State of Louisiana v. Cornelius Eugene Wilson AKA N.O.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1164

STATE OF LOUISIANA

VERSUS

CORNELIUS EUGENE WILSON
A/K/A N.O.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 312634
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

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PER CURIAM

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

MOTION TO WITHDRAW DENIED. ADDITIONAL BRIEFING
ORDERED.

James C. Downs
District Attorney
Thomas R. Willson
Assistant District Attorney
Post Office Drawer 1630
Alexandria, LA 71309
(318) 442-8658
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Cornelius Eugene Wilson, a/k/a “N.O.”

PER CURIAM:

The defendant pled guilty to home invasion, a violation of La.R.S. 14:62.8,

and attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S.

14:30.1. The trial court sentenced the defendant to twenty years at hard labor on

each count, to run concurrently with each other. Further, the trial court ordered

that the first ten years of the defendant‟s sentence for attempted second degree

murder be served without the benefit of probation, parole, or suspension of

sentence. The defendant‟s appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967). For the following reasons, we

deny defense counsel‟s motion to withdraw and order additional briefing to be

filed within fifteen days of the date of this opinion. We also order the State of

Louisiana to file a brief within thirty days of the date of this opinion.

Discussion

The State alleged that the defendant, Cornelius Eugene Wilson, along with

several accomplices, forced his way into a residence in Alexandria. The record

indicates that the allegations were that the defendant and his accomplices shot one

of the residents and beat another, and that they took various items from the

residence. The defendant was initially charged with attempted first degree murder,

a violation of La.R.S. 14:27 and La.R.S. 14:30; home invasion, a violation of

La.R.S. 14:62.8; second degree kidnapping, a violation of La.R.S. 14:44.1;

conspiracy to commit home invasion, a violation of La.R.S. 14:26 and La.R.S.

14:62.8; conspiracy to commit aggravated burglary, a violation of La.R.S. 14:26

and La.R.S. 14:60; and accessory after the fact, a violation of La.R.S. 14:25.

Thereafter, the defendant pled guilty to attempted second degree murder, a

violation of La.R.S. 14:27 and La.R.S. 14:30.1, and home invasion, a violation of

La.R.S. 14:62.8. Pursuant to a plea agreement, the State agreed to a sentencing cap

of twenty-five years and to nolle prosequi the defendant‟s other charges. At the

defendant‟s sentencing hearing, the trial court sentenced the defendant to twenty

years at hard labor on each count, to be served concurrently with each other. The

trial court also ordered that the first ten years of the defendant‟s sentence for

attempted second degree murder be served without the benefit of probation, parole,

or suspension of sentence. A motion for reconsideration was denied.

The defendant appealed, and his appellate counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging that no non-

frivolous issues exist upon which to base an appeal and seeking to withdraw as the

defendant‟s counsel.

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

circuit explained the appellate review of Anders briefs, stating:

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.

This approach was approved by the supreme court in State v. Mouton, 95-

981 (La. 4/28/95), 653 So.2d 1176. Further, although “[a]n Anders brief need not

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[,]” it “must

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review not only the procedural history of the case and the evidence presented at

trial but must also provide, as did the advocate’s brief in Mouton, „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. Jyles, 96-2669 (La.

12/12/97), 704 So.2d 241, 241-42.

Pursuant to Anders, appellate counsel has filed a brief which cites an

excessive sentence as a potentially appealable error. However, the defendant‟s

appellate counsel also notes that the defendant agreed to a twenty-five year

sentencing cap and that the twenty-year sentence that was imposed was below the

sentencing cap. Louisiana Code of Criminal Procedure Article 881.2(A)(2)

prohibits a defendant from appealing a sentence which was “imposed in

conformity with a plea agreement which was set forth in the record at the time of

the plea.” Further, where a defendant enters into a plea agreement for a specific

sentencing range or sentence, that specific sentencing range or sentence is

recognized by the court at the sentencing hearing and the defendant is actually

sentenced in conformity with that agreement, the defendant may not seek appellate

review of his sentence. State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d

36 (quoting State v. Goodman, 96-376 (La.App. 3 Cir. 11/6/96), 684 So.2d 58).

Thus, we conclude that the defendant‟s appellate counsel correctly determined that

the defendant cannot make a non-frivolous argument on appeal alleging that his

sentence is excessive.

This court has performed a thorough review of the record, including the

pleadings, minute entries, the charging instrument, and the transcript. The record

indicates that the defendant was present and represented by counsel at all crucial

stages of the proceedings and that he acknowledged his guilty plea on the plea

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form. Further, the record indicates that the trial court properly informed the

defendant of his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238,

89 S.Ct. 1709 (1969), and discussed the defendant‟s sentencing exposure for the

crimes of home invasion and attempted second degree murder.

However, our review of the record reveals a potential issue for appeal which

was not addressed in the Anders brief. At the guilty plea hearing, the trial court

stated:

On Home Invasion, this is what the State would have to prove:
That is the Unauthorized entering of an Inhabited Dwelling, or other
structure, belonging to another and used in whole or in part as a home
or a place of abode by a person. Where a person is present, with the
intent to use force or violence upon a person of another, or to
vandalize the face [sic], damage the property of another. . . .
Attempted Second Degree Murder, I‟m going to read to you the
definition of Second Degree Murder, even though you‟re not pleading
guilty to that, because you‟re charged with an attempt to do this,
okay? So, Second Degree Murder is the killing of a human being
when the offender is engaged in the perpetration or attempted
perpetration of a Second Degree Kidnapping, or an Armed Robbery,
even though he has no intent to kill or inflict great bodily harm –
okay. And, so what you‟re charged with doing, is attempting to do
that. And, that is any person who having a specific intent to commit a
crime, does an act for the purpose of intending directly toward the
accomplishing of his object, is guilty of an attempt to commit the
offense intended. And, it shall be immaterial, whether under the
circumstances; he would have actually accomplished his purpose. So,
what that means is, someone who has a specific intent to commit a
crime, the State says that you had a specific intent to commit the
crime of Armed Robbery, Second Degree Kidnapping, and Home
Invasion, and you do an act for the purpose of intending directly
towards the accomplishing of this object. Any act in furtherance.
You sit down and you make a plan, you go to the house, you get a
gun, you knock on the door, those are act[s] in furtherance. You‟re
guilty of and [sic] attempt to commit the offense intended. And, if the
offense so attempted is punishable by death or life imprisonment, you
shall be imprisoned at hard labor not less than 10, no more than 50
years, and that‟s with without benefit of probation, parole or
suspension of sentence. Do you understand what the State would
have to prove and what the possible penalties could be?

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Louisiana Code of Criminal Procedure Article 556.1(A)(1) requires the trial

court, in felony cases, to inform the defendant of and to determine that a defendant

understands “[t]he nature of the charge to which the plea is offered, the mandatory

minimum penalty provided by law, if any, and the maximum possible penalty

provided by law.” Our review of the transcript of the defendant‟s guilty plea

hearing indicates that an arguable basis for appeal exists with regard to whether the

trial court properly informed the defendant that specific intent to kill is an essential

element of attempted second degree murder. See State v. Bishop, 01-2548 (La.

1/14/03), 835 So.2d 434.

Accordingly, we deny appellate counsel‟s motion to withdraw. Further, we

order defense counsel, within fifteen days of the date of this opinion, to brief the

issues of: 1) whether the trial court properly informed the defendant of the

essential elements of the offense to which he pled, and 2) whether the defendant‟s

guilty plea was rendered involuntary as a result of any such failure. The State of

Louisiana shall file a brief on the same issues within thirty days of the date of this

opinion.

DECREE

For the foregoing reasons, defense counsel‟s motion to withdraw is denied.

Further, defense counsel is ordered to brief, within fifteen days of the date of this

opinion, the issues of whether the trial court properly informed the defendant of the

essential elements of the offense to which he pled, and whether the defendant‟s

guilty plea was rendered involuntary as a result of any such failure. The State of

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Louisiana shall file a brief on the same issues within thirty days of the date of this

opinion.

MOTION TO WITHDRAW DENIED. ADDITIONAL BRIEFING
ORDERED.

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