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State v. Jackson

Court of Appeals of Louisiana, Fifth Circuit

November 7, 2018

STATE OF LOUISIANA
v.
HOWARD JACKSON

          ON 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 Clark.

          DEFENDANT/APPELLANT, HOWARD JACKSON In Proper Person.

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.

          JUDE G. GRAVOIS JUDGE.

         Defendant, 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.

         PROCEDURAL HISTORY

         On 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, 2015.

         On 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[1] 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.[2] 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.

         On that 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.

         On 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 counsel.

         FACTS

         Because 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[3].1, sexual battery.

         ANDERS BRIEF

         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, 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 for defendant.

         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. 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).

         In 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.

         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, 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 counsel. Id.

         ANALYSIS

         Defendant's 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.

         Appellate 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.

         The 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 defendant ...


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