State v. Mouton

672 So. 2d 192, 94 La.App. 3 Cir. 1074, 1996 La. App. LEXIS 879, 1996 WL 139755
CourtLouisiana Court of Appeal
DecidedMarch 27, 1996
DocketNo. Cr 94-1074
StatusPublished
Cited by1 cases

This text of 672 So. 2d 192 (State v. Mouton) 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. Mouton, 672 So. 2d 192, 94 La.App. 3 Cir. 1074, 1996 La. App. LEXIS 879, 1996 WL 139755 (La. Ct. App. 1996).

Opinion

JiKNOLL, Judge.

Defendant, Michael Allen Mouton (Mouton), was convicted and sentenced to ten years at hard labor for distribution of cocaine, a violation of La.R.S. 40:967. On his first direct appeal, Mouton’s court-appointed counsel, utilizing what is commonly known as an “Anders brief,” filed a motion to withdraw and sought an errors patent review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mouton subsequently filed a pro se appellate brief with one pro se assignment of error.

In State v. Mouton, 94 — 1074 (La.App. 3 Cir. 4/12/95), 653 So.2d 1360, we denied defense counsel’s motion to withdraw, ordered both the defendant’s pro se brief and defense counsel’s Anders brief stricken, ordered defense counsel to file assignments of error with the district court, ordered defense counsel to submit a true advocate’s brief on behalf of 'his client, and declined for the reasons listed therein to consider any future Anders briefs in the Third Circuit.

┴2However, the Louisiana Supreme Court granted writs in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, and vacated our decision. In the same opinion, the Louisiana Supreme Court reinstated our earlier procedure dealing with Anders briefs as enunciated in State v. Brister, 626 So.2d 955 (La.App. 3 Cir.1993). In Brister, we basically adopted the Fourth Circuit’s method that it approved in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). The Louisiana Supreme Court also found that defense counsel’s motion to withdraw complied with the procedures set forth in Benjamin. Mouton, 653 So.2d 1176.

Pursuant to the Louisiana Supreme Court’s directive, we will perform an Anders review as set forth in Brister, Benjamin, and Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990). We will also review the defendant’s only pro se assignment of error. For the following reasons, defense counsel’s motion to withdraw is hereby granted and the defendant’s conviction and sentence are affirmed.1

FACTS

On September 14, 1991, the Lafayette Metro Narcotics Agency conducted a sting operation with the assistance of undercover officers from surrounding jurisdictions. Shortly after midnight, at the intersection of Thirteenth Street and South Sterling, Mou[194]*194ton and an accomplice sold two pieces of crack cocaine to two undercover police officers in exchange for a marked twenty dollar bill. Mouton’s partner in crime negotiated the exchange while Mouton stood beside him with the crack cocaine stored in his mouth.2 Mouton was dressed in a distinctive blue work Isuniform with a white patch. After coming to terms with the undercover police officers, Mouton’s partner asked Mouton for the two pieces of crack cocaine stored in his mouth. Mouton then spit out the contraband and gave it to his partner. Minutes after the exchange, Mouton and his accomplice were identified, arrested, and charged with .the unlawful distribution of crack cocaine. On January 21, 1992, the State charged Mouton by bill of information with distribution of crack cocaine. On September 24,1992, Mouton was tried by jury and convicted of the charged offense. On September 30, 1992, Mouton was sentenced to ten years at hard labor.

DEFENSE COUNSEL’S MOTION TO WITHDRAW

Since 1963, the United States Supreme Court has recognized that an indigent defendant has the right to court-appointed counsel for the preparation of his first direct appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). However, four years later, in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court had to determine whether an indigent defendant’s right to court-appointed counsel on appeal could be satisfied by an attorney who merely informs the court that he can find no non-frivolous issues to appeal and then requests that his client be allowed to appeal pro se.

While addressing this problem, the Supreme Court in Anders explored the conflicting ethical duties owed by a court-appointed lawyer. On the one hand, the Court recognized that an attorney has an obligation to advance the interests of his client and to satisfy the Ghent’s right to effective assistance of counsel on appeal. However, on the other hand, the Court recognized that an attorney’s obligation to zealously advance his Ghent’s interests is limited by the attorney’s duty not to mislead or present frivolous arguments to a court. Attempting to satisfy these two competing ethical duties and the indigent defendant’s right to effective assistance of counsel on |4appeal, the Anders court set forth a method whereby a court-appointed attorney could withdraw from an indigent defendant’s case:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his chent, as opposed to that of amicus curiae. The no merit-letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his chent and to the court. His role as advocate requires that he support his Ghent’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the. court — not counsel — then proceeds, after a full examination of ah the proceedings, to decide whether the ease is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

386 U.S. at 744, 87 S.Ct. at 1400. (Footnote omitted).

Since 1963, the Court has continued to reaffirm, define, and debate the principles originally set fourth in Anders. See McCoy [195]*195v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1896, 100 L.Ed.2d 440 (1988); Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Jones v.

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Bluebook (online)
672 So. 2d 192, 94 La.App. 3 Cir. 1074, 1996 La. App. LEXIS 879, 1996 WL 139755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mouton-lactapp-1996.