State of Louisiana v. Leon Joseph Duffy

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1088

STATE OF LOUISIANA

VERSUS

LEON JOSEPH DUFFY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR117476
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

CONVICTION AND SENTENCED AFFIRMED WITH
INSTRUCTIONS; MOTION TO WITHDRAW GRANTED.

Cynthia Simon
Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Appellee:
State of Louisiana

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Leon Joseph Duffy

DECUIR, Judge.

On October 31, 2007, the Defendant, Leon Joseph Duffy, was charged by bill

of information with armed robbery, a violation of La.R.S. 14:64. Pursuant to a plea

agreement, the Defendant pled guilty to the charge. As part of the plea agreement,

the parties agreed to a twelve-year hard labor sentence, without benefit of parole,

probation or suspension of sentence, to run consecutively with any other sentence he

was serving. Additionally, as a condition of his plea, the Defendant agreed to the

voluntary revocation of his parole in an unrelated docket number. Lastly, the State

agreed not to charge the Defendant as a multiple offender.

The Defendant was sentenced on April 27, 2009 to serve twelve years at hard

labor, with credit for time served. The sentence was ordered to be served without

benefit of parole, probation or suspension of sentence and to run consecutively to any

other sentence he was serving. The Defendant did not file a motion to reconsider

sentence.

Appellate counsel has filed a motion to withdraw as attorney of record and an

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) brief, alleging that the

record contains no errors which would support reversal of the Defendant’s conviction

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

sentence and grant the motion to withdraw.

FACTS:

At the Defendant’s guilty plea hearing, the State established that on August 12,

2007, the Defendant robbed the victim at a Cracker Barrel in Lafayette, Louisiana,

while armed with a screwdriver.

ERRORS PATENT:

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

errors patent on the face of the record. In the instant case, both the court minutes and

the sentencing transcript indicate the Defendant was told he had two years to file for

post-conviction relief. The guilty plea form states that the Defendant has two years

from that date to file any applications for post-conviction relief. Counsel notes in her

brief that the trial court insufficiently advised the Defendant that he had two years to

file for post-conviction relief without stating that the two years began once the

judgment of conviction and sentence became final. Although counsel concedes this

would not be a ground for appeal, she contends the Defendant should be notified of

the time limitations as required by law.

According to La.Code Crim.P. art. 930.8, the two-year prescriptive period for

filing an application for post-conviction relief begins to run when the defendant’s

conviction and sentence become final under the provisions of La.Code Crim.P. arts.

914 or 922. Thus, the trial court is directed to inform the Defendant of the correct

prescriptive period of Article 930.8 by sending appropriate written notice to the

Defendant within ten days of the rendition of this opinion and to file written proof

that the Defendant received the notice in the record of the proceedings. State v. Roe,

05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06),

924 So.2d 163.

ANDERS ANALYSIS:

Pursuant to Anders, 386 U.S. 738, the Defendant’s appellate counsel has filed

a brief stating she has made a conscientious and thorough review of the trial court

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record and could find no errors on appeal that would support reversal of the

Defendant’s conviction or sentence. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (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.

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

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

transcripts. The Defendant was properly charged in a bill of information, was present

and represented by counsel at all crucial stages of the proceedings, and entered a free

and voluntary guilty plea after properly being advised of his rights in accordance with

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, the Defendant

received a legal sentence that was in conformity with his plea agreement.

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

appeal. Therefore, Defendant’s conviction and sentence are affirmed and counsel’s

motion to withdraw is granted. Further, we direct the trial court to inform the

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Defendant of the correct prescriptive period of Article 930.8 by sending appropriate

written notice to the Defendant within ten days of the rendition of this opinion and

to file written proof of the Defendant’s receipt of the notice in the record of these

proceedings.

CONVICTION AND SENTENCED AFFIRMED WITH

INSTRUCTIONS; MOTION TO WITHDRAW GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1088

STATE OF LOUISIANA
Plaintiff-Appellee

VERSUS

LEON JOSEPH DUFFY
Defendant-Appellant

On Appeal from the Fifteenth Judicial District Court, Docket Number 117476,
Parish of Lafayette, State of Louisiana, Honorable Marilyn C. Castle, Judge.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel
and the appeal presenting pending in the above captioned matter:

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is
granted.

THUS DONE AND SIGNED this ____ day of ______________, 2010.

COURT OF APPEAL, THIRD CIRCUIT

___________________________________
Judge John D. Saunders

___________________________________
Judge Oswald A. Decuir

___________________________________
Judge Billy H. Ezell