State of Louisiana v. Terrance Anderson

NOT FOR PUBLICATION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

14-186

STATE OF LOUISIANA

VERSUS

TERRANCE WAYNE ANDERSON

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

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 09-237621
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE

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

Court composed of Sylvia R. Cooks, J. David Painter, and Phyllis M. Keaty,
Judges.

CONVICTION AFFIRMED. SENTENCE
VACATED AND REMANDED FOR
RESENTENCING. MOTION TO
WITHDRAW DENIED. MISDEMEANOR
CONVICTION AND SENTENCE FOR
SIMPLE FLIGHT SEVERED FROM
APPEAL.

J. Phillip Haney
District Attorney - 16th JDC
415 S. Main Street, 200 Courthouse
St. Martinville, LA 70582
(337) 394-2220
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
P.O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR APPELLANT:
Terrance Wayne Anderson

COOKS, Judge.

On April 8, 2010, Defendant, Terrance Anderson, was charged by bill of

information with one count of illegal possession of stolen things valued over

$500.00, a violation of La.R.S. 14:69B(1), and one count of aggravated flight from

an officer, a violation of La.R.S. 14:108.1(C). On March 14, 2011, pursuant to a

plea agreement with the State, Defendant entered a guilty plea to unauthorized use

of a movable. During the same plea proceeding, Defendant also pled guilty to

several charges filed in other docket numbers – two counts of possession of

cocaine, another count of unauthorized use of a movable, and one count of

aggravated flight from an officer. The trial court ordered a certified criminal

history and then set the matter for sentencing on June 2, 2011. On that date, the

trial court imposed the following sentences: 1) aggravated flight from an officer

(this court’s docket number 13-811) – two years at hard labor; 2) unauthorized use

of a movable (this court’s docket number 14-187) – five years at hard labor,

consecutive; 3) possession of cocaine (this court’s docket number 13-810) – five

years at hard labor, consecutive; 4) possession of cocaine (this court’s docket

number 13-809) – five years at hard labor, concurrent; 5) unauthorized use of a

movable (this court’s docket number 14-186) – five years at hard labor, concurrent.

The trial court then stated Defendant was to serve a total of twelve years at hard

labor. Finally, the trial court recommended Defendant make restitution in the

amount of $5,000.00 if granted parole for the unauthorized use of a movable.

On June 27, 2011, Defendant filed a pro se Motion for Sentence

Reconsideration. At a motion to reconsider hearing held on March 16, 2012, the

trial court amended the sentence imposed on aggravated flight from an officer to

two years at hard labor to run concurrently with all other charges. By amending

the sentence, the trial court reduced the net effect of Defendant’s sentences from

2

twelve years on all counts to ten years on all counts, and the trial court

recommended Defendant for the IMPACT Program.

On April 9, 2012, Defendant filed a Motion for Appeal and Withdrawal as

Counsel of Record for Appeal in all five docket numbers. The Motion for Appeal

stated that Defendant desired to appeal his sentence. On that same date,

Defendant filed a Motion and Order to Clarify and/or Amend Sentence, asking the

trial court to reduce the ten year sentence to seven years so that he would be

eligible for the IMPACT program. The trial court granted the appeal of

Defendant’s sentence on April 13, 2012, and ordered trial counsel to remain

counsel of record for purposes of the Motion and Order to Clarify and/or Amend

Sentence.

Pursuant to several information requests to the St. Martin Parish Clerk of

Court, this court learned that the original appellate record did not contain all of the

minute entries and pleadings related to this case. On April 21, 2014, this court

received a supplemental record containing several minute entries. One of the

minute entries was a June 19, 2012, minute entry wherein the trial court ordered

the sentences to remain the same in all docket numbers except the sentence

imposed in the lower court docket number that corresponds with the present

appeal. The transcript of the June 19, 2012 hearing reflects that the trial court

stated the State had no opposition to the reconsideration of that sentence. The trial

court then stated the following:

BY THE COURT:

This is a motion to reconsider sentence and the State has
no opposition to the Court reconsidering the sentence in that
docket number only. In consideration of the Defense motion,
the State is going to amend charge #2 in that particular docket
number from aggravated flight from an officer to simple flight.
Is that correct?

BY MR. SIMONEAUD [District Attorney]:

3

Yes, sir, Your Honor. That is correct.

4

BY THE COURT:

On the charge of simple flight, the Court will sentence
the defendant to 6 months in the Parish Jail. That sentence is to
run concurrent.

In all other particulars, in all of the sentences in all of the
other cases will remain the same.

The Court will recommend the defendant for the
I.M.P.A.C.T. Program.

Good luck.

The supplemental records further revealed the following. According to a

minute entry dated May 24, 2013, Defendant’s case went before the trial court on a

Motion to Correct Illegal Sentence. The matter was continued until June 11, 2013.

A minute entry dated June 11, 2013, states that the case went before the court on a

Motion to Clarify or Amend Sentence but was reset for June 27, 2013. Another

minute entry dated June 11, 2013, states that the case went before the court on a

Motion to Correct Illegal Sentence but was continued without date due to the

nonappearance of Defendant’s attorney.

Finally, one of the supplemental records revealed that on June 27, 2013, the

matter went before the trial court on a Motion to Reconsider and Amend Sentence.

According to the minute entry, the trial court, on joint motion of the parties,

amended the previously imposed sentences to order all sentences to run

concurrently with each other. According to the transcript of the June 27, 2013

hearing, the matter before the court was a Motion to Reconsider Sentence based on

the discontinuance of the Boot Camp program. The trial court stated that pursuant

to a joint recommendation, “[a]ll sentences remain the same as to the amount of

time imposed, but they should run concurrently with one another and with each

other’s docket number.” The trial court stated that its intention was that Defendant

would receive a five year hard labor sentence. The trial court also recommended all

5

of the programs for which Defendant is eligible as noted in the written Judgment

on the Amended Sentence signed that same date.

The present appeal lodged in this court on February 12, 2014, and Defendant

filed a brief on March 18, 2014. Defendant’s appellate counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the

record contained no non-frivolous issues for appeal and requested this court grant

his accompanying Motion to Withdraw. On March 20, 2014, Defendant was

advised, via certified mail, that counsel filed an Anders brief and he would be

given until April 21, 2014, to file a pro se brief. In light of the filing of

supplemental records after appellate counsel’s original Anders brief was filed, this

court issued an order on May 5, 2014, ordering appellate counsel to file a new brief

in light of the supplemental records. On May 30, 2014, appellate counsel filed a

second Anders brief and requested this court grant his accompanying Motion to

Withdraw. On June 3, 2014, Defendant was advised, via certified mail, that

counsel filed a second Anders brief and that he was given until June 30, 2014, to

file a pro se brief. As of this date, no pro se brief has been filed.

Before the court are five separate appeals with five separate docket numbers.

Because of an illegality in the sentences discovered by this court in its error patent

review, we deny appellate counsel’s motion to withdraw in each case and remand

each case for resentencing in accordance with this opinion. Defendant’s

convictions in each case, however, are affirmed.

FACTS

The following factual basis for unauthorized use of a movable was set forth

by the State at the guilty plea proceeding:

Your Honor, under Docket No. 09-237,621 Mr. Anderson was
intentionally using a movable vehicle belonging to Mr. Richard Ross,
being a 2007 Chevrolet pick-up truck without Mr. Ross’s consent or
authorization, thus unauthorized use of a movable carrying a penalty
of zero (0) to five (5) years.
6

PROCEDURAL ISSUE

There is a procedural issue involving the Motion to Reconsider Sentence

hearing that took place on June 19, 2012. As noted previously, at the June 19,

2012 hearing, the trial court addressed a Motion to Reconsider Sentence filed by

Defendant. In consideration of the motion, the trial court asserted the State agreed

to amend “charge #2” from aggravated flight from an officer to simple flight. The

trial judge further stated “[o]n the charge of simple flight, the court will sentence

the defendant to 6 months in the parish jail . . . to run concurrent.”

We note several potential issues with the trial judge’s actions at the June 19,

2012 hearing. First, at Defendant’s original sentencing on June 2, 2011, the trial

court stated that the aggravated flight charge in this docket number had been

dropped. Thus, at the June 19, 2012 motion to reconsider sentence hearing, the

State amended a charge that the trial court had previously indicated was dropped.

The record does not indicate, however, that the State had formally dismissed the

aggravated flight charge. Second, even if the aggravated flight charge had not

been dropped, the June 19, 2012, transcript does not contain a colloquy wherein

Defendant actually entered a guilty plea to the reduced charge of simple flight.

The trial court simply stated that the State was amending the original charge of

aggravated flight to simple flight, and the trial court then imposed a sentence of six

months in the parish jail, “to run concurrent.” Thus, it appears that the trial court

imposed a sentence on a charge to which Defendant did not actually enter a guilty

plea.

Nonetheless, we find the simple flight conviction and sentence is not

properly before this court on appellate review. According to La.Code Crim.P. art.

912.1(B)(1), a defendant may appeal from a judgment in a criminal case that is

triable by a jury. The offense for which the Defendant was originally charged in

7

“charge #2,” aggravated flight from an officer, is triable by a jury since it is

punishable at hard labor. La.R.S. 14:108.1(E) and La.Code Crim.P. art. 782. The

aggravated flight charge was amended, however, to simple flight – a charge that is

not triable by jury since it is a misdemeanor punishable by less than one thousand

dollars and less than six months imprisonment.1 La.R.S. 14:2(A)(4) and (6) and

La.Code Crim. P. art. 779. As a misdemeanor not triable by a jury, the proper

mode of review of simple flight is by writ and not by appeal. La.Code Crim.P. art.

912.1 and State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ

denied, 05-871 (La. 12/12/05), 917 So.2d 1084.

In Turner, this court severed Turner’s misdemeanor conviction from the

appeal of his felony drug convictions and considered his notice of appeal as a

notice of writ of review, if Turner desired to seek review of his misdemeanor

conviction. Id. The court in Turner specifically noted that in his appeal, Turner

did not make any specific arguments regarding the misdemeanor conviction. Id.

Likewise, the present Defendant makes no specific arguments regarding his simple

flight conviction and sentence. Thus, as in Turner, this court severs Defendant’s

misdemeanor conviction and sentence of simple flight from the appeal of his

felony conviction of unauthorized use of a movable and orders Defendant to file a

writ of review, if he so desires, regarding the simple flight conviction and sentence

in compliance with the Rules of Court. Additionally, this court will consider the

1
We note that “charge #2” was not formally amended by the State to charge Defendant
with the misdemeanor simple flight charge. The amendment was done orally by the State when
the trial court made the assertion that the State agreed to amend “charge #2” from aggravated
flight from an officer to simple flight, and the State indicated its agreement to the trial court’s
assertion. A formal amendment, however, was not necessary. Simple flight from an officer is a
responsive verdict to aggravated flight from an officer. La.Code Crim.P. art. 814(45.1). Thus,
an oral amendment was proper. See State v. Brown, 567 So.2d 1152 (La.App. 3 Cir. 1990.) As
such, the State’s oral amendment is treated as if the State filed a superseding bill of information
charging Defendant with simple flight. Defendant’s sentencing exposure for simple flight was
therefore capped at six months imprisonment and/or a fine of not more than five hundred dollars,
and his case was not triable by a jury. See La.R.S. 14:108.1(B), La.Code Crim.P. art. 779 and
State v. Palmer, 08-517 (La. 4/2/09), 6 So.3d 749. See also State v. Wolfe, 98-1853 (La.App. 1
Cir. 5/18/99), 740 So.2d 701, where the first circuit found that the proper mode of review for a
guilty plea to a misdemeanor offense was by appeal (not by writ) where the original charge was
for a felony, and the bill of information had not been amended. Id.
8

Notice of Appeal as a Notice to File a Writ of Review within thirty days of this

court’s opinion, if Defendant desires to seek review of his simple flight conviction

and sentence.

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 one

error patent that requires the sentences in each case be vacated and the cases

remanded for resentencing.

The sentences orally pronounced by the trial court at the June 27, 2013

resentencing conflict with the sentences set forth in the written Judgment on

Amended Sentence rendered that same date. At the oral pronouncement of

Defendant’s sentence, the trial court stated, “We recommend all the programs that

he is eligible for in the Department of Public Safety & Corrections as noted in the

Judgment on the Amended Sentence which has been agreed to by the State, and I

will sign at this time.” (Emphasis added.) In the written Judgment on Amended

Sentence, however, the trial court ordered (rather than recommended) the

following:

 Defendant to be immediately transferred to, enrolled in,
complete, and graduate from an in-patient program for
substance abuse and, if available, psychiatric treatment from the
Acadiana Recovery Center in Lafayette, Louisiana.

 The Acadiana Recovery Center to immediately admit
Defendant, make a bed available for Defendant, and admit
Defendant into its in-patient program for substance abuse and,
if available, psychiatric treatment.

 Defendant’s participation in the Acadiana Recovery Center to
be considered as time served.

 Defendant be transported from Elayn Hunt Correctional Center
(or any other correctional center to which he may be assigned)
to Acadiana Recovery Center.

 Defendant be immediately returned to David Wade
Correctional Center after graduating from his rehabilitation
9

program for calculation of the total time remaining on his
sentence.

 Defendant be immediately returned to David Wade
Correctional Center if he does not graduate or withdraws, for
any reason, from the rehabilitation program for calculation of
the total time remaining on his sentence.

 Defendant be treated by a health care provider in the area for
mental illness, regularly attend behavioral treatment by a
psychologist, therapist, and/or psychiatrist for a minimum of six
months.

Although the trial court’s oral recommendation that Defendant be placed in

all of the programs for which he is eligible was something it had authority to do,

the trial court’s written order that Defendant be placed in specific programs and

facilities was a violation of La.R.S. 15:824(A). That statute provides that any

individual subject to confinement in a state adult penal or correctional institution

shall be committed to the Department of Public Safety and Corrections and not to

any particular institution within the jurisdiction of the department. As the supreme

court noted in State v. Blue, 315 So.2d 281, 282 (La.1975), a defendant sentenced

to hard labor is “committed” to the custody of the Department of Corrections.

La.R.S. 15:824(C). Once in the custody of the Department of Corrections, “the

physical placement of prisoners [is] within the jurisdiction of the DOC alone.”

State v. Sylvester, 94-2343, p. 5 (La.App. 4 Cir. 12/15/94), 648 So.2d 31, 33.

Thus, it is improper for the trial judge to designate physical placement of a

defendant committed to the custody of the Department of Corrections.

In Blue, the supreme court found the trial court improperly designated the

placement of a defendant in the Louisiana State Penitentiary (rather than DOC)

when the defendant had been sentenced to hard labor. Because of the error, the

supreme court remanded the case for resentencing. Id. Similarly, in State v.

Welch, 07-1401 (La.App. 3 Cir. 4/30/08) (unpublished opinion),2 this court found

2
This case is cited at 2008 WL 1897721.
10

the trial court improperly ordered the Department of Corrections to place the

defendant in the St. Gabriel Women’s Correctional Facility. As did the supreme

court in Blue, this court in Welch set aside the sentence and remanded for

resentencing. Id. at p. 2.

Likewise, we find the sentences imposed in each of the present cases should

be set aside and the cases remanded for resentencing. We recognize that an oral

pronouncement, not a written judgment of sentence, is required by La.Code

Crim.P. art. 871. State v. Sebastien, 31,750 (La.App. 2 Cir. 3/31/99), 730 So.2d

1040, writ denied, 99-1426 (La. 10/29/99), 748 So.2d 1157. Thus, this court

could find, as did the second circuit in Sebastien, that “[d]iscrepancies between a

written judgment and the sentencing transcript should be resolved in favor of the

oral sentence reflected in the sentencing transcript.” Id. at 1048 (citing State v.

Boyte, 571 So.2d 722 (La.App. 2 Cir. 1990). By making this finding, remand for

resentencing would not be necessary as the oral pronouncement by the trial court

only recommended the Defendant’s participation in all programs for which he is

eligible. We find, however, that resentencing is the appropriate course of action to

take in this case. It is clear that when the trial court orally pronounced sentence,

the written Judgment on the Amended Sentence had already been prepared and, in

fact, was signed by the trial court at that time. According to the written Judgment

on Amended Sentence, “counsel for the State and Defendant [had] intensely

discussed the matter at issue . . . and desire[d] to settle said issue amicably, without

the need for any further judicial proceedings. . . .” Thus, the sentencing judge, the

prosecutor, and defense counsel clearly intended that Defendant receive services

that would lead him to rehabilitation, and they knew these services were available

at the Acadiana Recovery Center. Had the trial court known it could not

specifically designate the institution where Defendant would be placed, it is

possible it may have imposed a different sentence. For these reasons, we vacate
11

the sentences imposed in each case and remand for resentencing in accordance

with this opinion.

ANDERS ANALYSIS

Pursuant to Anders, Defendant’s appellate counsel alleges that he made a

conscientious and thorough review of the trial court 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 442, 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
12

evidence presented to the jury for its consideration.” Id. (citing United States v.

Pipper, 115 F.3d 422, 426 (7th Cir. 1997). 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.

In his original Anders brief, appellate counsel pointed out that Defendant

pled guilty after being explained his constitutional rights. Additionally, appellate

counsel noted that Defendant agreed that no one threatened him or promised him

anything in exchange for pleading guilty. The trial court accepted Defendant’s

guilty pleas and found each to be free and voluntary with a complete understanding

and waiver of all constitutional rights.

Finally, in his original Anders brief, appellate counsel asserted the sentence

imposed for unauthorized use of a movable, five years at hard labor, could not

reasonably be argued as excessive. Appellate counsel based this assertion on the

fact that for all five counts, Defendant received a total sentence of ten years at hard

labor. This sentence, appellate counsel noted, had been reduced from twelve years

to ten years pursuant to a Motion to Reconsider Sentence filed by Defendant.

Appellate counsel further noted Defendant has a significant criminal history –

simple robbery and several arrests. In his most recent Anders brief, appellate

counsel again asserts that the sentence imposed is not excessive in “view of the

fact that the defendant’s total sentence on all the charges to which he pled guilty

was reduced to five (5) years . . . .”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

3
We note that Defendant’s “total sentence” was not reduced to five years as contended
by appellate counsel. Rather, the “net effect” of the sentences was reduced to five years because
of the trial court’s order that all sentences run concurrently.
13

charging instrument, and the transcripts. Defendant was properly charged in the

bill of information, and he was present and represented by counsel at all crucial

stages of the proceedings. Additionally, Defendant entered a free and voluntary

plea after he was advised of his rights in accordance with Boykin v. Alabama, 395

U.S. 238, 89 S.Ct. 1709 (1969). Defendant pled guilty to unauthorized use of a

movable, a crime different than the two charges for which he was originally

charged – illegal possession of stolen things and aggravated flight from an officer.

Although the record contains no amendment to the bill of information, the trial

court stated at the June 2, 2011 sentencing that the aggravated flight from an

officer charge had been dropped and Defendant pled guilty to the amended charge

of unauthorized use of a movable. According to the supreme court, the district

court retains jurisdiction to accept a defendant’s knowing and voluntary guilty plea

even if the offense to which the defendant pleads is not responsive to the original

charge, and the State fails to amend the bill of information to conform to the plea.

State v. Jackson, 04-2863, p. 14 (La. 11/29/05), 916 So.2d 1015, 1023.

After questioning Defendant as to whether anyone had threatened him or

promised him anything to get him to plead guilty, the trial court advised him of his

right to an attorney, his right to a trial by jury, his right to confront his accusers,

and his right to remain silent. The trial court also made sure Defendant was aware

of his right to have the State prove its case against him and his right to subpoena

witnesses to testify on his behalf. The trial court accepted each of Defendant’s

guilty pleas, finding that they were all freely and voluntarily entered with a

complete understanding and waiver of constitutional rights.

Finally, this court has previously addressed the legality of the sentences

imposed. As discussed in the error patent section, we find the sentences imposed

in each case must be vacated and the case remanded for resentencing in accordance

with this opinion. Since Defendant must be represented at resentencing, defense
14

counsel’s Motion to Withdraw is denied. See State v. White, 08-838 (La.App. 3

Cir. 12/11/08) (unpublished opinion).4

Accordingly, after conducting an Anders review, this court affirms

Defendant’s conviction. The sentence, however, is vacated based on the error

patent discussed above, and the case is remanded for resentencing in accordance

with this opinion. Because Defendant must be represented at the resentencing,

appellate counsel’s Motion to Withdraw is denied. Additionally, Defendant’s

misdemeanor conviction and sentence for simple flight is severed from the appeal

of his felony conviction for unauthorized use of a movable, and Defendant is

ordered to file a writ of review, if he so desires, regarding the simple flight

conviction in compliance with the Rules of Court. This court considers the notice

of appeal as a notice to file a writ of review within thirty days of this court’s

opinion, if Defendant desires to seek review of his simple flight conviction and

sentence.

CONVICTION AFFIRMED, SENTENCE VACATED AND CASE
REMANDED FOR RESENTENCING, MOTION TO WITHDRAW
DENIED. MISDEMEANOR CONVICTION AND SENTENCE FOR
SIMPLE FLIGHT SEVERED FROM APPEAL.

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

4
This case is cited at 2008 WL 5191845.
15