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STATE OF LOUISIANA VERSUS LAWRENCE MITCHELL

NO. 08-KA-629 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 04-1745, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING JANUARY 13, 2009

WALTER J. ROTHSCHILD
JUDGE
Panel composed of Judges Marion F. Edwards, Walter J. Rothschild, and Greg G. Guidry

PAUL D. CONNICK, JR. DISTRICT ATTORNEY
Twenty-Fourth Judicial District Parish of Jefferson

TERRY M. BOUDREAUX ASSISTANT DISTRICT ATTORNEY
200 Derbigny Street Gretna, Louisiana 70053

COUNSEL FOR PLAINTIFF/APPELLEE GWENDOLYN K. BROWN
Attorney at Law Louisiana Appellate Project

P. O. Box 64962
Baton Rouge, Louisiana 70896-4962

COUNSEL FOR DEFENDANT/APPELLANT LAWRENCE MITCHELL A/K/A VERNON JONES
Rayburn Correctional Center 272628 Highway 21 Angie, Louisiana 70426

IN PROPER PERSON

AFFIRMED; MOTION TO WITHDRAW GRANTED.

Defendant, Lawrence Mitchell, a.k.a. Vernon Jones, was charged with armed ery in violation of LSA-R.S. 14:64. Defendant pled not guilty at his

arraignment. On March 24, 2005, defendant withdrew his not guilty plea and pled guilty as charged under the provisions of North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970). In accordance with the plea agreement, the
district court sentenced defendant to 30 years at hard labor without benefit of

parole, probation, or suspension of sentence. The court ordered that the sentence run concurrently with sentences it imposed in other cases that day. The judge
noted that pursuant to the plea agreement, the State would refrain from filing a habitual offender bill of information.

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Defendant filed an application for post-conviction relief in the district court requesting an out-of-time appeal. On April 11, 2008, the district court issued an

order granting defendant an out-of-time appeal.

FACTS
The facts regarding the charged offense can be found in the factual basis offered by the prosecutor at the time of the Alford plea: In 04-1745, had this matter gone to trial, the state would have proven that on February the 2nd, 2004 at approximately 10:42 p.m. this defendant robbed the business of The Discount Stop located at 3016 Cleary Avenue in Metairie. The cashier and victim, Diana McBride related to the police officers that she was standing behind the counter at a cash register when the defendant entered the business and approached her; he asked to purchase a pack of cigarettes, and as she attempted to get them, the subject demanded that she give him the money from the register. The subject stated, "I need the money and I need it now." The defendant then walked around the counter to where the victim McBride was standing and produced a flat-tipped screwdriver. The defendant again demanded money. The victim, being in fear for her safety, backed away from the register. The defendant attempted to open the register, to no avail, where upon he again demanded the victim to open the register. She opened the register, at which time the defendant removed $280.00 in cash and fled.

The defendant was positively identified in a photographic lineup by the victim and later the defendant confessed to the crime.

ANDERS BRIEF
Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.
App. 4 Cir. 1990),' appointed appellant counsel has filed an Anders brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La. 12/12/97), 704 So.2d 241, 242 [per curiam],
asserting that she has thoroughly reviewed the trial court record and cannot find

' The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

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any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

DISCUSSION
In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it.2 The request must be accompanied by '"a brief referring to anything in the record that might arguably
support the appeal"' so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that

counsel should be permitted to withdraw." McCoy v. Court of Appeals of

Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).
In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial
motion or objection made at trial with a detailed explanation of why the motions or

objections lack merit. The supreme court explained that an Anders brief must
demonstrate by full discussion and analysis that appellate counsel "has cast an

advocate's eye over the trial record and considered 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."
State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal
2 The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins,

528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

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is wholly frivolous. State v. Bradford, 95-929 at 4, 676 So.2d at 1110. 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. However, if the court finds any legal point

arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the
motion and appoint substitute appellant counsel. Ik

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel points
out that there are no pre-trial rulings from which defendant might appeal. She further notes that the district court fully informed defendant of his constitutional

rights and of the consequences of waiving those rights and pleading guilty. Appellate counsel acknowledges that defendant may not challenge his sentence on appeal, since it was agreed upon as part of a plea bargain. Appellate counsel has filed a motion to withdraw as attorney of record stating she has complied with the provisions of Anders and Jyles, and that she has notified defendant of his right to file a gro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief
had been filed and that he would have until September 15, 2008 to file a p_ro se supplemental brief. Defendant filed a timely pro se brief raising two assignments of error. Those assignments are discussed below.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. When a defendant
pleads guilty, he normally waives all non-jurisdictional defects in the proceedings

leading up to the guilty plea and precludes review of such defects either by appeal

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or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La. App. 5 Cir.

3/14/06), 926 So.2d 662, 664.
The record does not reflect that defendant filed any pre-trial motions.
Therefore, as appellate counsel notes, there are no district court rulings defendant

could have preserved for appeal under the holding in State v. Crosby, 338 So.2d

584 (La. 1976).
The record shows the district court properly advised defendant of his right to a
jury trial, his right of confrontation, and his privilege against self-incrimination, as

required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969). The judge also explained to defendant the offense with which he was charged and the sentencing range for that offense. The judge ascertained that defendant had a high school education, that he understood his rights, and that he
wished to waive those rights and plead guilty. Additionally, defendant, his attorney,

and the judge signed a waiver of rights form which enumerated defendant's rights and detailed the sentence he would receive pursuant to his plea agreement.

Defendant offered his plea under North Carolina v. Alford, 400 U.S. at 38, 91
S.Ct. at 167 n. 10, which requires the establishment of a factual basis for the plea

when a defendant protests his innocence but determines that a guilty plea is in his best interest. As delineated above under the statement of facts, we find the prosecutor offered a factual basis for the plea sufficient to satisfy the Alford
requirements.

Because appellate counsel's brief adequately demonstrates by, full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record
supports counsel's assertion, defendant's conviction and sentence are affirmed and appellate counsel's motion to withdraw as attorney of record is granted.

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DISCUSSION OF PRO SE ASSIGNMENTS
By pro se brief, defendant first complains his appointed counsel in the district court was ineffective in several respects. Defendant argues his guilty plea was not knowing and voluntary because his attorney failed to properly inform him of the consequences of his plea, and counsel coerced him to plead guilty by informing him he would receive a life sentence if he elected to go to trial. Defendant further argues his appointed counsel was ineffective in that he failed to
object to the factual basis the prosecutor offered the court under Alford, when the prosecutor's statement was inaccurate in several respects. Defendant submits his

appointed counsel failed to adequately investigate his case after private counsel withdrew, and that this was another factor that contributed to the involuntariness of
his guilty plea. Finally, defendant complains appointed counsel failed to file pre-

trial motions to suppress identification and statements where the photographic identification obtained by police was tainted, and where his statements to police
were the fruits of an illegal arrest. The Sixth Amendment to the United States Constitution and Article I,

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