State of Louisiana Versus Emile J. Delaneuville, Jr. ( 2020 )


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  • STATE OF LOUISIANA                                      NO. 20-KA-130
    VERSUS                                                  FIFTH CIRCUIT
    EMILE J. DELANEUVILLE, JR.                              COURT OF APPEAL
    STATE OF LOUISIANA
    ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
    PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
    NO. 17,133, DIVISION "B"
    HONORABLE KIRK A. VAUGHN, JUDGE PRESIDING
    November 18, 2020
    JOHN J. MOLAISON, JR.
    JUDGE
    Panel composed of Judges Susan M. Chehardy,
    Fredericka Homberg Wicker, and John J. Molaison, Jr.
    CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR
    CORRECTION OF THE UNIFORM COMMITMENT ORDER;
    MOTION TO WITHDRAW GRANTED
    JJM
    SMC
    FHW
    COUNSEL FOR PLAINTIFF/APPELLEE,
    STATE OF LOUISIANA
    Honorable Bridget A. Dinvaut
    J. Philip Prescott, Jr.
    COUNSEL FOR DEFENDANT/APPELLANT,
    EMILE J. DELANEUVILLE, JR.
    Emile J. Delaneuville, Jr.
    Jane L. Beebe
    MOLAISON, J.
    The defendant appeals his conviction and sentence for one count of Driving
    While Intoxicated (Third Offense). For the reasons that follow, the defendant’s
    conviction and sentence are affirmed, we grant appellate counsel’s motion to
    withdraw as counsel, and we remand for correction of the record.
    PROCEDURAL HISTORY
    The defendant, Emile Delaneuville, was charged in a bill of information on
    May 26, 2017, by the St. John The Baptist Parish District Attorney’s Office with
    one count of Driving While Intoxicated (Third Offense), a violation of La. R.S.
    14:98 (A)(D)(3). On June 1, 2017, the defendant pled not guilty.
    On October 21, 2019, the defendant withdrew his former plea of not guilty.
    According to the plea agreement, the defendant was sentenced to four years at hard
    labor, with two of those years to be served without benefits of parole, probation, or
    suspension of sentence. Two years of the sentence were suspended, with credit
    given for time served. The defendant was thereafter granted an out-of-time appeal
    on January 3, 2020.1 The defendant’s appointed counsel has now filed an appellate
    brief pursuant to Anders v. California2 and has further filed a motion to withdraw
    as counsel of record. The defendant has also filed a brief containing one pro se
    assignment of error.
    FACTS
    Because the defendant’s conviction resulted from a guilty plea, the
    underlying facts were not fully developed in the record. However, the bill of
    1
    The record indicates that the defendant was not advised at sentencing of the 30-day limit within
    which to file an appeal. The defendant’s pro se motion for appeal, filed on December 13, 2019, was
    untimely under La. C.Cr.P. art. 914, and he did not seek an out-of-time appeal pursuant to State v.
    Counterman, 
    475 So.2d 336
     (La. 1985). However, the defendant’s motion for appeal was filed within the
    time permitted for an out-of-time appeal as to his conviction and sentence. Bearing in mind that pro se
    filings are subject to less stringent standards than formal pleadings filed by lawyers, State ex. rel. Egana
    v. State, 00-2351 (La. 9/22/00), 
    771 So.2d 638
    , and under the circumstances presented, we find no error in
    the trial court granting the defendant’s motion for appeal. See, State v. Bannister, 19-291 (La. App. 5 Cir.
    11/27/19), 
    285 So.3d 1174
    .
    2
    Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
     (1967).
    20-KA-130                                            1
    information alleges that on April 1, 2017, the defendant operated a motor vehicle
    while under the influence of alcohol, after having been previously convicted of
    Driving While Intoxicated on July 23, 2014, in case # 2008-CR-91 in St. John
    Parish, Louisiana, and also having been previously convicted of Driving While
    Intoxicated Third Offense, on June 25, 2014, in Docket # 13-0630, in St. Charles
    Parish, Louisiana.
    PRO SE ASSIGNMENT OF ERROR
    In his sole pro se assignment of error, the defendant contends that his
    conviction should be reversed, and he should be able to enter a new plea under La.
    C.Cr.P. art. 14:98.2 and La. C.Cr.P. art. 894.
    Uniform Rules Courts of Appeal, Rule 2-12.4 requires that all assignments
    of error and issues for review must be briefed. Rule 2-12.4 also gives the court
    discretion to disregard any argument in an appeal brief in the event suitable
    reference to the record is not made. Because the defendant has not sufficiently
    briefed his argument and fails to allege any specific facts as support of his claim,
    we find that he has abandoned his assignment of error and decline to address its
    merits.3 See, State v. Blackwell, 18-118 (La. App. 5 Cir. 12/27/18), 
    263 So.3d 1234
    .
    ANDERS ANALYSIS
    Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.
    App. 5 Cir. 6/25/96), 
    676 So.2d 1108
    , 1110-11, appointed appellate counsel has
    filed a brief asserting that she has thoroughly reviewed the trial court record and
    found no non-frivolous issues to raise on appeal. According to Anders v.
    California, 
    supra,
     and State v. Jyles, 96-2669 (La. 12/12/97), 
    704 So.2d 241
     (per
    3
    However, we note that the defendant’s pro se assignment of error would appear to be related to
    our review of his guilty plea in the context of the Anders appeal.
    20-KA-130                                          2
    curiam), appointed appellate counsel requests permission to withdraw as counsel of
    record for the defendant.
    In Anders, supra, the United States Supreme Court stated that appointed
    appellate counsel may request permission to withdraw if he finds the defendant’s
    appeal to be wholly frivolous after a conscientious examination of it. The request
    must be accompanied by “a brief referring to anything in the record that might
    arguably support the appeal” to provide the reviewing court “with a basis for
    determining whether appointed counsel have fully performed their duty to support
    their clients’ appeals to the best of their ability” and to assist the reviewing court
    “in making the critical determination whether the appeal is indeed so frivolous that
    counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
    Wisconsin, Dist. 1, 
    486 U.S. 429
    , 439, 
    108 S.Ct. 1895
    , 1902, 
    100 L.Ed.2d 440
    (1988).
    In Jyles, 704 So.2d at 241, 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.” 
    Id.
    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. 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 legal point arguable on the merits, it may either deny the motion
    20-KA-130                                   3
    and order the court-appointed attorney to file a brief arguing the legal point(s)
    identified by the court, or grant the motion and appoint substitute appellate
    counsel. Bradford, supra, 676 So.2d at 1110.
    The defendant’s appellate counsel asserts that after a detailed review of the
    record, she could find no non-frivolous issues to raise on appeal. Appellate counsel
    states that the defendant entered an unqualified guilty plea to the bill of
    information, waiving all non-jurisdictional defects. She further states that there
    were no trial court rulings preserved for appeal under State v. Crosby, 
    338 So.2d 584
     (La. 1976).
    Appellate counsel has filed a motion to withdraw as attorney of record for
    the defendant, as she has prepared an Anders brief and she has notified the
    defendant of the filing of this motion and of his right to file a pro se supplemental
    brief in this appeal. Additionally, this Court sent the defendant a letter by certified
    mail informing him that an Anders brief had been filed and that he had until July 6,
    2020, to file a pro se supplemental brief. The defendant’s pro se brief was filed on
    July 8, 2020.4
    The State also responds that it agrees with appellate counsel that after a
    careful review of the record, there are no non-frivolous issues present. The State
    asserts that the trial court fully explained to the defendant the ramifications of
    pleading guilty and foregoing a trial, that the trial court clearly described the
    charge and the sentence the defendant was facing, and that the defendant entered
    into a fair plea agreement with the State which was explained to him by his trial
    counsel. The State contends there is nothing else in the record that would suggest a
    non-frivolous issue to be raised on appeal and agrees that appellate counsel’s
    request to withdraw should be granted.
    4
    Defendant’s pro se brief was timely post-marked on July 6, 2020.
    20-KA-130                                          4
    An independent review of the record supports the appellate counsel’s
    assertion that there are no non-frivolous issues to be raised on appeal. The bill of
    information properly charged the defendant and plainly and concisely stated the
    essential facts constituting the offenses charged. It also sufficiently identified the
    defendant and the crime charged. Further, as reflected by the minute entry and
    commitment, the defendant appeared at each stage of the proceedings against him,
    including his arraignment, guilty plea, and sentencing.
    Further, the defendant pleaded guilty in this case. Generally, when a
    defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings
    leading up to the guilty plea, and review of such defects either by appeal or post-
    conviction relief is precluded. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10),
    
    47 So.3d 455
    , 459. Here, the defendant entered an unqualified guilty plea, and
    therefore, all non-jurisdictional defects were waived. No rulings were preserved for
    appeal under the holding in Crosby, supra. Also, once a defendant is sentenced,
    only those guilty pleas that are constitutionally infirm may be withdrawn by appeal
    or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered
    freely and voluntarily, if the Boykin5 colloquy is inadequate, or 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. State v. McCoil, 05-658 (La. App. 5 Cir.
    2/27/06), 
    924 So.2d 1120
    , 1124.
    A review of the record reveals no unconstitutional infirmity or irregularities
    in the defendant’s guilty plea. The transcript of the colloquy shows that the
    defendant was aware that he was pleading guilty to one count of Driving While
    Intoxicated (Third Offense). The defendant was also properly advised of his
    Boykin rights. On the waiver of rights form and during the colloquy with the trial
    judge, the defendant was advised of his right to a judge or jury trial, his right to
    5
    Boykin v. Alabama, 
    395 U.S. 238
    , 242, 
    89 S.Ct. 1709
    , 1711, 
    23 L.Ed.2d 274
     (1969).
    20-KA-130                                         5
    confrontation, and his privilege against self-incrimination. During the colloquy
    with the trial judge, the defendant also indicated that he understood he was waiving
    these rights.6 Additionally, on the waiver of rights form, the defendant initialed
    next to each of these rights and placed his signature at the end of the form
    indicating that he understood he was waiving these rights by pleading guilty.
    Also, during his guilty plea colloquy and in the waiver of rights form, the
    defendant indicated that he had not been forced, coerced, or threatened into
    entering his guilty pleas. The defendant was informed by the waiver of rights form
    of his maximum sentencing exposure and of the actual sentence that would be
    imposed upon acceptance of his guilty plea.
    Because appellate counsel’s brief adequately demonstrates by full discussion
    and analysis that she 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, appellate counsel’s motion to withdraw as counsel of
    record for the defendant is hereby granted.
    ERRORS PATENT REVIEW
    The record was reviewed for errors patent following La. C.Cr.P. art. 920,
    State v. Oliveaux, 
    312 So.2d 337
     (La. 1975), and State v. Weiland, 
    556 So.2d 175
    (La. App. 5th Cir. 1990). We have found an error that requires correction.
    The Uniform Commitment Order (UCO) and sentencing minute entry does
    not reflect that the trial court imposed the mandatory fine. The transcript from
    sentencing, however, indicates that the defendant was sentenced to pay a fine of
    $2,000. Where there is a discrepancy between the transcript and the minute entry,
    the transcript generally prevails. State v. Lynch, 
    441 So.2d 732
    , 734 (La. 1983).
    6
    The trial transcript of October 21, 2019, shows that a group Boykin colloquy took place
    between the trial court and several defendants simultaneously by consent of their respective counsels.
    While a personal colloquy between the trial court and the defendant is preferred, group guilty pleas are
    not automatically invalid. State v. Domino, 10-661 (La. App. 5 Cir. 1/25/11), 
    60 So.3d 659
    , 669.
    20-KA-130                                            6
    Accordingly, we remand the matter to the trial court and instruct the trial judge to
    correct the UCO to conform to the transcript, and further order the Clerk of Court
    for the 40th Judicial District Court to transmit the corrected UCO to the
    appropriate authorities following La. C.Cr.P. art. 892(B)(2), and to the Department
    of Corrections’ legal department. State v. Montero, 18-397 (La. App. 5 Cir.
    12/19/18), 
    263 So.3d 899
    , 909.
    DECREE
    For the foregoing reasons, the defendant’s conviction and sentence are
    affirmed. The matter is remanded for corrections of the Uniform Commitment
    Order. Appellate counsel’s motion to withdraw as counsel of record for the
    defendant is hereby granted.
    CONVICTION AND SENTENCE AFFIRMED; REMANDED
    FOR CORRECTION OF THE UNIFORM COMMITMENT
    ORDER; MOTION TO WITHDRAW GRANTED
    20-KA-130                                 7
    SUSAN M. CHEHARDY                                                                 CURTIS B. PURSELL
    CHIEF JUDGE                                                                       CLERK OF COURT
    MARY E. LEGNON
    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
    JUDE G. GRAVOIS
    MARC E. JOHNSON
    ROBERT A. CHAISSON                                                                SUSAN BUCHHOLZ
    STEPHEN J. WINDHORST
    FIRST DEPUTY CLERK
    HANS J. LILJEBERG
    JOHN J. MOLAISON, JR.                          FIFTH CIRCUIT
    MELISSA C. LEDET
    JUDGES                                 101 DERBIGNY STREET (70053)
    DIRECTOR OF CENTRAL STAFF
    POST OFFICE BOX 489
    GRETNA, LOUISIANA 70054                  (504) 376-1400
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    NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
    I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
    IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
    NOVEMBER 18, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
    PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
    20-KA-130
    E-NOTIFIED
    40TH DISTRICT COURT (CLERK)
    HONORABLE KIRK A. VAUGHN (DISTRICT JUDGE)
    HONORABLE BRIDGET A. DINVAUT          J. PHILIP PRESCOTT, JR. (APPELLEE)   JANE L. BEEBE (APPELLANT)
    (APPELLEE)
    MAILED
    EMILE J. DELANEUVILLE, JR. #610501
    (APPELLANT)
    IN PROPER PERSON
    120 WEST 17TH STREET
    RESERVE, LA 70084
    

Document Info

Docket Number: 20-KA-130

Judges: Kirk A. Vaughn, Judge Pro Tempore

Filed Date: 11/18/2020

Precedential Status: Precedential

Modified Date: 10/21/2024