APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-5811, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux.
COUNSEL FOR DEFENDANT/APPELLANT, HOWARD JACKSON Lieu T. Vo
DEFENDANT/APPELLANT, HOWARD JACKSON In Proper Person.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
John J. Molaison, Jr.
G. GRAVOIS JUDGE.
Howard Jackson, appeals his conviction and sentence for
sexual battery, a violation of La. R.S. 14:43.1. For the
reasons that follow, we affirm defendant's conviction and
sentence, grant appellate counsel's motion to withdraw as
counsel of record for defendant, and remand the matter for
correction of the habitual offender Uniform Commitment Order
as noted herein.
December 11, 2015, the Jefferson Parish District Attorney
filed a bill of information charging defendant, Howard
Jackson, with one count of indecent behavior with a juvenile
under thirteen years of age, in violation of La. R.S. 14:81.
Defendant pled not guilty at his arraignment on December 14,
March 22, 2017, the State amended the bill of information to
charge defendant with one count of sexual battery, in
violation of La. R.S. 14:43.1. Immediately following the
amendment, defendant withdrew his plea of not guilty, and
after being advised of his Boykin rights, pled
guilty to the amended charge. In accordance with the plea
agreement, defendant was sentenced to ten years imprisonment
at hard labor without the benefit of probation, parole, or
suspension of sentence. The trial court further advised
defendant of his sex offender registration requirements,
including his obligation to register as a sex offender for
the remainder of his life.
same day, the State filed a habitual offender bill of
information alleging that defendant was a second felony
offender. Defendant stipulated to the habitual offender bill
after being advised of his rights. The trial court then
vacated defendant's original sentence, and pursuant to
the habitual offender bill stipulation, resentenced defendant
as a second felony offender under La. R.S. 15:529.1 to twenty
years imprisonment at hard labor without the benefit of
probation, parole, or suspension of sentence.
January 19, 2018, defendant filed a motion to reconsider
sentence which was denied by the trial court on January 25,
2018. On March 23, 2018, defendant filed a Uniform
Application for Post-Conviction Relief (APCR), which the
trial court construed as a request for an out-of-time appeal,
which was granted on April 4, 2018. Defendant's appointed
appellate counsel has now filed an appellate brief pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), and has further filed a motion
to withdraw as counsel of record for defendant. Additionally,
defendant has filed a pro se supplemental brief
challenging the charge brought against him, the voluntariness
of his guilty plea, and the alleged ineffectiveness of his
defendant's conviction was the result of a guilty plea,
the facts underlying the crime of conviction are not fully
developed in the record. Thus, the facts were gleaned from
the factual basis provided by the State at the guilty plea
proceeding where the State alleged that:
If the State proceeded to trial it would show beyond a
reasonable doubt that on or between September 14th, 2015 and
September 15, in the Year of Our Lord, Two Thousand and
Fifteen, Mr. Jackson, while within the confines of Jefferson
Parish did violate Louisiana Revised Statute 14:81, in that
he, being over the age of seventeen and there being an age
difference of greater than two years between the two, did
commit a lewd and lascivious act upon or in the presence of a
known juvenile, date of birth December 6, 2005, where the
victim is under the age of thirteen, by fondling on the
victim's breasts and/or pubic area with the intention of
arousing or gratifying the sexual desires of either person.
However, Judge, as I've already put on the record, we
did, pursuant to a plea negotiation, amend the bill to
14:4.1, sexual battery.
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,
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
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. 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).
Jyles, supra, 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.
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, supra, 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 court-appointed attorney
to file a brief arguing the legal point(s) identified by the
court, or grant the motion and appoint substitute appellate
appellate counsel asserts that after a detailed review of the
record, she could find no non-frivolous issues to raise on
appeal. Appellate counsel submits that defendant entered an
unqualified guilty plea to the amended charge of sexual
battery after being advised of his constitutional rights to a
jury trial, to confront witnesses, and against
self-incrimination. She indicates that defendant understood
his rights and knowingly, intelligently, freely, and
voluntarily waived them. She further maintains the trial
court advised defendant of the sentencing range for the
offense, as well as the sentence that would be imposed.
Appellate counsel avers that defendant was sentenced pursuant
to the plea agreement, precluding him from challenging his
sentence on appeal.
counsel has filed a motion to withdraw as counsel of record
for defendant which states she has made a conscientious and
thorough review of the trial court record and can find no
non-frivolous issues to raise on appeal and no rulings of the
trial court which would arguably support the appeal. She
further indicates that defendant has been notified regarding
the filing of her motion to withdraw, as well as his right to
file a pro se brief in this appeal. Additionally,
this Court sent defendant a letter by certified mail
informing him that an Anders brief had been filed
and that he had until August 9, 2018 to file a pro
se supplemental brief. Defendant filed a pro se
supplemental brief signed on August 8, 2018 raising three
assignments of error.
State agrees with appellate counsel that, as shown by the
record, the trial court conducted a Boykin colloquy
with defendant during which the rights he waived were
thoroughly explained. The State asserts that defendant was
fully advised of the sentence that would be imposed and that
defendant's sentence was within the statutory limits.
Finally, the State agrees with appellate counsel that