State of Louisiana Versus Vincent Jackson ( 2020 )

STATE OF LOUISIANA NO. 19-KA-292
VERSUS FIFTH CIRCUIT
VINCENT JACKSON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 15-5139, DIVISION "F"
HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
April 30, 2020
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED; MOTION TO WITHDRAW GRANTED
RAC
MEJ
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Juliet L. Clark
Terry M. Boudreaux
COUNSEL FOR DEFENDANT/APPELLANT,
VINCENT JACKSON
Katherine M. Franks
CHAISSON, J.
Defendant, Vincent Jackson, pled guilty to one count of forcible rape and
three counts of sexual battery and was sentenced in accordance with the plea
agreement. On appeal, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d
241 (per curiam), defendant’s appointed appellate counsel has filed a brief, along
with a motion to withdraw as attorney for defendant, asserting that after a
conscientious and thorough review of the trial court record, she can find no non-
frivolous issues to raise on appeal and no ruling of the trial court that arguably
supports an appeal. For the reasons that follow, we agree with counsel’s
assessment, affirm defendant’s convictions and sentences, and grant appellate
counsel’s motion to withdraw as attorney of record for defendant.
PROCEDURAL HISTORY
On December 21, 2015, the Jefferson Parish District Attorney filed a bill of
information charging defendant with forcible rape1 of a juvenile, in violation of La.
R.S. 14:42.1 (count one); sexual battery of a juvenile under the age of thirteen, in
violation of La. R.S. 14:43.1 (count two); and sexual battery of a juvenile, in
violation of La. R.S. 14:43.1 (count three). Defendant pled not guilty to the
charged offenses on December 22, 2015. On February 22, 2016, the State filed a
superseding bill of information adding an additional count of sexual battery of a
juvenile, in violation of La. R.S. 14:43.1 (count four). Defendant thereafter pled
not guilty to the superseding bill of information.
During the course of these proceedings, the trial court entertained various
pre-trial motions, including defendant’s motion to suppress statement and motion
to sever counts, as well as the State’s motion in limine. Following resolution of the
pre-trial motions, the State, on April 10, 2018, amended count two of the
1
It is noted that forcible rape is now known as second degree rape. See La. R.S. 14:42.1(C).
19-KA-292 1
superseding bill of information to remove the age specification that the victim was
under thirteen years old.
On the same date, defendant withdrew his former pleas of not guilty, and
after being advised of his Boykin2 rights, pled guilty as charged to the amended
superseding bill of information. In accordance with the plea agreement, the trial
court sentenced defendant, on count one, to twenty years imprisonment at hard
labor with two years to be served without benefit of probation, parole, or
suspension of sentence, and on each of counts two, three, and four, to ten years
imprisonment at hard labor without benefit of probation, parole, or suspension of
sentence. The trial court ordered defendant’s sentences to run concurrently with
each other and recommended defendant for participation in any self-help programs
available through the Department of Corrections.3
Subsequently, on April 10, 2019, in response to an application for post-
conviction relief filed by defendant, the trial court granted him an out-of-time
appeal.4
ANDERS BRIEF
Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.
App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,5 appointed appellate counsel has
filed a brief asserting that she has made a careful review of the record and can find
no non-frivolous issues to raise on appeal. She does, however, note and request
2
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
3
Defendant was further notified of his sex offender registration obligations.
4
On August 26, 2019, the State filed a motion to dismiss in this Court, asserting that defendant was not
entitled to an out-of-time appeal because he entered unqualified guilty pleas thereby waiving all non-
jurisdictional defects and further that defendant failed to allege or establish that he was denied the
effective assistance of counsel during the plea negotiations. In addition, the State asserted that the trial
court erred in summarily granting defendant’s application for post-conviction relief without first affording
the State an opportunity to respond. This Court denied defendant’s motion to dismiss on November 14,
2019, finding that the State failed to timely seek review of the trial court’s ruling granting defendant an
out-of-time appeal.
5
In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530
(La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-
981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).
19-KA-292 2
correction of an alleged error patent in the sentencing minute entry with regard to
the applicable penalty provision of La. R.S. 14:43.1. In addition to providing a
thorough discussion of this alleged error patent, appellate counsel, in her brief,
provides a detailed procedural history of the case, including that defendant pled
guilty and was sentenced in accordance with the plea agreement, as well as the
limited facts. She also notes that defendant filed an application for post-conviction
relief, in which he requested to withdraw his guilty plea based on improper
conduct by his attorney; however, she recognizes that the issue raised therein
cannot be addressed at this juncture because defendant’s appellate remedies have
not been exhausted.
Along with this brief, appellate counsel has filed a motion to withdraw as
attorney for defendant, which states she has made a conscientious and thorough
review of the trial court record and can find no non-frivolous issues to raise on
appeal and no ruling of the trial court that arguably supports the appeal. In her
motion, appellate counsel states that defendant had been notified regarding the
filing of her motion to withdraw as well as his right to file a pro se brief in this
appeal.6 As of the date of this opinion, defendant has not filed a pro se
supplemental brief.
When conducting a review for compliance with Anders, an appellate court
must conduct an independent review of the record to determine whether the appeal
is wholly frivolous. If, after an independent review, the reviewing court
determines there are no non-frivolous issues for appeal, it may grant counsel’s
motion to withdraw and affirm the defendant’s conviction and sentence. State v.
Bradford, 676 So.2d at 1110.
This Court has performed an independent, thorough review of the pleadings,
minute entries, bills of information, and transcripts in the appellate record. Our
6
This Court also notified defendant of his right to file a pro se supplemental brief.
19-KA-292 3
review supports appellate counsel’s assertion that there are no non-frivolous issues
to be raised on appeal and no ruling of the trial court that arguably supports the
appeal.
We particularly note that the record reveals no constitutional infirmities or
irregularities in defendant’s guilty pleas that would render them invalid. The
transcript of the guilty plea proceedings and the waiver of rights form show that
defendant was aware of the nature of the charges against him, that he was properly
advised of his Boykin rights, including the right to a judge or jury trial, the right to
confrontation, and the privilege against self-incrimination, and that he understood
he was waiving these rights by pleading guilty.
Further, defendant was informed of the sentencing ranges for each of the
offenses to which he was pleading guilty and of the sentences that would be
imposed upon acceptance of his guilty pleas by the court. Defendant was also
informed that upon his release from imprisonment, he would be required to register
as a sex offender. Defendant indicated that he was satisfied with the way his
attorney handled his case, that he understood the possible legal consequences of
pleading guilty, and that he had not been forced, coerced, or threatened into
entering his guilty pleas. After his colloquy with defendant, the trial judge
accepted defendant’s guilty pleas as freely and voluntarily made.
With regard to defendant’s sentences, La. C.Cr.P. art. 881.2(A)(2) precludes
a defendant from seeking review of a sentence imposed in conformity with a plea
agreement that was set forth in the record at the time of the plea. State v.
Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In this case,
the trial court sentenced defendant, in conformity with the plea agreement that was
set forth in the record at the time of the plea, to twenty years imprisonment at hard
labor with two years to be served without benefit of probation, parole, or
suspension of sentence, on count one, and to ten years imprisonment at hard labor
19-KA-292 4
without benefit of probation, parole, or suspension of sentence, on counts two,
three, and four. Furthermore, defendant’s sentences are within the sentencing
ranges prescribed by the applicable statutes in effect at the time of the offenses.
See La. R.S. 14:42.1(B) and La. R.S. 14:43.1(C).
ERRORS PATENT REVIEW
We have also reviewed the record for errors patent in accordance with La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,
556 So.2d 175 (La. App. 5th Cir. 1990). While our review reveals no errors that
require corrective action, appellate counsel, in her Anders brief, asserts the
existence of an error patent in the sentencing minute entry and requests correction
of the alleged error. Specifically, she contends that the sentencing minute entry
does not accurately reflect the sexual battery charges to which defendant pled
guilty.
In the present case, the April 10, 2018 sentencing minute entry provides as
follows:
The Defendant withdrew a plea of NOT GUILTY and tendered a plea
of GUILTY on count 1) 14:42.1 F II Rape/Forcible.
The Defendant withdrew a plea of NOT GUILTY and tendered a plea
of GUILTY on count 2) amended charge 14:43.1 F II Sexual Battery.
The Defendant withdrew a plea of NOT GUILTY and tendered a plea
of GUILTY on counts 3, 4) 14:43.1 F III Battery/Sexual.
(Emphasis added).
In her brief, defendant’s appellate counsel suggests that the references on
counts two, three, and four of the sentencing minute entry to “F II” and “F III”
represent penalty enhancements when the victim is under the age of thirteen, which
she alleges is inconsistent with defendant’s actual guilty pleas that were entered
without using the age enhancement provisions. She requests that this Court correct
19-KA-292 5
the sentencing minute entry to delete the references to the age enhancement
penalty provisions.
Based on our review, we find that no correction of the sentencing minute
entry is required. First, there is no subsection “F” to La. R.S. 14:43.1. As noted by
the State in its appellate brief, the references to “F II” and “F III” on the sentencing
minute entry appear to correspond to the type of felony class the original charges
fell within. Specifically, as explained by the State, as originally charged, count
two charged a second-class felony necessarily punishable at hard labor, while
counts three and four charged third-class felonies punishable with or without hard
labor. This explanation is supported by the bills of information contained in the
record, which reflect the classes of the offenses at the bottom of the bills.
Accordingly, the references to “F II” and “F III” do not pertain to improper penalty
provisions for defendant’s guilty pleas and thus do not constitute errors patent that
require corrective action.
DECREE
Because appellate counsel’s brief adequately demonstrates by full discussion
and analysis that she has reviewed the trial court proceedings and cannot identify
any basis for a non-frivolous appeal, and an independent review of the record
supports counsel’s assertion, we affirm defendant’s convictions and sentences, and
we further grant appellate counsel’s motion to withdraw as attorney of record for
defendant.
AFFIRMED; MOTION TO WITHDRAW GRANTED
19-KA-292 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 30, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-292
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) GAIL D. SCHLOSSER (APPELLEE) JULIET L. CLARK (APPELLEE)
THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(ATTORNEY)
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053