State of Louisiana v. Chalon Lanay Benton

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 11-1173

STATE OF LOUISIANA

VERSUS

CHALON LANAY BENTON

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-846-10-1
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Billy Howard Ezell,
Judges.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW
GRANTED; REMANDED WITH INSTRUCTIONS.

Edward John Marquet
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Chalon Lanay Benton

Michael Cade Cassidy
District Attorney
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Chalon Lanay Benton

EZELL, Judge.

The Defendant, Chalon Lanay Davis, was charged by bill of information

with possession of a controlled dangerous substance, schedule I (marijuana),

weighing in excess of sixty pounds but less than two thousand pounds, a violation

of La.R.S. 40:966(F). On March 9, 2011, pursuant to a plea agreement, the

Defendant entered a plea of guilty to the reduced charge of possession of marijuana

with intent to distribute.

The Defendant was sentenced on September 8, 2011, to serve five years at

hard labor, suspended, and was placed on supervised probation for three years with

the following special conditions: (1) Serve twenty months in the parish jail with

credit for time previously served; (2) Pay a fine of $5,000, plus court costs; (3) Be

assessed by a court-approved substance abuse facility and comply with any and all

recommendations; (4) Submit to random drug screens at the Defendant’s expense

and at the probation officer’s discretion; (5) Pay a supervision fee of $50 a month

to the probation officer; (6) Pay $50 a month to the Drug Education & Treatment

Fund; (7) Pay $250 to the Southwest Crime Lab; (8) Pay $100 to the District

Attorney Reimbursement Fund; and, (9) Comply with any and all other conditions

of probation as outlined in La.Code Crim.P. art. 895. The payment of all fines,

fees, and court costs were ordered to be made in accordance with a payment

schedule formed by the probation officer within the first thirty months of her

probation. A motion to reconsider sentence was filed and denied by the trial court

on September 12, 2011.

FACTS

On October 24, 2010, the Defendant was operating a motor vehicle in

Jefferson Davis Parish with one passenger, a co-defendant herein. She was

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stopped for a traffic violation, and after obtaining conflicting stories from the

Defendant and co-defendant, the officer requested permission to search the vehicle.

The Defendant consented to a search of the vehicle, and four duffle bags

containing marijuana were found in the truck

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there is

one error patent.

As conditions of the Defendant’s probation, the trial court imposed a $5,000

fine, court costs, $50 to the Drug Education and Treatment Fund, $250 to the

Southwest Crime Lab, and $100 to the District Attorney Reimbursement Fund.

The payment of “all fines, fees, and court costs” is to be made in accordance with a

payment “schedule to be formed by [the Defendant’s] probation officer within the

first thirty (30) months of [the Defendant’s] probation.” Allowing the probation

officer to prepare a payment plan has been found by this court to be permissible,

but the plan must be approved by the trial court:

In State v. Stevens, 06-818, p. 3 (La.App. 3 Cir. 1/31/07), 949 So.2d 597,

599-600, this court stated:

[W]e find nothing in the statute which prohibits the trial court from
seeking assistance from outside sources, including Probation and
Parole, in formulating the appropriate payment plan. In fact, Probation
and Parole may be in a better position to formulate a workable payment
schedule than is the trial court. In taking advantage of this assistance,
the trial court in no way cedes its responsibility to impose the payment
plan, and it only becomes effective upon approval of the trial court. . . .

Therefore, we find no error in the trial court's ruling as to the
payment of fines and court costs. However, the trial court ordered
Defendant to pay the restitution “over the duration of the supervised
probation” and to reimburse the Indigent Defender Board “over the 48
months of supervised probation.” These provisions are inadequate in
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that they do not either provide the monthly payment schedule with
which the Defendant is to comply or provide for a payment plan to be
formulated by Probation and Parole and approved by the trial court.
Accordingly, we remand the case to the trial court with the instruction
that the court impose a payment plan for restitution and for payment
of [sic] the Indigent Defender Board which comply with the
requirements of La.Code Crim.P. art. 895.1(A) and this opinion. We
reiterate that either or both of these plans may be determined by the
trial court or formulated by Probation and Parole and approved by the
trial court.

In the present case, this court finds the payment plan imposed by the trial

court was inadequate in that it did not provide a monthly payment plan and it

provided that a payment plan be formulated by Probation and Parole but without

mention of approval by the trial court. State v. Mayes, 07-1500 (La.App. 3 Cir.

4/30/08), 982 So.2d 265, writ denied, 08-1175 (La. 2/6/09), 999 So.2d 768.

Accordingly, this case is remanded to the trial court to either establish a payment

plan for the fine, costs, and fees or allow Probation and Parole to do so subject to

court approval.

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 that after a review of the trial

court record, he could find no procedural or structural errors to raise in this appeal.

Accordingly, appellate 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
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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 [La.Code Crim.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, this court has performed an independent,

thorough review of the record, including pleadings, minute entries, the bill of

information, and the transcripts. The Defendant was properly charged by a bill of

information and was present and represented by counsel at all crucial stages of the

proceedings. The Defendant pled guilty to the reduced charge of possession of

marijuana with intent to distribute, and she received a legal sentence, the minimum

possible sentence of five years at hard labor, suspended. La.R.S. 40:966(B)(3). As

a condition of probation, the Defendant was ordered to serve twenty months in the

parish jail. Also, the Defendant’s $5,000 fine was substantially less than the

maximum possible fine of $50,000. There are no rulings which arguably support

an appeal. Accordingly, Defendant’s conviction and sentence are affirmed.

CONCLUSION

Defendant’s conviction and sentence are affirmed. This case is remanded to

the trial court with the instruction that the trial court either establish a payment

plan for the fine, costs, and fees, or allow Probation and Parole to do so subject to

court approval. Appellate counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO
WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-
Courts of Appeal. Rule 2-16.3.
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11-1173

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Plaintiff/Appellee

VERSUS

CHALON LANAY BENTON

Defendant/Appellant

On Appeal from the Thirty-First Judicial District Court, Docket Number CR-
846-10-1, Parish of Jefferson Davis, State of Louisiana, Honorable Steve
Gunnell, 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 _________________, 2012.

COURT OF APPEAL, THIRD CIRCUIT

_________________________________
Judge John D. Saunders

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Judge Marc T. Amy

_________________________________
Judge Billy H. Ezell