State of Louisiana v. James Ray Coleman

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-262

STATE OF LOUISIANA

VERSUS

JAMES RAY COLEMAN

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 92278
HONORABLE TONY ALAN BENNETT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
D. Kent Savoie, Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

Asa Allen Skinner
District Attorney – Thirtieth Judicial District
Ronald K. Seastrunk
Assistant District Attorney – Thirtieth Judicial District
P. O. Box 1188
Leesville, LA 71496-1188
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee – State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
Telephone: (225) 806-2930
COUNSEL FOR:
Defendant/Appellant – James Ray Coleman

James Ray Coleman, Pro Se
Dixon Corr. Inst. Unit 1-D-5
P. O. Box 788
Jackson, LA 70748
Defendant/Appellant

THIBODEAUX, Chief Judge.

Defendant, James Ray Coleman, was charged with two counts of

simple burglary, violations of La.R.S. 14:62; two counts of theft of items valued in

excess of $1,000 but less than $5,000, violations of La.R.S. 14:67(B)(3); theft of a

motor vehicle, a violation of La.R.S. 14:67.26; and simple criminal damage to

property, a violation of La.R.S. 14:56.1 All of the offenses occurred on November

2, 2017. Defendant originally entered a plea of not guilty, but he changed his plea

to guilty of two counts of simple burglary, violations of La.R.S. 14:62, and theft of

items valued in excess of $1,000 but less than $5,000, a violation of La.R.S.

14:67(B)(3). The State dismissed the remaining charges and agreed not to charge

Defendant as a habitual offender.

The trial court sentenced Defendant to serve ten years at hard labor with

credit for time served on each of the two counts of simple burglary and three years

at hard labor with credit for time served on the count of theft. The sentences ran

consecutively for a total of thirty years at hard labor with credit for time served. The

trial court denied Defendant’s motion to reconsider his sentence. Defendant timely

appealed.

Appellate counsel has 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 withdraw as Defendant’s counsel. We affirm

Defendant’s convictions and sentences and grant counsel’s motion to withdraw.

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The bill of information incorrectly identifies the offense as theft of items valued at more
than $1,000.00 but less than $5,000, a violation of La.R.S. 14:67(B)(2). The correct citation for
that offense is La.R.S. 14:67(B)(3).

FACTS:

Defendant committed simple burglary on November 2, 2017, when he

entered the Department of Transportation and Development building and the Vernon

Parish Police Jury building in Leesville without authorization. He took items from

those buildings valued at more than $1,000 but less than $5,000. Defendant also

took a truck from the Police Jury building and rammed it through a fence.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we find no errors

patent.

ANDERS ANALYSIS:

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:

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.

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While it is not necessary for Defendant’s 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) and McCoy v. Court of Appeals

of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895 (1988)). Counsel’s Anders brief must

review the procedural history and the evidence in the record 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,

Defendant’s appellate counsel filed a brief citing what he perceived as potential

errors for appeal. First, he noted Defendant pled without an agreement about

sentencing. Three of the six counts against Defendant were dismissed, and the State

agreed not to file a habitual offender bill. The trial court considered Defendant’s

lengthy criminal history and other factors of La.Code Crim.P. art. 894.1 as well as

Defendant’s prior parole and probation revocations and criminal record in Texas.

Counsel noted the trial court imposed all the sentences to run

consecutively to each other and to any other sentences. He considered the length of

the sentences imposed and noted Defendant did not receive the maximum sentence

in any of the convictions despite his lengthy criminal record and despite being a sixth

felony offender. As part of the plea agreement, Defendant recommended concurrent

sentences to the trial court, and the State had no opposition. Although Defendant’s

crimes could have been considered part of a single transaction or common scheme

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so that the sentences would be imposed to run concurrently, counsel noted La.Code

Crim.P. art. 883 allows the trial court to expressly direct the sentences to run

consecutively, as it did here. Counsel concluded the trial court did not abuse its

discretion in imposing Defendant’s sentences.

Pursuant to Anders and Benjamin, we have performed a thorough

review of the record, including pleadings, minute entries, the charging instrument,

and the transcripts and have confirmed the statements by counsel. Defendant was

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

acknowledged his guilty plea on the plea form. The trial court correctly informed

Defendant of his Boykin rights and discussed the possible sentences for his crimes

at the plea hearing. Although the defense recommended the sentences to run

concurrently and the State agreed, Defendant also agreed the sentences were “up to

Judge.”

In exchange for the plea, the State agreed to dismiss one count of theft

of items valued in excess of $1,000 but less than $5,000, the charge of theft of a

motor vehicle, and the charge of simple criminal damage to property. The State

further agreed not to charge Defendant as a habitual offender as a result of the plea.

The trial judge considered the sentencing guidelines of La.Code

Crim.P. art. 894.1 and a presentence investigation report. He also noted Defendant’s

extensive criminal record. Defendant was previously convicted of vehicle theft in

1984; two counts of burglary of a building in 1988; burglary of a building in 1989;

felony use of a motor vehicle, felony fraudulent use or possession of identifying

information, and misdemeanors in 2012; and assault on a family or household

member in 2014. Additionally, Defendant was charged with aggravated assault with

a deadly weapon in 1997 but pled guilty to the misdemeanor offense of deadly

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conduct in 1998. He pled guilty to misdemeanor theft of property in 2012.

Defendant’s probation was revoked at least twice in Texas. At the time of his

sentencing in this matter, Sheriffs’ offices in Beauregard and Calcasieu Parishes had

detainers for Defendant, and the State of Texas had a parole violation warrant on

him. The trial court noted Defendant’s first conviction was at age eighteen; he was

fifty-one at the time of his sentencing in this matter. His total past sentences totaled

seventy-one years of confinement; his criminal history included crimes of violence.

The trial judge felt “the public is not safe” with Defendant on the street.

Defendant was exposed to a sentence of imprisonment with or without

hard labor for up to twelve years and/or a fine of up to $2,000 for the crime of simple

burglary. La.R.S. 14:62. He was exposed to a sentence of imprisonment with or

without hard labor for up to five years and/or a fine of $3,000 for the crime of theft.

La.R.S. 14:67(B)(3). In spite of Defendant’s lengthy criminal history, the trial judge

did not impose a maximum sentence for any of the crimes. However, the trial court

did impose the sentences to run consecutively to each other and to another, unrelated

sentence. Nevertheless, Defendant received a substantial benefit through this plea

agreement.

As counsel’s brief noted, Defendant’s motion to reconsider his

sentences did not set out any mitigating circumstances or anything in the record to

support lesser sentences. Further, La.Code Crim.P. art. 883 allows the trial court to

expressly direct a defendant’s sentences to run consecutively as the trial court did

here. Defendant entered an open-ended plea with no sentencing agreement or cap.

We find the record indicates no non-frivolous issues for appeal regarding sentencing.

We note the bill of information incorrectly cited Defendant’s

convictions for theft of items valued from $1,000 to $5,000 as La.R.S. 14:67(B)(2).

5

However, “[e]rror in the citation or its omission shall not be ground for dismissal of

the indictment or for reversal of a conviction if the error or omission did not mislead

the defendant to his prejudice.” La.Code Crim.P. art. 464. Our review of the record

does not suggest Defendant suffered any prejudice because of the erroneous citation

of the number of the subparagraph; thus, any error would be harmless. Additionally,

by entering an unqualified plea, Defendant waived review of this non-jurisdictional

pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Accordingly, this

error is harmless and/or was waived by Defendant’s plea, and it does not present a

non-frivolous issue for appeal. State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36

So.3d 1091.

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

assignment of error on appeal beyond the potential issues addressed by counsel.

Therefore, we affirm Defendant’s convictions and sentences and grant counsel’s

motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO
WITHDRAW GRANTED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.

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