State of Louisiana v. Ramon L. Ellender

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1297

STATE OF LOUISIANA

VERSUS

RAMON L. ELLENDER

************

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR2011-504
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy H. Ezell, Judges.

CONVICTION AFFIRMED; SENTENCE
AFFIRMED AS AMENDED AND REMANDED
TO THE TRIAL COURT WITH INSTRUCTIONS;
AND MOTION TO WITHDRAW GRANTED.

David W. Burton
District Attorney
Richard A. Morton
Assistant District Attorney
Thirty-Sixth Judicial District
P.O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Ramon L. Ellender

Ramon L. Ellender
Iberia Parish Jail
3618 Broken Arrow
New Iberia, LA 70560
DEFENDANT/APPELLANT
In Proper Person

PETERS, J.

The State of Louisiana (state) charged the defendant, Ramon L. Ellender,

with driving while intoxicated (DWI), fourth offense, a violation of La.R.S. 14:98.

The defendant initially entered a plea of not guilty. Thereafter, he filed a motion to

quash the bill of information charging him with the offense, asserting therein that

two of the prior convictions listed on the bill of information were committed more

than ten years prior to the present offense. After the trial court denied his motion,

the defendant changed his plea to guilty as charged, but in doing so, he reserved his

right to appeal the trial court‟s denial of his motion to quash per the holding in

State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced the defendant

to serve ten years at hard labor, with the first two years to be served without benefit

of probation, parole, or suspension of sentence. Additionally, the trial court

ordered that the defendant pay a fine of $5,000.00 and to pay all court costs and

other expenses.

After the trial court rejected his motion to reconsider his sentence, the

defendant perfected this appeal. However, the defendant‟s counsel did not raise

any assignments of error on behalf of the defendant. Instead, the defendant‟s

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967), asserting that no non-frivolous issues exist on which to base an appeal and

seeking to withdraw as the defendant‟s counsel. The defendant responded with a

pro se brief wherein he raises four issues which he asserts have merit. For the

following reasons, we affirm the defendant‟s conviction and grant his counsel‟s

motion to withdraw, but amend the imposed sentence by deleting a portion of the

court costs assessed.

ERRORS PATENT

As we do in all appeals, we have reviewed this appeal for errors patent on

the face of the record pursuant to La.Code Crim.P. art. 920. In reviewing this

matter, we find one such error which relates to the imposition of sentence.

In sentencing the defendant, the trial court ordered that the defendant pay in

addition to the fine and costs of court, the sum of $200.00 to the Public Defender‟s

Office. In State v. Frith, 561 So.2d 879, 883 (La.App. 2 Cir.), writ denied, 571

So.2d 625 (La.1990), the second circuit held that “LSA-C.Cr.P. articles 895 and

895.1 authorize restitution and payment to the indigent defender program as a

condition of probation only when the trial court suspends the imposition or

execution of sentence.” This court followed that holding in State v. Bivens, 11-156

(La.App. 3 Cir. 10/5/11), 74 So.3d 782, writ denied, 11-2494 (La. 3/30/12), 85

So.3d 115. See also State v. Lozado, 594 So.2d 1063 (La.App. 3 Cir.1992); State

v. Belton, 11-948 (La.App. 3 Cir. 3/7/12), 88 So.3d 1159; and State v. Duke, 11-

688 (La.App. 3 Cir. 2/1/12), 84 So.3d 722, writ denied, 12-373 (La. 9/21/12), 98

So.3d 324. That being the case, we amend the defendant‟s sentence to delete the

provision regarding payment to the Public Defender‟s Office, and we instruct the

trial court to note the amendment in the court minutes.

PRO SE ASSIGNMENTS OF ERROR

In his brief to this court, the defendant raises a number of issues which can

be summarized as follows: that the trial court should have granted his motion to

quash because two of the three predicate offenses fell outside the ten-year

cleansing period; that in one of the predicate offenses he was not advised of his

Boykin rights; that he had ineffective assistance of counsel; and that he was not

represented by counsel in the proceedings of one of the predicate offenses.

2

Cleansing Period Issue

In his pro se brief, the defendant asserts that the ten-year cleansing periods

for both his March 4, 1992 and November 4, 2000 offenses had lapsed. We find

no merit in this argument. As pointed out by the defendant‟s counsel in his brief to

this court, La.R.S. 14:98(F)(2) requires that in calculating the cleansing period, the

court must consider the “periods of time during which the offender was awaiting

trial, on probation or parole . . . under an order of attachment for failure to appear,

or incarcerated in a penal institution[.]” La.R.S. 14:98(F)(2). The record before us

clearly establishes that the ten-year period considered by that portion of the statute

had not lapsed for either predicate offense. Although the defendant argues that the

dates contained in the record are incorrect, he has not identified the correct dates or

any error on the part of the trial court.

Boykin Rights Issue

The defendant next asserts that the bill of information alleged a predicate

conviction of May 30, 1996, in Docket Number 4309-93 in the Fourteenth Judicial

District Court, for which he claims he was not advised of his rights pursuant to

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).1 This issue was not raised

in the trial court. Accordingly, this court will not consider it here. Uniform

Rules—Courts of Appeal, Rule 1-3.

1
We note that the bill of information, as amended, is incorrect as written. It refers to
May 30, 1996, as the date of conviction, but the correct date is January 22, 1996. The sentencing
occurred on May 30, 1996.

3

Ineffective Assistance of Counsel Issue

The defendant next complains that his trial counsel was ineffective during

the proceedings on the motion to quash by neglecting to enter several points in the

record. This court has generally held that the issue of ineffective assistance of

counsel should be raised through an application for post-conviction relief in order

to have an evidentiary hearing. State v. Teno, 12-357 (La.App. 3 Cir. 11/7/12), 101

So.3d 1068. This is because, on appeal, we will not address the merits of the claim

absent sufficient evidence in the record. Id. Here, the record contains insufficient

evidence for us to determine whether the defendant‟s trial counsel was ineffective

in his handling of the motion to quash. Thus, we will not consider the issue at this

time.

Lack of Attorney at Predicate Offense Proceeding Issue

Finally, the defendant argues that he was unrepresented by counsel when he

pled guilty to the first DWI on July 22, 1992.2 This issue was also not raised in the

trial court. Accordingly, this court will not consider it here. Uniform Rules—

Courts of Appeal, Rule 1-3.

ANDERS ANALYSIS

The defendant‟s appellate counsel has requested the permission of this court

to withdraw from representing the defendant by filing an Anders brief, in which he

alleges the absence of any non-frivolous issues on which the defendant could base

an appeal.

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, 87 S.Ct. 1396:

2
The defendant erroneously refers to the date his plea was taken as July 2, 1992.

4

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.

In endorsing this holding, the Louisiana Supreme Court stated that while it is

not necessary for 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.‟” State v. Jyles,

96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (citing Jones v. Barnes, 463 U.S.

745, 103 S.Ct. 3308 (1983); quoting McCoy v. Court of Appeals of Wisconsin, 486

U.S. 429, 442, 108 S.Ct. 1895, 1903 (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 “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.

5

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Jyles, 704 So.2d 241,

the defendant‟s appellate counsel filed a brief citing two potential errors for appeal.

First, counsel considered the argument concerning the cleansing period as it

pertained to the defendant‟s 1992 conviction. Counsel catalogued the pertinent

dates and concluded that the cleansing period had not run.

Next, counsel considered an excessive sentence argument. He determined

that the sentence imposed was in accordance with the plea agreement; thus, it is not

subject to review on appeal. La.Code Crim.P. art. 881.2(A)(2). Additionally, the

sentence imposed is the minimum sentence for this offense. La.R.S.

14:98(E)(1)(a).

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

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

transcripts. Other than the error pertaining to the assessment of a payment to the

Public Defender‟s Office, our review has revealed no issues that would support an

assignment of error on appeal. Accordingly, we grant counsel‟s motion to

withdraw from representing the defendant.

DISPOSITION

We amend the defendant‟s sentence to delete the requirement that he pay

$200.00 to the Public Defender‟s Office, and remand the matter to the trial court

with instructions to note the amendment in the court minutes. We affirm the

defendant‟s conviction and sentence in all other respects. Finally, we grant

defendant‟s appellate counsel‟s motion to withdraw from representing the

defendant.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED
AND REMANDED TO THE TRIAL COURT WITH INSTRUCTIONS; AND
MOTION TO WITHDRAW GRANTED.

6

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

7