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State v. Vaughn

Court of Appeals of Louisiana, Fifth Circuit

May 16, 2018

STATE OF LOUISIANA
v.
JOHN F. VAUGHN

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-2588, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING.

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

          COUNSEL FOR DEFENDANT/APPELLANT, JOHN F. VAUGHN Gwendolyn K. Brown.

          Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg.

          SUSAN M. CHEHARDY CHIEF JUDGE.

         On appeal, defendant's appointed appellate counsel has filed an Anders brief on defendant's behalf asserting that there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant's convictions and sentences and grant appellate counsel's motion to withdraw.

         Facts and Procedural History

         Because defendant pled guilty, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

[O]ur evidence in this case would have proven that Mr. Vaughn on or about March 25th of this year violated La. R.S. 14:64.1 and that he did rob one Leda Baney … while leaving … said victim to reasonably believe that he was armed with a dangerous weapon. In connection with count two our evidence would have further proven that Mr. Vaughn on the same date committed a violation La. R.S. 14:35 and that he did commit a simple battery upon a juvenile. His date of birth was 2/27/11, he did that by using force or violence upon that individual person without their permission. With regard to count three our evidence would have proven that Mr. Vaughn on December 29th of last year violated La. R.S. 14:64.1 and that he did rob one Dariana Davis while leaving that victim to reasonably believe that he was armed with a dangerous weapon, and count four we would have additionally proven that on May 26th of this year Mr. Vaughn violated La. R.S. 14:62.3 by committing unauthorized entry of an inhabited dwelling located at 200 Acorn Street in Kenner. It was the home or abode of one Daniel Gray. All those violations occurred in Jefferson Parish within this court's jurisdiction.

         On May 30, 2017, the Jefferson Parish District Attorney charged defendant, John F. Vaughn, with two counts of first degree robbery, in violation of La. R.S. 14:64.1; one count of cruelty to a juvenile, in violation of La. R.S. 14:93; and one count of unauthorized entry of an inhabited dwelling, in violation of La. R.S. 14:62.3. On October 16, 2017, the State amended the bill of information to reduce the charge of cruelty to a juvenile to misdemeanor simple battery, in violation of La. R.S. 14:35.

         On October 16, 2017, defendant withdrew his previous pleas of not guilty and entered pleas of guilty to the charges as amended. In accordance with the plea agreement set forth in the record, the trial court sentenced defendant to concurrent sentences as follows: for each count of first degree robbery, twenty years at hard labor; for misdemeanor simple battery, six months in parish prison; and for unauthorized entry of an inhabited dwelling, twelve years at hard labor.

         During that same hearing, the State filed a multiple offender bill of information, alleging defendant to be a second felony offender, to which defendant stipulated. In accordance with a plea agreement set forth in the record, the trial court vacated defendant's underlying sentence for unauthorized entry into an inhabited dwelling, and sentenced defendant pursuant to La. R.S. 15:529.1 to twelve years at hard labor to run concurrently with his other sentences.

         On November 8, 2017, defendant filed a motion to reconsider sentence and a Notice of Appeal and Designation of Record, seeking an appeal from the "judgment rendered on October 16, 2017." The trial court denied the motion to reconsider sentence and granted defendant's motion for appeal on November 27, 2017. The instant appeal follows.

         Jurisdictional Note

         This Court's appellate jurisdiction extends only to cases that are triable by a jury. La. Const. of 1974, art. 5 § 10; La. C.Cr.P. art. 912.1; State v. Chess, 00-164 (La.App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287. Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. La. Const. of 1974, art. 1 § 17; La. C.Cr.P. art. 779;[1] Chess, supra.

          In the present case, defendant was originally charged with cruelty to a juvenile, in violation of La. R.S. 14:93, a felony, but defendant pled guilty to the amended charge of simple battery, in violation of La. R.S. 14:35, a misdemeanor. La. R.S. 14:35(B) sets forth the penalties for simple battery, which are a fine of not more than one thousand dollars or imprisonment for not more than six months, or both. Thus, simple battery is not triable by a jury.

         The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review asking this Court to exercise its supervisory jurisdiction. See La. C.Cr.P. art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750, p. 3 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La. 10/24/08), 992 So.2d 1033. Further it is this Court's policy to dismiss such misdemeanor matters that are not appealable. However, we also note that dismissal may not be warranted in "exceptional cases, especially when there are misdemeanor and felony convictions intertwined to the point that the interests of justice are better served by considering the matters together."[2]

         Upon review, we note that defendant's misdemeanor and felony offenses were charged in the same bill of information, [3] and defendant's guilty pleas, and his sentencing on both charges occurred simultaneously. Here, the misdemeanor and felony convictions are intertwined to the point that the interests of justice may be better served by considering the matters together. Finding that the instant matter is an example of "exceptional cases…intertwined to the point that the interests of justice are better served by considering the matters together, " we conclude that judicial economy dictates that these matters should be considered together. Jones, supra; Christophe, supra.

         Anders brief[4]

         Under 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, [5] 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, 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 she finds her 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 ...


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