State of Louisiana v. Simcoe Cole AKA Simco W. Cole

NOT FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1039

STATE OF LOUISIANA

VERSUS

SIMCOE COLE A/K/A SIMCO W. COLE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 125742.1
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO
WITHDRAW GRANTED.

Alan P. Haney
Assistant District Attorney, Fifteenth Judicial District
300 Rue Beauregard, Building C
P.O. Box 4308
Lafayette, LA 70502
(337) 291-7009
ATTORNEY FOR APPELLEE
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
P.O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
ATTORNEY FOR DEFENDANT/APPELLANT
Simcoe Cole a/k/a Simco W. Cole

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

While armed with a paring knife, Defendant, Simcoe Cole, robbed Darrell

Fairburn, who was staying at the Red Roof Inn in Lafayette. Defendant‟s DNA

was found on the knife left in Fairburn‟s room, and Fairburn positively identified

Defendant as the perpetrator.

Defendant was charged by bill of information with one count of armed

robbery, a violation of La.R.S. 14:64, and eighteen counts of forgery, violations of

La.R.S. 14:72. Defendant entered a plea of not guilty on February 2, 2010. On

October 18, 2011, the State moved to sever count one (armed robbery) for trial.1

Trial subsequently commenced, and Defendant was found guilty of armed robbery.

Defendant was sentenced to serve ten years at hard labor, without benefit of parole,

probation, or suspension of sentence. A motion for appeal was filed and granted.

Defendant‟s appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no

errors that would support a reversal of Defendant‟s conviction and sentence in this

matter. Defendant was advised that counsel filed an Anders brief, and he has failed

to file a pro se brief in this matter.2 For the following reasons, we affirm

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

withdraw.

1
All eighteen counts of forgery were subsequently dismissed.
2
This court received correspondence from Defendant on November 20, 2012. Therein,
Defendant points out what he alleges are “untrue and half-true” statements made by appellate
counsel regarding Defendant‟s trial testimony and his remarks at sentencing. Defendant also
asserts appellate counsel has not devoted himself to the appeal and asks this court to “look into
this matter for constitutional violations of [his] rights.”

ANDERS ANALYSIS
Pursuant to Anders, Defendant‟s appellate counsel filed a brief stating he

made a conscientious and thorough review of the record and could find no errors

on appeal that would 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.

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

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.‟ McCoy [v. Court of Appeals of Wisconsin, 486 U.S.

[429] at 422, 108 S.Ct. [1895] at 1903 [(1988)].” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241. 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

2

evidence presented to the jury for its consideration.” Id. Thus, 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, the Defendant‟s

appellate counsel filed a brief asserting there were no trial court rulings to be

challenged. He claims trial counsel made no evidentiary objections regarding the

introduction of documentary and physical evidence, no objection or challenge to

the DNA matched to Defendant, and no challenge to the reliability or

suggestiveness of the photographic line-up.

Appellate counsel asserts Defendant admitted the knife found at the scene

belonged to him. Appellate counsel also asserts Defendant admitted he was

familiar with the hotel where the robbery occurred and could have been there on

the date of the offense. Appellate counsel further asserts Defendant admitted,

during sentencing, that he was the person who committed the offense.

After examining the record, we find appellate counsel‟s assertions are

correct. However, trial counsel objected during jury selection to the dismissal of

prospective juror Paul Simon, who was excused by the trial court, without reasons,

after he stated: “I don‟t feel like I‟m obligated to convict anyone.” Trial counsel

also objected to the manner in which backstrikes were used. These objections

were made after the jury was sworn. Thus, any error regarding these issues was

not preserved for review on appeal, as the objections thereto were untimely made.

See State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832; State v. Morris, 429

So.2d 111 (La.1983); State v. Bazile, 386 So.2d 349 (La.1980).

3

Pursuant to Anders, 386 U.S. 738, and Benjamin, 573 So.2d 528, we have

performed a thorough review of the record, including pleadings, minute entries, the

charging instrument, and the transcripts and have confirmed the statements made

by appellate counsel. Defendant was properly charged in the bill of information,

he was present and represented by counsel at all crucial stages of the proceedings,

and the jury composition and verdict were correct.3 Additionally, Defendant

received a legal sentence.

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

of error on appeal. Therefore, Defendant‟s conviction and sentence are affirmed,

and appellate counsel‟s motion to withdraw is granted.

DECREE

For the foregoing reasons, appellate counsel‟s motion to withdraw is

granted. Defendant‟s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO
WITHDRAW GRANTED.

3
There is no verdict form in the record and Benjamin, 573 So.2d 528, merely calls for
review of the verdict for correctness. At the conclusion of the trial in the case at bar, the jury
returned the verdict in open court, and the verdict was read into the record and the clerk noted
the verdict form was signed by the foreperson and dated. Additionally, the jury was polled, and
the verdict was unanimous. Furthermore, there were no objections to the verdict.

In State v. Johnson, 04-178 (La.App. 4 Cir. 12/8/04), 892 So.2d 28, writ denied, 05-87
(La. 4/22/05), 899 So.2d 556, cert. denied, 546 U.S. 892, 126 S.Ct. 211 (2005), the fourth circuit
found the absence of the verdict sheets from the record was not prejudicial to the defendant‟s
appellate rights when the jury returned the verdicts in open court, the trial court reviewed the
verdict forms, the forms were dated and signed by the foreperson, and the defendant did not
request polling or make an objection that would indicate the verdicts were not responsive or
differed from what was read into the record by the trial court.

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