State of Louisiana v. Jevante Jamal Biron

• Court: Louisiana Court of Appeal
• Decided: May 6, 2015
• Docket: KA-0014-1178
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-1178

STATE OF LOUISIANA

VERSUS

JEVANTE JAMAL BIRON

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

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 137646 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Marc T. Amy, James T. Genovese, and John E. Conery, Judges.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

Keith Stutes District Attorney Fifteenth Judicial District Post Office Box 3306 Lafayette, Louisiana 70502 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana William R. Thornton Louisiana Appellate Project Post Office Box 51992 Lafayette, Louisiana 70505-1992 (337) 534-4656 COUNSEL FOR DEFENDANT/APPELLANT: Jevante Jamal Biron GENOVESE, Judge.

Defendant, Jevante Jamal Biron, was charged by bill of information on

June 26, 2012, with forcible rape, a violation of La.R.S. 14:42.1; unauthorized use

of a motor vehicle, a violation of La.R.S 14:68.4; and, aggravated flight from an

officer, a violation of La.R.S. 14:108.1(C). The offenses occurred on or about

May 4, 2012. Defendant entered pleas of not guilty.

On November 4, 2013, Defendant withdrew his plea of not guilty and pled

guilty to the charge of forcible rape with a sentencing cap of twenty years. On

October 2, 2014, Defendant was sentenced to eighteen years at hard labor.

Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues exist on which to

base an appeal and seeking to withdraw as Defendant’s counsel. We affirm

Defendant’s conviction and sentence and we grant Defendant’s appellate counsel’s

motion to withdraw as counsel of record.

FACTS

At the time of his guilty plea, Defendant stated that he picked up the victim,

whom he knew, and forced her to have sex with him; that she resisted him; and,

that he overcame her, all within Lafayette Parish. We note that when initially

asked if he had forced himself on her, Defendant stated that he had not; but, when

asked why he was pleading guilty, he stated that he did force himself on the victim.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there

are several errors patent, but none are actionable.

The penalty for forcible rape is imprisonment at hard labor for not less than

five nor more than forty years, and at least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence. La.R.S.

14:42.1. The trial court failed to order at least two years of the sentence to be

served without benefit of probation, parole, or suspension of sentence.

Defendant’s appellate counsel has noted this error, but does not request that the

sentence be vacated on that basis. Thus, we take no action on this error patent.

In Defendant’s brief to this court, he notes that the trial court minutes

indicate that the State dismissed counts two and three, but that the transcript does

not reflect that these charges were dismissed. When the court minutes conflict

with the transcript, the transcript prevails. State v. Wommack, 00-137 (La.App. 3

Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

Thus, applying Wommack, the record before this court does not support a

disposition of counts two and three of the bill of information.

However, La.Code Crim.P. art. 819 requires a jury verdict as to each count

of the bill of information, unless the jury cannot agree on a verdict as to a count.

Our review of the law does not reveal any such provision pertaining to a conviction

obtained via guilty plea. Consequently, no error patent is recognized regarding

failure to dispose of counts two and three of the bill of information.

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. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was

2 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.

While it is not necessary for Defendant’s counsel to “catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit[,]” counsel’s Anders brief must

“‘assure the court that the indigent defendant’s constitutional rights have not been

violated.’” State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (citing

Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983); quoting McCoy v. Court of

Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903 (1988)). Counsel

must fully discuss and analyze the trial record and consider “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. (citing U.S. v. Pippen, 115 F.3d 422 (7th Cir. 1997)). Thus,

counsel’s Anders brief must review the procedural history and the evidence

presented at trial and provide “a detailed and reviewable assessment for both the

defendant and the appellate court of whether the appeal is worth pursuing in the

first place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, Defendant’s

appellate counsel filed a brief citing two potential errors for appeal. First, counsel

notes that Defendant’s sentence is technically illegally lenient as a result of the trial

court’s failure to impose two years of Defendant’s eighteen-year sentence without

3 benefit of probation, parole, or suspension of sentence. However, counsel does not

seek to have the sentence vacated; and, because the sentence falls within the agreed

upon sentencing cap, any excessiveness review is precluded by La.Code Crim.P.

art. 881.2(A)(2). Therefore, we take no action on that error patent.

Next, Defendant’s appellate counsel cites a discrepancy between the trial

court minutes and the transcript and plea agreement form. Our review of the law

does not reveal any requirement that all charges on a bill of information must be

resolved when a guilty plea is entered.

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

the record, including the pleadings, the minute entries, the charging instrument,

and the transcripts. Our review has revealed no issues that would support an

assignment of error on appeal. Therefore, Defendant’s conviction and sentence are

affirmed, and the motion to withdraw filed by Defendant’s appellate counsel is

granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

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