State of Louisiana v. Richard Vital

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-881

STATE OF LOUISIANA

VERSUS

RICHARD VITAL

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-299-10
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon
J. Gremillion, Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

Peggy J. Sullivan
Louisiana Appellate Project
Post Office Box 2806
Monroe, Louisiana 71207
(318) 855-6038
COUNSEL FOR DEFENDANT/APPELLANT:
Richard Vital

Michael Cade Cassidy
District Attorney—Thirty-first Judicial District
Post Office Box 1388
Jennings, Louisiana 70546-1388
(337) 824-1893
COUNSEL FOR APPELLEE:
State of Louisiana

Richard Vital, Pro Se
Dixon Correctional Institute, U-2 D-1
Post Office Box 788
Jackson, Louisiana 70748-0788

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-881

STATE OF LOUISIANA

VERSUS

RICHARD VITAL

On Appeal from the Thirty-first Judicial District Court, Docket Number

C-299-10, Parish of Jefferson Davis, State of Louisiana, Honorable Craig Steve

Gunnell, 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 as counsel of record is granted.

THUS DONE AND SIGNED this _____ day of __January____, 2013.

COURT OF APPEAL, THIRD CIRCUIT

_________________________________
Judge Elizabeth A. Pickett

_________________________________
Judge James T. Genovese

_________________________________
Judge Shannon J. Gremillion

GENOVESE, Judge.

In this criminal case, Defendant, Richard Vital, was charged with

distribution of cocaine, a violation of La.R.S. 40:967(A)(1), on May 4, 2010.

Defendant originally entered a plea of not guilty, but he changed his plea to guilty

on June 17, 2011.1 The trial court then sentenced Defendant to ten years with the

Department of Corrections with the first two years to be served without benefit of

parole, probation, or suspension of sentence, with credit for time served, and with

the sentence to run concurrently with his forcible rape sentence.

Defendant filed a motion to reconsider his sentence, which was denied.

Defendant then filed an application for post-conviction relief (PCR), seeking an

out-of-time appeal on October 17, 2011. The application for PCR alleged that

Defendant‘s plea was not voluntarily or knowingly made and that he did not plead

guilty, even though he ―admitted certain criminal activity.‖ The trial court granted

the application for PCR, and Defendant was allowed to appeal.

Defendant‘s appellate counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging that there are no

non-frivolous issues existing upon which to base an appeal; she has also filed a

motion to withdraw as Defendant‘s appellate counsel. Defendant, pro se, has filed

a brief. We affirm Defendant‘s conviction and sentence, and we grant Defendant‘s

appellate counsel‘s motion to withdraw as counsel of record.

FACTS

At his Boykinization hearing, Defendant admitted he sold crack cocaine to

an undercover narcotics agent. Also, in his Plea of Guilty and Waiver of Rights

form, Defendant admitted that he was guilty of distributing cocaine.

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Defendant also pled guilty in the same plea agreement to forcible rape, a violation of
La.R.S. 14:42.1. That plea is the subject of a separate appeal docketed under number 12-882 of
this court.

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

errors patent.

ASSIGNMENTS OF ERROR

Defendant‘s appellate counsel alleges that there are no non-frivolous issues

upon which to base an appeal and has filed an Anders brief. An Anders analysis

will follow the discussion of Defendant‘s pro se assignments of error.

DEFENDANT’S PRO SE ASSIGNMENTS OF ERROR:

Because both of Defendant‘s pro se assignments of error allege a violation

of his constitutional rights, they will be jointly addressed.

1. The Trial Court erred when it failed to individually advise
defendant/appellant of his right to a jury trial, his privilege against
self-incrimination and his right to confront his accusers. Faulty
Boykinization of Appellant.

2. Cumulative Effect of Constitutional errors committed before,
during, and after this trial effectuated serious denial of Equal
Protection and Due Process Rights guaranteed by both the State of
Louisiana and United States Constitution. The Trial Court erred when
it failed to individually advise defendant/appellant of his right to a
jury trial, his privilege against self-incrimination and his right to
confront his accusers.

Defendant contends that his constitutional rights were violated at the plea

hearing because the trial court failed to individually advise him of his rights

pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Those rights

were read to him and two other defendants in different cases as a group. The trial

court then asked each defendant individually, including Defendant, if he

understood his guilty plea and if he waived all those rights. Specifically, the

record indicates:

THE COURT: Mr. Vital, do you understand that by pleading
guilty today that you‘re waiving all of these rights?

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MR. VITAL: (nods head affirmatively.)

THE COURT: I‘m sorry?

MR. VITAL: Yes, sir.

Defendant‘s application for PCR did not allege the reading of the Boykin

rights to the group was improper. Rather, it contended that his plea was not

knowingly and intelligently made because the trial court did not advise him of

those rights and because the plea ―was not entered by his own mouth, but by the

trial court judge.‖2

The Louisiana Supreme Court addressed the issue of reading Boykin rights

to defendants as a group in State v. Richard, 00-659 (La. 9/29/00), 769 So.2d 1177.

The court stated:

Moreover, even assuming that the defendant‘s first pro se assignment
of error, broadly construed, encompassed a challenge under
La.C.C.P. art. 556.1 to the trial court‘s use of an en masse Boykin
procedure, the validity of any guilty plea ―‗depends upon the
circumstances of each case.‘‖ State v. Filer, 00-0073, p. 2
(La.6/30/00), 762 So.2d 1080, 1081 (quoting State v. Strain, 585
So.2d 540, 544, n. 7 (La.1991)). In the present case, as in Filer, those
portions of the Boykin colloquy which the trial judge conducted
personally and individually with the defendant, ranging from his age,
work experience and education[,] to the nature of the offense and its
penalty provisions, the necessity of compliance with the sex offender
registration provisions of La.R.S. 15:542 upon conviction, and the
extent of the plea bargain with the state, placed the court in a position
to determine the knowing and voluntary nature of the defendant‘s
subsequent waiver of the trial rights the court explained personally but
collectively to the several persons entering guilty pleas on the same
day. To the extent that it conflicts with the views expressed herein
and in Filer, the court of appeal‘s decision in State v. Lastrapes,
99-0083 (La.App. 3rd Cir.6/30/99), 743 So.2d 224, is disapproved.

Id. at 1178.

Here, the trial court individually questioned Defendant about his education

and lack of physical or mental condition, medication, drugs, or alcohol that might

2
The application for PCR also alleged ineffective assistance of counsel. That issue is not
raised on appeal and will not be reviewed pursuant to Uniform Rules—Courts of Appeal, Rule
1–3.
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prevent his understanding of the proceedings. The trial court verified that

Defendant had the opportunity to discuss his ―case, the facts, the possible defenses,

and the consequences of [his] plea of guilty.‖ Defendant confirmed that no one

had forced, threatened, or coerced him into making his plea. The trial court

reviewed the possible sentence with Defendant before accepting his plea. Both

Defendant and the State recommended a sentence of ten years with the Department

of Corrections, to run concurrently with the sentence he was receiving in another

case. Defendant further indicated that he had reviewed and signed the Plea of

Guilty and Waiver of Rights form with his attorney. The trial court‘s colloquy

with Defendant allowed the trial judge to determine the knowing and voluntary

nature of Defendant‘s waiver of his rights and subsequent guilty plea. Thus,

Defendant‘s pro se assignments of error lack merit.

ANDERS ANALYSIS:

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the analysis based on Anders, 386 U.S. 738:

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.

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

tediously every meritless objection made at trial or by way of pre-trial motions

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with a labored explanation of why the objections all lack merit[,]‖ appellate

counsel‘s Anders brief must ―assure the court that the indigent defendant‘s

constitutional rights have not been violated.‖ State v. Jyles, 96-2669, p. 2

(La. 12/12/97), 704 So.2d 241 (citing Jones v. Barnes, 463 U.S. 745, 103

S.Ct. 3308 (1983) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108

S.Ct. 1895 (1988)). Defendant‘s appellate 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, appellate counsel‘s Anders brief must review the procedural history and the

evidence presented at trial and provide ―a detailed and reviewable assessment for

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

in the first place.‖ State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176,

1177.

Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, Defendant‘s

appellate counsel filed a brief citing two potential errors for appeal. First, counsel

considered an excessive sentence argument. He determined the sentence imposed

was in accordance with the plea agreement; thus, it is not subject to review on

appeal. The plea agreement does not indicate that Defendant and the State agreed

on his sentence; however, at the plea hearing, Defendant‘s appellate counsel

included the sentence as part of the plea agreement. Counsel for the State

confirmed her agreement. Defendant indicated that he heard and he understood the

recommended sentence. The trial court sentenced Defendant according to that

recommendation.

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides that a

―defendant cannot appeal or seek review of a sentence imposed in conformity with

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a plea agreement which was set forth in the record at the time of the plea.‖ This

court has held, based on this article, ―[i]n an instance where the court sentences the

defendant in accordance with the parties‘ recommendation for a specific sentence

or a sentencing range, it is clear that review of the imposed sentence is precluded.‖

State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. Thus, a

defendant may not seek review of his sentence ―when a specific sentence or

sentencing range is agreed to by both parties as part of a plea agreement, and is

judicially recognized at the sentencing hearing.‖ Id. at 39.3

Here, Defendant and the State jointly recommended the sentence the trial

court imposed. Therefore, Defendant may not seek review of a sentence he

recommended to the court and subsequently received. Defendant‘s appellate

counsel correctly concluded that Defendant cannot make a non-frivolous argument

on appeal, alleging an excessive sentence.

Next, counsel considered whether the trial court incorrectly denied

Defendant‘s motion to reconsider his sentence because he had already begun to

serve the sentence. In fact, La.Code Crim.P. art. 881.1(C) allows the trial court to

resentence a defendant despite the commencement of his sentence when he files a

timely motion to reconsider, as Defendant did here. However, the trial judge also

noted that Defendant‘s ―sentence was part of a plea agreement stated for the

record‖; thus, it was not subject to review. La.Code Crim.P. art. 881.2(A)(2).

Defendant‘s appellate counsel concluded that neither of these possible issues

would offer Defendant relief. Accordingly, appellate counsel seeks to withdraw as

counsel of record.

3
Jordan, 716 So.3d 36, cites State v. Watkins, 97-364 (La.App. 3 Cir. 10/8/97), 700 So.2d
1172; State v. Laroux, 93-719 (La.App. 3 Cir. 2/2/94), 631 So.2d 730, writ denied, 94-577
(La. 6/3/94), 637 So.2d 498; and State v. Lewis, 633 So.2d 315 (La.App. 1 Cir. 1993). However,
these cited cases preclude appellate review when sentencing is imposed according to a
sentencing cap; they do not address the issue of sentencing imposed according to a jointly
recommended sentence.
6

Pursuant to Anders and Benjamin, we have performed a thorough review of

the record, including the pleadings, the minute entries, the charging instrument,

and the transcripts, and we have confirmed the statements by Defendant‘s appellate

counsel. Defendant was present and represented by counsel at all crucial stages of

the proceedings, and he acknowledged his guilty plea on the plea form. Contrary

to the allegations of Defendant‘s pro se assignments of error, the trial court

correctly informed Defendant of his Boykin rights and discussed his possible

sentence for distribution of cocaine.

DISPOSITION

Our review of the record reveals no issues that would support an assignment

of error on appeal beyond the potential issues addressed by counsel and the issues

raised in the pro se assignments of error. Therefore, we affirm Defendant‘s

conviction and sentence and grant Defendant‘s appellate counsel‘s motion to

withdraw as counsel of record on appeal.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

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