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State v. Gayton

Court of Appeal of Louisiana, Fourth Circuit

January 28, 2015


Page 956

[Copyrighted Material Omitted]

Page 957


Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE, STATE OF LOUISIANA.


Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Daniel L. Dysart.


Paul A. Bonin, Judge

Page 958

[2013-1613 La.App. 4 Cir. 1] Reginald Cummings was found guilty at the close of a bench trial of attempted possession of cocaine, attempted possession of marijuana, and attempted possession of drug paraphernalia. Concurrent sentences of thirty days confinement in Orleans Parish Prison for each offense were imposed, with credit given for time already served.[1] Mr. Cummings appealed

Page 959

and, on account of his indigency, counsel was appointed to represent him on appeal.

His appointed appellate counsel, however, filed a motion to withdraw, asserting that after a conscientious and thorough review of the record she had discovered no non-frivolous issues to raise on Mr. Cummings' appeal. Appellate counsel also filed a Benjamin [2] brief in conjunction with her motion to withdraw that reviewed the facts and procedural history of the matter, set forth any issues that might arguably support the appeal, and affirmatively requested that we perform an " errors patent" review. Mr. Cummings, despite being afforded notice and opportunity both by his counsel and by us, chose not to file a supplemental brief pro se.

[2013-1613 La.App. 4 Cir. 2] After our initial review of appellate counsel's briefing for compliance with Benjamin, we directed that counsel file a supplemental brief in order to discuss several issues, enumerated by us, which had been previously unaddressed. Counsel complied with our directive and submitted a more thorough explanation of the process and considerations by which she determined that a Benjamin brief was appropriate. She also attached the notes from her review of the record and transcripts.

After reviewing appellate counsel's briefs, we conducted our own independent examination of the entire record in order to detect whether any non-frivolous argument in support of Mr. Cummings' appeal could be identified. We find that appellate counsel provided constitutionally-effective assistance and correctly determined that Mr. Cummings' appeal is wholly frivolous. Thus, we grant appellate counsel's motion to withdraw and affirm Mr. Cummings' convictions and sentences.

We turn now to a more thorough explanation of our decision in which we amplify the respective roles of appellate counsel and intermediate appellate court in assuring that an indigent defendant has received effective assistance of appointed counsel on appeal and that we are fully satisfied that there does not exist any non-frivolous argument which might support relief to the appellant.


We begin our explanation by reviewing the mechanisms which become operative at the intermediate appellate court when an indigent's appointed counsel moves to withdraw from her representation rather than file a brief which has no non-frivolous arguments.

[2013-1613 La.App. 4 Cir. 3] A proper ruling on appellate counsel's motion to withdraw necessitates that we make two interrelated determinations coinciding with the dual-burden structure set forth in State v. Benjamin, which imposes specific obligations upon appellate counsel as well as the reviewing court. See 573 So.2d 528 (La.App.4th Cir. 1990). First, we must decide whether counsel has shown through her Benjamin brief that the defendant was provided with constitutionally-effective assistance of counsel and, as such, a diligent and thorough search of the record was performed by counsel for any arguable claim that might support an appeal. See id. at 530-31. See also McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Second, following our independent review of the record, we must determine whether counsel correctly concluded that the defendant's appeal is wholly frivolous. See Benjamin, 573 So.2d at 531. See also McCoy, 486 U.S. at 442. We elaborate upon each of these determinations to further explore the interconnectivity of the respective burdens imposed under Benjamin.

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We set forth here the legal precepts that define the duty of counsel to render constitutionally-effective assistance to a criminal defendant on appeal prior to filing a motion to withdraw.

The Louisiana Constitution affords Mr. Cummings the right to appeal his non-capital felony convictions to us. See La. Const. art. 1, § 19; La. C.Cr.P. arts. 911, 912(A); 912.1(B)(1).[3] Mr. Cummings has a right to representation by counsel on [2013-1613 La.App. 4 Cir. 4] that appeal, and, because of his indigency, counsel is provided at no expense to him. See U.S. Const. amend. VI; Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Representation by counsel in criminal court has long been held essential to ensure the protection of criminal defendants' rights, see Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), as even an " intelligent and educated layman has small and sometimes no skill in the science of law." Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). And the impetus for that constitutional right does not evaporate as the legal proceeding shifts from trial to the appellate stage of the prosecutorial process. See Penson, 488 U.S. at 85.

Appellate representation is primarily comprised of two services. First, counsel must " master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal." McCoy, 486 U.S. at 438. Second, if arguable trial error is discovered, counsel " prepares and submits a brief on the merits and argues the appeal." Smith v. Robbins, 528 U.S. 259, 293, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (Souter, J., dissenting). See also State v. Jyles, 96-2669, p. 2 (La. 12/12/97); 704 So.2d 241, 241 (per curiam) (punctuation omitted). The right to a partisan scrutiny of the record and assessment of potential issues to raise on appeal is unqualified, while the right to a merits briefing is not. See Robbins, 528 U.S. at 293 (Souter, J., dissenting).

" In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client." McCoy, 486 U.S. at 444.[4] " Counsel should, and must, raise whatever [2013-1613 La.App. 4 Cir. 5] issues 'arguably support the appeal,' including arguments for change in established law when a valid basis for advocating such change exists." Benjamin, 573 So.2d at 531. Appellate counsel, however, will not be required " to raise frivolous issues, then refer to legal authorities which demonstrate that these issues are in fact frivolous and thus undermine his client's position." Id. at 530. The canons of professional ethics limit such advocacy as it is " the ...

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