State of Louisiana Versus Scott T Surgi

STATE OF LOUISIANA NO. 24-KA-293

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. 24-52, 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; REMANDED WITH INSTRUCTIONS
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

and remand on errors patent review with instructions.

PROCEDURAL HISTORY

On January 5, 2024, the Jefferson Parish District Attorney filed a bill of

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

located at 1004 Alura Avenue in Metairie belonging to Steven Crawford and/or

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-293 1

Maria White in violation of La. R.S. 14:62. Defendant pled not guilty at his

arraignment on January 8, 2024.

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 in accordance with the plea agreement.

The transcript reflects that the trial judge also ordered the sentence to run

concurrently with the sentences in case numbers 22-5343, 23-4835, and 24-53.

Also on February 28, 2024, the State filed a habitual offender bill of

information alleging defendant to be a second-felony offender to which defendant

stipulated. On that same date, the trial judge vacated the original sentence and

resentenced defendant as a second-felony offender to seven years in the

Department of Corrections without the benefit of probation or suspension of

sentence. The trial judge waived all court costs, fines, and fees associated with the

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

appeal that was granted on April 8, 2024.2

FACTS

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

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

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

November 6, 2023, defendant violated La. R.S. 14:62, in that he committed a

simple burglary of a garage located at 1004 Allura Avenue3 in Metairie belonging

to Steven Crawford and/or Maria White. Additionally, defendant indicated that he

committed the crime.

2
Defendant has two companion cases, 24-KA-291 and 24-KA-292, pending in this
Court. In all three cases, defendant pled guilty to simple burglary in violation of La. R.S. 14:62.
3
The State alleged in the bill of information that the offense occurred on Alura Avenue.

24-KA-293 2

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

to be wholly frivolous after a conscientious examination of it.4 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

4
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-293 3

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.

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

and that she thereafter sentenced defendant in conformity with the plea agreement.

Counsel averred that the State filed a habitual offender bill of information in open

court, after which the trial judge explained the rights defendant would be waiving

by admitting he was a second-felony offender. Counsel further averred that the

trial judge informed defendant that the sentencing range under the habitual

offender bill was four to twenty-four years and that he would receive an enhanced

sentence of seven years. Counsel stated that the trial judge vacated the prior

24-KA-293 4

sentence and resentenced defendant to seven years in conformity with the plea

agreement.

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.

The State responds 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 1, 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

24-KA-293 5

proceedings, habitual offender stipulation, 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 a Motion for Discovery

and Inspection and for Exculpatory Evidence for Defendant, which was 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, and he also stipulated

to being a second-felony offender. If 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 by an application for

post-conviction relief. State v. Turner, 09-1079 (La. App. 5 Cir. 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 Boykin5 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. Additionally, an unconditional plea,

willingly and knowingly made, waives any and all non-jurisdictional defects and

bars a defendant from later asserting on appeal that the State failed to produce

sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465 (La.

App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

5
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

24-KA-293 6

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 State

said that it would limit its prosecution in this matter to a double bill. 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 a 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.

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 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

24-KA-293 7

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 pertaining to the guilty plea 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.

The trial judge subsequently sentenced defendant to two years in the

Department of Corrections and ordered that sentence to run concurrently with the

sentences in case numbers 22-5343, 23-4835, and 24-53. Afterwards, the State

filed a habitual offender bill of information alleging defendant to be a second-

felony offender to which defendant stipulated. An independent review of the

record reveals no unconstitutional infirmity in defendant’s stipulation to the

habitual offender bill.

The record reflects that defense counsel told the trial judge that he and

defendant had been presented with a copy of the habitual offender bill of

information and that he had a chance to review it himself and with defendant.

Defense counsel stated that he explained to defendant that he had the right to

proceed to a hearing. He further stated that defendant asked him to waive the

hearing and stipulate that he was a second-felony offender as alleged by the State

in the habitual offender bill.

24-KA-293 8

The trial judge responded that the State alleged that defendant was a second-

felony offender after having pled guilty to simple burglary on May 3, 2019. The

trial judge told defendant that it was her understanding that he waived his rights

and was stipulating to the habitual offender bill. Defendant responded

affirmatively. Defense counsel informed the trial judge that it did not sound like

defendant wanted to stipulate to the habitual offender bill. The trial judge then

asked defendant if he wanted to stipulate to the habitual offender bill, and

defendant responded that he wanted to stipulate because he had no choice. The

trial judge told defendant he did have a choice, and defendant thereafter indicated

he wanted to stipulate to the habitual offender bill.

The trial judge advised defendant that by “pleading guilty,” he was

acknowledging that he had the prior felony conviction, that he was a second-felony

offender, that he was giving up the right to plead “not guilty,” and that he was

giving up the right to have a hearing that would force the State to prove that he was

the same individual who had a prior felony record. The trial judge further advised

defendant that by “pleading guilty,” he was giving up the right to have the State

prove “that not more than five or ten years from a crime of violence or sex offenses

have elapsed since the expiration of the correctional supervision, the term of the

imprisonment if not placed on supervision following imprisonment or other

previous convictions.” The trial judge informed defendant that by “pleading

guilty,” he was also giving up the right to have the State prove that if any prior

convictions were a result of guilty pleas, that he was properly advised at that time

as to his right to a trial by jury, to confront and cross-examine witnesses, to remain

silent, and to not have his silence held against him. Defendant indicated that he

understood these rights.

The trial judge advised defendant that the sentencing range as a second-

felony offender was four to twenty-four years, and that the sentence he would

24-KA-293 9

receive would be seven years without the benefit of probation or suspension of

sentence. Defendant indicated he understood. He also indicated that he had not

been forced or coerced into entering into the stipulation. The trial judge informed

defendant that no application for post-conviction relief or other out-of-time appeal

would be considered if it was filed more than two years after the judgment of

conviction and sentence became final. Afterwards, the trial judge stated she was

going to accept the stipulation by defendant as having been knowing, intelligently,

and voluntarily made.

Further, the waiver of rights form reflects that defendant stipulated to being

a second-felony offender. It indicates that defendant was advised of his rights, the

sentencing range, and the actual sentence. The waiver of rights form reflects 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 trial judge found that defendant made

a knowing, intelligent, free, and voluntary act of stipulating to the habitual offender

bill.

Finally, defendant’s sentences do not present any issues for appeal.

Specifically, defendant’s original and enhanced sentences are within the sentencing

ranges prescribed by the statutes. See La. R.S. 14:62; La. R.S. 15:529.1. 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. Likewise, this Court

has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant

from seeking review of an enhanced sentence to which the defendant agreed. State

v. Robinson, 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272.

24-KA-293 10

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).

The record reflects inconsistencies between the transcript, the sentencing

minute entry, and the uniform commitment orders (“UCO”). The sentencing

minute entry and both UCOs reflect that the underlying and enhanced sentences

were to be served concurrently with case numbers 22-5343, 23-4835, 24-53, “and

any and all other sentences Defendant may be currently serving, including parole

revocation sentence.” However, the transcript reflects that the trial judge only

ordered the underlying and enhanced sentences to run concurrently with case

numbers 22-5343, 23-4835, and 24-53. She did not say that the underlying and

enhanced sentences were to run concurrently with any and all other sentences

defendant may be currently serving, including parole revocation sentences.

The transcript prevails where there is a discrepancy between the minutes and

the transcript. State v. Lynch, 441 So.2d 732, 734 (La. 1983). To ensure accuracy

in the record, we remand the matter to the trial court to correct the sentencing

minute entry and both UCOs to properly reflect the trial court’s ruling regarding

the concurrent nature of the sentences. We also direct the Clerk of Court for the

24th Judicial District Court to transmit the corrected habitual offender UCO to the

appropriate authorities and the Department of Corrections legal department.

24-KA-293 11

DECREE

Accordingly, we affirm defendant’s conviction and sentence. However, we

remand the matter for correction of errors patent as noted herein.

AFFIRMED; REMANDED WITH
INSTRUCTIONS

24-KA-293 12

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-293
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