State of Louisiana v. Therand Guy Thacker

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-745

STATE OF LOUISIANA

VERSUS

THERAND GUY THACKER

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 310,218
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

AFFIRMED IN PART; VACATED IN PART; REMANDED; AND MOTION
TO WITHDRAW GRANTED.

Phillip Terrell, Jr.
District Attorney
Ninth Judicial District Court
Sheryl Lynn Laing
Assistant District Attorney
P. O. Drawer 1472
Alexandria, La 71309
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Edward John Marquet
Louisiana Appellant Project
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR APPELLANT:
Therand Guy Thacker

Thomas Rockwell Willson
Post Office Drawer 1630
Alexandria, LA 71309
(318) 442-8658
COUNSEL FOR APPELLEE:
State of Louisiana

EZELL, Judge.

The Defendant, Therand Guy Thacker, is appealing his resentencing for the

convictions of two counts of sexual battery, attempted aggravated rape, and six

counts of aggravated incest. The remand to the trial court for resentencing resulted

from this court‟s opinion in State v. Thacker, 13-516 (La.App. 3 Cir. 1/28/15), 157

So.3d 798 (hereinafter referred to as Thacker Two). In Thacker Two, this court set

forth the procedural history of the case writing in pertinent part:

The Defendant, Therand Guy Thacker, was charged in an
indictment filed on February 23, 2012, [and then amended] with the
following eleven counts: 1) aggravated rape, a violation of La.R.S.
14:42 [date of alleged offense was January 2003 to December 2005];
2) aggravated rape, a violation of La.R.S. 14:42 [date of alleged
offense was January 1999 to December 2002]; 3) attempted
aggravated rape, a violation of La.R.S. 14:42 and La.R.S. 14:27 [date
of alleged offense was January 1997 to December 1999]; 4)
aggravated incest, a violation of La.R.S. 14:78.1 [date of alleged
offense September 21, 1998 to January 4, 2012]; 5) aggravated incest,
a violation of La.R.S. 14:78.1 [date of alleged offense September 21,
1998 to January 4, 2012]; 6) aggravated incest, a violation of La.R.S.
14:78.1 [date of alleged offense September 21, 1998 to January 4,
2012]; 7) aggravated incest, a violation of La.R.S. 14:78.1 [date of
alleged offense September 21, 1998 to January 4, 2012]; 8)
aggravated incest, a violation of La.R.S. 14:78.1 [date of alleged
offense September 21, 1998 to January 4, 2012]; 9) aggravated incest,
a violation of La.R.S. 14:78.1 [date of alleged offense September 21,
1998 to January 4, 2012]; 10) intimidating a witness, a violation of
La.R.S. 14:129.1; and 11) obstruction of justice, a violation of La.R.S.
14:130.1. The Defendant was arraigned on March 2, 2012, and
entered a plea of not guilty. On March 27, 2012, the State filed an
amended indictment.

Jury selection commenced on October 16, 2012, and, on
October 18, 2012, the jury returned the following verdicts: 1) guilty
of the responsive verdict of sexual battery, a violation of La.R.S.
14:43.1; 2) guilty of the responsive verdict of sexual battery; 3) guilty;
4) guilty; 5) guilty; 6) guilty; 7) guilty; 8) guilty; 9) guilty; 10) not

guilty; and 11) guilty.[1] On November 2, 2012, the Defendant was
sentenced to serve twenty years at hard labor for obstruction of justice
and fifty years at hard labor without benefit of probation, parole, or
suspension of sentence for each count of sexual battery and one count
of aggravated incest. The sentences were to be served concurrently.
The trial court failed to impose sentences for the remaining five
counts of aggravated incest.

....

On appeal, this court affirmed the Defendant‟s convictions,
finding the evidence presented by the State was sufficient under
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). State v. Thacker, 13-516 (La.App. 3 Cir. 1/22/14), 130 So.3d
1037, vacated, 04-418 (La. 10/24/14), 150 So.3d 296 [Thacker One].
However, this court vacated the Defendant‟s sentences for sexual
battery, attempted aggravated rape, and obstruction of justice, and the
single sentence imposed for six counts of aggravated incest and
remanded the matter for resentencing. Id. On March 17, 2014, the
trial court resentenced the Defendant.

The Defendant sought review of this court‟s ruling in the
supreme court. See Thacker, 150 So.3d 296. In its opinion, which
was issued on October 24, 2014, the supreme court stated:

In reviewing defendant‟s claim that the sentence
for attempted aggravated rape was unconstitutionally
excessive, however, the court of appeal found that it was
unable to determine the victim‟s age at the time of this
offense from the record. See State v. Thacker, 13-0516,
pp. 15-16 (La.App. 3 Cir. 1/22/14), 130 So.3d 1037,
1047-48. The court of appeal correctly noted that if the
victim was not under the age of 13 at the time of [sic] the
offense was perpetrated then the evidence would not
support a conviction for attempted aggravated rape in
accordance with La. R.S. 14:42(A)(4). Nonetheless, the
court of appeal did not address this issue further because
“[t]his concern was not raised by the Defendant in his
briefs to this court.” Id., 13-0516 at 16, 130 So.3d at
1048. Similarly, in considering whether defendant‟s
sentence for obstruction of justice was unconstitutionally

1
In Thacker Two, 157 So.3d at 813, this court found the evidence was insufficient to
support a conviction of obstruction of justice. Thus, this court vacated the conviction and
sentence.

2

excessive, the court of appeal indicated that it was unable
to determine the factual basis of this conviction but did
not consider whether sufficient evidence was presented to
support this conviction because defendant did not raise
the issue. Id., 13-0516 at 21, 130 So.3d at 1050.

When the state‟s case is devoid of evidence of an
essential element of the charged offense, the conviction
and sentence must be set aside “regardless of how the
error is brought to the attention of the reviewing court.”
State v. Raymo, 419 So.2d 858, 861 (La.1982). The court
of appeal thus erred in failing to consider the issue of
sufficiency further once it came to the court‟s attention.
In addition, the court of appeal‟s decree requires
clarification. The court of appeal rejected defendant‟s
claim that the sentence for attempted aggravated rape is
unconstitutionally excessive. However, in its decree, the
court of appeal vacated this sentence. Accordingly, the
application is granted to vacate the court of appeal
opinion and remand the matter to the court of appeal for
reconsideration consistent with State v. Raymo, supra.
The court of appeal is further directed to clarify the
decree.

State v. Thacker, 14-418 (La. 10/24/14), 150 So.3d 296, 296-97.

In light of the language in the supreme court‟s ruling vacating
this court‟s prior opinion, we will once again review all errors
assigned by the Defendant on appeal. Additionally, we find that the
trial court sentencing that occurred on March 17, 2014, as a result of
the remand ordered by this court is null.

Id. at 801-03 (footnote omitted) (fourteenth alteration in original).

In Thacker Two, this court vacated all the sentences imposed for aggravated

incest and sexual battery and remanded the matter to the trial court for

resentencing. This court held as follows:

The Defendant was convicted of six counts of aggravated
incest. The minutes of sentencing indicate that the trial court imposed
a sentence of fifty years at hard labor without the benefit of probation,
parole, or suspension of sentence on each count of aggravated incest.
However, the sentencing transcript indicates the trial court imposed a

3

single sentence of fifty years at hard labor without the benefit of
probation, parole, or suspension of sentence, and it failed to specify
for which conviction it was imposing the sentence. Additionally, the
trial court failed to impose sentences for the other aggravated incest
convictions
....

Consequently, the single sentence imposed on the aggravated
incest conviction is vacated and the matter remanded to the trial court
for a legal sentence to be imposed on each of the aggravated incest
convictions in accordance with the applicable penalty in effect at the
time of the commission of the offense.

....

Summarizing, because the record does not establish which
conduct supports which conviction and because the legality and
excessiveness of at least one of the two sexual battery convictions
cannot be determined, we vacate the two sexual battery sentences and
remand the matter to the trial court for resentencing in accordance
with the applicable penalty in effect at the time of the commission of
the offenses and order the trial court to clarify the reasons for the
sentences imposed on both sexual battery convictions.

Id. at 803-818 (emphasis added) (footnote omitted).

On May 20, 2015, the trial court resentenced the Defendant to ten years at

hard labor on both counts of sexual battery, without the benefit of probation,

parole, or suspension of sentence. On the conviction of attempted aggravated rape,

the Defendant was sentenced to fifty years at hard labor, without the benefit of

probation, parole, or suspension of sentence. On counts four, five, six, and seven,

for the convictions of aggravated incest, the Defendant was sentenced to twenty

years at hard labor. On counts eight and nine, for the convictions of aggravated

incest, he was sentenced to fifty years.

The Defendant perfected a timely appeal, wherein appellate counsel filed a

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

alleging no non-frivolous issues exist on which to base an appeal and seeking to

4

withdraw as the Defendant‟s appellate counsel. 2 For the following reasons, we

affirm the Defendant‟s sentences on counts one through seven, but vacate his

sentence on counts eight and nine. Additionally, we grant appellate counsel‟s

motion to withdraw.

FACTS

The Defendant was convicted of sexual offenses involving his nieces, N.D.

and C.D. 3

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, there are

several errors patent regarding the sentences imposed. At resentencing, the

following pertinent exchanges occurred:

BY THE COURT:

All right. Then instead of trying to piece meal [sic] what
they sent back, I‟m just gonna [sic] go through with [sic] all the
different crimes that are on the bill of indictment that we have
and there were some that were affirmed, but I‟m gonna go
ahead and sentence him on those even if they were affirmed so
that there‟s not an issue.

On Count 1. . .well, I‟m not gonna go through the counts,
uh, because Count 1 was aggravated rape (interrupted)[.]

BY MS. LAING [STATE]:

And it was sexual battery was [sic] the responsive verdict to
that.

2
On September 30, 2015, this court issued an order requesting appellate counsel to brief
possible sentencing errors regarding the sexual battery and aggravated incest convictions.
Appellate counsel responded the trial court “substantially complied,” and there were no
objections to sentences imposed except “as to excessiveness previously argued in earlier briefs.”
3
The victims‟ initials are used under the authority of La.R.S. 46:1844(W) which allows
this court to identify a crime victim who is a minor or a victim of a sex offense by using his or
her initials.

5

BY THE COURT:

Oh, okay then. On the responsive verdict to that
aggravated, uh, rape, on that sexual battery, the sentence of the
Court is he‟s to serve ten years at hard labor without benefit of
probation, parole or suspension of sentence.

And on Count 2, the aggravated rape was that a sexual
battery?

BY MS. LAING:

It was a sexual battery respon (interrupted)

BY THE COURT:

Same sentence. Ten years at hard labor without benefit
of probation, parole or suspension of sentence.

Count 3 is attempted aggravated rape. Sentence of the
court is he‟s to serve fifty years at hard labor with the Louisiana
Department of Corrections. That is without benefit of
probation, parole or suspension of sentence.

On the Counts of aggravated incest, one, two, three, four,
five, six, on four of those counts, the sen. . .uh, the possible
penalty range is five to twenty years. That was the effective
sentencing range at the time the crimes were committed. As to .
. . can we say the first four, do you know exactly which four?

BY MS. LAING:

Um, in, in my memo, I‟d indicated it that way. I think
they were actually all billed, Judge, covering both time periods,
if you need the dates, but the testimony was (interrupted)

BY THE COURT:

Okay.

BY MS. LAING:

. . . four of them were under the old law and two under
the new law.

BY THE COURT:

6

All right. Counts four, five, six and seven, the penalty
range is five . . . well, I‟m just gonna say the sentence of the
Court is he‟s to serve fifty year[s] . . . twenty years, twenty
years at hard labor with the Louisiana Department of
Corrections.

On Count[s] eight and nine, the sentence of the Court is
he‟s supposed . . . he‟s to serve fifty years on Count eight. Fifty
years on Count nine. All of these sentences and all of these
counts will be served concurrently.

There is a possible error patent regarding the sentences imposed on the two

counts of sexual battery.

In State v. Parker, 03-924, pp. 9-10 (La. 4/14/04), 871 So.2d 317, 322, the

court held in pertinent part:

[I]t is generally settled that the law in effect at the time of the
commission of the offense is determinative of the penalty which is to
be imposed upon the convicted accused. See State v. Narcisse, 426
So.2d 118, 130 (La.1983). State v. Wright, 384 So.2d 399, 401
(La.1980); State v. Gros, 205 La. 935, 938, 18 So.2d 507, 507 (1944),
cert. denied, 326 U.S. 766, 66 S.Ct. 170, 90 L.Ed. 462 (1945).

In Thacker Two, 157 So.3d at 816-17, the court held as follows:

According to the charging instrument, the Defendant committed
count one of aggravated rape between January 2003 and December
2005 and count two of aggravated rape between January 1999 and
December 2002, and C.D. was listed as the victim on each count.
The jury found the Defendant guilty of the responsive verdict of
sexual battery on each count.

One of the incidents that C.D. testified to that fits the definition
of sexual battery occurred when she was six years old. C.D. testified
her date of birth was June 26, 1996. Given C.D.‟s date of birth, that
incident would have occurred sometime between June 2002 and June
2003. If this incident is used for one of the sexual battery convictions,
the sentencing range in effect at that time was not more than ten years
with or without hard labor without the benefit of parole, probation, or
suspension of sentence.

There are several other incidents that C.D. testified to that fit
the definition of sexual battery; however, two of the incidents, as
discussed below, may have occurred outside the date ranges specified
in the charging instrument for the sexual battery counts, and several of

7

the incidents definitely occurred outside the date ranges specified in
the charging instrument for the sexual battery counts.

Additionally, with respect to two of the incidents, it is unclear
whether the 2006 amendment to La.R.S. 14:43.1 applies. As noted in
the sufficiency review, C.D. testified that she was “maybe about 10”
when the Defendant put her hand down his pants, and with respect to
a separate incident, she testified that she was “around ten” when the
Defendant put her hand down his pants. C.D. turned ten on June 26,
2006. The effective date of the 2006 amendment to La.R.S. 14:31.1,
which added the penalty range of twenty-five to life when the victim
is under the age of thirteen, was August 15, 2006, approximately a
month and a half after C.D. turned ten. Therefore, C.D.‟s testimony
that she was “maybe about 10” for one incident and “around 10” for
the other incident does not pinpoint the time of the offenses and could
mean the incidents occurred sometime before or after her tenth
birthday. Therefore, it is unclear whether the two incidents just
discussed occurred prior to or after the 2006 amendment to La.R.S.
14:43.1. Since the dates of these two incidents cannot be determined,
the legality and excessiveness of the sentence on one of the counts of
sexual battery cannot be determined if one of the above-referenced
incidents was the basis of one of the sexual battery convictions. There
were three other incidents C.D. testified to that fit the definition of
sexual battery, and based on her testimony regarding her age at the
time of the incidents, the incidents clearly occurred after the effective
date of the 2006 amendment to La.R.S. 14:43.1. Therefore, if any one
of these three other incidents was the basis for one of the sexual
battery convictions, the 2006 amendment to La.R.S. 14:43.1 would
apply to that conviction.

At resentencing, the trial court failed to follow these instructions by this

court: “remand the matter to the trial court for resentencing in accordance with the

applicable penalty in effect at the time of the commission of the offenses and order

the trial court to clarify the reasons for the sentences imposed on both sexual

battery convictions.” Id. at 818. The trial court simply imposed ten-year sentences

on each count of sexual battery. If one of the sentences should have been greater

because the 2006 amendment to La.R.S. 14:43.1 applied, it renders the sentence or

sentences illegally lenient. Since the issue of an illegally lenient sentence was not

raised as an error, this court will not address the issue. State v. Celestine, 11-1403

(La.App. 3 Cir. 5/30/12), 91 So.3d 573.

8

Next, an illegally excessive sentence may have been imposed on counts

eight and nine for the aggravated incest convictions.

The applicable penalty for aggravated incest was a fine not to exceed fifty

thousand dollars or imprisonment for five to twenty years, with or without hard

labor, from June 10, 1993 to August 14, 2006. On or after August 15, 2006, the

penalty was increased if the victim was under the age of thirteen when the offender

was seventeen years of age or older. This penalty was twenty-five years to life

imprisonment at hard labor. La. R.S. 14:78.1.4

At sentencing, the State, referring to the aggravated incest convictions,

stated “four of them were under the old law and two under the new law.”

In order to determine the applicable penalty for the aggravated incest

convictions, the findings by this court in Thacker Two, 157 So.3d 798, were

utilized, along with the record; the following can be determined:

a. On count four, the Defendant licked N.D.‟s vagina with his tongue;
N.D. was between five to seven years old at the time (1997-1999).
Id. at 804;

b. On count five, the Defendant rubbed with his hands C.D.‟s
“„boobs,‟” “„nuny cat,‟” and “„butt‟”; C.D. was around fourteen
years old (2010). Id. at 805;

c. On count six, while N.D. was in middle school (2003-2005), the
Defendant licked her vagina with his tongue. Id. at 804;

d. On count seven, on August 2, 2011, the Defendant put his hand up
C.D.‟s shirt and touched her “„boobs‟” under her underwear; C.D.
was around fifteen years old. Id. at 805-06;

e. On count eight, the Defendant put C.D.‟s hand down his pants and
she touched his “„hot dog‟”; this occurred twice when C.D. was
around age 10 (C.D. turned ten years old on June 26, 2006). Id. at
805; and

4
Effective June 12, 2014, La.R.S. 14:78.1 was repealed. This offense is now included in
La.R.S. 14:89 and 14:89.1.

9

f. On count nine, the Defendant stuck his hands in C.D‟s shorts and
put his finger in her “„nuny cat hole‟” and tried to put his “„hot
dog‟” in her “„nuny cat‟”; C.D. was around fifteen years old
(2011). Id. at 806.

The remaining acts set forth in the opinion include the following:

a. When N.D. was age seventeen, the Defendant stuck his finger
inside her. Id. at 804;

b. When N.D. was age eighteen, the Defendant tried to stick his
“„wiener‟” inside of her. Id. at 805; and

c. When N.D. was eighteen years old or older, the Defendant pulled
down her pants and licked her. Id. at 805.

In State v. Quan, 14-1126, pp. 3-4 (La.App. 3 Cir. 3/4/15), 157 So.3d 1259,

1262, this court explained in pertinent part:

In State v. Johnson, 220 La. 64, 55 So.2d 782, 783-84 (1951)
(citations omitted), the court explained in pertinent part:

In any criminal case it is the mandatory duty of the
district judge upon conviction of a defendant to impose a
sentence authorized or directed by law, and, if he does
not impose a sentence authorized or directed by law, the
sentence is illegal, and the case is in the same condition
as if no sentence at all has been imposed, and it must be
remanded to the district court so that the judge may
impose a legal sentence.

On count eight, it is unclear the date the offense occurred. The two factual

bases remaining that could possibly provide for the increased sentence under the

August 15, 2006 amendment of La.R.S. 14:78.1 were the Defendant put C.D.‟s

hand down his pants and she touched his “„hot dog‟”; this occurred twice when

C.D. was around age 10 (which was between June 26, 2006 to June 25, 2007). Id.

at 805. One of these factual bases was used for the sexual battery conviction, and

the other could be used for this conviction.

If the offensive act occurred between June 26, 2006 and August 14, 2006,

the trial court imposed an illegally excessive sentence. However, if the offensive

10

act occurred on or after August 15, 2006, the trial court imposed the correct

sentencing range.

In State v. M.L. Jr., 09-392 (La.App. 3 Cir. 4/14/10), 35 So.3d 1183, writ

denied, 10-1113 (La. 2/11/11), 56 So.3d 998, a similar issue was addressed on

error patent review. This court held in pertinent part:

The bill alleges that Defendant committed the offense between
February 2006 and December 2006. The record indicates that the
computer incident occurred in October 2006, but it does not reflect a
specific date for the touching incident; only that the touching occurred
before the computer incident. An approximate date of the touching is
necessary to facilitate a review of the legality of the sentence as the
penalty provision for indecent behavior with a juvenile was amended
in 2006.

Prior to its amendment in 2006, La. R.S.14:81 required that
offenders be sentenced to not more than seven years with or without
hard labor. Effective August 15, 2006, the legislature amended the
penalty provision of La. R.S. 14:81 to provide:

H. (1) Whoever commits the crime of indecent
behavior with juveniles shall be fined not more than five
thousand dollars, or imprisoned with or without hard
labor for not more than seven years, or both, provided
that the defendant shall not be eligible to have his
conviction set aside or his prosecution dismissed in
accordance with the provisions of Code of Criminal
Procedure Article 893.

(2) Whoever commits the crime of indecent
behavior with juveniles on a victim under the age of
thirteen when the offender is seventeen years of age or
older, shall be punished by imprisonment at hard labor
for not less than two nor more than twenty-five years. At
least two years of the sentence imposed shall be served
without benefit of parole, probation, or suspension of
sentence.

2006 La. Acts No. 103, § 3. The Defendant was sentenced under the
new penalty provision, La. R.S. 14:81 H(2), to four years at hard labor
with the first two years without benefit of parole, probation or
suspension of sentence.

A review of the testimony at trial indicates the victim was the
only one to reference a time period when the touching occurred. . . .

11

....

The victim‟s testimony that the touching occurred when she was a
“baby” and “little” does not pinpoint the time of the offense. When
put in context, however, it indicates that the incident likely occurred
before the effective date of the amendment in October of 2006.
Accordingly, Defendant‟s sentence will be amended by deleting the
provision providing that the sentence is to be served without the
benefit of parole, probation, or suspension of sentence. The trial court
will note the change in the court minutes.

Id. at 1197-98.

In this case, there is no indication in the context of the record, as in M.L., if

the offense occurred before or after the effective date of the amended statute.

However, based upon the penalty imposed by the trial court, it appears the trial

court was of the opinion the offensive act occurred after the effective date. The

trial court made this decision based on the testimony and evidence before it, and

we see no error in this decision.

However, there is an error patent rendering the sentence illegally lenient, but

it requires no action. The amended penalty required the sentence to be served at

hard labor. La. R.S. 14:78.1. The trial court failed to order the sentence be served

at hard labor.5 Since the issue of an illegally lenient sentence was not raised as an

error, this court will not address the issue. Celestine, 91 So.3d 573.

On count nine, all the remaining offensive acts set forth in the opinion

occurred when C.D. and N.D. were over the age of thirteen. The applicable

penalty provided a sentencing range of five to twenty years with or without hard

labor. La.R.S. 14:78.1(D)(1). Thus, the trial court imposed an illegally excessive

sentence when it sentenced the Defendant to fifty years on count nine.
5
The minute entry of sentencing indicates the trial court ordered the sentence to be served
at hard labor which conflicts with the sentencing transcript which indicates the trial court was
silent. When the minute entry and transcript conflict, the transcript prevails. State v. Wommack,
00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01),
797 So.2d 62.

12

Accordingly, the sentence imposed on count nine is vacated and remanded to the

trial court for resentencing.

Anders, 386 U.S. 738, the Defendant‟s appellate counsel filed a brief stating

he could find no errors on appeal that would support reversal of the Defendant‟s

sentences. Thus, counsel seeks to withdraw.

An appellate court must conduct an independent review of the
trial court record to determine whether the appeal is wholly frivolous.
“When counsel files an Anders brief, an appellate court reviews
several items: a) the Bill of Information to ensure that the charge is
proper, b) all minute entries to ensure that defendant was present at all
crucial stages of the prosecution, c) all pleadings in the record, and d)
all transcripts to determine whether any ruling of the trial court
provides a basis for appeal.” State v. Defrene, 07-823, p. 4 (La.App. 5
Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the
reviewing court determines there are no non-frivolous issues for
appeal, it may grant counsel‟s motion to withdraw and affirm the
defendant‟s conviction and sentence. …

State v. Newman, 12-359, p. 7 (La.App. 5 Cir. 12/11/12), 107 So.3d 775, 780, writ

denied, 13-121 (La. 6/21/13), 118 So.3d 407.

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 (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 (citing United States v. Pippen, 115 F.3d 422, 426 (7 Cir. 1997)). Thus,

counsel‟s Anders brief must review the procedural history and the evidence

presented in the lower court and contain “a detailed and reviewable assessment for

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

13

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

1177.

In the present case, the appeal is limited to resentencing. In accordance with

Anders and Newman, we have performed a thorough review of the record,

including the minute entry of resentencing and the sentencing transcript, and have

confirmed the statements by counsel. The Defendant was present and represented

by counsel at the resentencing proceeding. Other than the patent errors previously

discussed, our review of the record reveals no non-frivolous issues the Defendant

could raise on appeal. Accordingly, the motion to withdraw filed by counsel is

granted.

DECREE

This court grants appellate counsel‟s motion to withdraw and affirms the

Defendant‟s sentences imposed on counts one to eight. The sentence imposed on

count nine is vacated and remanded to the trial court for resentencing consistent

with this opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED AND
MOTION TO WITHDRAW GRANTED.

14