STATE OF LOUISIANA VERSUS COURTNEY ABLES

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STATE OF LOUISIANA NO. 15-KA-720 VERSUS FIFTH CIRCUIT COURTNEY ABLES COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-1411, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRE~~RT 0 F 1\ P P E 1\ L FIFTH CIRCU IT FEBRUARY 24, 2016 FILED FEB 2 4 20\6 STEPHEN J. WINDHORST JUDGE ~~C'.c:,!< Cheryl Cnirh L~;ndri·:u Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst and Hans J. Liljeberg JANE L. BEEBE ATTORNEY AT LAW Louisiana Appellate Project Post Office Box 6351 New Orleans, Louisiana 70174-6351 COUNSEL FOR DEFENDANT/APPELLANT PAUL D. CONNICK, JR. DISTRICT ATTORNEY TERRY M. BOUDREAUX ASSISTANT DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson 200 Derbigny Street Gretna, Louisiana 70053 COURTNEY ABLES, DOC# 429934 IN PROPER PERSON River Correctional Center 26362 Highway 15 Ferriday, Louisiana 71334 DEFENDANT/APPELLANT GUILTY PLEA VACATED; CONVICTIONS AND SENTENCES SET ASIDE; CASE REMANDED trt41J Defendant, Courtney Ables, pled guilty to the amended charge of possession with intent to distribute acetyl fentanyl (count one) and felon in possession of a firearm (count two). Defendant was sentenced on count one to 25 years hard labor, with the first 13 years to be served without benefit of parole, probation, or suspension of sentence and he was sentenced on count two to 13 years, with both sentences to run concurrent. Thereafter, pursuant to an habitual offender bill, defendant stipulated to being a second felony offender, his sentence on count two was vacated, and he was resentenced to imprisonment at hard labor for 13 years without benefit of parole, probation, or suspension of sentence, to run concurrent with his sentence on count one. For the reasons that follow, we vacate the guilty plea, set aside defendant's convictions and sentences, and remand for further proceedings. Appellate counsel's motion to withdraw as attorney of record is granted. -2­ Discussion In this case, defendant's appointed appellate counsel filed an Anders! brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal, and a motion to withdraw as attorney of record. Defendant filed a pro se appellate brief alleging several assignments of error and contending that he pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,27 L.Ed.2d 162 (1970).2 The waiver of rights form specifically referenced by the trial court states that the plea was an "Alford Plea." During its colloquy with the defendant, the trial judge asked, "Are you pleading guilty because you believe it is in your best interest to do so?" to which the defendant answered "Yes, sir." We therefore conclude that the guilty plea was entered pursuant to Alford, supra. On review for errors patent, we find that the record does not contain any indication that "strong evidence of actual guilt" exists sufficient to convict defendant of possession with intent to distribute acetyl fentanyl (count one), and felon in possession of a firearm (count two). Because by the nature of an Alford guilty plea no guilt is admitted, the trial court must ascertain that "strong evidence of actual guilt" exists to justify a guilty plea, as required by Alford, supra, and its progeny.' In this case, no evidence to show "actual guilt" of defendant was presented. In the absence of a showing in the record that "strong evidence of actual guilt" exists, we find that defendant's guilty plea to possession with intent to distribute acetyl fentanyl and felon in possession of a firearm should not have been accepted, and therefore must be declared invalid. I Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 The "best interest" or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. State v. McCoil, 05-658 (La. App. 5 Cir. 02/27/06),924 So.2d 1120, 1122-1123. 3 Moreover, defendant's pro se brief explicitly states in several places that he pled guilty pursuant to Alford. -3­ Conclusion For the reasons stated above, we vacate the guilty plea, set aside defendant's convictions and sentences, and remand for further proceedings. GUlLTY PLEA VACATED; CONVICTIONS AND SENTENCES SET ASIDE; CASE REMANDED -4­ SUSAN M. CHEHARDY CHERYL Q. LANDRIEU CHIEF JUDGE CLERK OF COURT FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. LILJEBERG MARY E. LEGNON CHIEF DEPUTY CLERK SUSAN BUCHHOLZ FIRST DEPUTY CLERK FIFTH CIRCUIT MELISSA C. LEDET 101 DERBIGNY STREET (70053) JUDGES DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY FEBRUARY 24. 2016 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED ;If I,J~l())JJ~?~tt~ BELOW: . ... . C ERYU Q. C'ANDRIEU CLERK OF COURT 15-KA-720 E-NOTIFIED TERRY M. BOUDREAUX MAILED JANE L. BEEBE ATTORNEY AT LAW LOUISIANA APPELLATE PROJECT POST OFFICE BOX 635 I NEW ORLEANS, LA 70174-635 I COURTNEY ABLES #429934 RIVER CORRECTIONAL CENTER 26362 HIGHWAY 15 FERRIDAY, LA 71334-2154 HON. PAUL D. CONNICK, JR. DISTRICT ATTORNEY TWENTY -FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053

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