State of Louisiana Versus Dewayne A. Allen

STATE OF LOUISIANA NO. 19-KA-388

VERSUS FIFTH CIRCUIT

DEWAYNE A. ALLEN COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-1307, DIVISION "B"
HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

April 30, 2020

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Robert A. Chaisson,
Hans J. Liljeberg, and John J. Molaison, Jr.

AFFIRMED; MOTION TO WITHDRAW GRANTED
HJL
RAC
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Zachary P. Popovich
Meredith Hearn

COUNSEL FOR DEFENDANT/APPELLANT,
DEWAYNE A. ALLEN
Cynthia K. Meyer

LILJEBERG, J.

Defendant appeals his convictions and sentences for possession with intent

to distribute heroin and possession of a firearm by a convicted felon. For the

following reasons, we affirm. We also grant appellate counsel’s motion to

withdraw as counsel of record.

PROCEDURAL HISTORY

On March 26, 2018, the District Attorney for Jefferson Parish filed a bill of

information charging defendant, Dewayne A. Allen, with possession with intent to

distribute heroin, in violation of La. R.S. 40:966(A) (count one), and possession of

a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count two).

Defendant pleaded not guilty to the charged offenses. On February 5, 2019,

defendant withdrew his former pleas of not guilty, and after being advised of his

Boykin1 rights, pleaded guilty as charged.2 In accordance with the plea agreement,

defendant was sentenced on count one to 18 years imprisonment at hard labor and

on count two to 18 years imprisonment at hard labor without benefit of probation,

parole, or suspension of sentence. The trial court ordered defendant’s sentences to

run concurrently with each other.

On the same date, the State filed a multiple offender bill of information on

count two—possession of a firearm by a convicted felon—alleging defendant to be

a second-felony offender. Defendant stipulated to the allegations in the multiple

bill after being advised of his rights. The trial court then vacated defendant’s

original sentence on count two, and pursuant to the multiple offender stipulation,

resentenced defendant on count two, as a second-felony offender under La. R.S.

1
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
2
On the same date, defendant pleaded guilty under district court case number 17-5152 to possession with
intent to distribute heroin, possession with intent to distribute cocaine, possession of a firearm by a
convicted felon, possession of an unidentifiable firearm, and possession of a firearm having been
previously convicted of domestic abuse battery—all alleged to have occurred on July 12, 2017.
Defendant’s appeal of these convictions is before this Court under companion case number 19-KA-377.
Defendant also pleaded guilty to two misdemeanor offenses under case number 18-1571, which are not
before this Court on appeal.

19-KA-388 1

15:529.1, to 18 years at hard labor without benefit of probation or suspension of

sentence. The trial court ordered all of defendant’s sentences, including those

imposed in case numbers 17-5152 and 18-1571, to run concurrently, and

recommended defendant for participation in any available self-help programs.

Defendant appeals.

FACTS

Because defendant’s convictions were the result of guilty pleas, the facts

underlying the crimes of conviction are not fully developed in the record. Thus,

the facts were gleaned from the bill of information, which alleged that on January

23, 2018, defendant knowingly or intentionally possessed heroin with the intent to

distribute, in violation of La. R.S. 40:966(A) (count one), and also on January 23,

2018, defendant violated La. R.S. 14:95.1 in that he possessed a firearm, to wit: a

Beretta .25 caliber semi-automatic handgun, serial number BER96499V, having

previously been convicted on January 9, 2009 of the crimes of possession with

intent to distribute cocaine (a violation of La. R.S. 40:967(A)) under case number

481-694 and possession of cocaine (a violation of La. R.S. 40:967(C)) under case

number 462-665, in Section “G” of the Orleans Parish Criminal District Court.3

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, 1110-11,4 appointed appellate counsel

has filed a brief asserting that she 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

3
The bill of information initially included, as an additional predicate conviction, a January 9, 2009
conviction for possession with intent to distribute cocaine in case number 471-934 in Orleans Parish
Criminal District Court. However, the bill of information was amended on February 5, 2019, to delete the
reference to case number 471-934.
4
In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530
(La. App. 4th 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).

19-KA-388 2

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 she finds her case to be

wholly frivolous after a conscientious examination of it.5 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 pre-trial 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. Bradford, 676 So.2d at 1110. If, after an independent review,

5
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-388 3

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, she could find no non-frivolous issues to raise on appeal.

Appellate counsel submits that the only pre-trial ruling which could arguably

support an appeal is the denial of defendant’s motion to suppress; however, she

notes that defendant did not preserve his right to seek appellate review of the

denial of any motions. Appellate counsel further maintains defendant entered an

unqualified guilty plea, thereby waiving any non-jurisdictional defects. She further

asserts the trial court advised defendant of the rights necessary to ensure a knowing

and intelligent waiver of rights, as well as the sentencing ranges for the offenses

and the sentences that would be imposed. Appellate counsel concludes that

defendant was sentenced pursuant to the plea agreement, precluding him from

challenging his sentences on appeal.

The State agrees with appellate counsel that there are no non-frivolous issues

to raise on appeal, and that appellate counsel’s request to withdraw as counsel of

record should be granted.

Appellate counsel has filed a motion to withdraw as attorney of record, in

which she states that she has notified defendant of the filing of her motion to

withdraw, as well as his right to file a pro se brief in this appeal.6 Defendant has

not filed a pro se brief in this matter.

6
This Court has also sent defendant a letter by certified mail informing him that an Anders brief had been
filed and that he had until September 20, 2019, to file a pro se supplemental brief.

19-KA-388 4

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 and plainly and

concisely stated the essential facts constituting the charged offenses. It also

sufficiently identified defendant and the crimes charged. See generally La. C.Cr.P.

arts. 464-466. The record also shows there are no appealable issues surrounding

defendant’s presence. The minute entries show that defendant appeared at each

stage of the proceedings against him, including his arraignment, his guilty plea

proceeding, his sentencing, and his multiple bill proceeding, including his

stipulation and his enhanced sentencing.

Further, defendant pleaded guilty as charged to the offenses contained in the

bill of information. Generally, when a defendant pleads guilty, he 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

unqualified guilty pleas, and therefore, all non-jurisdictional defects were waived.

The record also indicates that defendant filed several pre-trial motions,

including motions to suppress, which the trial court denied. However, defendant

did not preserve any pre-trial rulings for appeal under the holding in State v.

Crosby, 338 So.2d 584 (La. 1976).

Additionally, a review of the record reveals no irregularities in defendant’s

guilty pleas that would render them invalid. 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 Boykin colloquy is inadequate, or when a defendant is

induced to enter the plea by a plea bargain or what he justifiably believes was a

19-KA-388 5

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.

The record shows defendant was aware he was pleading guilty to one count

of possession with intent to distribute heroin and one count of possession of a

firearm by a convicted felon. Defendant was also properly advised of his Boykin

rights. On the waiver of rights form and during the colloquy with the trial judge,

defendant was advised of his right to a judge or jury trial, his right to confrontation,

and his privilege against self-incrimination. Defendant indicated that he

understood he was waiving these rights. He also confirmed that he understood the

possible legal consequences of pleading guilty and that he had not been forced,

coerced, or intimidated into entering his guilty pleas. The trial court further

informed defendant that his guilty pleas could be used to enhance a penalty for any

future conviction. After his colloquy with defendant, the trial judge accepted

defendant’s guilty pleas as knowingly, intelligently, and voluntarily made.

We note that, during the guilty plea colloquy, defendant was incorrectly

advised that the sentencing range for count one—possession with intent to

distribute heroin (La. R.S. 40:966(A))—was one to 20 years at hard labor. La. R.S.

40:966(B)(3) mandates a sentence for this crime of not less than five nor more than

40 years imprisonment at hard labor.

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. La. C.Cr.P. art. 556.1 (E) provides that: “[a]ny variance from the

procedures required by this Article which does not affect substantial rights of the

accused shall not invalidate the plea.” Violations of La. C.Cr.P. art. 556.1 that do

not rise to the level of Boykin violations are subject to harmless error analysis.

State v. Guzman, 99-1528 and 99-1753 (La. 5/16/00), 769 So.2d 1158, 1164-66;

19-KA-388 6

State v. Gilliam, 01-748 (La. App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ

denied, 02-0512 (La. 11/1/02), 828 So.2d 562.

In the present case, although the trial court incorrectly advised defendant as

to the sentencing range he faced on count one, defendant was informed he would

receive an 18-year sentence at hard labor and he subsequently received the agreed-

upon sentence. This Court has held that the advisement of an agreed-upon

sentence complies with La. C.Cr.P. art. 556.1. See State v. Nicholas, 16-16 (La.

App. 5 Cir. 6/30/16), 196 So.3d 864, 872; and 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.

Further, the record shows defendant was informed of the consequences of

his guilty pleas, including the sentences he would receive, and that he conferred

with his attorney before entering his guilty pleas. Defendant’s sentences were part

of what appears to be a highly beneficial plea bargain, in that defendant was

sentenced to less than half the maximum sentence the court could have imposed on

count one, and his sentence was ordered to run concurrent with the sentences for

his other convictions. Additionally, the State filed a multiple bill against defendant

as to count two for which he was resentenced to the same 18-year sentence

originally imposed. Accordingly, because the record does not show that any

substantial rights of defendant were affected by the inaccurate advisal, this does

not present a non-frivolous issue for appeal. See State v. Landfair, 07-751 (La.

App. 5 Cir. 3/11/08), 979 So.2d 619, 622-23, writ denied, 08-1143 (La. 1/9/09),

998 So.2d 713.

Next, we note that a review of the multiple offender proceeding reveals no

non-frivolous issue for appeal. Defendant was advised of his multiple offender

rights, indicated that he understood the consequences of his plea, and wished to

plead guilty. Defendant stipulated to being a second-felony offender as alleged in

19-KA-388 7

the multiple bill, thereby waiving his right to a hearing and any possible non-

jurisdictional defects. By stipulating to the multiple bill, defendant is barred from

asserting on appeal that the State failed to produce sufficient proof at the multiple

bill hearing. See State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d

300, 304.

Lastly, defendant’s sentences are within the sentencing ranges prescribed by

the statutes. See La. R.S. 40:966(B)(3); La. R.S. 14:95.1(B); La. R.S.

15:529.1(A)(1). Further, defendant’s original and enhanced sentences were

imposed pursuant to, and in conformity with, the plea agreements. La. C.Cr.P. art.

881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in

conformity with a plea agreement, which was set forth in the record at the time of

the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State

v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

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. Accordingly, we affirm defendant’s convictions and

sentences, 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. 5th Cir. 1990). No errors requiring corrective action were

noted.

DECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences

for possession with intent to distribute heroin and possession of a firearm by a

19-KA-388 8

convicted felon. We also grant appellate counsel’s motion to withdraw as counsel

of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED

19-KA-388 9

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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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
APRIL 30, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-388
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CORNELIUS E. REGAN (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(ATTORNEY)
MEREDITH HEARN (ATTORNEY)
ZACHARY P. POPOVICH (ATTORNEY)
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053