Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No.
5-13-0002 The Honorable Michael R. Erwin, Judge Presiding
C. Moore, III District Attorney Allison Rutzen Assistant
District Attorney Baton Rouge, Louisiana Attorney for
Appellee, State of Louisiana Attorney for
T. Vo Clark Mandeville, Louisiana Appellant, Ruben Van Dyke
Van Dyke Winnsboro, Louisiana Pro Se
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
defendant, Ruben Van Dyke, was charged by grand jury
indictment with second degree murder, a violation of
Louisiana Revised Statutes 14:30.1. He initially pled not
guilty and filed various counseled pre-trial motions.
Pursuant to a plea agreement, the defendant withdrew his
former plea and pled guilty to manslaughter, a violation of
Louisiana Revised Statutes 14:31. The defendant was then
sentenced to twenty-four years at hard labor. He did hot move
for reconsideration of sentence. The defendant filed an
untimely motion for appeal, which was granted. Contending
that there are no non-frivolous issues upon which to support
the appeal, appellate counsel filed a brief raising no
assignments of error. The defendant filed a pro se brief
raising two assignments of error. For the following reasons,
we affirm the conviction and sentence and grant appellate
counsel's motion to withdraw.
the defendant pled guilty, the facts were not fully developed
in this case. During the defendant's
Boykin hearing, the State indicated that on
January 10, 2013, Baton Rouge Police Department officers were
dispatched to Hollywood Street in reference to a shooting.
Upon arrival, they observed a 2003 black Honda Accord that
appeared to have been driven off of the roadway into an open
field. Inside the vehicle was a black male, later identified
as the victim Brandon Counts. The officers found the victim
sitting in the driver's seat with multiple gunshot
wounds. Police also observed cocaine with a street value of
approximately $5, 600.00 inside of the vehicle as well as a
semi-automatic pistol on the floorboard. Officers interviewed
Quentin Harris who advised them that on the date in question,
he and the victim traveled to a shopping center to purchase
cocaine from the defendant. Harris observed the victim and
the defendant engage in a verbal dispute over the cocaine,
and the defendant pulled a gun from his waistband. Harris
pushed the defendant and fled the area on foot, but he heard
multiple gunshots as he ran. Another witness told officers
that he saw a black male enter a Chrysler Sebring after the
shooting and the black male dropped a black hat that he was
wearing as he fled the area. The DNA profile obtained from
the hat was consistent with that of the defendant.
counsel's brief contains no assignments of error and sets
forth that it is filed to conform with State v.
Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per
curiam). Accordingly, appointed counsel requests to be
relieved from further briefing in this case.
procedure in Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967), used in Louisiana, was
discussed in State v. Benjamin, 573 So.2d 528,
529-31 (La.App. 4th Cir. 1990), sanctioned by the Louisiana
Supreme Court in State v. Mouton, 95-0981 (La.
4/28/95), 653 So.2d 1176, 1177 (per curiam), and expanded by
the Louisiana Supreme Court in Jyles, 704 So.2d at
242. According to Anders, 386 U.S. at 744, 87 S.Ct.
at 1400, "if counsel finds his case to be wholly
frivolous, after a conscientious examination of it, he should
so advise the court and request permission to withdraw."
To comply with Jyles, appellate counsel must review
not only the procedural history and the facts of the case,
but must also provide "a detailed and reviewable
assessment for both the defendant and the appellate court of
whether the appeal is worth pursuing in the first
place." Jyles, 704 So.2d at 242 (quoting
Mouton, 653 So.2d at 1177). 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. State v.
Thomas, 2012-0177 (La.App. 1st Cir. 12/28/12), 112 So.3d
appellate counsel has adequately complied with the
requirements necessary to file an Anders brief.
Appellate counsel reviewed the bill of information, the
procedural history, the Boykin examination, and the
factual basis for the plea. Appellate counsel concludes in
his brief that there are no non-frivolous issues for appeal.
Further, appellate counsel certifies that the defendant was
served with a copy of the Anders brief and notified
of his right to file a pro se brief.
pro se brief, the defendant first contends that his arrest
warrant was invalid because it was not issued by a
"neutral and detached magistrate." He complains
that the same judge who issued his arrest warrant was the
same judge presiding over his case. This argument is without
merit. Pursuant to Louisiana Code of Criminal Procedure
article 202(A), "A warrant of arrest may be issued by
any magistrate[.]" A magistrate means "any judge, ...