State Of Louisiana v. Joseph "Joey" Earl Sylve

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2022 KA 1104

STATE OF LOUISIANA

VERSUS

JOSEPH " JOEY" EARL SYLVE

Judgment Rendered: FEB 2 4 2023

Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 4137- F- 2019
Honorable Vincent J. Lobetto, Judge Presiding

Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
J. Bryant Clark, Jr.
Assistant District Attorney
Covington, Louisiana

Bertha M. Hillman Counsel for Defendant/ Appellant
Covington, Louisiana Joseph " Joey" Earl Sylve

BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.

I Ld_1A Cvx s

GUIDRY, C. J.

The defendant, Joseph " Joey" Earl Sylve, was charged by bill of information

with second degree kidnapping, a violation of La. R.S. 14: 44. 1( A)(3), and initially

pled not guilty. Thereafter, the defendant withdrew his former not guilty plea and

pled guilty as charged. The trial court sentenced the defendant to ten years

imprisonment at hard labor, with eight years to be served without the benefit of

probation, parole, or suspension of sentence. The defendant filed a motion to

reconsider sentence, which the trial court denied. The defendant' s trial counsel

filed a motion for appeal on behalf of the defendant. Stating that she could not

find any non -frivolous issues to raise or rulings to challenge on appeal, appellate

counsel filed a brief raising no assignments of error and a motion to withdraw as

counsel of record. For the following reasons, we affirm the conviction and

sentence and grant appellate counsel' s motion to withdraw.

STATEMENT OF FACTS

At the Boykin' hearing, the defendant stipulated that there was a factual

basis for the offense to which he pled guilty. According to the bill of information,

the offense took place on or about October 16, 2019. As further provided in the

bill of information, the victim, D.M., was physically injured or sexually abused in

the commission of the instant offense.' See La. R.S. 14: 44. 1( A)(3). The lead

investigator assigned to this case, Detective Thomas McNulty with the Slidell

Police Department, testified at the sentencing hearing. According to Detective

McNulty, earlier in the evening on the day of the kidnapping, a patrol officer

responded to the Motel 6 in Slidell, based on a 911 call by D.M. During the 911

call, D.M. reported that the defendant, her ex- boyfriend, was at the motel where

1 Boykin v. Alabama, 395 U. S. 238, 243, 89 S. Ct. 1709, 1712, 23 L.Ed. 2d 274 ( 1969).

2 Herein, we will refer to the victim by her initials only. See La. R.S. 46: 1844( W).

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she worked and refused to leave. Upon his arrival, the patrol officer confronted

the defendant. After providing a false name, the defendant left.

However, the defendant later returned, jumped over the motel counter, and

dragged D.M. outside of the lobby as she yelled for help, prompting bystanders to

call 911. The officers were able to ping the defendant' s cell phone location, which

indicated that he was headed toward the New Orleans area. Multiple officers

responded to the Press Street area, where the defendant' s vehicle appeared to have

been stopped or slowed based on pings in that general vicinity. One of the

detectives located the defendant' s vehicle, a red or maroon Jeep, and pulled up

next to it. The defendant, the driver and sole occupant at the time, asked the

detective if he had seen " a white girl" walking around. The detective called for

backup and followed the defendant in a brief pursuit, as the defendant repeatedly

yelled D.M.' s name out his window. The defendant stopped and exited his

vehicle, did not comply with commands, and was taken to the ground. Several

items were found in the defendant' s vehicle, including a gun, a shovel, rope, and

tape. D. M., who was barefoot, shirtless, and had visible scratches, bruises, and a

bite mark, ran out from behind some bushes and screamed for help after hearing

the police radio coming from inside the officer' s vehicles.

ANDERS BRIEF

Appellate counsel for the defendant filed a brief containing no assignments

of error and requests that this court grant her motion to withdraw as counsel of

record. In her brief and motion to withdraw, referencing the procedures outlined

in State v. J les, 96- 2669 ( La. 12/ 12/ 97), 704 So. 2d 241 ( per curiam), appellate

counsel indicated that after a conscientious and thorough review of the record, she

could find no non -frivolous issues to raise on appeal, and could find no ruling of

the trial court that arguably supports the appeal.

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The procedure in Anders v. California, 386 U. S. 738, 87 S. Ct. 1396, 18

L.Ed.2d 493 ( 1967) was discussed in State v. Benjamin, 573 So. 2d 528, 529- 31

La. App. 4th Cir. 1990), 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

expanded by the Louisiana Supreme Court in Jules, 96-2669 at p. 3, 704 So. 2d at

242. Specifically, according to Anders, 386 U.S. at 744, 87 S. Ct. at 1400, " if

counsel finds his case to be wholly frivolous, after a conscientious examination of

it, he should so advise the court and request permission to withdraw." To comply

with Jyles, appellate counsel must review not only the procedural history of the

case and the evidence presented at trial, but must also provide " a detailed and

reviewable assessment for both the defendant and the appellate court of whether

the appeal is worth pursuing in the first place." Jules, 96- 2669 at p. 3, 704 So. 2d

at 242 ( quoting Mouton, 95- 0981 at p. 2, 653 So. 2d at 1177).

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. State v. Dyke, 17- 1303, p. 3 ( La. App. 1st Cir. 2/ 27/ 18), 244

So. 3d 3, 6, writ denied, 18- 0622 ( La. 2/ 18/ 19), 266 So. 3d 285. Herein, appellate

counsel has complied with all the requirements necessary to file an Anders brief.

Specifically, appellate counsel detailed the procedural history, the guilty plea

colloquy, and sentencing in this case. Further, appellate counsel certifies that the

defendant was served with a copy of the Anders brief. This court provided the

defendant with notice of the pro se briefing schedule. The defendant has not filed

a pro se brief in this case.

As stated, the defendant entered an unqualified plea of guilty in this case. A

guilty plea is a conviction and, therefore, should be afforded a great measure of

finality. State v. Tingle, 12- 1928, p. 4 ( La. App. 1st Cir. 6/ 7/ 13), 2013 WL

2484316, * 2. An unqualified plea of guilty waives all non -jurisdictional defects

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occurring prior thereto, and precludes their review thereof by either appeal or post-

conviction remedy. State v. Curry, 17- 0793, p. 1 ( La. 4/ 20/ 18), 240 So. 3d 909

per curiam); State v. Crosby, 338 So. 2d 584, 588 ( La. 1976); State v. West, 18-

0868, pp. 4- 5 ( La. App. 1st Cir. 5/ 31/ 19), 277 So. 3d 1213, 1216. Once a

defendant is sentenced, only those guilty pleas that are constitutionally infirm may

be withdrawn by appeal or on 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 plea bargain and that bargain is not

kept. Tingle, 12- 1928 at p. 4, 2013 WL 2484316 at * 2.

At the Boykin hearing in this case, the trial court noted that in exchange for

the defendant' s guilty plea, an agreed- upon sentencing range of seven to ten years

would be imposed. The trial court then asked the defendant a series of questions,

including inquiries as to his age, mental condition, level of education, ability to

read, write, and understand English, and advice given by counsel. The defendant

indicated that he was thirty-nine years old; had a master' s degree; that he was able

to read, write, and understand English; and that he had been advised of his rights

and the agreed- upon sentencing range by counsel. The defendant denied being

under the influence of any drugs, alcohol, or other mind -altering substance. The

defendant further denied being forced or coerced to plead guilty. The trial court

informed the defendant of the elements of the offense and of his constitutional

rights ( right to trial by jury, right against compulsory self-incrimination, and right

of confrontation). Boykin, 395 U.S. at 243, 89 S. Ct. at 1712. The trial court

further informed the defendant of the State' s burden of proof at a trial, his right to

an attorney at trial, his right to appeal if found guilty at trial, and his right to an

attorney on appeal if found guilty at trial. The defendant indicated that he

understood each individual right, that he understood that he was waiving those

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rights by pleading guilty, and that he wished to do so. The trial court advised the

defendant that if he pled guilty he would be sentenced according to the agreed-

upon sentencing range and would not be able to appeal that sentence. The

defendant responded affirmatively when asked if he was pleading guilty because

he was in fact guilty. The trial court then accepted the defendant' s guilty plea.

This court has conducted an independent review of the entire record in this

matter. We recognize that our review of the plea colloquy is subject to the

restraints of State v. Collins, 14- 1461, p. 1 ( La. 2/ 27/ 15), 159 So. 3d 1040 ( per

curiam) and State v. Guzman, 99- 1753, 99- 1528, pp. 6- 7 ( La. 5116/ 00), 769 So. 2d

11585 1162. We further note that La. C. Cr.P. art. 881. 2( A)( 2) provides that the

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." We

conclude there are no non -frivolous issues or trial court rulings which arguably

support this appeal. As routinely performed on appeal, this court has conducted a

review for patent error under La. C. Cr.P. art. 920( 2) and found none. Accordingly,

the defendant' s conviction and sentence are affirmed. Appellate counsel' s motion

to withdraw, which has been held in abeyance pending the disposition in this

matter, is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; APPELLATE
COUNSEL' S MOTION TO WITHDRAW GRANTED.

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