State of Louisiana Versus Symmeron Nigel Cole ( 2019 )

STATE OF LOUISIANA NO. 19-KA-322
VERSUS FIFTH CIRCUIT
SYMMERON NIGEL COLE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-3366, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
November 27, 2019
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED; MOTION TO WITHDRAW GRANTED
HJL
SJW
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Terry M. Boudreaux
COUNSEL FOR DEFENDANT/APPELLANT,
SYMMERON NIGEL COLE
Bruce G. Whittaker
LILJEBERG, J.
Defendant appeals his conviction and sentence for the crime of failing to
maintain registration as a sex offender. For the following reasons, we affirm. We
also grant appellate counsel’s motion to withdraw as counsel of record.
PROCEDURAL HISTORY
On June 20, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Symmeron Nigel Cole, with failing to maintain
his registration as a sex offender by failing to complete his annual registration, in
violation of La. R.S. 15:542. Defendant was arraigned on July 9, 2018, and
pleaded not guilty. On May 31, 2019, defendant withdrew his not guilty plea and
pleaded guilty as charged. The trial court sentenced him to imprisonment at hard
labor for two years without benefit of parole, probation, or suspension of sentence.
The trial court also ordered this sentence to run concurrently with defendant’s
sentence in case number 18-5978.1 Defendant appeals.
FACTS
Because defendant pleaded guilty, the underlying facts were not fully
developed at a trial. In the bill of information, the State alleged that on or about
March 10, 2017, in Jefferson Parish, defendant violated La. R.S. 15:542, in that he
failed to maintain his registration as a sex offender by failing to complete his
annual registration. Additionally, the State provided the following factual basis
during the guilty plea colloquy:
Your Honor, if this matter proceeded to trial, with
regard to or [sic] Bill in case number 18-3366, our
evidence would have proven beyond a reasonable
doubt that Mr. Cole, on or about March 10th of the
year 2017, committed a violation of Louisiana
Revised Statute 15:542 in that he did fail to
1
On May 31, 2019, defendant also pleaded guilty in case number 18-5978 to a charge of failing to notify
law enforcement of a change of address, in violation of La. R.S. 15:542.1.2. The trial court sentenced
him to imprisonment at hard labor for two years on that charge. The trial court also found defendant
guilty of direct contempt of court for failure to appear for the previous trial date. The trial court sentenced
him to 30 days in the Jefferson Parish Correctional Center and ordered the sentences in case numbers 18-
3366 (the instant case) and 18-5978 to run consecutively to the contempt sentence.
19-KA-322 1
maintain his registration as a Sex Offender,
specifically, by failing to complete his registration.
He was obligated to register as a result of
previously pleading guilty to a sex offense.
LAW AND DISCUSSION
Pursuant to the procedure adopted by this Court in State v. Bradford, 95-929
(La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,2 appointed appellate counsel
has 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, under
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 counsel of record.
In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if he finds his case to be
wholly frivolous after a conscientious examination of it.3 The request must be
accompanied by “‘a brief referring to anything in the record that might arguably
support the appeal’” so as 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
2
In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530
(La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-
0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).
3
The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746,
145 L.Ed.2d 756 (2000).
19-KA-322 2
made at trial with a detailed explanation of why the motions or objections lack
merit. The 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. Bradford, 676 So.2d at 1110. 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. Id.In the present case, defendant’s appellate counsel asserts that after a detailed
review of the record, he could find no non-frivolous issues to raise on appeal.
Appellate counsel states that defendant entered an unqualified guilty plea to the
charging document waiving all non-jurisdictional defects, after which he was
sentenced pursuant to a plea agreement. He notes that defendant indicated that he
understood the plea form, his rights, the elements of the charge, and the sentence
he would receive in exchange for the plea. Appellate counsel also asserts that
defendant indicated he had not been forced, coerced, or threatened into pleading
guilty. He asserts that the plea bargain appears to have been advantageous to
defendant because he received the minimum sentence of two years for an offense
carrying a maximum of ten years and because the sentence was ordered to run
concurrently with his other felony sentence.
19-KA-322 3
Appellate counsel has filed a motion to withdraw as attorney of record, in
which he states that he notified defendant that he filed an Anders brief and advised
him of his right to file a pro se supplemental brief.4 Defendant has not filed a pro
se supplemental brief in this matter.
An independent review of the record supports appellate counsel’s assertion
that there are no non-frivolous issues to be raised on appeal.
The bill of information properly charged defendant, identified defendant and
the crime charged, and stated the essential facts constituting the offense charged.
See La. C.Cr.P. arts. 462-466. The record also shows there are no appealable
issues surrounding defendant’s presence. The minute entries show that defendant
and his counsel appeared at all crucial stages of the proceedings against him,
including his arraignment, guilty plea, and sentencing.
Further, defendant pleaded guilty as charged. Generally, when a defendant
pleads guilty, he normally waives all non-jurisdictional defects in the proceedings
leading up to the guilty plea and precludes review of such defects either by appeal
or post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47
So.3d 455, 459. Here, defendant entered an unqualified guilty plea, and therefore,
all non-jurisdictional defects are waived. Also, no rulings were preserved for
appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).
Although defendant filed a motion for preliminary hearing, the record does
not reflect that the trial court ruled upon defendant’s motion. However, defendant
did not object to the trial court’s failure to do so. When the trial court does not
hear or rule on a pretrial motion, and the defendant does not object prior to
pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.
4
This Court also sent defendant a letter by certified mail informing him that an Anders brief had been
filed and that he had the right to file a pro se supplemental brief.
19-KA-322 4
App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Accordingly, defendant’s motion for
preliminary hearing was waived.
Next, once a defendant is sentenced, only those guilty pleas that are
constitutionally infirm may be withdrawn by appeal or post-conviction relief.
State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty
plea is constitutionally infirm if it is not entered freely and voluntarily, if the
Boykin5 colloquy is inadequate, or when 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. Id.A review of the record reveals no constitutional infirmity in defendant’s
guilty plea. At the hearing on May 31, 2019, defendant’s counsel stated that
defendant was going to withdraw his not guilty plea and plead guilty. Defendant
indicated that he understood the nature of the crime to which he was pleading
guilty, i.e. failing to maintain his registration as a sex offender in violation of La.
R.S 15:542, with the date of the offense being March 10, 2017. During the
colloquy, defendant indicated he was able to read the Boykin form and understand
it with the assistance of counsel, and he identified his initials and signature on the
Boykin form. Defendant also indicated that he did not have any mental or physical
impairment affecting his ability to enter the guilty plea and that he was able to
read, write, and understand the English language. On the waiver of rights form and
during the colloquy with the trial court, defendant was advised of his right to a jury
trial, his right to confrontation, and his privilege against self-incrimination as
required by Boykin. Defendant indicated during the colloquy with the trial court
that he understood those rights.
During the colloquy and on the waiver of rights form, defendant was
informed of the maximum sentence he faced and the actual sentence that would be
5
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
19-KA-322 5
imposed if his guilty plea was accepted. La. C.Cr.P. art. 556.1(A)(1) provides that,
prior to accepting a guilty plea, the court must personally inform the defendant of
the nature of the charge to which the plea is offered, any mandatory minimum
penalty, and the maximum possible penalty. “Any variance from the procedures
required by this Article which does not affect substantial rights of the accused shall
not invalidate the plea.” La. C.Cr.P. art. 556.1(E). Although the trial judge did not
inform defendant of the minimum possible sentence, defendant was not prejudiced
because he knew the sentence he would receive, and he received that sentence.
The advisement of the agreed upon sentence is sufficient for compliance with La.
C.Cr.P. art. 556.1. Id. After defendant indicated that no promises or threats had
been made to encourage him to plead guilty, the trial judge found that defendant
made a knowing, intelligent, free, and voluntary act of tendering his guilty plea,
and he accepted his plea.
Finally, defendant’s sentence does not present any issues for appeal. La.
C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence
imposed in conformity with a plea agreement. See State v. Washington, 05-211
(La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, defendant’s sentence was
imposed in accordance with the terms of the plea agreement set forth in the record
at the time of the plea, and it falls within the statutory sentencing range. See La.
R.S. 15:542.1.4. In addition, defendant’s plea agreement was beneficial to him in
that he received the minimum sentence of two years when he could have received a
maximum sentence of ten years, and the sentence was ordered to run concurrently
with the sentence in case number 18-5978.
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
19-KA-322 6
counsel’s assertion. Accordingly, we affirm defendant’s conviction and sentence,
and we grant appellate counsel’s motion to withdraw as attorney of record.
ERRORS PATENT
The record was reviewed 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, 556
So.2d 175 (La. App. 5 Cir. 1990). Our review did not reveal any errors that require
corrective action.
DECREE
For the foregoing reasons, we affirm defendant’s conviction and sentence for
failing to maintain his registration as a sex offender in violation of La. R.S. 15:542.
We also grant appellate counsel’s motion to withdraw as counsel of record.
AFFIRMED; MOTION TO WITHDRAW GRANTED
19-KA-322 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
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GRETNA, LOUISIANA 70054 (504) 376-1400
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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 27, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-322
E-NOTIFIED
TERRY M. BOUDREAUX
MAILED
BRUCE G. WHITTAKER HON. PAUL D. CONNICK, JR.
ATTORNEY AT LAW DISTRICT ATTORNEY
LOUISIANA APPELLATE PROJECT TWENTY-FOURTH JUDICIAL DISTRICT
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