State of Louisiana v. Kirk Antoine

NOT DESIGNATED FOR PUBLICATION

COURT OF APPEAL, THIRD CIRCUIT

10-1481

STATE OF LOUISIANA

VERSUS

KIRK ANTOINE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 119099, Div. D
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

James E. Beal
Louisiana Appellate Project
Post Office Box 307
Jonesboro, Louisiana 71251-0307
(318) 259-2391
COUNSEL FOR DEFENDANT/APPELLANT:
Kirk Antoine

Michael Harson
District Attorney – Fifteenth Judicial District
Alan P. Haney – Assistant District Attorney
Post Office Box 4308
Lafayette, Louisiana 70502-4308
(337) 291-7009
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Kirk Antoine, appeals his conviction and

seventeen-year hard labor sentence subsequent to his plea agreement and habitual

offender adjudication. For the following reasons, we affirm Defendant’s conviction

and sentence.

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged by bill of information with three counts of simple

burglary and one count of public intimidation. With benefit of counsel, he entered

a plea of guilty to one count of simple burglary and was sentenced to twelve years at

hard labor. A habitual offender bill of information was then filed by the State,

charging Defendant as a second felony habitual offender. Again, with benefit of

counsel and pursuant to his plea agreement, Defendant pled guilty to being a second

felony habitual offender. The trial court then vacated Defendant’s original

twelve-year burglary sentence and imposed a habitual offender sentence of seventeen

years at hard labor to run concurrently with any other sentence Defendant is presently

serving.

The State enunciated for the trial court the factual basis in support of

Defendant’s plea. It opted to proceed with the simple burglary offense set forth in

Count Two of its Bill of Information and to sever the rest of the counts. The State

alleged:

[T]hat on or about the 3rd day of August, 2007, the
defendant, Kirk Antoine, in the Parish of Lafayette,
committed simple burglary of a building or structure
located at 1113 Foreman Drive, again, here in Lafayette
Parish, being the property of Dr. Randy Gautreaux, and he
entered that doctor’s office with the intent to commit a
felony or a theft therein, and that would be in violation of
Louisiana Revised Statutes 14:62 . . . .

A Post-Conviction Application requesting an out of time appeal was timely

filed by Defendant, pro se, within thirty days of his sentencing. Consequently,

Defendant’s request for post-conviction relief will be treated as a timely filed motion

for appeal and designation of record. Appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), in this matter along with

a Motion to Withdraw as counsel of record. For the following reasons, we affirm and

grant counsel’s Motion to Withdraw.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find no

actionable errors patent.

ANDERS ANALYSIS:

Pursuant to Anders, Defendant’s appellate counsel has filed a brief stating that

he could not find any errors on appeal that would support a reversal of 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 court

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

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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 instruments, and the

transcripts. Defendant was properly charged by 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 being advised properly of his rights in accordance with

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

received a legal sentence.

In the instant case, Defendant pled guilty to one count of simple burglary and

admitted to being a habitual second felony offender with an agreed-upon sentence of

seventeen years at hard labor. Defendant pled to reduced charges, with three counts

being dismissed from the original bill. Additionally, Defendant had an extensive

criminal record and only one conviction (among several) was taken into consideration

in the habitual offender proceeding. The record indicates that Defendant was advised

that the habitual offender sentence would run concurrently with any other sentence

he was then serving as a result of a prior conviction or convictions. He was further

advised of and waived his right to trial by jury, his right of confrontation, his right to

remain silent, his right to call witnesses on his behalf, his right to challenge the racial

makeup of the jury, his right to an attorney at trial and on appeal, if convicted, his

right to seek post-conviction relief, and the maximum possible penalty for the crime.

A factual basis for Defendant’s guilt was established and set forth in the record. He

was likewise advised of his rights as a second felony habitual offender. There is no

indication, anywhere in the record, that Defendant’s plea was taken pursuant to State

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v. Crosby, 338 So.2d 584 (La.1976); therefore, any procedural irregularities or

pretrial errors are waived. State v. Starks, 01-1078 (La. 03/28/02), 812 So.2d 638.

The only possible issue Defendant could have raised would have been

excessive sentence. However, Defendant “cannot seek appeal or review of a sentence

imposed in conformity with a plea agreement which was set forth in the record at the

time of the plea.” La.Code Crim.P. art. 881.2(A)(2).

DISPOSITION

After a thorough review of the record, we find no issues which would support

an assignment of error on appeal. Defendant’s conviction and sentence are affirmed.

Defense counsel’s Motion to Withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO
WITHDRAW GRANTED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-1481

STATE OF LOUISIANA

VERSUS

KIRK ANTOINE

On Appeal from the Fifteenth Judicial District Court, Docket Number 119099,

Division D, Parish of Lafayette, State of Louisiana, Honorable Edward D. Rubin,

District Judge.

ORDER

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

counsel of record and the appeal presently pending in the above-captioned matter,

IT IS HEREBY ORDERED that appellate defense counsel’s Motion to

Withdraw is granted.

THUS DONE AND SIGNED this _____ day of April , 2011.

COURT OF APPEAL, THIRD CIRCUIT

_______________________________
Judge Oswald A. Decuir

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Judge James T. Genovese

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Judge Shannon J. Gremillion