State of Louisiana v. Tyrel O. Young

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-699

STATE OF LOUISIANA

VERSUS

TYREL O. YOUNG

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 79,795
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Phyllis M. Keaty,
Judges.

CONVICTION AND SENTENCE AFFIRMED;
MOTION TO WITHDRAW GRANTED.

Asa Allen Skinner
District Attorney
Scott Westerchil
Assistant District Attorney
Post Office Box 1188
Leesville, Louisiana 71446-1188
(337) 239-2008
Counsel for Appellee:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Tyrel O. Young

KEATY, Judge.

Defendant, Tyrel O. Young, was charged by bill of information with driving

while intoxicated, fourth offense, a violation of La.R.S. 14:98. He initially entered

a plea of not guilty; however, he later withdrew his former plea and entered a plea

of guilty to driving while intoxicated, third offense. The State agreed to not pursue

habitual offender proceedings, and it dismissed another bill of information pending

against him. The trial court ordered a pre-sentence investigation and, on March 23,

2011, sentenced Defendant to the maximum term of five years at hard labor and

ordered him to pay a two thousand dollar fine. The sentence was ordered to run

concurrently with any other sentence to which Defendant was subject. Defendant

made an oral motion appealing his sentence at the sentencing hearing. He later

filed a written motion to reconsider sentence, which was denied without a hearing.

Thereafter, he filed a written motion for appeal.

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

U.S. 738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues exist on which to

base an appeal and seeking to withdraw as Defendant‘s counsel. For the following

reasons, we affirm and grant counsel‘s motion to withdraw.

FACTS

On July 11, 2010, officers of the New Llano Police Department observed a

vehicle being operated in an erratic manner. The vehicle they pulled over was

being operated by Defendant. Officers noticed a strong odor of alcohol on

Defendant‘s breath. Defendant also exhibited slurred speech, a swaying stance,

and bloodshot eyes. After Defendant failed a field sobriety test, he submitted to a

breathalyzer test at the police station; it registered a blood alcohol content of .227

grams percent.

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 review, we find there

are no errors patent.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, and State v. Jyles, 96-2669 (La.

12/12/97), 704 So.2d 241, Defendant‘s appellate counsel filed a brief stating she

could find no errors on appeal to support 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 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 and have confirmed the statements by counsel. Defendant was present

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

free and voluntary guilty plea after properly being advised of his rights in
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accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).

Although the sentence may be illegally lenient for failure to order the seizure,

impoundment, and sale of Defendant‘s vehicle, Defendant‘s term of imprisonment

complies with the statutory sentencing range. Defendant filed a motion to

reconsider his maximum sentence, claiming it was disproportionate to the

seriousness of the offense, made no measurable contribution to the acceptable

goals of punishment, and represented the purposeless imposition of pain and

suffering. The motion was denied on April 4, 2011.

While it is not necessary for Defendant‘s counsel to ―catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit,‖ counsel‘s ―Anders brief must

‗assure the court that the indigent defendant‘s constitutional rights have not been

violated.‘‖ Jyles, 704 So.2d at 241 (citing Jones v. Barnes, 463 U.S. 745, 103

S.Ct. 3308 (1983) and quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S.

429, 108 S.Ct. 1895 (1988)). Counsel must fully discuss and analyze the trial

record and consider ―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.‖ Jyles, 704 So.2d at 241.

Thus, counsel‘s Anders brief must review the procedural history and the evidence

presented at trial and provide ―‗detailed and reviewable assessment for both the

defendant and the appellate court of whether the appeal is worth pursuing in the

first place.‘‖ Id. at 242 (quoting State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d

1176).

In her brief to this court, counsel for Defendant states that she reviewed the

record and noted one possible assignment of error. Defendant was not advised of
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his right to be represented by an attorney at all times or of his right to court-

appointed counsel if he were indigent. However, Defendant was represented by

appointed counsel at the plea hearing and all other pertinent proceedings. He

signed a plea form which set forth in writing his right to counsel. Under those

circumstances, we are convinced that Defendant would be unable to show any

prejudice on appeal by the trial court‘s failure to specifically advise of his right to

counsel.

Counsel also reviewed Defendant‘s sentence in her brief. After considering

Defendant‘s sentencing exposure as a fourth DWI offender, his criminal history,

and the benefits he received as a result of his plea agreement, counsel concluded

that an appeal based on a claim of excessive sentence would be frivolous.

This court has previously discussed the standard for reviewing excessive

sentence claims:

[Louisiana Constitution Article] I, ' 20 guarantees that, ―[n]o
law shall subject any person to cruel or unusual punishment.‖ To
constitute an excessive sentence, the reviewing court must find the
penalty so grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. The trial court has
wide discretion in the imposition of sentence within the statutory
limits and such sentence shall not be set aside as excessive absent a
manifest abuse of discretion. The relevant question is whether the
trial court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

Pursuant to La.R.S. 14:98(D), a third DWI offender must be sentenced to a

term of imprisonment ―with or without hard labor for not less than one year nor

more than five years and shall be fined two thousand dollars.‖ Therefore, the term

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of imprisonment ordered by the trial court in this matter is the maximum allowable

under the statute.

Even though a penalty falls within the statutory sentencing range, it may still

be unconstitutionally excessive.

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. While a comparison of sentences imposed for similar crimes
may provide some insight, ―it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.‖ Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge ―remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.‖

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). ―[T]he trial

judge need not articulate every aggravating and mitigating circumstance outlined

in art. 894.1[;] the record must reflect that he adequately considered these

guidelines in particularizing the sentence to the defendant.‖ State v. Smith, 433

So.2d 688, 698 (La.1983). A[M]aximum sentences are reserved for cases involving

the most serious violations of the charged offense and for the worst kind of

offender.‖ State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982).

We have independently reviewed the record. Defendant, who was twenty-

nine years old at the time of sentencing, was convicted of simple burglary on

January 15, 1999. He received a six-year suspended sentence and was placed on

supervised probation which was terminated unsatisfactorily in 2003. Defendant

was again convicted of simple burglary on September 5, 2000, and sentenced to

eight years to run consecutively; that sentence was also suspended. Defendant was

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placed on supervised probation which was revoked in 2005. On September 7,

2005, Defendant was convicted on two counts of driving while intoxicated, third

offense. On one count, he was sentenced to three years with the Department of

Corrections, with two years and eleven months suspended, and he was placed on

supervised probation for three years. On the second count, he was sentenced to

five years with the Department of Corrections, with four years and eleven months

suspended, and he was placed on supervised probation for five years. Both

probations were revoked in August of 2010. Defendant also had misdemeanor

convictions for driving while intoxicated in 2000 and 2002, along with two other

misdemeanor convictions for other charges.

The trial court reviewed the factors of La.Code Crim.P. art. 894.1 and found,

in addition to Defendant‘s criminal history, ―no substantial grounds which would

excuse or justify [Defendant‘s] criminal conduct.‖ Defendant did not act under

strong provocation from anyone. He was divorced with four children and had past

employment as a mechanic, bulldozer operator, and chainsaw operator. Defendant

had a ninth-grade education and a history of alcohol abuse. He had received

treatment at the Briscoe Treatment Center in 2003.

Defendant received a tremendous sentencing benefit through his plea

bargain. He was charged with fourth offense DWI, which carries a term of

imprisonment ―with or without hard labor for not less than ten years nor more than

thirty years‖ and a five thousand dollar fine. La.R.S. 14:98(E). By entering into a

plea agreement with the State, Defendant reduced his sentencing exposure by

twenty-five years. The minimum sentence for fourth offense DWI is twice as long

as the five-year sentence imposed in Defendant‘s case. Defendant further

benefitted from the plea bargain by the dismissal of the additional charges against
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him and the State‘s agreement not to prosecute him as a habitual offender.

Defendant had previously received suspended sentences for two simple burglary

and two third offense DWI convictions; however, Defendant failed to successfully

complete all of his periods of probation. Based on the foregoing, we conclude that

the trial court did not abuse its discretion when imposing the sentence, and any

argument of an excessive sentence would be futile as suggested by counsel.

Because our review of the record has revealed no issues that would support

an assignment of error on appeal, we will grant appellate counsel‘s motion to

withdraw.

DECREE

Appellate defense counsel‘s motion to withdraw is granted, and Defendant‘s

conviction and sentence are affirmed.

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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COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

11-699

STATE OF LOUISIANA

VERSUS

TYREL O. YOUNG

On Appeal from the Thirtieth Judicial District Court, Docket Number 79,795,
Parish of Vernon, State of Louisiana, Honorable Vernon B. Clark, Judge.

ORDER

After consideration of Defendant‘s appellate counsel‘s request to withdraw
as counsel and the appeal presently pending in the above-captioned matter,

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

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

COURT OF APPEAL, THIRD CIRCUIT

_________________________________
Judge Oswald A. Decuir

_________________________________
Judge James T. Genovese

_________________________________
Judge Phyllis M. Keaty