, and appellate counsel's motion to withdraw is granted.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.