Opinion
2016 KA 0361
04-18-2017
STATE OF LOUISIANA v. NICHOLAS THOMPSON
Hillar C. Moore, III District Attorney Monisa L. Thompson Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant/Appellant Nicholas Thompson
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. 07-12-0737 Honorable Anthony J. Marabella, Jr., Judge Presiding Hillar C. Moore, III
District Attorney Monisa L. Thompson
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana Frederick Kroenke
Baton Rouge, Louisiana Counsel for Defendant/Appellant
Nicholas Thompson BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. McCLENDON, J.
The defendant, Nicholas Devon Thompson, was originally charged by bill of information with purse snatching, in violation of LSA-R.S. 14:65.1, and initially pled not guilty. The trial court denied the defendant's motion to suppress evidence. The State amended the bill of information to charge the defendant with accessory after the fact to purse snatching, a violation of LSA-R.S. 14:25 and LSA-R.S. 14:65.1. The defendant withdrew his former plea and pled guilty to the charge as amended. Pursuant to a pre-plea sentencing agreement, the defendant was sentenced to five years imprisonment at hard labor. The defendant filed a pro se motion to reconsider sentence, which was denied by the trial court. The defendant now appeals. Contending that there are no non-frivolous issues upon which to support the appeal, appellate counsel filed a brief raising no assignments of error. For the following reasons, we affirm the conviction and sentence.
At the same proceeding, the defendant also pled guilty to simple robbery as the result of an armed robbery charge filed in a separate case, also appealed to this court. See State v. Thompson, 16-0362 (La.App. 1 Cir. 10/28/16), 2016 WL 6330436 (unpublished).
The defendant was sentenced on September 3, 2015, and filed his pro se motion to reconsider the sentence on October 13, 2015. It appears that the defendant's motion to reconsider sentence was untimely pursuant to LSA-C.Cr.P. art. 881.1A(1), resulting in an untimely motion for appeal. The trial court granted the defendant's motion for an appeal and appointed the Louisiana Appellate Project. The State has not complained about any procedural irregularities in the ordering of the appeal. Thus, dismissal of the appeal would only cause delay without any useful purpose. See State v. Shay, 07-0624 (La. 10/26/07), 966 So.2d 562.
STATEMENT OF FACTS
Since the defendant pled guilty, the facts were not fully developed in this case. The following facts are in accordance with testimony presented at the motion to suppress hearing, the basis for the plea presented by the State at the Boykin hearing, the bill of information, and the guilty plea waiver of rights form. On January 9, 2012, the defendant was the driver of a getaway vehicle, a white BMW, when a co-perpetrator exited the vehicle in a Piggly Wiggly grocery store's parking lot in Baton Rouge, and grabbed a purse from the arm of a female victim, Barbara Ware. After taking the purse, the co-perpetrator reentered the passenger side of the vehicle being driven by the defendant, and they fled from the scene. Ware briefly pursued the vehicle to obtain the license plate number and reported the incident to the Baton Rouge Police Department. Ware positively identified the defendant as the driver in a photographic lineup.
Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).
ANDERS BRIEF
Appellate counsel's brief contains no assignments of error and sets forth that it is filed to conform with State v. Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241 (per curiam). Accordingly, appointed counsel requests to be relieved from further briefing in this case.
The procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), used in Louisiana, was discussed in State v. Benjamin, 573 So.2d 528, 529-31 (La.App. 4 Cir. 1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), and expanded by the Louisiana Supreme Court in Jyles, 704 So.2d at 242. According to Anders, 386 U.S. at 744, 87 S.Ct. at 1400, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles, appellate counsel must review not only the procedural history and the facts of the case, but must also 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." Jyles, 704 So.2d at 242 (quoting Mouton, 653 So.2d at 1177). 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.
Here, appellate counsel has adequately complied with the requirements necessary to file an Anders brief. Appellate counsel reviewed the bill of information, the procedural history, the Boykin examination, and the factual basis for the plea. Appellate counsel concludes in his brief that there are no non-frivolous issues for appeal. Further, appellate counsel certifies that the defendant was served with a copy of the Anders brief. As appellate counsel notes, when the defendant entered his guilty plea, he did not reserve his right to appeal any pretrial rulings under State v. Crosby, 338 So.2d 584 (La. 1976).
On the day of the Boykin hearing, a guilty plea and waiver of rights form was signed by the defendant, his attorney, and the State. Prior to the acceptance of the guilty plea, the trial court informed the defendant of the statutory elements and sentencing range for the offense and stated the specific sentence to be imposed. The defendant stated that he understood the offense, the sentencing range, and the sentence to be imposed. The trial court informed the defendant of his Boykin rights (right to trial by jury, right against compulsory self-incrimination, and right of confrontation), his right to an appeal, and that by pleading guilty, he would be waiving his rights. He indicated that he understood and waived his rights and accepted the State's factual basis. The defendant confirmed that he had not been intimidated, forced, or coerced to plead guilty. Further, the defendant confirmed that he was not under the influence of any alcohol, drug or medication. The trial court imposed the sentence in accordance with the plea agreement, ordering that the sentence be served concurrently with the sentence imposed on the simple robbery conviction. This Court informed the defendant of his right to file a pro se brief on his own behalf, and the defendant has failed to do so.
While he denied being threatened or forced to plead guilty, due to his initial hesitation in responding the trial court questioned the defendant, and he noted that he was informed of his possible habitual offender status. Upon further explanation and questioning, the defendant agreed that he was freely and voluntarily pleading guilty.
This Court has conducted an independent review of the entire record in this matter, including a review for error under LSA-C.Cr.P. art. 920(2). Since the defendant pled guilty, our review of the guilty plea colloquy is limited by State v. Collins, 14-1461 (La. 2/27/15), 159 So.3d 1040 (per curiam) and State v. Guzman, 99-1528 (La. 5/16/00), 769 So.2d 1158, 1162. We have found no reversible errors under LSA-C.Cr.P. art. 920(2). Furthermore, we have found no non-frivolous issues or trial court rulings that arguably support this appeal. Accordingly, the defendant's conviction and sentence are affirmed.
CONCLUSION
For the foregoing reasons, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.