State v. Beverly

483 So. 2d 1027, 1986 La. App. LEXIS 6002
CourtLouisiana Court of Appeal
DecidedJanuary 8, 1986
DocketNo. 17434-KH
StatusPublished
Cited by1 cases

This text of 483 So. 2d 1027 (State v. Beverly) 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. Beverly, 483 So. 2d 1027, 1986 La. App. LEXIS 6002 (La. Ct. App. 1986).

Opinion

MARVIN, Judge.

On August 15, 1985, we ordered the record of the applicant’s PCR hearing lodged in this court for supervisory review. Having reviewed that record and the record of the applicant’s conviction, affirmed here in State v. Beverly, 448 So.2d 792 (La.App.2d Cir.1984), writ refused, we now affirm the trial court’s denial of post conviction relief.

[1028]*1028Beverly alleges he was denied effective assistance of counsel because his trial lawyer

—told him his confession would not be used against him
—did not substantiate his alibi
—did not pursue an insanity defense
—did not relay to him an offer by the State to “plea bargain,” and
—did not properly and forcefully present his arguments on appeal.

Evaluation of effective assistance inquires whether counsel violated a duty to the client, and, if so, whether the violation resulted in prejudice to the client. State v. Berry, 430 So.2d 1005 (La.1983).

The trial court considered in great detail each contention of this applicant. We adopt the trial court’s reasons, which we attach as an appendix to this opinion, and affirm the trial court’s judgment.

AFFIRMED.

APPENDIX

RULING ON PETITIONS FOR POST-CONVICTION RELIEF

A bill of information filed December 21, 1978, charged petitioner with eight counts of simple burglary of an inhabited dwelling. Upon his plea of indigency, he was provided with a court-appointed attorney, Mr. J. Randolph Smith of Monroe. His counsel filed a bevy of motions, among which were for preliminary examination and the appointment of a sanity commission.

At the preliminary examination, the judge found probable cause on seven counts, but discharged petitioner from bail on an eighth count. On March 8 or 9,1979, he escaped from the Ouachita Parish jail and fled the state. He was later apprehended in Oregon, where he waived extradition to California. He was returned to that state, where he had escaped from a penal institution in 1978. Extradition proceedings begun here in July, 1979, were unsuccessful; but in November, 1981, California notified local authorities that petitioner was nearing release from incarceration there, and new extradition proceedings were begun. He was returned to this jurisdiction in January, 1982.

Previously appointed counsel, Mr, Smith, was relieved. Mr. Clyde Lain was appointed; and he filed a motion to quash the bill for failure to prosecute for more than two years. That motion was denied and application for writs was denied by our Supreme Court. He was ultimately tried by a jury in a four-day trial beginning February 28, 1983, and found guilty on all three counts presented by the prosecution. (The remaining four counts of the original bill were dismissed by the prosecution because of witness and evidence problems.)

He was sentenced on April 4,1983, to ten years at hard labor on each count, to be executed consecutively. The conviction and sentence were affirmed on appeal. State v. Beverly, 448 So.2d 792.

During the whole period of his incarceration here before being transferred to serve his sentences, petitioner bombarded the Clerk and the Court with letters and filings presented in proper person. Since his conviction, he has done the same from prison. Among those filings were a voluminous petition for post-conviction relief filed July 13,1984, in which he alleged many so-called errors and asserted a demand for new trial on newly-discovered evidence. That petition was denied in a written order filed July 17.

On August 16, 1984, he filed another lengthy petition in which he re-asserted most of the claims set out in the July petition and also complained that his alternative motion for new trial had not been directly decided. That petition was denied for the same reasons as the July petition had been, and this Court specifically denied the motion for new trial because it was untimely and affirmatively showed by its allegations that the so-called “evidence” was not newly-discovered.

He then sought appellate relief, and by order entered December 6, 1984, the Court of Appeal for the Second Circuit ordered [1029]*1029this Court to appoint counsel for petitioner and to hold an evidentiary hearing on the claims of ineffective assistance of counsel as set forth in the petitions filed here on July 13 and August 16. Petitioner was brought back from the penitentiary and the hearing was held on February 27 after at least one continuance for the benefit of petitioner’s counsel.

The claims of ineffective counsel range from pre-trial to appellate activities and, of course, involve wholesale “second-guessing” by petitioner. Some of the claims are belied by the record; others have no relationship to the fundamental issue of guilt. For discussion, the claims are categorized as set forth hereafter.

MENTAL INCAPACITY

A motion for appointment of a sanity commission and to change the plea to include “not guilty by reason of insanity” was filed in 1979 before petitioner’s escape. All pending pre-trial motions were later waived by Mr. Lain in connection with efforts to obtain release without bail or an early trial. The present second-guessing complains that the “sanity” motion was never heard and should not have been waived.

The original motion alleged that at the time of the offenses and arrest here, petitioner was “an escapee from a California mental institution within the California Department of Corrections and/or had an extensive background of mental problems.” It also alleged he had “a long history of mental institutionalization.”

The post-conviction petitions allege that when arrested here in 1979, he was a recent escapee from a “mental hospital” and that his subsequent behavior should have alerted counsel and the court that there was a “likely mental status at the time of the offense” and “likelihood of abilities to assist in trial.” Hence, he concludes that his counsel’s failure to require hearing and ruling on the motion impaired his defense of the charges.

Petitioner has asserted no real evidence of mental incapacity, nor has he manifested any such symptoms. His trial counsel testified he never claimed to be incapable of distinguishing between right and wrong or being unable to understand the charges or assist counsel. To the contrary, he did in fact assist counsel, thoroughly thought out every conceivable avenue of defense and avoidance of consequences. His frequent ingenious and often lengthy pro se filings from the date of his arrest to the present manifest full intelligence, studious analysis and an incredible cunning in finding, researching and presenting “gimmicks” to belabor the system. The attorney made a sound judgment in determining that he had no appreciable basis for the motion and in not forcing it to adjudication. This Court has read volumes of petitioner’s writings and filings and observed him closely and carefully over a period of months during hearings and trials. As shown hereafter, his confession reveals he knew exactly what he was doing at the time of the offenses, notwithstanding his claim of intoxication, and with no reference to mental incapacity. This Court has not the slightest qualms about his mental status.

GENERAL PRE-TRIAL PREPARATION

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Beverly
485 So. 2d 55 (Supreme Court of Louisiana, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
483 So. 2d 1027, 1986 La. App. LEXIS 6002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beverly-lactapp-1986.