247 So. 3d 1116
La. Ct. App.2018Background
- Kevin Parnell, Jr. was charged with six felonies: armed robbery with a firearm; aggravated second-degree battery; possession with intent to distribute marijuana; two counts of felon in possession of a firearm; and possession of cocaine.
- On August 2, 2017, pursuant to a plea agreement, Parnell pled guilty to all counts and was sentenced: count 1 (armed robbery with a firearm) — 15 years hard labor w/o benefits; counts 2,4,6 — various 10-year terms; counts 3,5 — 5 years; all sentences concurrent except count 5 ordered consecutive.
- Appellate counsel filed an Anders brief and moved to withdraw, asserting no non-frivolous appellate issues; the State agreed. Parnell filed a pro se brief claiming (1) his guilty plea was constitutionally infirm (Boykin waiver issue) and (2) his sentence was excessive.
- The court independently reviewed the record (Anders review): it found the bill of information proper, defendant present at proceedings, Boykin colloquy and written waiver adequate, and sentences imposed per the plea agreement.
- The court affirmed convictions and sentences on counts 2–6, granted counsel's motion to withdraw, but identified patent errors: (a) the sentence on count 1 was indeterminate because the court did not state whether the 15-year term included the mandatory 5-year firearm enhancement under La. R.S. 14:64.3; and (b) the commitment/minutes did not designate which convictions were "crimes of violence." The court vacated the sentence on count 1 and remanded for resentencing and correction of the commitment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Anders motion to withdraw / frivolity review | Appointed counsel contends record contains no non-frivolous issues; withdrawal appropriate. | Parnell contests plea and sentence but counsel asserts no viable issues. | Court performed independent review, found no non-frivolous issues, granted counsel's motion to withdraw. |
| Validity of guilty plea / Boykin waiver | State: written waiver + on-the-record colloquy satisfied Boykin requirements; plea voluntary. | Parnell: did not validly waive privilege against self-incrimination; colloquy insufficient. | Court found waiver and colloquy adequate; plea was knowingly and voluntarily made; claim denied. |
| Right to review sentence as excessive | State: sentences were imposed in conformity with plea agreement and thus not reviewable on appeal per La. C.Cr.P. art. 881.2. | Parnell: 20-year effective sentence is excessive and court failed to consider mitigating factors. | Court held appeal of sentence barred by plea-agreement rule and declined relief on excessive-sentence ground. |
| Patent sentencing errors (indeterminate firearm enhancement; crimes-of-violence designation; mandatory fines) | State did not assert or correct errors on appeal. | Parnell raised some sentencing complaints; court reviewed record for patent errors. | Court vacated count 1 sentence and remanded for clarification/resentencing re: 5-year firearm enhancement; remanded to correct commitment to specify crimes of violence; declined to amend allegedly missing mandatory fines given defendant's indigence and parties not raising issue. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (appointed counsel may seek to withdraw if, after conscientious examination, case is wholly frivolous)
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (plea must be voluntary and show waiver of fundamental trial rights)
- State v. Jyles, 704 So.2d 241 (La. 1997) (Anders brief in Louisiana must show counsel has "cast an advocate's eye" over the record)
- State v. McCoil, 924 So.2d 1120 (La. App. 5 Cir. 2006) (guilty plea withdrawal is allowed only if plea is constitutionally infirm)
- State v. Ott, 102 So.3d 944 (La. App. 5 Cir. 2012) (vacatur/remand required where sentence is indeterminate due to unaddressed statutory enhancement)