State v. Joseph

223 So. 3d 528, 2016 La.App. 1 Cir. 1541, 2017 WL 2399481, 2017 La. App. LEXIS 1054
Louisiana Court of Appeal·Decided June 2, 2017·No. NO. 2016 KA 1541·Published·Cited by 1 cases

Opinion

HIGGINBOTHAM, J.

|2The defendant, Keith Joseph, was charged by bill of information with three counts óf attempted second degree murder (counts 1-3), violations of La. R.S. 14:27 and 14:30.1; illegal possession of stolen firearms (count 4), a violation of La. R.S. 14:69.1(A); and possession of a firearm by a convicted felon (count 5), a violation of La. R.S. 14:95.1. He pled not guilty to all counts. Prior to trial, the defendant withdrew his not guilty pleas and, at a Boy-kin1 hearing, entered an Alford plea to aggravated battery on count 1, a violation of La. R.S. 14:34; and an Alford plea to second degree battery on count 2, a violation of La. R.S. 14:34.1.' The State dismissed counts 3, 4, and 5. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The defendant’s pleas were also entered pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). For the aggravated battery conviction, the defendant was sentenced to four years- imprisonment at hard labor. For the second degree battery conviction, the defendant was sentenced to five years imprisonment at hard labor; the five-year sentence was suspended and the defendant .was placed on'five years of supervised probation. The defendant now appeals, asserting one pro se assignment of error.

FACTS

The following facts were provided by the prosecutor at the Boykin hearing:

On or about June 18, 2012, in Iberville Parish Mr. Keith Joseph did participate with a one, Gabriel King,, in. the discharge of a firearm striking a Calvin Trice resulting in Count 1 the aggravated battery on Calvin Trice.
Second count, the State would intend to prove that Keith Joseph did participate with a one, Gabriel King, in the firing of a weapon that did strike, a Ron Alexander resulting in the charge of seer ond degree battery.
Mr. Keith Joseph’s cases both have been amended to be as principal to those actions.

' | ffISSUES PRESENTED

Defense counsel has filed a motion to -withdraw from the case. In accordance with the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam); and State v. Benjamin, 573 So 2d 528 (La. App. 4th Cir. 1990),2 defense counsel has filed a supporting brief to the motion to withdraw arguing that, after a conscientious and thorough review of the record, she has found no non-frivolous issues for appeal and no ruling of the trial court that arguably supports an appeal.

Defense counsel has notified the defendant of the filing of this motion and informed him of his right to file a pro se supplemental brief on his own behalf. The [530] defendant has filed a pro se “motion” with this court.

In his sole pro se assignment of error, the defendant argues appellate ineffective assistance of counsel, The defendant suggests appellate counsel’s filing of the instant Anders brief constitutes ineffective assistance of counsel. According to the defendant, appellate counsel “did not get any pertinent documents to go along with the appeal.” The defendant contends that everything needed for this appeal are those documents under a writ previously filed by him, namely State v. Joseph, 2016-0661 (La. App 1st Cir. 6/27/16) (unpublished writ), wherein this court granted the writ and remanded to the district court to enter an order of appeal. The defendant suggests these documents clearly support his claim of the State’s failure to timely commence trial within two years of the filing of the bill of information. See La. Code Crim. P. art. 578. Accordingly, the defendant in this pro se “motion” asks for “an attorney who will really make a conscientious and thorough review of the record.”

I ¿Under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Washington, 491 So.2d 1337 (La. 1986), a conviction must be reversed if the petitioner proves (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Legrand, 2002-1462 (La. 12/3/03), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005). To be successful in arguing ineffective assistance of counsel, a post-conviction petitioner must prove deficient performance to the point that counsel is not functioning as counsel within the meaning of the Sixth Amendment. A petitioner must also prove actual prejudice to the point that the results of the trial cannot be trusted. It is absolutely essential that both prongs of the Strickland test must be established before relief will be granted by a reviewing court. State ex rel. Sparkman v. State, 2015-1726 (La. 10/17/16), 202 So.3d 488, 491 (per curiam).

In reviewing claims of ineffective assistance of counsel on direct appeal, the Supreme Court of the United States has expressly observed that appellate counsel need not advance every argument, regardless of merit, urged by the defendant. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The Court gives great deference to professional appellate strategy and applauds counsel for winnowing out weaker arguments on appeal and focusing on one central issue if possible, and at most a few key issues. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed,2d 987 (1983). This is true even where the weaker arguments have merit. Id., 463 U.S. at 751-52, 103 S.Ct. at 3313. See Sparkman, 202 So.3d at 491.

When the claim of ineffective assistance of appellate counsel is based on failure to raise the issue on appeal, the prejudice prong of the Strickland test requires the petitioner to establish that the appellate court would have granted relief, had the | ¿issue been raised. United States v. Phillips, 210 F.3d 345, 350 (5th Cir. 2000). See Sparkman, 202 So.3d at 491.

The defendant was charged by bill of information with one count of attempted first degree murder of two people on August 15, 2012. In a superseding bill of information filed on April 4, 2014, the defendant was charged with three counts of attempted second degree murder, illegal possession of stolen firearms, and possession of a firearm by a convicted felon. Each victim in the single count in the first bill of information was separated out into [531] the first two counts in -the new bill of information. A new third victim was added in count three of attempted second degree murder in the new bill of information.

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State v. Joseph, 223 So. 3d 528, 2016 La.App. 1 Cir. 1541, 2017 WL 2399481, 2017 La. App. LEXIS 1054 (La. Ct. App. 2017).

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