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State v. Francis

Court of Appeals of Louisiana, Fifth Circuit

May 16, 2018

STATE OF LOUISIANA
v.
VERNON E. FRANCIS, JR.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 92-1252, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLANT, VERNON E. FRANCIS, JR. Jane L. Beebe

          DEFENDANT/APPELLANT, VERNON E. FRANCIS, JR. In Proper Person

          Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore

          MARION F. EDWARDS, JUDGE PRO TEMPORE JUDGE

         On appeal, defendant's appointed appellate counsel has filed an Anders[1]brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. Further, defendant has filed a pro se supplemental brief assigning three errors. For the following reasons, we affirm defendant's sentence, advise him of the time limitation for seeking post-conviction relief, and grant appellate counsel's motion to withdraw as attorney of record.

         FACTS AND PROCEDURAL HISTORY

         In 1993, defendant, Vernon Francis, who was tried as an adult at the age of 16 years, was convicted of the second degree murder of Shannon Cooks in violation of LSA-R.S. 14:30.1. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant's conviction and sentence were affirmed on appeal. State v. Francis, 93-953 (La.App. 5 Cir. 03/16/94), 635 So.2d 305. In 2013, defendant sought a hearing for parole eligibility, [2] pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012), which was held on May 12, 2017. At the conclusion of the hearing, the trial court vacated defendant's life sentence and resentenced him to life imprisonment with parole eligibility upon serving 25 years of his sentence. Defendant was thereafter granted an out-of-time appeal on September 20, 2017.

         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, [3] appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, supra, 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.[4] 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) (internal citation omitted).

         In State v. 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 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, 95-929 at 4, 676 So.2d at 1110. 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 the merits, it may either deny the motion and order the ...


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