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.
composed of Judges Susan M. Chehardy, Stephen J. Windhorst,
and Hans J. Liljeberg.
M. CHEHARDY CHIEF JUDGE.
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
and Procedural History
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.
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.
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.
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.
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.
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.
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.
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."
review, we note that defendant's misdemeanor and felony
offenses were charged in the same bill of information,
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;
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,  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.
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
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 ...