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State v. Fontenelle

Court of Appeals of Louisiana, Fifth Circuit

September 13, 2017

STATE OF LOUISIANA
v.
ERIC C. FONTENELLE

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-2702, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

          FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand

          FOR DEFENDANT/APPELLANT, ERIC C. FONTENELLE Prentice L. White

          DEFENDANT/APPELLANT, ERIC C. FONTENELLE In Proper Person

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Jessie M. LeBlanc, Judge Pro Tempore

         AFFIRMED AND REMANDED FOR CORRECTION OF COMMITMENT; MOTION TO WITHDRAW GRANTED

         JML

         MEJ

         RAC

          JESSIE M. LEBLANC, JUDGE PRO TEMPORE JUDGE.

         Defendant, Eric C. Fontenelle, appeals his convictions of two counts of indecent behavior with a juvenile under thirteen. Defendant's appointed counsel has filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and has filed a motion to withdraw as counsel of record. Further, defendant has filed a pro se supplemental brief assigning one error. For the following reasons, we affirm defendant's convictions and sentences and grant counsel's motion to withdraw. We remand the matter for a correction as noted herein.

         STATEMENT OF THE CASE

         On May 4, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of indecent behavior with a juvenile under thirteen in violation of La. R.S. 14:81. On May 12, 2016, defendant pled not guilty at his arraignment.

         Prior to trial, the trial court heard the State's oral motion in limine regarding the admissibility of recorded jail calls made by defendant. The parties stipulated that certain statements would be played to the jury but that a portion pertaining to a plea offer made to defendant would be muted. During presentation of the State's case-in-chief on August 10, 2016, defendant made an oral motion for mistrial after the portion of the recorded jail call pertaining to the State's offer was inadvertently played to the jury.

         On the next day, defendant withdrew his motion for mistrial and tendered a plea of guilty as charged. After being advised of his Boykin[1] rights and the reading of a victim impact statement, defendant was sentenced to ten years in the Department of Corrections[2] on each count. The trial court ordered that the first two years were to be served without the benefit of probation, parole, or suspension of sentence. Defendant was informed of his obligation to register as a sex offender for life.

         On August 23, 2016, a letter written by defendant and dated August 12, 2016, was filed into the record, wherein defendant argued that he was under duress at the time he entered his guilty pleas, his decision was not rationally made, and he requested to be brought before the trial judge. That same date, the trial court denied the relief requested in defendant's letter, after finding defendant was informed of the constitutional rights he was waiving and of the possible sentences he faced. On September 2, 2016, a subsequent letter by defendant dated August 29, 2016, was filed into the record, where he again argued that he was under duress and he received ineffective assistance of counsel. Defendant also sought an appeal of his convictions. On September 6, 2016, the trial court granted defendant an appeal.

         On April 19, 2017, defendant filed a pro se motion to supplement the instant appellate record, which bears district court number 16-2702, with certain "materials" filed under district court number 15-5939[3] that defendant averred were missing from the instant record. That same date, this Court issued an Order for the 24th Judicial District Clerk of Court to supplement this appellate record with the record of district court number 15-5939 as an exhibit to the instant appeal. The supplemental exhibits were filed on April 20, 2017. Defendant's appeal follows.

         FACTS

         Because defendant's convictions were the result of guilty pleas, the facts underlying the crimes of which he was convicted are not fully developed in the record. Nevertheless, the bill of information provides that on or about October 5, 2015, and on October 6, 2015, defendant violated La. R.S. 14:81 in that he, being over the age of seventeen, and there being an age difference of greater than two years between the two persons, did commit a lewd and lascivious act upon, or in the presence of, a known juvenile (D.O.B. 3/27/2008), wherein the victim was under the age of thirteen, with the intention of arousing or gratifying the sexual desires of either person.[4]

         ANDERS BRIEF

         Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, [5] 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 counsel requests permission to withdraw as counsel of record.

         In Anders, supra, 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.[6] 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 Jyles, 96-2669 at 2, 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. The supreme court explained that 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 ...


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