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State v. Myles

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

STATE OF LOUISIANA Appellee
v.
KEVIN MYLES Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 344334. Honorable Brady O'Callaghan, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis Counsel for Appellant

          KEVIN MYLES Pro Se

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          SUZANNE M. WILLIAMS Assistant District Attorney

          Before MOORE, PITMAN, and GARRETT, JJ.

          GARRETT, J.

         The defendant, Kevin Myles, was convicted as charged of the offense of aggravated incest and sentenced to 20 years at hard labor. He appealed. His appointed counsel has filed a motion to withdraw, with a brief 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, urging that there are no nonfrivolous issues on which to base the appeal. For the following reasons, we affirm the defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw.

         FACTS

         In 2016, the defendant's biological daughter contacted the police and informed them that the defendant had vaginal intercourse with her almost every night from the time she was nine years old until she was about 16 years old and that she gave birth to the defendant's child when she was 17 years old. DNA testing determined that there was a 99.9 percent probability that the defendant was the father of his daughter's child. The defendant was arrested and charged with aggravated incest. At trial, the state presented the testimony of the daughter, the investigating police officer, and a forensic DNA analyst. The defendant was convicted as charged by a unanimous jury. His motions for post-verdict judgment of acquittal and for new trial were denied. The trial court imposed a sentence of 20 years at hard labor.[1] It directed that it be served concurrently with any other sentence and that the defendant be given credit for time served. The defendant's timely motion to reconsider sentence, which was based upon his status as a first felony offender, was denied. The defendant appealed.

         DISCUSSION

         The Louisiana Appellate Project was appointed to represent the defendant on appeal. The defendant's appellate counsel filed an Anders brief and a motion to withdraw, advising that he made a conscientious and thorough review of the trial court record and found no nonfrivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, supra; State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176. The brief outlines the procedural history of the case and the trial court's rulings on the motions filed by the defendant. It also contains "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 704 So.2d at 242. We ordered that the motion to withdraw be held in abeyance. The defendant's motions for a copy of the appellate record and to file a pro se supplemental brief were granted. Due to the filing of the Anders brief, the state declined to file a brief.

         The defendant filed a pro se brief asserting that his sentence is excessive. He alleged that the trial court failed to consider both the mitigating and/or aggravating factors under La.C.Cr.P. art. 894.1. The defendant also contended that the trial court did not take into account "the unique individual circumstances." However, the defendant's brief does not specify or discuss any such circumstances.

         Furthermore, our review of the record reveals that the trial court conducted an extremely detailed review of the factors enumerated in La.C.Cr.P. art. 894.1. The trial court found that all three factors set forth in La.C.Cr.P. art. 894.1(A) required that the defendant be sentenced to a term of imprisonment. It then went through the list of aggravating and mitigating factors and found that eight aggravating factors applied.[2] The trial court also painstakingly reviewed each of the possible mitigating factors on the record, but it ...


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