Opinion
NO. 2018 KA 1395
04-23-2019
STATE OF LOUISIANA v. KARLY MACKENZIE PABST
Hillar C. Moore, III District Attorney Monisa L. Thompson Assistant District Attorney Baton Rouge, LA Attorneys for Appellee, State of Louisiana Prentice L. White Baton Rouge, LA Attorney for Defendant-Appellant, Karly Mackenzie Pabst
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Trial Court No. 02-15-0398 Honorable Richard "Chip" Moore, Judge Presiding Hillar C. Moore, III
District Attorney
Monisa L. Thompson
Assistant District Attorney
Baton Rouge, LA Attorneys for Appellee,
State of Louisiana Prentice L. White
Baton Rouge, LA Attorney for Defendant-Appellant,
Karly Mackenzie Pabst BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. HIGGINBOTHAM, J.
The defendant, Karly Mackenzie Pabst, was charged by bill of information with harboring or concealing a sex offender, a violation of La. R.S. 15:551. The defendant pled not guilty. The defendant subsequently withdrew her not guilty plea and, at a Boykin hearing, pled guilty to the amended charge of inciting a felony in violation of La. R.S. 14:28. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). The court deferred imposition of sentence, and placed the defendant on supervised probation for three years; the court also ordered the defendant to pay a $300 fine.
A defendant is not prohibited from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney. See La. Code Crim. P. art. 487(B); State v. Jackson, 2004-2863 (La. 11/29/05), 916 So.2d 1015, 1022.
The defendant subsequently absconded from her supervised probation. Her probation was revoked, and the court sentenced her to two years imprisonment at hard labor. The defendant now appeals.
The State filed a motion to dismiss the appeal because, according to the State, at issue is the defendant's appeal of her probation revocation, which is a judgment that is not appealable. See La. Code Crim. P. art. 912; State v. Manuel, 349 So.2d 882 (La. 1977). We decline to dismiss the appeal for the following reasons. While it is true a probation revocation is not an appealable issue, the Anders brief filed by the defendant has not raised any issue that arguably supports an appeal. Moreover, the probation revocation would not have been the sole issue for consideration herein. That is, had an appeal seeking some redress been filed by the defendant, the issue raised could have pertained to the guilty plea. The defendant could also appeal her sentence without disputing the merits of the underlying revocation proceeding. See State v. Johnson, 390 So.2d 895 (La. 1980)(per curiam). Finally, in the interest of judicial economy, this court has the authority to consider an appeal as an application for supervisory writs (the proper vehicle to challenge a probation revocation). State v. Rylee, 591 So.2d 794, 795 (La. App. 5th Cir. 1991), writ denied, 594 So.2d 1316 (La. 1992). Accordingly, the State's motion to dismiss is denied.
FACTS
Because the defendant pled guilty, the facts were not developed. At the Boykin hearing, the following information was provided:
[On or about October 22, 2014], Sheriff's officers along with members of the United States Marshal Union Task Force were attempting to execute two lawfully issued arrest warrants for her boyfriend, Mr. Robert Ruiz. He's a sex offender, and they were attempting to execute a warrant to that affect [sic]. They made contact with her at her residence. They had reason to believe that Mr. Ruiz was in the residence. She lied to the police. She lied to the marshal and was
ultimately found to be harboring Mr. Ruiz. He was found in the residence.
ISSUES PRESENTED
Appellate counsel for the defendant has filed a motion to withdraw from the case. In accordance with the procedures outlined in Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam); and State v. Benjamin, 573 So.2d 528, 530-531 (La. App. 4th Cir. 1990), appellate counsel has filed a supporting brief to the motion to withdraw averring that, after a conscientious and thorough review of the record, he has found no nonfrivolous issues for appeal and no ruling of the trial court that arguably supports an appeal.
In State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), the Louisiana Supreme Court sanctioned the procedures outlined in Benjamin, for use by the appellate courts of Louisiana. See Jyles, 704 So.2d 241. --------
Appellate counsel has notified the defendant of the filing of this motion and informed her of her right to file a pro se brief. The defendant has not filed a pro se brief with this court.
This court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. The defendant was properly charged by bill of information with harboring or concealing a sex offender, a violation of La. R.S. 15:551; and she subsequently pled guilty, after being fully informed of her rights, to an amended charge of inciting a felony, a violation of La. R.S. 14:28. The bill of information was signed by the District Attorney or an assistant district attorney. The defendant was present and represented by counsel at arraignment, sentencing, and the guilty plea. The sentence imposed is legal in all respects. See Benjamin, 573 So.2d at 531.
This court routinely reviews the record for error under La. Code Crim. P. art. 920(2), whether or not such a request is made by a defendant or defense counsel. Under La. Code Crim. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
Our independent review reveals no nonfrivolous issues which arguably support this appeal. Accordingly, the defendant's conviction and sentence are affirmed. Appellate counsel's motion to withdraw is hereby granted.
CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.