
    STATE of Louisiana v. Thomas Arnold KENDALL
    2016KA0207
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 15, 2017
    
      Warren L. Montgomery, DA, Matthew Caplan, ADA, Covington, Louisiana, Attorneys for the State of Louisiana
    Gwendolyn K. Brown, Baton Rouge, Louisiana, Attorney for the Defendant/Appellant, Thomas Arnold Kendall
    Thomas Arnold Kendall, Angola, Louisiana, In Proper Person
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

|gThe defendant, Thomas A. Kendall, pled guilty as charged to two counts of pornography involving juveniles and, after admitting to the allegations of a habitual offender bill of information, was adjudicated a second-felony habitual offender as to both counts. See La. R.S. 14:81.1. The trial court sentenced the defendant to fourteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on each count, to be served concurrently. We affirm the convictions, habitual offender adjudications, and sentences, and grant defense counsel’s motion to withdraw.

FACTS

The bill of information charged the defendant with committing two counts of pornography involving juveniles by possessing pornography involving juveniles on or between December 16, 2014, and January 16, 2015. When the defendant pled guilty, the parties stipulated to a factual basis for each count.

DISCUSSION

The brief filed by defense counsel contains no assignments of error and was filed in accordance with Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed. 2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam). In Anders, the United States Supreme Court instructed that if counsel finds the defendant’s case to be wholly frivolous, after a conscientious examination, he should so advise the court and request permission to withdraw. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished to the indigent, who should be allowed time to raise any points he chooses; the court, not counsel, then decides whether the case is wholly frivolous based upon a full examination of all the proceedings. Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

|a/TO Jyles, the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir. 1990), to comply with Anders. Appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but his brief must also contain “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, 704 So.2d at 242 (quoting State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177). 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. State v. Thomas, 12-0177 (La. App. 1 Cir. 12/28/12), 112 So.3d 875, 878 (en banc).

Here, defense counsel complied with the requirements necessary to file an Anders brief. He reviewed the procedural history and facts of the case and concluded there are no non-frivolous issues for appeal. He recognized the defendant is precluded from challenging his sentence on appeal and that no pre-trial rulings were preserved for appeal under State v. Crosby, 338 So.2d 584, 588 (La. 1976). Additionally, defense counsel certified the defendant was served with a copy of both the Anders brief and the motion to withdraw as attorney of record. Thé motion to withdraw confirms the defendant was informed of his right to file a pro se brief, which he filed, raising three assignments of error: (1) the state failed to give fair notice of which count was being enhanced under the habitual offender bill of information; (2) the defendant received ineffective assistance of counsel during plea bargaining; and (3) the sentences are unconstitutionally excessive. . ■

After reviewing the appellate record, including the pleadings, minute entries, bills of information, and transcripts, we find it supports defense counsel’s assertion that there are no non-frivolous issues to raise on appeal. Under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects and 14precludes their review by either appeal or post-conviction relifef. Crosby, 338 So.2d at 588; State v. Ricks, 13-612 (La. App. 5 Cir. 12/30/13), 131 So.3d 1117, 1122 (recognizing such a waiver in the context of habitual offender adjudications). Further, a defendant cannot appeal a sentence imposed in conformity with a plea agreement set forth in the record at the time' of the plea. La. Code Crim. Pro. art. 881.2A(2); State v. Wiggins, 13-0649 (La. App. 1 Cir. 1/31/14), 139 So.3d 1, 4; see also State v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171, 1175. A defendant who stipulates to the terms of a habitual offender bill of information in exchange for a sentencing agreement is also precluded from appealing the habitual offender sentence. State v. Jones, 15-0757, 2015 WL 6951576, p.5 (La. App. 1 Cir. 11/9/15).

The defendant admitted his guilt and pled guilty to two counts of pornography involving juveniles, then stipulated to the allegations of the habitual offender bill of information. In accepting the defendant’s plea, the trial court noted the defendant’s willingness to plead guilty was the result of discussions between the court, the state, and defense counsel and informed him that the substance of the plea agreement would be put on the record when the sentence was imposed. The trial court added that if the sentences were not in accordance with the defendant’s understanding of the plea agreement, he would be-allowed to withdraw - the guilty plea. During the same hearing, the trial court sentenced the defendant as a second felony offender on each count of pornography involving juveniles to imprisonment for fourteen years at hard labor, without benefit of parole, probation, or,suspension of sentence, and ordered the sentences to run concurrently and the defendant to register as a sex offender. Immediately after imposing the sentence, the court asked the defendant twice if the sentences complied with his plea agreement, and the defendant said they did.

The record reflects the defendant entered an unqualified guilty plea and was sentenced in conformity with a plea agreement set forth on the record at the time of I (¡the plea, Consequently, the defendant waived his complaint related to the form of the habitual offender bill of information and -is precluded from appealing his sentences.

The remaining issue raised by the defendant in his pro se brief, that he received ineffective assistance of counsel during plea bargaining, is a matter for post-conviction relief and, for purposes of our. analysis of this record, is also considered frivolous. See State v. West, 09-2810 (La. 12/10/10), 50 So.3d 148, 149 (a claim of ineffective assistance of counsel is not a non-jurisdictional defect that is waived as a result of entry of a -guilty plea, and the issue is reviewable as part of an-application ■ for post-conviction relief); State v. Tingle, 12-1928, 2013 WL 2484316, p.7 (La. App. 1 Cir. 6/7/13) (a claim of ineffective assistance of counsel during plea bargaining may challenge counsel’s decisions relating to investigation, preparation, and-strategy, which cannot, be reviewed on appeal); see also State v. Johnson, 16-1471, 2017 WL 700484, p.1 (La. App. 1 Cir. 2/21/17) (an evidentiary hearing was required to adduce evidence regarding a post-conviction relief complaint of ineffective assistance of counsel during plea bargaining). We also find no reversible errors under Louisiana-Code of Criminal Procedure article 920(2).

Finding no non-frivolous issues that arguably support this appeal, the defendant’s convictions, habitual offender adjudications, and sentences are affirmed. Defense counsel’s motion to withdraw, held in abeyance pending this disposition, is granted.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.

GUIDRY, J., dissents and assigns reasons,

GUIDRY, J.,

dissenting.

hi dissent from the majority’s opinion in this matter, because I believe that under a strict and narrow construction of La. C,Cr.P. art. 881.2(A)(2), the defendant’s right to appeal or seek review of his sentences imposed in conformity with his plea agreement is not barred. See State v. Faul, 03-1423, p. 3 (La. App. 1st Cir. 2/23/04), 873 So.2d 690, 691. The express language of La. C.Cr.P. art. 881.2(A)(2) states that “[t]he defendant cannot appeal or seek review of a -sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” (Emphasis added.) Unquestionably, the terms of the defendant’s plea agreement were set forth in the same hearing in which the defendant entered his plea, but technically, the terms of the plea agreement were not set forth contemporaneously or at the time the defendant entered his plea.

By refusing to consider the defendant’s assignments of error questioning his-'sentences, the majority apparently finds that it was sufficient that the terms of the plea agreement were set forth during the same hearing in which the plea was given. While such a finding may seem reasonable, I do not believe it conforms with a strict and narrow construction of La. C.Cr.P. art. 881.2(A)(2). Further, I do not believe the trial court’s assurance that it would allow the defendant to withdraw his bplea during sentencing — if the terms of the plea agreement later recited were not in conformity with the defendant’s understanding — negates the requirements of La. C.Cr.P. art. • 881.2(A)(2) as I strictly and narrowly construe the statute. Thus, I believe the majority improperly ignored the defendant’s assignments of error challenging his sentences on appeal and therefore respectfully dissent.  