State v. Augustine

987 So. 2d 271, 2008 WL 2190893
CourtLouisiana Court of Appeal
DecidedMay 27, 2008
Docket08-KA-71
StatusPublished
Cited by2 cases

This text of 987 So. 2d 271 (State v. Augustine) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Augustine, 987 So. 2d 271, 2008 WL 2190893 (La. Ct. App. 2008).

Opinion

987 So.2d 271 (2008)

STATE of Louisiana
v.
James E. AUGUSTINE.

No. 08-KA-71.

Court of Appeal of Louisiana, Fifth Circuit.

May 27, 2008.

*272 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Roger W. Jordan, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Gwendolyn K. Brown, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

FREDERICKA HOMBERG WICKER, Judge.

The defendant, James E. Augustine, appeals from his conviction by guilty plea of a second offender with the possession of cocaine, in violation of LSA-R.S. 40:967. Appellate counsel filed an Anders brief, asserting that there re no non-frivolous *273 issues for appeal. We affirm the conviction and sentence, and grant appellate counsel's motion to withdraw as attorney for the Defendant, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

ANDERS APPEAL

Defense counsel has filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 759, 145 L.Ed.2d 756 (2000), the United States Supreme Court recently held that "the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals." In Smith, the court held that California's procedure, enunciated in People v. Wende, 25 Cal.3d 436, 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071, XXXX-XXXX (1979), was not unconstitutional merely because it diverged from the Anders procedure. 120 S.Ct. at 759.

The Anders procedure used in Louisiana was discussed in State v. Benjamin, 573 So.2d 528, 529-530 (La.App. 4 Cir.1990), approved by the Louisiana Supreme Court in State ex rel. Hawkins v. Criminal Dist. Court, 92-3200 (La.11/30/93), 629 So.2d 421, 421, adopted for use in this Circuit in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110, and expanded by the Louisiana Supreme Court in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242.

To comply with Jyles, appellate counsel not only must review the procedural history of the case and the evidence presented at trial, but also the appellate counsel's brief must contain "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, supra, at 242 (quoting State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177).

Defendant's appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal and has filed a Motion to Withdraw as counsel. She has informed defendant of this by letter, and has advised defendant of his right to file a supplemental brief. Defendant has not filed a supplemental brief.

The Jyles court held it insufficient for defense counsel to make a mere "naked" statement that there were no non-frivolous issues, as follows:

Counsel must demonstrate to the appellate court by full discussion and analysis that he 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.... Independent review of the record by the appellate court, or the opportunity of the defendant to file his own brief, while providing important and necessary safeguards, cannot substitute for the essential equal protection requirement that appointed counsel representing an indigent defendant "act in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." [Citations omitted.] State v. Jyles, 96-2669, pp. 2, 3 (La.12/12/97), 704 So.2d 241, 242.

Here, defense counsel asserts she has thoroughly reviewed the record herein for the purpose of uncovering non-frivolous issues which might support the appeal but has found none. The District Attorney asserts they have done the same, and have found no issues for appeal. Defense counsel further asserts there are no errors patent.

*274 This Court has made a full examination of all the proceedings, consisting of the following: (1) review of the bill of information to insure that defendant was properly charged; (2) review of all minute entries to insure that defendant was present at all crucial stages of the proceedings and that the conviction and sentence are legal; (3) review of all the pleadings in the record; and (4) review of all the transcripts to determine if any ruling provides an arguable basis for appeal.

After an independent review of the record and of appellate counsel's brief, it appears that with the exception of a full error patent review, appellate counsel has adequately reviewed the procedural history of the case, has thoroughly discussed the constitutional adequacy of the plea, and provided "a detailed and reviewable assessment for both defendant and the appellate court of whether the appeal is worth pursuing in the first place," as required by the Louisiana Supreme Court in Jyles. See also, State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177.

FACTS

At defendant's August 14, 2007 suppression hearing, the following testimony was elicited:

Deputy Dominic Rodi of the Kenner Police Department testified that at 10:20 a.m. on April 12, 2007, he and a recruit-in-training were on patrol in a marked police vehicle. On the 2600 block of Tupelo in Kenner, Louisiana, a "concerned citizen" flagged down the officers and reported that there were some men "`smoking weed'" in a nearby vehicle. Deputy Rodi testified that he saw three subjects sitting inside of a parked car at 2635 Tupelo. When Rodi and his trainee approached the vehicle on foot, three men, including defendant, exited and began walking in different directions. Based on previous experience, Rodi believed the parked vehicle might be stolen, so he detained the men for investigatory purposes.

Rodi testified that he smelled a strong odor of marijuana emanating from the vehicle. He looked into the car without entering it and saw, on the center console, green vegetable matter in a clear plastic wrapper; a hand-rolled cigar containing green vegetable matter; and off-white, rock-like objects. Rodi retrieved those items from the car and handcuffed the three subjects. Crime scene investigators were called to the scene to perform field tests. The field test results indicated that the items found in the car were positive for cocaine and marijuana. Defendants were then transported to lockup facilities in Kenner.

Upon his arrival at lockup, Deputy Keenan Jackson processed Mr. Augustine. Jackson testified it is department protocol to strip search anyone arrested on narcotics charges. Jackson took the defendant to the room where drug searches are done, and had him remove his clothing. Jackson testified that Mr. Augustine told him he had drugs concealed on his person. The officer instructed Mr.

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Related

State v. Williams
77 So. 3d 394 (Louisiana Court of Appeal, 2011)
State v. Matthews
22 So. 3d 1098 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
987 So. 2d 271, 2008 WL 2190893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-augustine-lactapp-2008.