State of Louisiana Versus Scott T Surgi

STATE OF LOUISIANA NO. 24-KA-291

VERSUS FIFTH CIRCUIT

SCOTT T SURGI COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 22-5343, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

February 26, 2025

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
John J. Molaison, Jr., and Timothy S. Marcel

AFFIRMED
JGG
JJM
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler

COUNSEL FOR DEFENDANT/APPELLANT,
SCOTT T. SURGI
Bertha M. Hillman

GRAVOIS, J.

Defendant, Scott T. Surgi, appeals his conviction and sentence for simple

burglary in violation of La. R.S. 14:62. Under the procedure adopted by this Court

in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,1

previously appointed appellate counsel filed a brief asserting that she thoroughly

reviewed the trial court record and could not 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 (per curiam), previously appointed appellate counsel filed a Motion to

Withdraw as Attorney of Record for defendant. However, prior to submission of

this appeal for decision, previously appointed appellate counsel for defendant and

newly appointed appellate counsel for defendant filed a Motion to Substitute newly

appointed appellate counsel for defendant in place of previously appointed

appellate counsel for defendant. The Motion to Substitute was granted by this

Court. This Court then denied previously appointed appellate counsel’s Motion to

Withdraw as Attorney of Record for defendant as moot. Newly appointed

appellate counsel for defendant has filed neither a brief on behalf of defendant, nor

a Motion to Withdraw as Attorney of Record for defendant.

For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On November 9, 2022, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Scott T. Surgi, with simple burglary of a shed

1
In Bradford, 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, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

24-KA-291 1

located at 6225 Hodgson Street belonging to K. Briscoe in violation of La. R.S.

14:62.2 Defendant pled not guilty at his arraignment on November 15, 2022.

On February 28, 2024, defendant withdrew his not guilty plea and pled

guilty as charged. On that same date, the trial court sentenced defendant to the

Department of Corrections for two years. The trial judge ordered the sentence to

run concurrently with the sentences in case numbers 23-4835, 24-52, and 24-53,

and with any other sentences defendant may be currently serving, including parole

revocation sentences. The trial judge further ordered defendant to pay fines, fees,

and costs as per the fines, fees, and sentencing provision probation requirement

form, as well as restitution to the victim in the amount of $300.00, as agreed to by

defendant. On March 14, 2024, defendant filed a timely pro se motion for an

appeal that was granted on April 8, 2024.3

FACTS

Defendant entered a guilty plea, and therefore, the underlying facts were not

developed at a trial. However, during the colloquy, the prosecutor stated that if the

case had proceeded to trial, the State would have proven that on or about October

9, 2022, defendant violated La. R.S. 14:62, in that he committed a simple burglary

of a shed located at 6225 Hudson Street4 belonging to “Kate Brisco.”

Additionally, defendant indicated that he committed the crime.

ANDERS BRIEF

In Anders, supra, the United States Supreme Court stated that appointed

appellate counsel may request permission to withdraw if counsel finds the appeal

2
Kasey Lynn Wallace was also charged with that same offense in the same bill of
information.
3
Defendant has two companion cases, 24-KA-292 and 24-KA-293, pending in this
Court. In all three cases, defendant pled guilty to simple burglary in violation of La. R.S. 14:62.
Also, in 24-KA-293, defendant stipulated to being a second-felony offender.
4
The State alleged in the bill of information that the shed was located on Hodgson Street.

24-KA-291 2

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 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.” 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

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).

24-KA-291 3

the legal point(s) identified by the court, or grant the motion and appoint substitute

appellate counsel. Id.

ANALYSIS

Defendant’s previously appointed appellate counsel asserted in the brief

filed on defendant’s behalf that after a detailed review of the record, she could find

no non-frivolous issues to raise on appeal. Counsel stated that during the plea

colloquy, the trial judge explained to defendant each of the rights necessary to

ensure a knowing and intelligent waiver of rights. The trial judge explained to

defendant that he had the right to a jury trial, to remain silent, to confront

witnesses, and to the presumption of innocence. Counsel averred that the trial

judge informed defendant that the State would be required to prove his guilt

beyond a reasonable doubt and that by tendering his plea, he was waiving his right

to appeal. Counsel also averred that the trial judge told defendant that if he was

arrested and convicted of subsequent offenses, this plea could be used to enhance

the penalty under the habitual offender law.

Counsel provided that the trial judge determined that defendant was aware of

the nature of the crime and understood the consequences of his plea. Counsel also

provided that the trial judge agreed to sentence defendant to a term of two years.

Counsel asserted that the bill of information shows that defendant was properly

charged, that it plainly and concisely states the essential facts constituting the

offense charged, and that it sufficiently identified defendant and the crime charged.

Counsel maintained that the record reveals that there are no appealable issues

involving defendant’s presence, as he was present and represented by counsel at all

crucial stages of the proceedings, including his arraignment and sentencing.

Counsel submitted that the trial judge imposed the sentence in conformity with the

plea agreement. Accordingly, counsel acknowledged that defendant is now

restricted by law from appealing his conviction and sentence.

24-KA-291 4

In response, the State contends that appellate counsel correctly noted that

this case presents no non-frivolous issues for appellate review.

Previously appointed appellate counsel filed a motion to withdraw as

attorney of record for defendant, which states that counsel notified defendant of the

filing of this motion and of his right to file a pro se brief in this appeal.

Additionally, this Court sent defendant a letter by certified mail informing him that

an Anders brief had been filed and that he had until August 2, 2024 to file a pro se

supplemental brief. Defendant did not file a pro se supplemental brief.

Our independent review of the record supports previously appointed

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 offense. It sufficiently

identified defendant and the crime charged. See La. C.Cr.P. arts. 464 and 466. As

reflected by the minute entries, defendant and his counsel appeared at all crucial

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

proceedings, and sentencing. As such, defendant’s presence did not present any

issues that would support an appeal.

The record also indicates that defense counsel filed omnibus motions, which

were not ruled upon by the trial court prior to the time defendant entered his guilty

plea. However, defendant did not object to the trial court’s failure to do so. When

a defendant does not object to the trial court’s failure to hear or rule on a pretrial

motion prior to pleading guilty, the motion is considered waived. See State v.

Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Defendant pled guilty as charged to simple burglary. If a defendant pleads

guilty, he normally waives all non-jurisdictional defects in the proceedings leading

up to the guilty plea, which precludes review of such defects either by appeal or by

an application for post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir.

24-KA-291 5

7/27/10), 47 So.3d 455, 459. Once a defendant is sentenced, only those guilty

pleas that are unconstitutionally infirm may be withdrawn by appeal or by an

application for post-conviction relief. State v. McCoil, 05-658 (La. App. 5 Cir.

2/27/06), 924 So.2d 1120, 1124. A guilty plea is unconstitutionally infirm if it is

not entered freely and voluntarily, if the Boykin6 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.

Our independent review of the record reveals no unconstitutional infirmity

or any irregularity in defendant’s guilty plea that would render it invalid. The

record reflects that on February 28, 2024, defense counsel advised the trial judge

that defendant was going to plead guilty that day to simple burglary. The trial

judge stated that the offense had a maximum sentence of twelve years. The State

said that it would not file a habitual offender bill in this matter. During the

colloquy, defendant indicated that he was pleading guilty to simple burglary. The

trial judge advised defendant that by pleading guilty, he was giving up many rights,

including the right to a trial by jury. The trial judge informed defendant that he

had the right to require that the State prove his guilt beyond a reasonable doubt and

the right to confront accusers, to cross-examine witnesses, and to compel testimony

on his own behalf. She also informed defendant that he had the right to remain

silent and not testify and that his silence would not be an inference of guilt. The

trial judge advised defendant that he had the right to appeal any adverse verdict

and the right to the assistance of an attorney. She stated that if defendant could not

afford an attorney, a free court attorney would be appointed. When asked if

defendant understood that he was waiving and giving up these rights if he entered

into a guilty plea, defendant replied affirmatively.

6
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

24-KA-291 6

Defendant also indicated he understood that by pleading guilty, he was

authorizing the trial court to impose a penalty without having a trial. He

understood that if he was arrested and convicted of any subsequent offense, his

guilty plea could be used to enhance the penalty for that offense. Defendant

indicated that no one had made any promises or threats and that no one had

coerced him into entering a guilty plea. The prosecutor then provided a factual

basis for the offense, and defendant admitted that he had committed the crime to

which he was pleading guilty. The prosecutor added that defendant would have to

pay restitution to the victim in the amount of $300.00, and defense counsel

responded that was indicated on the Boykin form.

The trial judge then stated that she was satisfied that defendant was aware of

the nature of the crime to which he was pleading guilty, that defendant did in fact

commit the crime, that he understood the consequences of his plea, that he was

voluntarily pleading guilty, and that there was a factual basis for the plea.

Therefore, the trial judge accepted defendant’s guilty plea.

Further, the waiver of rights form reflects that defendant was advised of his

rights, including his right to a jury trial, his right to confrontation, and his privilege

against self-incrimination; that defendant placed his initials next to the individual

advisals of his rights; and that he placed his signature at the end of the waiver of

rights form, thus indicating that he understood he was waiving those rights. The

waiver of rights form also reflects that defendant understood that he was pleading

guilty to simple burglary, and it set forth the actual sentence defendant would

receive if he pled guilty. The trial judge found that defendant made a knowing,

intelligent, free, and voluntary act of pleading guilty.

Further, defendant’s sentence falls within the sentencing range prescribed by

the applicable statute. See La. R.S. 14:62. Also, the sentence was imposed

pursuant to, and in conformity with, the plea agreement. In this regard, La. C.Cr.P.

24-KA-291 7

art. 881.2(A)(2) precludes a defendant from seeking review of a sentence that was

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.

We find previously appointed appellate counsel’s brief adequately

demonstrated by full discussion and analysis that counsel reviewed the trial court

proceedings and could not identify any basis for a non-frivolous appeal, and our

independent review of the record supports counsel’s assertion.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to 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). Our review of the record reveals no errors patent.

DECREE

Accordingly, we affirm defendant’s conviction and sentence.

AFFIRMED

24-KA-291 8

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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
FEBRUARY 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-291
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT) CHRISTOPHER A. ABERLE (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053