State of Louisiana v. Breck Cowperthwaite

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 09-1248

STATE OF LOUISIANA

VERSUS

BRECK COWPERTHWAITE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 15647-06
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW
GRANTED.
John Foster DeRosier
14th Judicial District Attorney
Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
Counsel for Plaintiff/Appellee:
State of Louisiana

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Breck Cowperthwaite

EZELL, JUDGE.

On August 24, 2006, the Defendant, Breck Cowperthwaite, was indicted by a

grand jury with molestation of a juvenile, a violation of La.R.S. 14:81.2, and failure

to register as a sex offender, a violation of La.R.S. 15:542.1. The Defendant pled

guilty to molestation of a juvenile on January 27, 2009, and the remaining charge was

dismissed. Additionally, the State agreed not to charge the Defendant as a habitual

offender. The Defendant was sentenced on April 3, 2009, to serve fifteen years at

hard labor with credit for time served.

On July 2, 2009, the Defendant filed a pro se “Motion for Out[-]of[-]Time

Reconsideration of Sentencing” which was summarily denied. The Defendant

subsequently filed a motion for an out-of-time appeal which was granted by the trial

court on July 30, 2009.

Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), alleging that the record contains no pre-plea errors to

support reversal of the Defendant’s conviction and sentence in this matter. Also,

appellate counsel asserts that the Defendant’s maximum sentence is not excessive

considering his prior criminal record and the benefits received from his plea

agreement. We find there are no non-frivolous issues in this matter. Accordingly, the

Defendant’s conviction and sentence is affirmed and counsel’s motion to withdraw

is granted.

FACTS

At the Defendant’s guilty plea hearing, the State established that between

December 1, 2004, and September 30, 2005, the Defendant, a family friend of the

juvenile Victim, born September 20, 1994, engaged in sexually inappropriate

behavior with the Victim. The incidents occurred during times when the Defendant

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was alone with the Victim at his camper located in Sulphur, Louisiana.

ANDERS ANALYSIS

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

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

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.

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 grand jury indictment, 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 in conformity with his plea

agreement.

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Further, the Defendant received a substantial benefit from his plea agreement.

Prior to his plea, the Defendant faced an additional sentence for failing to register as

a sex offender of two to ten years, with or without hard labor, without benefit of

parole, probation, or suspension of sentence, and a fine of not more than one thousand

dollars. La.R.S. 15:542.1.4(A)(1).

Additionally, the Defendant avoided the possibility of being charged as a

habitual offender. The record reflects that in 1988, the Defendant pled guilty to

aggravated oral sexual battery, and no contest to two counts of oral sexual battery, all

three offenses involving a juvenile. As such, the Defendant’s sentence in the instant

matter could have been significantly enhanced pursuant to La.R.S. 15:529.1. Lastly,

the Defendant’s guilty plea waived all non-jurisdictional defects in the proceedings

prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976).

Our review of the record has revealed no issues which would support an

assignment of error on appeal. Therefore, we affirm the Defendant’s conviction and

sentence, and Appellate counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW
GRANTED.

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

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KA09-1248

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Plaintiff-Appellee

VERSUS

BRECK COWPERTHWAITE

Defendant-Appellant

On Appeal from the Fourteenth Judicial District Court, Docket Number 15647-06,
Parish of Calcasieu, State of Louisiana, Honorable David Kent Savoie, Judge.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel and

the appeal presently 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

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