Opinion
No. KA 05 00736.
February 1, 2006. NOT FOR PUBLICATION.
APPEAL FROM THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF CAMERON, NO. 85939, HONORABLE H. WARD FONTENOT, DISTRICT JUDGE.
W. JARRED FRANKLIN, Louisiana Appellate Project, Counsel for Defendant-Appellant, Eugene H. Moore.
CECIL R. SANNER, Cameron Parish District Attorney's Office, Counsel for Plaintiff-Appellee, State of Louisiana.
Court composed of PETERS, PAINTER, and GENOVESE, Judges.
Defendant was found guilty of distribution of cocaine, a violation of La.R.S. 40:967(A)(1) and, following several appeals and remands, Defendant was sentenced to fifteen years. On appeal, the resentencing of Defendant is the only issue before this court. Appellate counsel has filed a motion to withdraw as counsel of record for Defendant pursuant to the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). Defendant filed a pro se brief alleging three assignments of error. For the following reasons, we affirm Defendant's sentence and grant defense counsel's motion to withdraw.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, Eugene H. Moore, was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967(A)(1). After trial by jury, Defendant was found guilty as charged and sentenced to serve twelve years with the Department of Corrections. At the close of the sentencing proceedings, the State filed a habitual offender bill. After admitting his status as a second felony offender, Defendant was sentenced to fifteen years. Three years later, on motion of the State, the court set aside the original twelve-year sentence in order that Defendant serve the habitual offender sentence.
Defendant then filed a writ application in this court, seeking review of the trial court's denial of a motion to correct illegal sentence. This court, in an unpublished writ bearing docket number 03-1511 (La.App. 3 Cir. 1/27/04), ruled that the trial court's failure to vacate the original sentence before imposing the habitual offender sentence rendered the habitual offender sentence null and void. Thus, this court remanded the case to the trial court for the resentencing of Defendant as a second felony offender.
Pursuant to this court's order, the district court resentenced Defendant to fifteen years with the Department of Corrections. After the sentence was imposed, Defendant appealed and appellate counsel filed a motion to withdraw in accordance with Anders and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990). Our review of the record revealed that Defendant was not represented by counsel at his resentencing proceeding. Thus, in an unpublished appeal bearing docket number 04-822, we vacated Defendant's sentence, remanded the case for resentencing, and denied counsel's motion to withdraw.
At the second resentencing, the trial court vacated the habitual offender sentence and reimposed the fifteen year sentence. On this appeal of this resentencing, appellate counsel has filed a motion to withdraw and a brief alleging that, after reviewing the trial record, he has found no non-frivolous errors subject to review on appeal, citing Anders and Benjamin. Defendant has filed a pro se brief raising three assignments of error.
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 none.
ANDERS REVIEW
Appellate counsel has moved to withdraw from Defendant's case, alleging that he has found no non-frivolous issues to raise on appeal. Defendant filed a pro se brief setting forth several assignments of error.
We have thoroughly reviewed the record of resentencing, which is the only pertinent proceeding for the present appeal, and note that Defendant was present and represented by counsel. A legal sentence was imposed, and our examination of the record reveals no non-frivolous issues. We agree with appellate counsel's contention that Defendant's fifteen year sentence is not excessive, as we ruled in Defendant's original appeal. As such, we agree with appellate counsel and find no issue which would arguably support an assignment of error on appeal of the resentence.
PRO SE ASSIGNMENTS OF ERROR
In Defendant's pro se assignments of error, he challenges the trial court's ruling on the motion to quash the habitual offender bill that he filed prior to the resentencing at issue herein. He further challenges the constitutionality of his "plea" to the habitual offender bill and the validity of his predicate offenses. Procedurally, these issues are not properly before this court as they do not concern Defendant's resentencing, which is the only matter before us in this appeal. See State v. Guzman, 520 So.2d 1099 (La.App. 3 Cir. 1987), writ denied, 521 So.2d 1183 (La. 1988).
Defendant's conviction was affirmed in his original appeal, and this court found no merit in his claim that the trial court failed to specify which of two prior felony convictions it used as a predicate for his habitual offender status. This court vacated Defendant's sentence because he was not represented by counsel, and the case was remanded for resentencing only. Accordingly, we do not consider Defendant's pro se assignment of errors.
DECREE
Defendant's sentence is affirmed. Counsel's motion to withdraw is granted.
SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.
ORDER
After consideration of Defense counsel's request to withdraw as counsel and the appeal presently pending in the above-captioned matter,
IT IS HEREBY ORDERED that appellate counsel's motion to withdraw is granted.