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State v. Jamison

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

STATE OF LOUISIANA
v.
JERMAINE JAMISON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-4971, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Gail D. Schlosser Thomas P. Sanderson.

          COUNSEL FOR DEFENDANT/APPELLANT, JERMAINE JAMISON Bruce G. Whittaker.

          DEFENDANT/APPELLANT, Jermaine Jamison In Proper Person.

          Panel composed of Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

         JGG

         SMC

         RAC

          JUDE G. GRAVOIS, JUDGE

         Defendant, Jermaine Jamison, appeals his conviction and sentence for one count of possession of heroin in violation of La. R.S. 40:966(C), and his habitual offender adjudication and enhanced sentence. For the following reasons, we: 1) affirm defendant's conviction; 2) reinstate and affirm defendant's original sentence; 3) affirm defendant's habitual offender adjudication; 4) vacate defendant's habitual offender sentence; 5) remand the matter for resentencing and for correction of the Uniform Commitment Order as noted herein; and 6) grant appellate counsel's motion to withdraw as counsel of record for defendant.

         PROCEDURAL HISTORY

         On August 24, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jermaine Jamison, with possession of heroin in violation of La. R.S. 40:966(C). Defendant pled not guilty at his arraignment on September 30, 2015. On that same day, defendant filed omnibus motions, which were never heard or ruled upon. On November 17, 2015, defendant withdrew his not guilty plea and pled guilty to the offense charged.[1] On that same day, defendant was sentenced to six years in the Department of Corrections, [2] a $500.00 fine, and court costs.[3] Defendant was given credit for "all time served in this particular matter."[4]

         Also on November 17, 2015, the State filed a habitual offender bill of information charging defendant as a second felony offender.[5] Defendant stipulated to the habitual offender bill on that same day. The trial court then vacated defendant's original sentence and sentenced him as a second felony offender to six years in the Department of Corrections without the benefit of probation or suspension of sentence, a $500.00 fine, and court costs. The enhanced sentence was ordered to run concurrently with the sentences in district court case number 15-4972, and the trial judge explained that it was his intention that "this sentence be run concurrent with any parole revocation that [defendant] may be facing." Defendant was given credit for "any time [he] served in connection with this matter."[6]

         Thereafter, defendant sought this Court's supervisory review of the trial court's November 30, 2015 denial of his pro se motion for a probable cause hearing. This Court denied defendant's writ application, finding that as a result of his guilty plea, he was not entitled to relief, as he waived all non-jurisdictional defects in the proceedings leading up to his guilty plea. See State v. Jamison, 15-734 (La.App. 5 Cir. 12/3/15) (unpublished writ disposition).

         On April 26, 2016, defendant filed a Uniform Application for Post-Conviction Relief. In response, the trial court ordered the State to file a response or answer to defendant's application for post-conviction relief. On August 8, 2016, defendant filed a Motion for Summary Disposition, wherein he stated that no ruling, opinion, or judgment was rendered as to his application for post-conviction relief. The court again ordered the State to file a response. On August 31, 2016, defendant filed an additional Motion for Summary Disposition, and on September 6, 2016, the trial court ordered that an evidentiary hearing be held, as it found that the State had failed to comply with the court's orders to file a response or an answer. The State filed its response and answer on October 20, 2016. At the conclusion of a hearing conducted on October 24, 2016, the trial court issued an order dismissing defendant's application for post-conviction relief without prejudice as premature.

         Defendant filed a writ application with this Court requesting an out-of-time appeal, which was denied, with this Court ruling that it did not have authority to grant defendant an out-of-time appeal. See State v. Jamison, 16-700 (La.App. 5 Cir. 12/13/16) (unpublished writ disposition). On December 27, 2016, defendant filed a Motion for Out of Time Appeal with the trial court pursuant to State v. Counterman, 475 So.2d 336 (La. 1985). On January 4, 2017, the trial court granted defendant an out-of-time appeal and dismissed his application for post-conviction relief without prejudice.[7] This appeal followed.

         FACTS

         Because defendant's conviction was the result of a guilty plea, the facts underlying the crime of conviction were not fully developed in the record. However, the bill of information indicates that on August 6, 2015, defendant "violated La. R.S. 40:966(C) in that he did knowingly or intentionally possess a controlled dangerous substance, to wit: Heroin."

         LAW AND ANALYSIS

         Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, [8] appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as counsel of record for defendant.

         In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by "'a brief referring to anything in the record that might arguably support the appeal'" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

         In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. An Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

         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. Bradford, 676 So.2d at 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

         Defendant's appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel avers that the bill of information appears to be in order, and defendant was present during the critical proceedings against him. Counsel notes that defendant pled guilty pursuant to a plea agreement and did not reserve the right to seek review of any trial court ruling pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). He also notes that defendant was advised that by pleading guilty, he was giving up his rights to an appeal and that defendant's answers throughout the colloquy were sensible, direct, and articulate. He contends that defendant's sentence of six years as a second felony offender was imposed in conformity with the plea agreement and was advantageous to defendant. Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states he has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no ruling of the trial court that can arguably support the appeal. Counsel asserts that he has notified defendant of this filing and has advised defendant of his right to file a pro se supplemental brief in this appeal.[9]

         The State has filed a response, agreeing that counsel has conducted a conscientious and thorough review of the trial court record. The State submits that counsel has conformed with the procedures set forth in Anders and Jyles, supra, and that counsel's motion to withdraw should be granted. The State further agrees that the record does not contain any non-frivolous issues to be raised on appeal.

         An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

         The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See generally La. C.Cr.P. arts. 464-466.

         As reflected by the minute entries and the commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceeding, his sentencing, and his habitual offender bill proceeding. As such, ...


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