State v. Jones

799 So. 2d 772, 2001 WL 1338034
Louisiana Court of Appeal·Decided October 31, 2001·No. 01-539·Published·Cited by 7 cases

Opinion

799 So.2d 772 (2001)

STATE of Louisiana
v.
Arthur Lee JONES.

No. 01-539.

Court of Appeal of Louisiana, Third Circuit.

October 31, 2001.

*774 Earl B. Taylor, District Attorney, Opelousas, LA, Counsel for State of Louisiana.

Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, Counsel for Defendant Arthur Lee Jones.

Arthur Lee Jones, In Proper Person, Basile, LA, Defendant.

*775 Court composed of ULYSSES GENE THIBODEAUX, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.

SULLIVAN, Judge.

After a jury trial held on October 30, 2000, Arthur Lee Jones was convicted of possession of a firearm by a person convicted of certain felonies, a violation La. R.S. 14:95.1, and possession of a firearm with an obliterated serial number, a violation of La.R.S. 40:1792. He was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence and to pay a fine of $1,000.00 for the violation of La.R.S. 14:95.1 and to five years at hard labor without the benefit of parole, probation, or suspension of sentence for the violation of La.R.S. 40:1792. The sentences were ordered to run concurrently with each other, but consecutive to any other sentence he was serving.

On appeal, appellate counsel for Defendant filed a motion to withdraw as attorney of record pursuant to the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir.1990). Defendant filed a pro se brief, assigning six errors committed by the trial court. For the following reasons, we grant the motion to withdraw filed by appellate counsel and affirm Defendant's convictions and sentences.

Facts

During the evening of August 7, 1999, Defendant went to the home of Laquisha Peterson and her fiancee, Abraham Sion. He argued with Mr. Sion, then left. He returned the next day and again argued with Mr. Sion. Then, he left again, but returned a short time later. This time he shouted profanities at Ms. Peterson and threatened her with a gun that he got from the truck he was driving; then, he got into the truck and drove off. Later, Defendant was stopped by a police officer; he jumped out of the truck and ran from the officer. During a search of the truck driven by Defendant, a gun with an obliterated serial number was found. Approximately two weeks later, Defendant was found and arrested.

Ms. Peterson testified about Defendant's encounters with her and Mr. Sion. Her testimony was corroborated by Inga Dixon and Michael Breaux, who had been present at different times when Defendant was at her residence on August 8.

Errors Patent

We have reviewed the record for errors patent as required by La.Code Crim.P. art. 920 and found that the trial court improperly informed Defendant that the two-year prescriptive period for filing post-conviction relief began on the date he was sentenced. Further, Defendant was given a form which incorrectly indicated that the prescriptive period for seeking post-conviction relief was three years. Pursuant to La.Code Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief is two years and begins to run when the judgment of conviction and sentence become final. Accordingly, the trial court is directed to inform Defendant of the correct provisions of Article 930.8 by sending him appropriate written notice within ten days of the rendition of this opinion and to file written proof that he received the notice in the record of this proceeding.

Motion to Withdraw

The supreme court clarified the requirements of an Anders brief in State v. Jyles, 96-2669, pp. 2-3 (La.12/12/97); 704 So.2d 241, 241-42 (alteration in original):

An Anders brief need not catalog tediously every meritless objection made at trial or by way of pre-trial motions *776 with a labored explanation of why the objections all lack merit. See Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983) ("There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review.... [I]mpos[ing] on appointed counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders"). Nevertheless, "[u]nlike the typical advocate's brief in a criminal appeal, which has as its sole purpose the persuasion of the court to grant relief," the Anders brief must "assure the court that the indigent defendant's constitutional rights have not been violated." McCoy [v. Court of Appeals of Wisconsin, Dist. 1], 486 U.S. [429] at 442, 108 S.Ct. [1895] at 1903 [100 L.Ed.2d 440 (1988)]. 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." Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

The supreme court also confirmed its general endorsement of Benjamin, 573 So.2d 528, emphasizing that counsel's brief "must review not only the procedural history of the case and the evidence presented at trial but must also 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.'" Jyles, 704 So.2d at 242, (quoting State v. Mouton, 95-981, p. 2 (La.4/28/95); 653 So.2d 1176, 1177).

We have thoroughly reviewed the record and appellate counsel's brief. Defendant was properly charged by bill of information with possession of a firearm by a convicted felon and possession of a firearm from which the serial number had been obliterated; he was present at all crucial stages of the proceedings; he was convicted of both charges by a twelve member jury; and he was legally sentenced on each conviction. We found no ruling that provided an arguable basis for appeal and grant the motion to withdraw.

Pro Se Assignments of Error

Sufficiency of the Evidence

Defendant claims the evidence was insufficient to convict him beyond a reasonable doubt. Specifically, he attacks the testimony of Ms. Peterson, Ms. Dixon, and Mr. Breaux. He asserts there are inconsistencies between the testimony of Ms. Peterson and Ms. Dixon regarding the whereabouts of Mr. Breaux when Ms. Peterson claims that Defendant had the gun in his possession. He claims that Mr. Breaux, a convicted felon, lied and that Mr. Breaux, not him, was in possession of the gun. He urges that his own testimony was more probable.

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State v. Jones, 799 So. 2d 772, 2001 WL 1338034 (La. Ct. App. 2001).

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