State of Louisiana v. Jahnural Oshay Durham

• Court: Louisiana Court of Appeal
• Decided: March 18, 2020
• Docket: KA-0019-0673
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-673

VERSUS

JAHNURAL OSHAY DURHAM

************

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 18-413 HONORABLE LORI LANDRY, DISTRICT JUDGE

JONATHAN W. PERRY JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Van H. Kyzar, and Jonathan W. Perry, Judges.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED. M. Bofill Duhe District Attorney 16th Judicial District Court 300 Iberia Street, Ste. #200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana

Chad M. Ikerd Louisiana Appellate Project P. O. Box 2125 Lafayette, LA 70502 (225) 806-2930 COUNSEL FOR APPELLANT: Jahnural Oshay Durham PERRY, Judge.

In this criminal case, Defendant, Jahnural Oshay Durham, appeals his

sentence for aggravated second degree battery. Appellate counsel has now filed a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),1 alleging

no non-frivolous issues exist on which to base an appeal and seeking to withdraw as

Defendant’s counsel. After thoroughly reviewing the record, we affirm Defendant’s

conviction and sentence, and grant appellate counsel’s request to withdraw as

Defendant’s counsel.

FACTS AND PROCEDURAL HISTORY

The State submitted these factual bases for Defendant’s guilty plea:

ON OR ABOUT JANUARY 23RD, OF 2018, THE DEFENDANT SHOT JAVIEL WILSON. HE SUSTAINED A SHATTERED LEG AND INJURIES TO HIS ABDOMEN.

....

ON OR ABOUT JANUARY 31ST OF 2018, DEPUTIES WERE ARRESTING THE DEFENDANT ON WARRANTS, AND HE HAD ON HIM TWO FIREARMS; ONE A NINE MILLIMETER AND ONE A 40 CALIBER. HE HAS A PREVIOUS CONVICTION FOR FIRST-DEGREE ROBBERY IN IBERIA PARISH DOCKET NUMBER 13-0785. THAT WAS – HE PLEAD GUILTY ON OCTOBER 9TH OF 2014.

On April 4, 2018, the State originally charged Defendant in docket number

18-413 with attempted second degree murder, a violation of La.R.S. 14:27 and

14:30.1. Defendant originally entered a plea of not guilty to those charges. Almost

a year later, on February 15, 2019, the State amended the bill of information by

1 “The decision in Anders,[386 U.S. 738] Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), entitle indigent defendants to the same kind of honest and detailed evaluation of their records that a paying client may receive from an attorney hired to advise on the basis of a review of the record whether that client should commit additional time and money to an appeal.” State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1178 (Calogero, Chief Justice, concurring). adding two counts of possession of a firearm or carrying a concealed weapon by a

convicted felon, violations of La.R.S. 14:95.1, and one count of obstruction of justice

by tampering with evidence, a violation of La.R.S. 14:130.1(A)(1). The State filed

a second amendment to the bill of information on March 26, 2019, that changed

some of the wording and the order of the charges set out in the earlier amendment

but did not change the substance of the charges.

Then, on March 26, 2019, the State amended charges in the district court’s

docket number 18-414.2 The amendment charged Defendant with possession of a

firearm or carrying a concealed weapon by a convicted felon, a violation of La.R.S.

14:95.1; obstruction of justice by tampering with evidence, a violation of La.R.S.

14:130.1; illegal possession of stolen firearms, a violation of La.R.S. 14:69.1; and

resisting an officer by flight, a violation of La.R.S. 14:108(B)(1)(a).

Thereafter, on March 29, 2019, Defendant pled guilty to aggravated second

degree battery, a violation of La.R.S. 14:34.7, in docket number 18-413, and to

felony possession of a firearm, a violation of La.R.S. 14:95.1, in docket number 18-

414. As part of the plea agreement, the State agreed not to charge Defendant as a

habitual offender, and the parties agreed the plea was subject to a sentencing cap of

twelve years. The State indicated at the sentencing hearing that it “WOULD LIKE

TO DISMISS THE ANCILLARY CHARGES” in both docket numbers.

Accordingly, on May 6, 2019, the trial court sentenced Defendant to twelve

years at hard labor for aggravated second degree battery plus a fine of $250 and to

eight years for felony possession of a firearm plus a fine of $1,000, with the

sentences to run concurrently, and with credit for time served. Defendant filed a

2 The original bill of information in the district court’s docket number 18-414 is not in the record.

2 motion to reconsider his sentence for aggravated second degree battery on May 16,

2019, and the trial court denied it on May 28, 2019. Defendant filed a notice of

appeal regarding only his sentence for aggravated second degree battery in docket

number 18-413.3

ERRORS PATENT REVIEW

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. After reviewing the record, this court finds there

are two errors patent, one of which involves the trial court’s advice as to the

prescriptive period for filing post-conviction relief. Because Defendant’s appellate

counsel addresses this issue in his Anders review, this court will likewise address the

issue in its Anders discussion. The other error patent involves the sentence imposed

for aggravated second degree battery and will be discussed below. Finally, as

discussed below, we find the minutes of sentencing require correction.

We find the trial court erroneously imposed the sentence for aggravated

second degree battery without benefit of parole, which renders the sentence illegally

excessive. At sentencing, the trial court stated the following:

SO I TAKE ALL THOSE THINGS INTO CONSIDERATION. I TAKE INTO CONSIDERATION THAT THE POSSESSION OF A FIREARM BY A FELON -- AND BOTH OF THEM ARE WITHOUT THE BENEFT OF PROBATION, PAROLE, OR SUSPENSION OF SENTENCE. SO YOU’RE GOING TO SERVE IF NOT THE WHOLE TIME -- BECAUSE I DON’T KNOW HOW THEY DO GOOD TIME OR WHATEVER. I DON’T TELL ANYBODY ABOUT THAT, BUT IF YOU DON’T SERVE ANYMORE THAN THE SENTENCE I GIVE YOU, THEN YOUR SENTENCE IS FINE WITH ME. I DON’T KNOW WHEN THEY DETERMINE GOOD TIME AND ALL - - I DON’T, AND I DON’T TRY TO FIGURE IT OUT. BUT I KNOW BY STATUTE THE FELON IN POSSESSION OF A FIREARM READS THAT WAY; NOT LESS THAN FIVE NO MORE THAN 20 WITHOUT THE BENEFIT OF PROBATION, PAROLE, OR SUSPENSION OF SENTENCE. 3 Appellate Counsel’s brief notes Defendant appealed “THE SENTENCE FOR THE BATTERY CHARGE, BUT NOT THE GUN CHARGE.” 3 AND SO KNOWING THOSE THINGS, SIR, IT’S THE SENTENCE OF THIS COURT THAT IN DOCKET NUMBER 18- 0414, FELON IN POSSESSION OF A FIREARM, IT’S THE SENTENCE OF THIS COURT THAT YOU SERVE EIGHT YEARS HARD LABOR, CREDIT FOR TIME SERVED AWAITING DISPOSITION OF THIS MATTER FROM THE DATE YOU WERE ARRESTED INITIALLY TO THE DATE THAT YOU BONDED OUT POST-CONVICTION AND PRIOR TO SENTENCING AND THEN YOUR TIME STARTS TO RUN AGAIN THE DAY YOU WERE ARRESTED.

AND ON THE CHARGE UNDER DOCKET NUMBER 18-0413 FOR AGGRAVATED SECOND-DEGREE BATTERY, TWELVE YEARS HARD LABOR, AND BY OUR AGREEMENT, THESE HE SENSIBLE [SIC] RUN CONCURRENTLY WITH EACH OTHER. IN THAT CASE, YOU’RE TO RECEIVE CREDIT FOR TIME SERVED AWAITING DISPOSITION IN THIS MATTER FROM THE DATE YOU WERE ARRESTED UNTIL THE DATE YOU BONDED OUT AND THEN AGAIN ON APRIL 23RD.

BOTH OF THESE SENTENCES, SIR, I’M GOING TO SET A FINE. FOR THE POSSESSION OF A FIREARM, IT SAYS I HAVE TO SET A FINE NOT LESS THAN $1000, SO I SET A FINE OF $1000. AGGRAVATED SECOND-DEGREE BATTERY I SET A FINE OF $250. AND I RECOMMEND THAT YOU PAY THOSE THINGS AS A CONDITION OF PAROLE. I ALSO RECOMMEND YOU FOR ANY PROGRAM. I RECOMMEND THAT YOU FURTHER YOUR EDUCATION AND AT LEAST GET YOU[R] HISET AND ANY OTHER CERTIFICATE THAT YOU CAN GET THAT WILL MAKE YOU READY FOR WORK IN THE ECONOMY. WHATEVER PROGRAM THAT THEY HAVE IN THE DEPARTMENT OF CORRECTIONS, BUT AT THE BARE MINIMUM GET YOUR HISET. YOU HAVE ENOUGH TIME TO GET SEVERAL CERTIFICATES THAT WILL MAKE YOU WORK-READY, AND AS FAR AS HAVING EXPERIENCE, YOU CAN GET THAT THERE AS WELL.

When the trial court initially stated that “both of them” were to be served

without benefit of probation, parole, or suspension of sentence, it appears it intended

to order both sentences served without benefits. Consistent with this conclusion, the

Uniform Sentencing Commitment Order, which the trial court signed, indicates the

twelve-year sentence for aggravated second degree battery is served without

4 benefits. When the trial court subsequently pronounced the sentences, however, it

made no mention of the denial of benefits. In fact, the trial court recommended that

the fines be paid as a condition of parole, a recommendation that would be

inconsistent with a denial of benefits. Likewise, the minutes make no mention of

the trial court’s denial of benefits.4

Considering the above, it is unclear whether the trial judge imposed the

sentence for aggravated second degree battery without benefit of parole. Although

such uncertainty would normally require remand for the imposition of a determinate

sentence, we find this would lead to confusion since the trial court was not authorized

to deny parole eligibility for aggravated second degree battery, the only conviction

and sentence currently before this court.5 Louisiana Revised Statutes 14:34.7(c), the

applicable penalty provision, states:

Whoever commits the crime of aggravated second degree battery shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated second degree battery was committed because of that status.

The trial court specifically stated the victim was not an active service person and the

record is void of any evidence that the victim was a disabled veteran, or that

Defendant committed the battery because of that status. Thus, the trial court was not

authorized to impose any of the sentence for aggravated second degree battery

4 As will be discussed, the minutes incorrectly state the trial court imposed the fines as conditions of parole. According to the transcript, the trial court recommended the fines be paid as a condition of parole.

5 Although Defendant has not appealed his conviction and sentence for possession of a firearm by a convicted felon, we note the trial court was required to impose that sentence without benefits. La.R.S. 14:95.1(B).

5 without benefits.6 See State v. Hampton, 17-383 (La.App. 3 Cir. 11/15/17), 259

So.3d 1125. Accordingly, we amend the agravated second degree battery sentence

to delete the denial of parole eligibility, instruct the district court to make an entry

in the minutes reflecting this change, and instruct the district court to amend the

Uniform Sentencing Commitment Order to reflect this change. State v. Batiste, 09-

521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981 and State v. Dupree, 07-98 (La.App. 3

Cir. 5/30/07), 957 So.2d 966.

Next, the court minutes reflect that the trial court ordered the fines paid as a

condition of parole. As stated previously, however, the sentencing transcript

indicates the trial court recommended the fines be paid as a condition of parole.

“[W]hen the minutes and the transcript conflict, the transcript prevails.” State v.

Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied,

00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we order the sentencing minutes

be corrected to accurately reflect the trial court’s recommendation that the fines be

paid as a condition of parole.

ANDERS ANALYSIS

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the analysis based on Anders, 386 U.S. 738:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf.[7] This court’s review of the record will consist of (1) a review

6 After stating the penalty range for aggravated second degree battery, the trial court stated, “THE MANDATORY MINIMUM OF ONE DOESN’T APPLY BECAUSE IT WAS NOT AN ACTIVE SERVICE PERSON AS I UNDERSTAND IT.”

7 This court notified Defendant and advised him of his appellate counsel’s filing of an Anders brief. We also advised him of his right to file his own brief, raising issues as he saw fit. 6 of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Later, the Louisiana Supreme Court approved the fourth circuit’s analysis in

Mouton, 653 So.2d 1176.

Pursuant to Anders, 386 U.S. 738, and State v. Jyles, 96-2669 (La. 12/12/97),

704 So.2d 241, Defendant’s appellate counsel filed a brief in which he considered

Defendant’s ability to appeal his sentence. Counsel noted Defendant pled guilty and

was sentenced in accordance with his plea agreement. Thus, he contends it is not

subject to review on appeal. More particularly, appellate counsel points out that the

plea agreement shows Defendant and the State agreed to a sentencing cap that was

reflected in the sentence the trial court ultimately imposed. In his colloquy with the

trial court, Defendant indicated he heard and understood the recommended

sentences.

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides a

“defendant cannot appeal or seek review of a sentence imposed in conformity with

a plea agreement which was set forth in the record at the time of the plea.” This

applies “to plea agreements involving both specific sentences and sentencing caps.”

State v. Young, 96-195, p. 5 (La. 10/15/96), 680 So.2d 1171, 1174. This court has

held, based on La.Code Crim.P. art. 881.2(A)(2), “[i]n an instance where the court

Appellate counsel further certified to us that he sent Defendant a copy of the brief he filed on Defendant’s behalf on October 11, 2019. Defendant, as of this date, has chosen not to file a brief on his own. 7 sentences the defendant in accordance with the parties’ recommendation for a

specific sentence or a sentencing range, it is clear that review of the imposed

sentence is precluded.” State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716

So.2d 36, 38. Thus, a defendant may not seek review of his sentence ‘“when a

specific sentence or sentencing range is agreed to by both parties as part of a plea

agreement, and is judicially recognized at the sentencing hearing.”’ Id. at 39,

quoting State v. Goodman, 96-376 (La.App. 3 Cir. 11/6/96), 684 So.2d 58, 61.

Here, Defendant and the State agreed to a sentencing cap of twelve years, and

the trial court imposed that sentence. Defense counsel correctly concluded

Defendant cannot make a non-frivolous argument on appeal alleging an excessive

sentence.

Pursuant to Anders and Benjamin, we have performed a thorough review of

the record, including pleadings, minute entries, the charging instruments, and the

transcripts and have confirmed the appellate counsel’s statements. Defendant was

present and represented by counsel at all crucial stages of the proceedings, and he

acknowledged his guilty plea on the plea form. The trial court correctly informed

Defendant of his Boykin rights and discussed his possible sentence for aggravated

second degree battery.

Our review of the record reveals no issues that would support an assignment

of error on appeal beyond the potential issue addressed by counsel.

ASSIGNMENT OF ERROR NO. 1

Although Defendant’s counsel contends his review of the record shows no

non-frivolous issues for appeal, he also asks this court to review the record for errors

patent, which we have done. He then asks this court to reverse Defendant’s

conviction and sentence should we find one based on that error patent review. 8 However, counsel suggests no errors patent to warrant such a reversal. Counsel

nevertheless identifies an error patent that requires proper notification to Defendant.

The trial court erroneously advised Defendant of the time period for filing

post-conviction relief. According to La.Code Crim.P. art. 930.8, the two-year

prescriptive period for filing post-conviction relief begins to run after the conviction

and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922.

Court minutes indicate Defendant was advised “he has two (2) years from the

date judgment becomes final to file for Post-Conviction Relief.” The transcript of

the sentencing hearing, however, states Defendant “HAS TWO YEARS IN BOTH

SENTENCES TO TAKE ADVANTAGE OF YOUR POSTCONVICTION RELIEF

RIGHTS . . . .” Thus, the minutes and the transcript are inconsistent.

“[W]hen the minutes and the transcript conflict, the transcript prevails.”

Wommack, 770 So.2d at 369. Accordingly, the transcript shows Defendant was

inadequately advised of his rights regarding post-conviction relief because the trial

court did not advise him of when the prescriptive period begins to run.

We direct the trial court to inform Defendant of the correct provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant

within ten days of the rendition of this opinion and to file written proof in the record

of the proceedings that Defendant received the notice. State v. Barconey, 17-871

(La.App. 3 Cir. 3/7/18), 241 So.3d 1046.

CONCLUSION

We amend Defendant’s sentence to delete the denial of parole eligibility as to

the conviction for the offense of aggravated second degree battery, instruct the trial

court to make an entry in the minutes reflecting this change, and instruct the trial

court to amend the Uniform Sentencing Commitment Order to reflect this change. 9 Additionally, we direct the trial court to correct the sentencing minutes to accurately

reflect the trial court’s recommendation that the fines be paid as a condition of

parole. Finally, we direct the trial court to inform Defendant of the correct

provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to

Defendant within ten days of the rendition of this opinion and to file written proof

in the record of the proceedings that Defendant received the notice. Defendant’s

conviction and sentence are otherwise affirmed, and appellate counsel’s motion to

withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.