State of Louisiana Versus Tyrez Lee ( 2020 )

STATE OF LOUISIANA NO. 20-KA-110
VERSUS FIFTH CIRCUIT
TYREZ LEE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-1983
HONORABLE DANYELLE M. TAYLOR, DIVISION "O"
AND HONORABLE SCOTT U. SCHLEGEL, DIVISION "S"
PRESIDING JUDGES
November 04, 2020
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and John J. Molaison, Jr.
CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR
CORRECTION OF ERROR PATENT; MOTION TO WITHDRAW
GRANTED
RAC
JGG
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Blair C. Constant
COUNSEL FOR DEFENDANT/APPELLANT,
TYREZ LEE
Bruce G. Whittaker
DEFENDANT/APPELLANT,
TYREZ LEE
In Proper Person
CHAISSON, J.
Defendant, Tyrez Lee, appeals his conviction for possession with intent to
distribute cocaine, as well as his multiple offender adjudication and enhanced
sentence. For the reasons that follow, we affirm defendant’s conviction, multiple
offender adjudication, and enhanced sentence; however, we remand the matter for
correction of an error patent as directed herein. We further grant appellate
counsel’s motion to withdraw as attorney of record for defendant.
PROCEDURAL HISTORY
On April 13, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant with possession with intent to distribute cocaine
weighing less than twenty-eight grams, in violation of La. R.S. 40:967(A).
Defendant pled not guilty at his arraignment.
On June 14, 2018, defendant withdrew his plea of not guilty and, after being
advised of his rights, pled guilty as charged. In accordance with the terms of the
plea agreement, the trial court sentenced defendant to five years imprisonment in
the Department of Corrections, suspended the sentence, and placed defendant on
active probation for five years, contingent upon his completion of the Swift and
Certain Probation Pilot Program. Pursuant to the terms of the plea bargain, the
State agreed not to file a multiple offender bill of information against defendant at
that time.
On January 7, 2019, the State, through the Department of Public Safety and
Corrections, filed a “Motion and Order for Hearing to Revoke Probation,” alleging
that defendant violated the conditions of his probation by failing to pay a
supervision fee and by failing to refrain from criminal conduct.1
1
In the motion to revoke, the State specifically alleged that defendant was arrested by the Jefferson Parish
Sheriff’s Office on December 27, 2018, as a principal to second degree murder, attempted second degree
murder, illegal use of a weapon, felon in possession of a firearm, and aggravated criminal damage to
property.
20-KA-110 1
On November 22, 2019, the State filed a bill of information, pursuant to the
provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second
felony offender. On January 22, 2020, after being advised of his rights, defendant
stipulated to the allegations in the multiple bill.2 The trial court then vacated
defendant’s original sentence of five years imposed on June 14, 2018, and pursuant
to the terms of the plea agreement on the multiple offender bill, resentenced
defendant to eight years imprisonment at hard labor without benefit of probation or
suspension of sentence.
Defendant thereafter filed two pro se motions to appeal on the basis of
illegal sentencing, alleging that the State had agreed not to file a multiple offender
bill against him when he entered his guilty plea to possession of cocaine on
June 14, 2018. On February 6, 2020, the trial court granted defendant’s motion for
appeal.
On March 2, 2020, defendant filed a pro se motion to withdraw and/or set
aside his guilty plea, in which he alleged that the State breached the June 14, 2018
plea agreement by filing a multiple offender bill of information against him. In
addition, defendant asserted that he received ineffective assistance of counsel
because his attorney induced and/or coerced him into pleading guilty to the
multiple offender bill of information. On March 5, 2020, the trial court dismissed
defendant’s motion without prejudice, noting that it lacked jurisdiction to rule on
this matter as defendant had already been granted an appeal.
ANDERS BRIEF
Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.
App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,3 appointed appellate counsel has
2
Although the transcript from the multiple offender proceedings indicate that defendant’s probation was
revoked, the revocation proceedings are not contained in the appellate court record.
3
In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528,
530-31 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v.
Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).
20-KA-110 2
filed a brief asserting that he has thoroughly reviewed the trial court record and
cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and
State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed
counsel requests permission to withdraw as attorney of record for defendant.
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 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. State v. Bradford, 676 So.2d at 1110.
In this case, defendant’s appellate counsel has complied with the procedures
for filing an Anders brief. He details the procedural history of the case and the
circumstances surrounding defendant’s guilty pleas and sentencing. He
particularly notes that defendant’s guilty pleas to the original and multiple offender
bills of information were not constitutionally infirm because defendant was
advised of and indicated that he understood the rights that would be waived by
pleading guilty. Further, appellate counsel recognizes that defendant was not
forced, coerced, or threatened to enter the guilty pleas, and that the sentences were
imposed in conformity with the plea agreements.
Defendant’s appellate counsel also addresses defendant’s claim that the State
breached the plea agreement by filing a multiple offender bill of information
against him and concludes his argument has no merit. Specifically, appellate
counsel notes that the record is clear that the State agreed to withhold the multiple
20-KA-110 3
offender bill only if defendant successfully completed his probation program,
which he did not. Defendant’s appellate counsel concludes that after a thorough
review of the record, he can find no non-frivolous issues to raise on appeal, and
accordingly, he requests permission to withdraw as attorney of record for
defendant.4
This Court has performed an independent, thorough review of the pleadings,
minute entries, bills of information, and transcripts in the appellate record. Our
independent review of the record supports appellate counsel’s assertion that there
are no non-frivolous issues to be raised on appeal.
We particularly note that the record reveals no constitutional infirmities or
irregularities in defendant’s guilty plea to possession with intent to distribute
cocaine. The transcript of the guilty plea proceeding and the acknowledgement
and waiver of rights form show that defendant was aware of the nature of the
charges against him, that he was properly advised of his Boykin5 rights, including
the right to a jury trial, the right to confrontation, and the privilege against self-
incrimination, and that he understood he was waiving these rights by pleading
guilty.
In addition, the record reflects that defendant was informed of the maximum
sentence of ten years that could be imposed and of the actual sentence that would
be imposed upon acceptance of his guilty plea.6 Further, during the plea colloquy,
4
In addition, defendant was notified of his right to file a pro se supplemental brief in this appeal by
June 19, 2020. Defendant did not file a brief within that time frame; however, he filed a letter with this
Court in late July, complaining that the uniform commitment order failed to reflect that his enhanced
sentence was to be served concurrently with any and all sentences he was currently serving. See errors
patent discussion.
5
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
6
La. C.Cr.P. art. 556.1(A)(1) provides that prior to accepting a guilty plea in a felony case, the court must
first address the defendant and inform him of the nature of the charge, the mandatory minimum penalty
provided by law, if any, and the maximum possible penalty provided by law. In the present case, the trial
court failed to advise defendant of the one-year mandatory minimum penalty provided by law. However,
the trial court’s failure to inform defendant of the mandatory minimum sentence does not affect a
substantial right and can be deemed harmless. La. C.Cr.P. art. 556.1(E). We particularly note that
defendant was not prejudiced by the trial court’s omission because he was advised through the waiver of
rights form of the actual sentence he would receive, and he received that sentence. This Court has held
20-KA-110 4
defendant confirmed that he had not been forced, coerced, or intimidated into
entering his guilty plea. After its colloquy with defendant, the trial court accepted
defendant’s guilty plea as knowingly and voluntarily made.
With respect to the multiple offender proceedings, the record shows that
defendant was likewise adequately advised of his rights. The waiver of rights form
and the transcript indicate that defendant was advised of his right to a hearing at
which the State would have to prove his multiple offender status and of his right to
remain silent throughout the hearing. Defendant was also advised of the potential
sentencing range as a second felony offender and the actual sentence he would
receive as a result of his stipulation. Defendant indicated that he was satisfied with
the way his attorney and the court handled his case, that he had not been forced or
coerced into stipulating to the multiple offender bill, that he understood his rights
and the legal consequences of pleading guilty to the multiple offender bill, and that
he wished to plead guilty. The trial court thereafter accepted defendant’s
stipulation as knowingly, intelligently, freely, and voluntarily made.
Although we have found no constitutional infirmities or irregularities in
defendant’s guilty pleas to the original and multiple offender bills of information,
we nonetheless feel compelled to address defendant’s suggestion that the State
breached its plea agreement with defendant by filing a multiple offender bill
against him.7 As noted by defendant’s appellate counsel in his Anders brief, this
claim has no merit. When defendant entered his guilty plea on June 14, 2018, the
State agreed not to file a multiple offender bill of information against defendant on
the possession with intent to distribute cocaine charge only if he complied with the
conditions of his probation program. Defendant was clearly aware that the State’s
that an advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1.
State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied, 15-2119 (La.
12/16/16), 211 So.3d 1165; State v. Williams, 18-137 (La. App. 5 Cir. 9/19/18), 254 So.3d 1260, 1264.
7
We note that defendant does not raise this issue on appeal, but he did raise it in his motion to appeal and
his motion to withdraw and/or set aside his guilty plea that were filed in the trial court.
20-KA-110 5
agreement not to file a multiple offender bill depended on his compliance with the
program. At the June 14, 2018 guilty plea proceeding, the trial judge specifically
asked defendant if he understood that as long as he stayed in compliance with the
Swift and Certain Probation Program no multiple bill would be filed against him.
Defendant responded affirmatively. Pursuant to further questioning by the trial
court, defendant also indicated that he reviewed the probation contract with his
attorney and that he understood what was expected of him in the Swift and Certain
Probation Program. In addition, defendant signed the probation contract, which
provided that “the District Attorney reserves its right to file a habitual offender bill,
if available, if the Participant fails to successfully complete the Swift & Certain
Probation Pilot Program.” The record reflects that defendant did not complete the
program, permitting the State to file the multiple bill in accordance with the plea
agreement.
With regard to sentencing, we note that defendant’s enhanced sentence was
imposed in accordance with the plea agreement, which was set forth in the record
at the time of the plea. This Court has consistently recognized that La. C.Cr.P. art.
881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to
which the defendant agreed. State v. Robinson, 15-661 (La. App. 5 Cir. 2/24/16),
186 So.3d 1269, 1272. In addition, defendant’s enhanced sentence is within the
sentencing range prescribed by the applicable statutes. See La. R.S. 40:967(B)(1);
La. R.S. 15:529.1(A)(1).
Based on the foregoing, we find that defendant’s guilty pleas to the original
and multiple offender bills of information and the enhanced sentence imposed
pursuant to the plea agreement do not present any non-frivolous issues for appeal.
ERRORS PATENT REVIEW
Lastly, we have reviewed the record for errors patent in accordance with La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,
20-KA-110 6
556 So.2d 175 (La. App. 5th Cir. 1990). Defendant, by a letter written to this
Court, has brought one error to this Court’s attention that requires correction.
Defendant asserts that the uniform commitment order fails to reflect that his
sentence was to be served concurrently with other sentences he was currently
serving, as directed by the trial court when sentencing defendant as a multiple
offender. Defendant is correct in his assertion. Under Section “D” of the uniform
commitment order, which relates to sentence conditions, there is a sentence that
reads as follows: “This sentence shall be concurrent with any or every other
sentence the offender is now serving.” However, the “yes” block next to this
sentence was not checked off to show this statement’s applicability to defendant.
In addition, the January 22, 2020 minute entry/commitment fails to reflect the
concurrent nature of defendant’s sentence. Since the trial court directed in the
transcript that defendant’s sentence was to run concurrently with any and all other
sentences defendant was currently serving, we remand the matter to the trial court
with instructions to correct the minute entry/commitment and the uniform
commitment order to reflect the concurrent nature of defendant’s sentence. We
direct the Clerk of Court for the 24th Judicial District Court to transmit the
corrected minute entry/commitment and the uniform commitment order to the
appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the
Department of Corrections’ legal department. See State v. Garcie, 17-609 (La.
App. 5 Cir. 4/11/18), 242 So.3d 1279, 1290.
DECREE
Because appellate counsel’s brief adequately demonstrates by full discussion
and analysis that he 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, we affirm defendant’s conviction, multiple offender
adjudication, and enhanced sentence, and we remand the matter for correction of
20-KA-110 7
an error patent as noted herein. Further, we grant appellate counsel’s motion to
withdraw as attorney of record for defendant.
CONVICTION AND SENTENCE
AFFIRMED; REMANDED FOR
CORRECTION OF ERROR PATENT;
MOTION TO WITHDRAW GRANTED
20-KA-110 8
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
(504) 376-1498 FAX
www.fifthcircuit.org
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 4, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-110
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
BRUCE G. WHITTAKER (APPELLANT) TYREZ LEE #714600 (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW PLAQUEMINE PARISH DENTENTION (APPELLEE)
LOUISIANA APPELLATE PROJECT CENTER DISTRICT ATTORNEY
1215 PRYTANIA STREET 110 PRISON ROAD BLAIR C. CONSTANT (APPELLEE)
SUITE 332 BRAITHWAITE, LA 70040 ASSISTANT DISTRICT ATTORNEY
NEW ORLEANS, LA 70130 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053