State of Louisiana Versus Brian Paul Dewhirst ( 2023 )

STATE OF LOUISIANA NO. 23-KA-30
VERSUS FIFTH CIRCUIT
BRIAN PAUL DEWHIRST COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-5186, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR. AND HONORABLE ELLEN
SHIRER KOVACH, JUDGE PRESIDING
August 30, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.
SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS;
MOTION TO WITHDRAW GRANTED
SMC
MEJ
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Molly M. Massey
COUNSEL FOR DEFENDANT/APPELLANT,
BRIAN PAUL DEWHIRST
Bertha M. Hillman
CHEHARDY, C.J.
Defendant, Brian Paul Dewhirst, appeals the sentence imposed by the
district court pursuant to the revocation of his probation. His appointed appellate
counsel has filed a brief in conformity with the procedure outlined in State v.
Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting
that she has thoroughly reviewed the district 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, appointed appellate counsel requests permission to
withdraw as counsel of record for defendant. After a thorough review of the
record, we agree with counsel’s assessment of the case, affirm defendant’s
sentences, and grant appellate counsel’s motion to withdraw as counsel of record
for defendant.
Procedural History
On September 30, 2020, the State filed a bill of information charging
defendant, Brian Paul Dewhirst, with third offense driving while intoxicated, a
violation of La. R.S. 14:98(A) and La. R.S. 14:98.3(A).1 Defendant initially pled
not guilty in absentia to the charge. He was subsequently recommended for, and
was accepted into, drug court. On August 27, 2021, in order to comply with the
requirements of drug court, defendant withdrew his not guilty plea and entered a
plea of guilty as charged. That same day, the district court conducted a Boykin2
examination, accepted defendant’s guilty plea, and deferred imposition of sentence
pending defendant’s successful completion of drug court. Defendant then entered
1
The bill of information provides that defendant was previously convicted of driving while
intoxicated on April 13, 2017, in Denton County, Texas, and on March 12, 2019, in Jefferson Parish,
Louisiana.
2
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
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the Jefferson Parish Intensive Drug Program (JPID) and was placed on active
supervised probation for five years.
On September 27, 2021, after defendant failed to comply with the
requirements of drug court, the State filed a motion to revoke from JPID and to
impose sentence. At the hearing held on August 23, 2022, defendant stipulated to
the grounds of his probation revocation, and his probation was revoked. Upon
doing so, the district court advised defendant that the sentencing range for a third
offense driving while intoxicated was not less than one year and not more than five
years at hard labor. After conducting a Boykin examination, in conformity with a
plea agreement, the district court sentenced defendant to five years with the
Department of Corrections, with credit for each day actually served pursuant to La.
C.Cr.P. art. 880. The district court noted that “defendant [was] not to receive
credit for [the thirty days] served while on sanctions for drug court,” pursuant to
statute.
On August 30, 2022, seven days following the probation revocation hearing,
defendant filed a pro se request for appeal. On September 6, 2022, the district
court granted an out-of-time appeal, and appellate counsel was assigned to
represent defendant.
Assignment of Error
No errors are assigned.
Preliminary Issue
Before considering defendant’s appeal, we first address a preliminary
jurisdictional issue.
Louisiana jurisprudence generally holds that a judgment revoking probation
is not appealable but is subject to an appellate court’s supervisory jurisdiction.
State ex rel. Clavelle v. State, 02-1244 (La. 12/12/03), 861 So.2d 186, 187; State v.
Lewis, 17-663 (La. App. 5 Cir. 4/11/18), 244 So.3d 645, 848; State v. Hoskins, 09-
23-KA-30 2
476 (La. App. 5 Cir. 4/27/10), 40 So.3d 199, 201. This Court’s jurisprudence,
however, distinguishes review of the probation revocation itself versus review of
the sentence imposed pursuant to the probation revocation. See Hoskins, 40 So.3d
at 201-02, (finding that because the defendant challenged the sentence imposed
pursuant to the probation revocation, and not the merits of the revocation, this
Court’s appellate jurisdiction attached); see also State v. Edwards, 08-1527 (La.
App. 3 Cir. 3/4/09), 11 So.3d 1 (“While La. C.Cr.P. art. 812(C)(1) provides that a
defendant may appeal a final judgment imposing sentence, Defendant questions the
merits of the probation revocation, not the sentence imposed.”). Thus, while a
probation revocation is only reviewable under supervisory jurisdiction, a sentence
imposed pursuant to that probation revocation is reviewable on appeal.
This jurisprudence as applied to the present case is complicated by the
vagueness of defendant’s pro se motion for appeal and the lack of a pro se
appellant brief. In his motion for appeal, defendant did not assign any specific
errors, but merely indicated that he wished to appeal, that he was indigent, and that
he sought appointment of appellate counsel. And, with the filing of an Anders
brief, it is not clear what defendant seeks to appeal. To the extent defendant is
appealing his probation revocation, that ruling is not subject to our appellate
jurisdiction. If, on the other hand, defendant is appealing the sentence imposed
pursuant to that probation revocation, the jurisprudence indicates that this Court
has jurisdiction to review his sentence on appeal.
Confronted with how to interpret defendant’s motion for appeal, rather than
interpret it in such a way so as to foreclose our appellate jurisdiction, in the interest
of justice, we choose to presume that defendant is appealing a matter that is in fact
appealable, and which he timely appealed: his sentence imposed on August 23,
2022. See State v. Lewis, 17-663 (La. App. 5 Cir. 4/11/18), 244 So.3d 845, 848;
State v. Pabst, 18-1395 (La. App. 1 Cir. 4/23/19), 276 So.3d 1018, 1020 n.1. With
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this in mind, we now turn to consider the brief filed by defendant’s appellate
counsel in conformity with Anders, supra.
Factual Background
Because defendant entered a guilty plea, the facts underlying his conviction
were not developed at a trial. However, at the time of the plea, the State informed
the district court that had the State proceeded to trial, it would have proved beyond
a reasonable doubt that defendant, while in the Parish of Jefferson on July 9, 2020,
having been twice convicted of driving while intoxicated, he willfully and
unlawfully operated a motor vehicle while intoxicated in violation of La. R.S.
14:98.3 (A), third offense driving while intoxicated. The State provided that
defendant had been previously convicted of driving while intoxicated on April 13,
2017, in Denton County, Texas, and again on March 12, 2019 in Jefferson Parish,
Louisiana.
Anders Brief
In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if she finds her client’s case
to be wholly frivolous after a conscientious examination of the record. 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, the Louisiana Supreme Court stated that an Anders brief need not
tediously catalog every meritless pretrial motion or objection made at trial with a
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detailed explanation of why the motions or objections lack merit. Jyles, 704 So.2d
at 241. 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. 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.Discussion
Defendant’s appellate counsel asserts in her brief that after a detailed review
of the district court record, she could find no non-frivolous issues to raise on
appeal. Counsel provides that because a sentence has been imposed, the judgment
is final and appealable. Counsel recounts the pertinent procedural history of this
case dating back to its inception in 2020, and contends that she can find no ruling
of the district court that arguably supports the appeal. Specifically, counsel
provides that the record shows that during the colloquy, the district court explained
to defendant each of the rights necessary to ensure a voluntary, knowing and
intelligent waiver of rights. The district court advised defendant of his Boykin
trilogy of rights, informed him that the State would be required to prove his guilt
beyond a reasonable doubt, and that by tendering a plea of guilty, he was waiving
23-KA-30 5
his right to appeal. She states that the district court further explained to defendant
that a plea of guilty to a felony could affect his right to vote and his right to bear
arms, as well as college admission, financial aid, public housing benefits,
employment, licensing restrictions, and the standard of proof for probation and
parole violations. Appellate counsel claims the district court explained to
defendant the requirements to successfully complete drug court and the conditions
of his parole. She states that defendant was represented by counsel at the probation
revocation hearing and that he signed a waiver of rights form.
Appellate counsel avers that the district court determined that defendant had
the mental capacity to understand the charge and the constitutional rights he was
waiving. Moreover, with respect to the sentence that would be imposed for the
offense to which defendant was pleading guilty, counsel contends the district court
had agreed to sentence him to a term between one to five years at hard labor. The
district court sentenced defendant to five years at hard labor in conformity with the
plea agreement.
Appellate counsel avers that the bill of information indicates that defendant
was properly charged. As required, it plainly and concisely states the essential
facts constituting the offense charged. Additionally, it sufficiently identifies
defendant, as well as the crime charged in accordance with La. C.Cr.P. arts. 462-
466. Counsel avers the record shows that there are no appealable issues involving
defendant’s presence. The record indicates he was present and represented by
counsel at all crucial stages of the proceedings against him, including his
arraignment, revocation hearing, and sentencing. Further, the record shows that
the district court sentenced defendant after the proper delays and imposed the
sentence in conformity with the plea agreement. Accordingly, appellate counsel
contends that defendant is now restricted by law from appealing his conviction and
sentence.
23-KA-30 6
Appellate counsel has filed a motion to withdraw as attorney of record
stating that she prepared an Anders brief and notified defendant of his right to file a
pro se brief in this Appeal. Additionally, this Court sent defendant a certified letter
informing him that an Anders brief had been filed and that he had until March 12,
2023, to file a pro se supplemental brief. Defendant did not file a pro se
supplemental brief.
In response, the State contends that appellate counsel’s brief complies with
the procedures for filing an Anders brief, and agrees with counsel that, as shown by
the record, there are no non-frivolous issues for appeal. The State further contends
that, during the Boykin examination, Mr. Dewhirst was informed of his trilogy of
rights, after which he indicated that he understood them and wished to waive them.
The State asserts that the colloquy and the waiver form both confirm that
defendant’s guilty plea was entered into freely and voluntarily, and that he had not
been forced, coerced, or threatened to enter his plea. The State contends defendant
was present and represented by counsel at all crucial stages of the proceedings.
The State further notes that defendant was properly charged and that the bill of
information plainly and concisely informed defendant of the essential facts
constituting the offense charged. Additionally, with respect to the sentence handed
down by the district court, the State contends that it was handed down in
conformity with the plea agreement. The State notes that the sentence imposed
falls within the sentencing range prescribed by statute. The record shows that
defendant was informed of the minimum sentence and the maximum sentence that
could be imposed upon his guilty plea. The State concludes that because appellate
counsel’s brief demonstrates by full discussion and analysis that she has complied
with the requirements of Anders, and agrees that there are no non-frivolous issues
to raise on appeal, the motion to withdraw should be granted.
23-KA-30 7
As discussed above, our jurisdiction limits our review only to the sentence
imposed on August 23, 2022, and thus, our independent review of this record in
accordance with Anders is correspondingly limited. In their respective briefs, both
appellate counsel and the State note that defendant was sentenced in accordance
with his plea agreement and that the sentence imposed was within statutory limits.
Our independent review of the record confirms appellate counsel’s assertion that
there are no non-frivolous issues to be raised on appeal stemming from defendant’s
sentence imposed on August 23, 2022.
Furthermore, our review of defendant’s sentence is limited by the fact that
he pled guilty in this case. Pursuant to Louisiana law, a defendant cannot appeal or
seek review of a sentence imposed in conformity with a plea agreement which was
set forth in the record at the time of the plea. La. C.Cr.P. art. 881.2(A)(2); State v.
Windgerter, 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Here,
defendant’s sentence for third offense driving while intoxicated was imposed in
accordance with the terms of his plea agreement as set forth in the record at the
time of his plea. In any event, we note that the sentence falls within the sentencing
range set forth in the statute in effect at the time of the offense. See La. R.S.
14:98.3(A).
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 non-frivolous appeal, and our independent review of the record
supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of
record is hereby granted.
Errors Patent
The portion of the record relating to defendant’s sentence has been reviewed
for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312
23-KA-30 8
So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir.
1990). The following requires corrective action.
The record reflects that, pursuant to La. R.S. 14:98.3(A), the district court
imposed a sentence that is illegally lenient for several reasons. First, the record
fails to reflect that defendant was ordered to install an interlock device on his
vehicle pursuant to La. R.S. 14:98.3(3)(d)(i). Additionally, La. R.S. 14:98.3(A)(1)
states that on a conviction of a third-offense violation of La. R.S. 14:98, the
offender shall be fined two thousand dollars and shall be imprisoned, with or
without hard labor, for not less than one year nor more than five years. Except as
provided in Paragraph (2) of this Subsection, at least one year of the sentence
imposed shall be served without benefit of parole, probation, or suspension of
sentence. La. R.S. 14:98.3(A)(2) states that the one-year period described in
paragraph one, which shall otherwise be imposed without the benefit of parole,
probation, or suspension of sentence, may be suspended if the offender is accepted
into a drug division probation program. Here, the district court did not impose the
restriction of benefits pursuant to La. R.S. 14:98.3(1). While defendant was
accepted into a drug division probation program and received the suspension of the
restriction of benefits pursuant to La. R.S. 14:98.3(A)(2), when his probation was
revoked and he was sentenced, the district court failed to impose the restriction of
benefits required by La. R.S. 14:98.3(A)(1). See State v. Rimmer, 16-649 (La.
App. 5 Cir. 5/17/17), 222 So.3d 948, 950-956.
Generally, when a district court does not mention the restriction of benefits,
such conditions are deemed to exist by operation of law under La. R.S. 15:301.1.
State v. Shelby, 19-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228.
However, in the instant case, the district court’s failure to impose the statutory
restrictions is not cured by La. R.S. 15:301.1 because the statute states that “at least
one year of the sentence imposed shall be served without benefit of parole,
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probation, or suspension of sentence,” and therefore, the portion of the sentence to
be served without benefits is left to the discretion of the district court. Therefore,
we remand the matter to the district court for resentencing with instructions to
impose defendant’s sentence in accordance with the provisions of La. R.S.
14:98.3(A)(1) only as it relates to the restriction of benefits. See Shelby, 263 So.3d
at 1228-29.3
The district court also failed to impose the mandatory fine. This Court has
previously exercised its discretion to decline to correct an illegally lenient sentence
in the case of an indigent defendant. State v. Fisher, 19-488 (La. App. 5 Cir.
6/24/20), 299 So.3d 1238, 1249. Here, defendant is represented by the Louisiana
Appellate Project, which represents indigent defendants in non-capital felony
cases. Therefore, due to defendant’s indigent status, we decline to remand this
matter for imposition of the mandatory fine. State v. Bradley, 22-191 (La. App. 5
Cir. 12/21/22), 356 So.3d 485, 505.
DECREE
For the foregoing reasons, defendant’s sentence is affirmed and the matter is
remanded to the district court for resentencing with instructions to impose
defendant’s sentence in accordance with the provisions of La. R.S. 14:98.3(A)(1)
only as it relates to the restriction of benefits. Appellate counsel’s motion to
withdraw as counsel of record is granted.
SENTENCE AFFIRMED; REMANDED WITH
INSTRUCTIONS; MOTION TO WITHDRAW GRANTED
3
In Shelby, the district court did not impose the restriction of benefits as to the conviction of
possession with the intent to distribute MDMA, and the portion of the sentence to be served without
benefits was left to the discretion of the district court. This Court remanded the matter for resentencing
with instructions to the district court to impose the defendant’s sentence in accordance with the provisions
of the statute only as it related to the restriction of benefits.
23-KA-30 10
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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
AUGUST 30, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-30
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
MOLLY M. MASSEY (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053