State of Louisiana v. Lill Paul Conley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1065

STATE OF LOUISIANA

VERSUS

LILL PAUL CONLEY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 10-1437
HONORABLE PAUL JOSEPH DEMAHY, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy,
Judges.

Amy, J., concurs in part, dissents in part, and assigns reasons.

MOTION TO WITHDRAW DENIED; BRIEFING ORDERED.

J. Phillip Haney
District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Christopher Washington
Attorney at Law
830 Main Street
Baton Rouge, LA 70802
(225) 383-3800
COUNSEL FOR DEFENDANT/APPELLANT:
Lill Paul Conley

DECUIR, Judge.

The Defendant, Lill Paul Conley, was charged by bill of information filed on

August 16, 2010, with home invasion, a violation of La.R.S. 14:62.8. He entered a

plea of not guilty on September 14, 2010. On May 17, 2011, the State entered a

nolle prosequi on the record and filed a new bill of information charging the

Defendant with aggravated battery, a violation of La.R.S. 14:34. However, on

May 18, 2011, the Defendant proceeded to trial by jury on the charge of home

invasion. He was found guilty on May 19, 2011, and was later sentenced as an

habitual offender to serve twenty-five years at hard labor.

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

738, 87 S.Ct. 1396 (1967), in this matter. For the following reasons, appellate

counsel’s motion to withdraw is denied, and appellate counsel is instructed to brief

the nonfrivolous issue discussed herein.

FACTS:

On May 17, 2010, Ebonia Thodile lived at 18 Cedar Hill Circle in New

Iberia, Louisiana. On the date in question, the Defendant was at Thodile’s

residence. She testified that he broke a picture frame and the two argued about a

television. Thodile then called 911 as the Defendant was leaving her residence.

The Defendant subsequently returned to Thodile’s residence and beat on the

door and windows. She went into the bathroom and called 911. The Defendant

then broke a window, entered Thodile’s residence, and busted in the bathroom

door. The door hit Thodile in the head, causing her to fall, and the Defendant

kicked her in the head several times.

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 conviction or sentence.

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.

By bill of information dated August 15, 2010, the Defendant was charged

with home invasion. He was arraigned and entered a plea of not guilty. Court

minutes dated May 17, 2011, indicate the Defendant’s case proceeded to trial. The

State submitted a request for special jury instructions and responsive verdicts to the

home invasion charge. The State’s request for responsive verdicts was denied, and

the prosecutor stated: “I’m going to file a new Bill for Aggravated Battery and

nolle pros the Home Invasion.” The State then filed a new bill of information

charging aggravated battery. However, later that same day, the prosecutor
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apparently decided to reinstitute prosecution of the home invasion charge, although

no pleading in the record reflects this intention. Only the last paragraph of the

court minutes from that day state:

Later, Assistant District Attorney, . . . advised the Court and
Defense that after he met with the victim in this matter, the State is
going back to the original Bill of Information for the charge of Home
Invasion and counsel and the Court discussed the responsive verdicts
for Home Invasion and all agreed on the responsive verdicts
discussed.

The record before us contains the new bill for aggravated battery that was

filed on May 17. The transcript of the proceedings reveals the prosecutor asked the

court to include aggravated battery and second degree battery as responsive

verdicts to home invasion. When the court denied the request, the prosecutor

immediately stated he was going to file a new bill for aggravated battery and “nolle

pros” the home invasion. The minutes reflect the prosecutor changed his mind

later that day. However, neither the record nor the transcript contain any reference

to a reinstituted charge of home invasion as reflected in the last paragraph of the

court minutes.

The following day, the case proceeded to trial on a charge of home invasion

with no objection by the Defense. The judge informed the prospective jurors that

the Defendant was charged with home invasion, and when the judge informed the

selected jury of the charge, it was identical to that contained in the original bill

charging home invasion.

The State did not file a new bill charging the Defendant with home invasion

or refile the original bill, as the only date appearing on the home invasion bill is

August 16, 2010. Nor is there any indication that the State amended the new

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aggravated battery bill either orally or in writing before proceeding to trial on the

charge of home invasion. Accordingly, we find an arguable basis exists for appeal.

Under these circumstances, counsel is ordered to brief the issue of what

effect, if any, the nolle prosequi of the charge of home invasion and the filing of a

new bill of information charging aggravated battery has on the conviction for home

invasion.

Counsel’s motion to withdraw is denied.

MOTION TO WITHDRAW DENIED; BRIEFING ORDERED.

4

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1065

STATE OF LOUISIANA
Plaintiff-Appellee

VERSUS

LILL PAUL CONLEY
Defendant-Appellant

On Appeal from the Sixteenth Judicial District Court, Docket Number 10-1437,
Parish of Iberia, State of Louisiana, Honorable Paul Joseph deMahy, Judge.

ORDER

After consideration of the Motion to Withdraw as Attorney of Record filed
by counsel for the Defendant, Lill Paul Conley, and the appeal presently pending in
the above captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is
denied; and

IT IS HEREBY ORDERED that appellate counsel file a new appellate brief
within 25 days of this order, addressing the issue of what effect, if any, the nolle
prosequi of the charge of home invasion and the filing of a new bill of information
charging aggravated battery has on the conviction for home invasion.

Appellee’s brief shall be filed no later than 45 days from rendition of this
opinion.

THUS DONE AND SIGNED this _____ day of _______________, 2012.

COURT OF APPEAL, THIRD CIRCUIT

__________________________________
Judge John D. Saunders

__________________________________
Judge Oswald A. Decuir

__________________________________
Judge Marc T. Amy

NUMBER 11-1065

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

LILL PAUL CONLEY

AMY, J., concurring in part and dissenting in part.

I dissent from the majority insofar as I find the record equivocal as to

whether or not the bill of information for home invasion was actually dismissed. I

would order additional briefing on that issue as well. Otherwise I concur in the

majority opinion.

For these reasons, I respectfully concur in part and dissent in part.