Opinion
No. KA 09 00920.
March 10, 2010.
ON APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, DOCKET NUMBER 45,149, PARISH OF VERNON, STATE OF LOUISIANA, HONORABLE JOHN C. FORD, JUDGE.
Asa Skinner, District Attorney — 30th JDC, Leesville, LA, Counsel for Appellee: State of Louisiana.
G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, Counsel for Appellant: Delta Wayne White.
Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.
ORDER
After consideration of appellate 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.
THUS DONE AND SIGNED this _____ day of _____, 2009.
Defendant, Delta Wayne White, appeals the denial of his "Motion to Reconsider Sentence." Appellate counsel filed an Anders brief alleging that the record contains no errors to support reversal of Defendant's convictions and sentences in this matter. For the following reasons, we affirm Defendant's sentences and grant counsel's motion to withdraw.
FACTS AND PROCEDURAL HISTORY.
On February 12, 1991, Defendant, Delta Wayne White, was convicted of committing the following offenses in October 1990: count one — conspiracy to distribute cocaine; count two — distribution of cocaine; count three — conspiracy to distribute cocaine; and count four — attempted distribution of cocaine. He was sentenced on June 5, 1991 as follows: count one — five years at hard labor, to run concurrently with count two; count two — twenty years at hard labor, the last eight years suspended, and five years of supervised probation; and counts three and four-five years at hard labor on each count, suspended, and five years of supervised probation with the sentences to run consecutively to counts one and two.
Defendant appealed, and this court affirmed his convictions and sentences in State v. White, an unpublished opinion bearing docket number 91-763 (La.App. 3 Cir. 4/16/92).
On September 16, 1991, the State filed a habitual offender bill, asserting that Defendant was a fourth felony offender and seeking to enhance all four of the sentences. After conducting a hearing on the habitual offender bill, the trial court, in written reasons issued on September 11, 1992, found Defendant to be a habitual offender.
The habitual offender bill was filed under district court docket number 46,045.
At a sentencing hearing held on December 17, 1992, the trial court vacated the sentences imposed on June 5, 1991, and imposed a single sentence of thirty years at hard labor, without the benefit of probation, parole, or suspension of sentence. At another sentencing hearing held on November 8, 1996, the trial court amended Defendant's thirty-year sentence by deleting the provision that the sentence be served without benefit of parole.
Defendant appealed, and this court, in State v. White, an unpublished opinion bearing docket number 97-88 (La.App. 3 Cir. 6/18/97), affirmed Defendant's adjudication as a habitual offender. However, this court found that Defendant's sentence was indeterminate, explaining, in pertinent part:
[T]he sentence imposed in the present case is indeterminate since defendant was convicted of four separate counts but only one sentence was imposed. However, the habitual offender bill indicates the state was seeking enhancement on each count. Enhancement on each separate count is appropriate if the counts are the result of separate felonies. Enhancement would not be appropriate if the counts were the result of felonies arising out of the same criminal episode. State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La. 1991). The record in the present case does not indicate whether the counts arose out of the same or separate criminal episodes. Therefore, defendant's sentence is vacated and the case is remanded for a determination as to whether enhancement is appropriate for each count separately or only for one count.
DECREE
Defendant's adjudication as a habitual offender is affirmed. However, the sentence imposed is indeterminate. Therefore, the present sentence is vacated, and the case remanded for a determination as to whether enhancement is appropriate on each separate count or for one count only.
Id.
On August 21, 1997, the trial court resentenced Defendant as follows:
The sentence of the court is that this defendant serve thirty years at hard labor with the Louisiana Department of Corrections on Count two and serve thirty years with the Louisiana Department of Corrections on Count four to run concurrent with the sentence in Count two. Counts one and two occurred in the same transaction therefore no sentence is imposed in Count one. Count three and four occurred as a result of the same transaction therefore no sentence is imposed on Count three. I will give the defendant credit for whatever time he may be entitled to toward this sentence.
In Defendant's subsequent appeal, this court noted that he was resentenced to thirty years at hard labor on counts two and four, but that no sentences were imposed on the other counts. This court held in pertinent part that:
Finding no legal error in the lower court's sentencing Appellant to thirty years at hard labor, we affirm. However, the matter is remanded for further proceedings in accordance with this opinion.
State v. White, an unpublished opinion bearing docket number 97-1505 (La.App. 3 Cir. 5/13/98).
On September 23, 2003, Defendant filed a Motion to Correct Illegal Sentence in the trial court, asserting that the trial court failed to impose sentences on counts one and three. The motion was denied, and Defendant sought a writ of review by this court. This court held in pertinent part:
WRIT GRANTED IN PART AND MADE PEREMPTORY AND WRIT DENIED IN PART: The trial court failed to impose sentences on counts one and three, which involve Relator's convictions for conspiracy to distribute cocaine. Accordingly, we grant this part of Relator's writ application and remand this case to the trial court for imposition of sentences on counts one and three. See State v. Davis, 581 So.2d 1013 (La.App. 3 Cir. 1991) and State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624.
State v. White, an unpublished writ bearing docket number 03-1513 (La.App. 3 Cir. 12/12/03). On March 16, 2004, the trial court resentenced Defendant on counts one and three to five years at hard labor on each count, to run concurrently to each other and to any other sentence he was serving.
Defendant subsequently filed a motion in the trial court, complaining that his sentences were illegal because he was not represented by counsel at the resentencing hearing. The trial court denied the motion as untimely. Defendant sought a writ of review by this court, and this court held, in pertinent part, that:
WRIT GRANTED AND MADE PEREMPTORY : The transcript of the sentencing proceeding held on March 16, 2004, reflects Relator was not represented by counsel, and he did not knowingly and intelligently waive his right to counsel at this proceeding. . . . Accordingly, this matter is remanded to the trial court for resentencing, and the trial court is ordered to appoint counsel to represent Relator at this proceeding, if he is indigent, and if he does not waive the assistance of counsel.
State v. White, an unpublished writ bearing docket number 07-1178 (La.App. 3 Cir. 11/6/07).
On February 19, 2008, the trial court held a resentencing hearing at which Defendant was represented by counsel. At that proceeding, the trial court explained, in pertinent part, that:
[T]he Court is going to state that this defendant is only under one sentence at this time and that is the habitual offender sentence rendered under 46,045 with credit for time served since the date of his arrest on those charges which were vacated under Bill of Information 45,149. In case — so, I want to make that clear that this defendant has one sentence that he is serving, but I also wanted to clarify when his time started serving that sentence because I've had so much trouble out of DOC — not really DOC, but defendants complaining about the way DOC interprets their time. So, I want to be clear on that. Now, the Court also will, although it is a redundant order, will order that the sentences in Bill of Information 45,149 be and hereby — are hereby vacated if they have not been done so previously or interpreted not to be done.
On March 6, 2008, Defendant filed a pro se "Motion to Reconsider Sentence" simply requesting that the trial court reconsider his sentence; Defendant set forth no specific grounds. On March 7, 2008, the trial court denied the motion without conducting a hearing.
Defendant appealed, and an error patent regarding the sentence was found, requiring the matter to be remanded to the trial court for resentencing. State v. White, an unpublished opinion bearing docket number 08-838 (La.App. 3 Cir. 12/11/08). In its opinion, this court noted that Defendant was convicted of four separate offenses and that the trial court originally imposed thirty-year habitual offender sentences on counts two and four. The sentences were affirmed and became final in 1998. As a result, this court concluded that the trial court erred in resentencing Defendant on February 19, 2008, to a single thirty-year enhanced sentence because the two thirty-year enhanced sentences were already final. Additionally, this court found that the trial court erred in failing to impose non-enhanced sentences on counts one and three.
The case was remanded to the trial court for imposition of non-enhanced sentences on counts one and three, convictions for conspiracy to distribute cocaine, in accordance with La.R.S. 40:967 and 40:979 in effect at the time of the commission of the offenses. On April 21, 2009, Defendant was sentenced to serve five years at hard labor on each count, to run concurrently with any other sentence he may have had to serve or was currently serving.
Defendant filed a "Motion to Reconsider Sentence" on May 7, 2009, which was summarily denied on May 12, 2009. Defendant then sought the instant appeal.
ANDERS ANALYSIS:
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), Defendant's appellate counsel has filed a brief stating that he has made a conscientious and thorough review of the trial court record and has found no errors on appeal that would support reversal of Defendant's sentences. 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.
Pursuant to Anders and Benjamin, we performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. Defendant was properly charged in a bill of information and was present and represented by counsel at all crucial stages of the proceedings. Additionally, Defendant received legal sentences.
We find no issues that would support an assignment of error on appeal. Therefore, Defendant's sentences are affirmed, and counsel's motion to withdraw is granted.