State v. Hill
State v. Hill
Opinion of the Court
| ¡¿Defendant, Martin Hill, pled guilty to distribution of cocaine in violation of LSA-R.S. 40:967 A. The district court sentenced defendant to 15 years at hard labor, ordering that the first two years of the sentence be served without benefit of parole, probation, or suspension of sentence. The court further ordered that the sentence run concurrently with defendant’s sentence in district court case number 04-4827.
The district court granted defendant an out-of-time appeal.
The bill of information in this case alleged defendant distributed cocaine on or about October 29, 2003. Since defendant pled guilty and the district court did not hold any motion hearings, the only testimony regarding the offense came from defendant at his guilty plea hearing. Defendant admitted, “I was selling crack-cocaine.”
[o,Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990),
In Anders, 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.
In State v. Jyles, 96-2669 at 2, 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.” State v. Jyles, supra.
In evaluating an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the appellate 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. But 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 appellant counsel. Id.
Defendant’s appellate counsel as-sei’ts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel points out that the district court jiroperly advised defendant of his lights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) prior to accepting his guilty plea. She further asserts that defendant knowingly and voluntarily waived his rights in entering his plea. Counsel submits that the State was not required to provide a factual basis for defendant’s guilty plea, and that defendant admitted his guilt to the court.
Appellate counsel notes that defendant’s original and habitual offender sentences fell within statutory limits. Counsel further points out that defendant ^agreed to his habitual offender sentence as part of a sentencing agreement, and so he may not challenge it on appeal.
Appellate counsel has filed a motion to withdraw as attorney of record which states she complied with the provisions of Anders, and that she notified defendant of his right to file a pro se supplemental brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until March 27, 2009 to file a pro se supplemental brief. Defendant did not file a brief.
Our review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. 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. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.
Defendant filed several pre-trial motions, but it does not appear from the record that the district court heard any of them. There are thus no district court rulings defendant could have preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).
The record shows the district court ascertained that defendant was 48 years old, had a tenth grade education, and was able
Defendant entered an admission to the allegations in the habitual offender bill of information. Before accepting defendant’s admission, the district court adequately advised him of his right to a habitual offender hearing and his right to remain silent.
Defendant’s sentences were both within the statutory limits.
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, we find that defendant’s conviction and sentence should be affirmed and appellate counsel’s motion to withdraw as attorney of record be granted.
We have reviewed the record for errors patent in accordance with LSA-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), and note the following error.
The trial court’s advisal regarding the prescriptive period under LSA-C.Cr.P. art. 930.8 was incomplete. At the time of sentencing, the district court informed |7defendant that he had “two years from the date the judgment of conviction becomes final to seek post-conviction relief.” The guilty plea form, which defendant signed at the time he entered his plea, states that defendant has two years “from the day your judgment and conviction becomes final to seek post-conviction relief.” Article 930.8 provides that a defendant has two years from the date the defendant’s conviction and sentence become final in which to apply for post-conviction relief. In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days
For the above discussed reasons, defendant’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw as attorney of record is hereby granted.
MOTION TO WITHDRAW GRANTED; AFFIRMED.
. Defendant’s conviction in district court case number 04-4827 was also affirmed by this court. See State v. Hill, 09-80, (La.App. 5 Cir. 5/26/09), 15 So.3d 1038.
. The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.
.The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
. LSA-R.S. 15:529.1 D(l)(a) requires that a defendant be advised of the specific allegations in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La. 1983); State v. Bell, 03-217, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.
. At the time of the offense, the sentencing range for cocaine distribution was two to 30 years at hard labor, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. Defendant was also subject to a discretionary fine of not more than $50,000.00. LSA-R.S. 40:967 B(4)(b). As a second felony offender, defendant was subject to a sentencing range of 15 to 60 years, without benefit of probation or suspension of sentence for the entire term, and without parole, probation, or suspension of sentence for the first two years. LSA-R.S. 15:529.1 A(l)(a); LSA-R.S. 15:529.1G; LSA-R.S. 40:967 B(4)(b).
Reference
- Full Case Name
- STATE of Louisiana v. Martin A. HILL
- Cited By
- 12 cases
- Status
- Published