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Date: 11-22-2020
Case Style:
STATE OF LOUISIANA VERSUS EMILE J. DELANEUVILLE, JR.
Case Number: 20-KA-130
Judge: JOHN J. MOLAISON, JR.
Court: FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
Plaintiff's Attorney: Honorable Bridget A. Dinvaut
J. Philip Prescott, Jr.
Defendant's Attorney:
OR
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Description:
Edgard LA - Criminal defense lawyer represented defendant Emile Delaneuville with d appealing his conviction and sentence for one count of Driving While Intoxicated (Third Offense)..
The defendant, Emile Delaneuville, was charged in a bill of information on
May 26, 2017, by the St. John The Baptist Parish District Attorney’s Office with
one count of Driving While Intoxicated (Third Offense), a violation of La. R.S.
14:98 (A)(D)(3). On June 1, 2017, the defendant pled not guilty.
On October 21, 2019, the defendant withdrew his former plea of not guilty.
According to the plea agreement, the defendant was sentenced to four years at hard
labor, with two of those years to be served without benefits of parole, probation, or
suspension of sentence. Two years of the sentence were suspended, with credit
given for time served. The defendant was thereafter granted an out-of-time appeal
on January 3, 2020.1 The defendant’s appointed counsel has now filed an appellate
brief pursuant to Anders v. California2
and has further filed a motion to withdraw
as counsel of record. The defendant has also filed a brief containing one pro se
assignment of error.
FACTS
Because the defendant’s conviction resulted from a guilty plea, the
underlying facts were not fully developed in the record. However, the bill of
1 The record indicates that the defendant was not advised at sentencing of the 30-day limit within
which to file an appeal. The defendant’s pro se motion for appeal, filed on December 13, 2019, was
untimely under La. C.Cr.P. art. 914, and he did not seek an out-of-time appeal pursuant to State v.
Counterman, 475 So.2d 336 (La. 1985). However, the defendant’s motion for appeal was filed within the
time permitted for an out-of-time appeal as to his conviction and sentence. Bearing in mind that pro se
filings are subject to less stringent standards than formal pleadings filed by lawyers, State ex. rel. Egana
v. State, 00-2351 (La. 9/22/00), 771 So.2d 638, and under the circumstances presented, we find no error in
the trial court granting the defendant’s motion for appeal. See, State v. Bannister, 19-291 (La. App. 5 Cir.
11/27/19), 285 So.3d 1174.
2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
20-KA-130 2
information alleges that on April 1, 2017, the defendant operated a motor vehicle
while under the influence of alcohol, after having been previously convicted of
Driving While Intoxicated on July 23, 2014, in case # 2008-CR-91 in St. John
Parish, Louisiana, and also having been previously convicted of Driving While
Intoxicated Third Offense, on June 25, 2014, in Docket # 13-0630, in St. Charles
Parish, Louisiana.
PRO SE ASSIGNMENT OF ERROR
In his sole pro se assignment of error, the defendant contends that his
conviction should be reversed, and he should be able to enter a new plea under La.
C.Cr.P. art. 14:98.2 and La. C.Cr.P. art. 894.
Uniform Rules Courts of Appeal, Rule 2-12.4 requires that all assignments
of error and issues for review must be briefed. Rule 2-12.4 also gives the court
discretion to disregard any argument in an appeal brief in the event suitable
reference to the record is not made. Because the defendant has not sufficiently
briefed his argument and fails to allege any specific facts as support of his claim,
we find that he has abandoned his assignment of error and decline to address its
merits.3 See, State v. Blackwell, 18-118 (La. App. 5 Cir. 12/27/18), 263 So.3d
1234.
ANDERS ANALYSIS
Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.
App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has
filed a brief asserting that she has thoroughly reviewed the trial court record and
found no non-frivolous issues to raise on appeal. According to Anders v.
California, supra, and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per
3 However, we note that the defendant’s pro se assignment of error would appear to be related to
our review of his guilty plea in the context of the Anders appeal.
20-KA-130 3
curiam), appointed appellate counsel requests permission to withdraw as counsel of
record for the defendant.
In Anders, supra, the United States Supreme Court stated that appointed
appellate counsel may request permission to withdraw if he finds the defendant’s
appeal to be wholly frivolous after a conscientious examination of it. The request
must be accompanied by “a brief referring to anything in the record that might
arguably support the appeal” 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 Jyles, 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.” Id.
When conducting a review for compliance with Anders, an appellate court
must conduct an independent review of the record to determine whether the appeal
is wholly frivolous. 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
20-KA-130 4
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 appellate
counsel. Bradford, supra, 676 So.2d at 1110.
The defendant’s appellate counsel asserts that after a detailed review of the
record, she could find no non-frivolous issues to raise on appeal. Appellate counsel
states that the defendant entered an unqualified guilty plea to the bill of
information, waiving all non-jurisdictional defects. She further states that there
were no trial court rulings preserved for appeal under State v. Crosby, 338 So.2d
584 (La. 1976).
Appellate counsel has filed a motion to withdraw as attorney of record for
the defendant, as she has prepared an Anders brief and she has notified the
defendant of the filing of this motion and of his right to file a pro se supplemental
brief in this appeal. Additionally, this Court sent the defendant a letter by certified
mail informing him that an Anders brief had been filed and that he had until July 6,
2020, to file a pro se supplemental brief. The defendant’s pro se brief was filed on
July 8, 2020.4
The State also responds that it agrees with appellate counsel that after a
careful review of the record, there are no non-frivolous issues present. The State
asserts that the trial court fully explained to the defendant the ramifications of
pleading guilty and foregoing a trial, that the trial court clearly described the
charge and the sentence the defendant was facing, and that the defendant entered
into a fair plea agreement with the State which was explained to him by his trial
counsel. The State contends there is nothing else in the record that would suggest a
non-frivolous issue to be raised on appeal and agrees that appellate counsel’s
request to withdraw should be granted.
4 Defendant’s pro se brief was timely post-marked on July 6, 2020.
20-KA-130 5
An independent review of the record supports the appellate counsel’s
assertion that there are no non-frivolous issues to be raised on appeal. The bill of
information properly charged the defendant and plainly and concisely stated the
essential facts constituting the offenses charged. It also sufficiently identified the
defendant and the crime charged. Further, as reflected by the minute entry and
commitment, the defendant appeared at each stage of the proceedings against him,
including his arraignment, guilty plea, and sentencing.
Further, the defendant pleaded guilty in this case. Generally, when a
defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings
leading up to the guilty plea, and review of such defects either by appeal or postconviction relief is precluded. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10),
47 So.3d 455, 459. Here, the defendant entered an unqualified guilty plea, and
therefore, all non-jurisdictional defects were waived. No rulings were preserved for
appeal under the holding in Crosby, supra. Also, once a defendant is sentenced,
only those guilty pleas that are constitutionally infirm may be withdrawn by appeal
or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered
freely and voluntarily, if the Boykin5
colloquy is inadequate, or a defendant is
induced to enter the plea by a plea bargain or what he justifiably believes was a
plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir.
2/27/06), 924 So.2d 1120, 1124.
A review of the record reveals no unconstitutional infirmity or irregularities
in the defendant’s guilty plea. The transcript of the colloquy shows that the
defendant was aware that he was pleading guilty to one count of Driving While
Intoxicated (Third Offense). The defendant was also properly advised of his
Boykin rights. On the waiver of rights form and during the colloquy with the trial
judge, the defendant was advised of his right to a judge or jury trial, his right to
5
Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).
20-KA-130 6
confrontation, and his privilege against self-incrimination. During the colloquy
with the trial judge, the defendant also indicated that he understood he was waiving
these rights.6 Additionally, on the waiver of rights form, the defendant initialed
next to each of these rights and placed his signature at the end of the form
indicating that he understood he was waiving these rights by pleading guilty.
Also, during his guilty plea colloquy and in the waiver of rights form, the
defendant indicated that he had not been forced, coerced, or threatened into
entering his guilty pleas. The defendant was informed by the waiver of rights form
of his maximum sentencing exposure and of the actual sentence that would be
imposed upon acceptance of his guilty plea.
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, appellate counsel’s motion to withdraw as counsel of
record for the defendant is hereby granted.
ERRORS PATENT REVIEW
The record was reviewed for errors patent following La. C.Cr.P. art. 920,
State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). We have found an error that requires correction.
The Uniform Commitment Order (UCO) and sentencing minute entry does
not reflect that the trial court imposed the mandatory fine. The transcript from
sentencing, however, indicates that the defendant was sentenced to pay a fine of
$2,000. Where there is a discrepancy between the transcript and the minute entry,
the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
6
The trial transcript of October 21, 2019, shows that a group Boykin colloquy took place
between the trial court and several defendants simultaneously by consent of their respective counsels.
While a personal colloquy between the trial court and the defendant is preferred, group guilty pleas are
not automatically invalid. State v. Domino, 10-661 (La. App. 5 Cir. 1/25/11), 60 So.3d 659, 669.
20-KA-130 7
Accordingly, we remand the matter to the trial court and instruct the trial judge to
correct the UCO to conform to the transcript, and further order the Clerk of Court
for the 40th Judicial District Court to transmit the corrected UCO to the
appropriate authorities following La. C.Cr.P. art. 892(B)(2), and to the Department
of Corrections’ legal department. State v. Montero, 18-397 (La. App. 5 Cir.
12/19/18), 263 So.3d 899, 909.
Outcome: For the foregoing reasons, the defendant’s conviction and sentence are
affirmed. The matter is remanded for corrections of the Uniform Commitment
Order. Appellate counsel’s motion to withdraw as counsel of record for the
defendant is hereby granted.
Plaintiff's Experts:
Defendant's Experts:
Comments: