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State v. Muth

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

STATE OF LOUISIANA
v.
KEVIN MUTH

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-3831, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA PAUL D. CONNICK, JR., TERRY M. BOUDREAUX, ANDREA F. LONG LYNN SCHIFFMAN

          COUNSEL FOR DEFENDANT/APPELLANT, KEVIN MUTH GWENDOLYN K. BROWN

          DEFENDANT/APPELLANT, KEVIN MUTH IN PROPER PERSON

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg

          FREDERICKA HOMBERG WICKER JUDGE

         Defendant, Kevin Muth, appeals his convictions and sentences for four counts of sexual battery of a known juvenile under the age of thirteen years in violation of La. R.S. 14:43.1, two counts of indecent behavior with a juvenile under thirteen years in violation of La. R.S. 14:81, and possession of pornography involving juveniles under the age of thirteen in violation of La. R.S. 14:81.1. Defendant's appointed appellate counsel has filed an appellate brief pursuant to Anders v. California[1] and has further filed a motion to withdraw as counsel of record. Defendant has additionally filed a pro se brief, asserting an ineffective assistance of counsel claim. For the following reasons, we affirm defendant's convictions and sentences and grant counsel's motion to withdraw.

         STATEMENT OF THE CASE

         On August 1, 2013, a Jefferson Parish Grand Jury returned a true bill of indictment charging defendant with one count of aggravated rape of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:42 (count one); one count of sexual battery upon a known juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1 (count two); and one count of possession of pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1 (count three). Defendant pled not guilty at his arraignment. On September 26, 2013, a superseding indictment charged defendant with four additional counts: an additional count of aggravated rape of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:42 (count four); an additional count of sexual battery of a known juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1 (count five); and two counts of indecent behavior with a juvenile under the age of thirteen years, violations of La. R.S. 14:81 (counts six and seven). Defendant was rearraigned on October 1, 2013, and pled not guilty to the charges.

         On January 6, 2015, pursuant to a plea agreement, the State amended the two counts of aggravated rape (counts one and four) to two counts of sexual battery of a juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1. Immediately following the amendment, defendant withdrew his pleas of not guilty and, after being advised of his Boykin[2] rights, pled guilty as charged in the amended superseding indictment. In accordance with the plea agreement, the trial court sentenced defendant to forty years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on counts one, two, three[3], four, and five. As to counts six and seven, the trial court sentenced defendant to twenty-five years imprisonment at hard labor on each count, with the first two years to be served without benefit of probation, parole, or suspension of sentence. The trial court ordered that defendant's sentences be served concurrently, and further advised defendant of the sex offender notification and registration requirements. This appeal follows.

         FACTUAL BACKGROUND

         Defendant pled guilty without proceeding to trial. The factual basis set forth in the amended superseding indictment alleges that defendant, on or between March 1, 2013, and April 7, 2013, "violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known male juvenile (DOB 12/20/2006) wherein the child was under the age of thirteen;" further, as to count two, that defendant, on or between March 1, 2013, and April 7, 2013, "violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known male juvenile (DOB 12/20/2006) wherein the child was under the age of thirteen by to wit: fondling the victim's genitals;" as to count three, that defendant "violated La. R.S. 14:81.1 in that he did commit pornography involving juveniles by intentional possession, of any photographs, films, video tapes, or other visual reproductions of any sexual performance involving a child under the age of 13;" as to count four, that defendant, on or between August 1, 2011, and January 31, 2013, "violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known juvenile (DOB 08/09/02) wherein the child was under the age of thirteen;" as to count five, that defendant, on or between August 1, 2011, and January 31, 2013, "violated La. R.S. 14:43.1 in that he did commit sexual battery upon [a] known juvenile (DOB 08/09/02) wherein the child was under the age of thirteen by to wit: and/or touching the victim's anus;" as to count six, that defendant, on or between August 1, 2011, and January 31, 2013, "violated La. R.S. 14:81 in that he, being over the age of 17, 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 (DOB 08/09/02) wherein the victim is under the age of thirteen by, displaying pornography involving juveniles, with the intention of arousing or gratifying the sexual desires of either person;" and as to count seven, that defendant, on or between March 1, 2013, and April 7, 2013, "violated La. R.S. 14:81 in that he, being over the age of 17, 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 (DOB 12/20/06) wherein the victim is under the age of thirteen by displaying pornography involving juvenile[s] with the intention of arousing or gratifying the sexual desire of either person."

         ANDERS BRIEF

         Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), defendant's appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, supra, and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

         In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana 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 contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Jyles, 704 So.2d at 241.

         An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. "When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal." State v. Dufrene, 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines 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 ...


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