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.
COUNSEL FOR DEFENDANT/APPELLANT, JERMAINE JAMISON Bruce G.
DEFENDANT/APPELLANT, Jermaine Jamison In Proper Person.
composed of Susan M. Chehardy, Jude G. Gravois, and Robert A.
G. GRAVOIS, JUDGE
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.
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. On that same day, defendant was sentenced
to six years in the Department of Corrections,  a $500.00 fine,
and court costs. Defendant was given credit for "all
time served in this particular matter."
November 17, 2015, the State filed a habitual offender bill
of information charging defendant as a second felony
offender. 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
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
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.
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. This appeal followed.
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:
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,  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
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).
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."
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
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.
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.
independent review of the record supports appellate
counsel's assertion that there are no non-frivolous
issues to be raised on appeal.
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.
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