State of Louisiana v. Walter Harris, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-130

STATE OF LOUISIANA

VERSUS

WALTER HARRIS, JR.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 72105
HONORABLE LESTER P. KEES, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, John D. Saunders, and Elizabeth A.
Pickett, Judges.

CONVICTION AND SENTENCE AFFIRMED;
MOTION TO WITHDRAW GRANTED.

William E. Tilley
District Attorney - 30th JDC
Ronald K. Seastrunk, A.D.A.
P.O. Box 1188
Leesville, LA 71496-1188
Counsel for Appellee:
State of Louisiana

G. Paul Marx
Attorney at Law
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
Counsel for Defendant/Appellant:
Walter Harris, Jr.

Pickett, J.

FACTS:

The following facts were taken from the factual basis set forth by the state at the

defendant’s guilty plea hearing and facts stated at his sentencing hearing. On

December 11, 2006, the defendant was stopped by undercover officers working with

the Vernon Parish Narcotics Task Force. At that time, the defendant engaged in a drug

transaction which resulted in the sale of two twenty-dollar rocks of cocaine. The rock

substance was tested and determined to contain cocaine.

On April 17, 2007, the defendant, Walter Harris, Jr., was charged by bill of

information, in count one, with distribution of cocaine, a violation of La.R.S. 40:967,

and in count two, with simple escape, a violation of La.R.S. 14:110. On September

5, 2007, the defendant pled guilty to count one in exchange for the dismissal of count

two and the state’s agreement not to charge the defendant as an habitual offender.

On November 28, 2007, the defendant was sentenced to serve fifteen years at

hard labor, the first two years without benefit of probation, parole or suspension of

sentence. Additionally, the sentence was to run concurrently to any other sentence to

which he was subject. A Motion to Reconsider Sentence was filed on December 10,

2007, and subsequently denied, without a hearing, on December 18, 2007.

Appellate counsel for the defendant has filed a Motion to Withdraw as Attorney

of Record, stating that he can find no non-frivolous issue to raise on appeal or rulings

of the trial court which arguably support the appeal.

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ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

there are no errors patent.

ANDERS ANALYSIS:

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), the

defendant’s appellate counsel has filed a brief, stating he could find no errors on

appeal that would support reversal of the defendant’s convictions or sentences. Thus,

counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit

explained the Anders analysis:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf. This court’s review of the record will consist of (1) a review of
the bill of information or indictment to insure the defendant was properly
charged; (2) a review of all minute entries to insure the defendant was
present at all crucial stages of the proceedings, the jury composition and
verdict were correct and the sentence is legal; (3) a review of all pleadings
in the record; (4) a review of the jury sheets; and (5) a review of all
transcripts to determine if any ruling provides an arguable basis for
appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal
record be supplemented with pleadings, minute entries and transcripts
when the record filed in this Court is not sufficient to perform this review.

Id. at 531.

The defendant’s appellate counsel argues that he reviewed the defendant’s trial

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record and that, in the instant case, an excessive sentence claim would be frivolous

under the circumstances of the plea bargain. One felony count, simple escape, was

dismissed, and the habitual offender bill was waived by the state. Counsel notes that

the defendant’s sentencing exposure after the plea bargain was up to thirty years and

that an habitual offender charge pursuant to La.R.S. 15:529.1 could have resulted in a

far more severe sentence of up to sixty years. Additionally, the defendant was on

parole at the time of the offense and the trial court ordered the defendant’s fifteen year

sentence to run concurrently to his sentence resulting from his parole revocation.

Accordingly, appellate counsel maintains that “[t]here is no way to make anything other

than a frivolous argument of Constitutional Excessiveness” for the defendant, who is

a third felony offender.

Pursuant to Anders and Benjamin, we have performed a thorough review of the

record, including pleadings, minute entries, the charging instrument, and the

transcripts. We have confirmed the statements asserted by appellate counsel, and note

that the defendant was properly charged in a bill of information and was present and

represented by counsel at all crucial stages of the proceedings. Moreover, the record

reveals that there was sufficient evidence presented at the guilty plea hearing to find

the defendant guilty of the offense as charged. Lastly, we note that the defendant’s

sentence is within the appropriate range for distribution of cocaine.

In State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 the supreme

court stated, “Counsel must demonstrate to the appellate court by full discussion and

analysis that he has cast an advocate’s eye over the trial record and considered whether

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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.” Considering same, we find that appellate counsel fulfilled his

obligation as stated in Jyles, and thus, should be allowed to withdraw as counsel of

record. Appellate counsel’s motion to withdraw is granted.

We have found no issues which would support an assignment of error on appeal.

Therefore, the defendant’s conviction and sentence are affirmed .

CONVICTION AND SENTENCE AFFIRMED. MOTION TO
WITHDRAW GRANTED.

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