State of Louisiana Versus Kevin Johnson ( 2024 )

STATE OF LOUISIANA NO. 24-KA-62
VERSUS FIFTH CIRCUIT
KEVIN JOHNSON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 18,669, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
October 16, 2024
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
John J. Molaison, Jr., and Scott U. Schlegel
RESENTENCE AFFIRMED AS AMENDED;
REMANDED FOR CLARIFICATION OF
CONCURRENT NATURE OF SENTENCE
AND FOR CORRECTION OF THE UNIFORM
COMMITMENT ORDER; MOTION TO
WITHDRAW GRANTED
SUS
FHW
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Elizabeth B. Murrill
J. Taylor Gray
J. Bryant Clark, Jr.
COUNSEL FOR DEFENDANT/APPELLANT,
KEVIN JOHNSON
Prentice L. White
SCHLEGEL, J.
Defendant, Kevin Johnson, filed this appeal regarding his resentencing on
remand from this Court. His appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to
withdraw alleging that there are no non-frivolous issues to raise on appeal. After a
thorough review of the record, we agree with counsel’s assessment of the case and
affirm defendant’s resentencing as amended below. We also remand the matter to
the trial court for clarification of the concurrent nature of the sentence. We further
grant appellate counsel’s motion to withdraw as counsel of record for defendant.
PROCEDURAL HISTORY
This is defendant’s second appeal.
Defendant was charged with one count of distribution of methamphetamine
weighing less than twenty-eight grams in violation of La. R.S. 40:967(A)(1). On
November 10, 2021, a six-person jury unanimously found defendant guilty as
charged. On February 16, 2022, the State filed a habitual offender bill of
information, alleging defendant to be a fourth-felony offender, to which defendant
pled not guilty. On May 2, 2022, after a contradictory hearing, the trial court
adjudicated defendant a fourth-felony offender pursuant to La. R.S. 15:529.1. The
trial court sentenced defendant as a fourth-felony offender to sixteen years
imprisonment at hard labor without the benefit of probation, parole or suspension
of sentence under State v. Dorthey, 623 So.2d 1276 (La. 1993), despite the
mandatory minimum sentence for a fourth-felony offender being twenty years
imprisonment.
Defendant filed an appeal challenging only his conviction. The State filed a
notice of intent seeking supervisory review of the trial court’s deviation from the
mandatory minimum sentence for a fourth-felony offender.
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On August 9, 2023, this Court affirmed defendant’s conviction for
distribution of methamphetamine. State v. Johnson, 22-383 (La. App. 5 Cir.
8/9/23), 370 So.3d 150, 157-61. As to the State’s writ application, this Court
found that the reasons given by the trial court, including defendant’s age, military
history, drug addiction, family support, decision to go to trial, cooperative behavior
during incarceration, and participation in jail programs, did not provide clear and
convincing evidence that defendant was exceptional so as to receive a downward
deviation from the mandatory minimum sentence. State v. Johnson, 22-300 (La.
App. 5 Cir. 8/9/23), 370 So.3d 140, 149. This Court held that defendant did not
demonstrate unusual or exceptional circumstances to justify a reduced sentence
and emphasized the habitual offender statute’s presumption of constitutionality.
Id. at 147. This Court vacated defendant’s enhanced sentence and remanded for
resentencing.
On October 5, 2023, following this Court’s opinion, the trial court
resentenced defendant to the mandatory minimum of twenty years imprisonment to
be served without benefit of parole, probation, or suspension of sentence. Both
parties acknowledged, and the trial court concurred, that this Court’s ruling did not
overturn or challenge the trial court’s classification as a fourth-felony offender.
On November 6, 2023, defendant filed a motion to reconsider sentence and a
motion for appeal. On November 29, 2023, the trial court denied defendant’s
motion to reconsider sentence and granted defendant’s notice of appeal. This
second appeal now follows.
Defendant’s appellate counsel has filed an Anders brief regarding his
enhanced sentence. Defendant has also filed a pro se supplemental appellate brief.
FACTS
The underlying facts of the case are not relevant to defendant’s second
appeal. Nevertheless, a full narrative can be found in this Court’s previous
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opinions regarding defendant’s first appeal and the State’s writ application. See
State v. Johnson, 370 So.3d 140; State v. Johnson, 370 So.3d 150.
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, appointed appellate counsel has
filed a brief asserting that he has thoroughly reviewed the trial court record and
cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to
Anders, supra, and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241,
appointed counsel requests permission to withdraw as counsel of record.
In Anders, the United States Supreme Court stated that appointed appellate
counsel may request permission to withdraw if he finds his case to be wholly
frivolous after a conscientious examination of it. The request must be
accompanied by “‘a brief referring to anything in the record that might arguably
support the appeal’” so as to provide the reviewing court “with a basis for
determining whether appointed counsel have fully performed their duty to support
their clients’ appeals to the best of their ability” and to assist the reviewing court
“in making the critical determination whether the appeal is indeed so frivolous that
counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440(1988), citing Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
In Jyles, supra, the Louisiana Supreme Court stated that an Anders brief
need not tediously catalog every meritless pre-trial motion or objection made at
trial with a detailed explanation of why the motions or objections lack merit. The
Louisiana Supreme Court explained that an Anders brief must demonstrate by full
discussion and analysis that appellate counsel “has cast an advocate’s eye over the
trial record and considered whether any ruling made by the trial court, subject to
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the contemporaneous objection rule, had a significant, adverse impact on shaping
the evidence presented to the jury for its consideration.” Id.
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. Bradford, 676 So.2d at 1110. 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. However, if the court finds any legal point arguable on the merits, it may
either deny the motion and order the court-appointed attorney to file a brief arguing
the legal point(s) identified by the court, or grant the motion and appoint substitute
appellate counsel. Id.
DISCUSSION
Defendant’s appellate counsel asserts that he previously argued issues on the
merits relative to Johnson’s conviction and sentence during the first appeal and in
response to the State’s writ application. He asserts that after a detailed review of
the record, he could find no non-frivolous issues to raise on this appeal, which
involves sentencing only. Counsel explains that the State’s argument coupled with
both decisions from this Court on August 9, 2023, in the first appeal and in the
State’s writ application, convinced the trial court to impose the mandatory
minimum sentence. Appellate counsel filed a motion to withdraw as attorney of
record that states he has notified defendant of the filing of this motion and his right
to file a pro se brief in this appeal. As discussed further below, defendant filed a
pro se brief raising four assignments of errors.
In this second appeal, defendant may only seek review of issues related to
his resentencing. State v. Beason, 17-254 (La. App. 5 Cir. 11/15/17), 232 So.3d
1255, 1259, writ denied, 17-2170 (La. 11/20/18), 256 So.3d 998, citing State v.
Torres, 05-260 (La. App. 5 Cir. 11/29/05), 919 So.2d 730, 733, writ denied, 06-
24-KA-62 4
0697 (La. 10/6/06), 938 So.2d 65. Because this Court has previously affirmed
defendant’s convictions and habitual offender finding, the only portion of the
record now subject to review is the most recent resentencing.
The record shows that defendant was present at his resentencing on October
5, 2023, and was represented by counsel. Defendant’s twenty-year enhanced
sentence is the mandatory minimum and falls within the sentencing range set forth
in La. R.S. 40:967(B)(1) and La. R.S. 15:529.1.1 The trial court resentenced
defendant in compliance with this Court’s order in defendant’s first appeal. Upon
review, we find that the trial court did not abuse its broad sentencing discretion and
that defendant’s sentence is supported by the record.
Because appellate counsel’s brief adequately demonstrates by full discussion
and analysis that he has reviewed the trial court proceedings and cannot identify
any basis for a non-frivolous appeal and our independent review of the record
supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of
record is granted.
PRO SE ASSIGNMENTS OF ERROR
We next consider defendant’s pro se assignments of error: (1) his
conviction was unconstitutional; (2) he is factually innocent; (3) he received
ineffective assistance of counsel; and (4) law enforcement committed perjury.
His pro se assignments of error numbers 1, 2, and 4 do not relate to
resentencing though, and may not be considered in this appeal. In his third claim,
defendant argues he received ineffective assistance of counsel on several grounds,
1
At the time of this offense, La. R.S. 40:967 B(1)(a) provided that an individual who is convicted of
distribution of methamphetamine weighing less than twenty-eight grams shall be imprisoned, with or
without hard labor, for not less than one year nor more than ten years. Pursuant to La. R.S.
15:529.1(A)(4), if the fourth or subsequent felony is such that, upon a first conviction the offender would
be punishable by imprisonment for any term less than his natural life, then the offender shall be sentenced
to a determinate term not less than the longest prescribed for a first conviction but in no event less than
twenty years and not more than his natural life. Consequently, defendant was subject to an enhanced
sentence of twenty years imprisonment to life imprisonment at hard labor without the benefit of probation
or suspension of sentence. State v Johnson, 370 So.3d 140, 148.
24-KA-62 5
including, that his prior counsel: (1) failed to attack law enforcement witnesses
regarding their arrest and release of the confidential informant; (2) failed to attack
two of the detectives for their alleged perjury; (3) failed to assert that there was no
hand-to-hand transaction; (4) failed to attack the confidential informant based on
her criminal history; (5) failed to request a drug test for the confidential informant
before or after her testimony; (6) did not point out that law enforcement did not
obtain a search warrant for defendant’s home; and (7) failed to effectively argue
for an impartial jury.
Generally, an ineffective assistance of counsel claim is most appropriately
addressed through an application for post-conviction relief filed in the trial court
where a full evidentiary hearing can be conducted. State v. Lampton, 17-489 (La.
App. 5 Cir. 5/23/18), 249 So.3d 235, 244–45; State v. Simmons, 13-258 (La. App.
5 Cir. 2/26/14), 136 So.3d 358, 370, writ denied, 14-0674 (La. 10/31/14), 152
So.3d 151. This appeal is only for resentencing. Accordingly, we decline to
address this assignment of error, which may be raised in an application for post-
conviction relief.
ERRORS PATENT REVIEW
This Court already performed an errors patent review of the original record
in this case at the time of defendant’s first appeal, so defendant is only entitled to
an errors patent review of the record on resentencing at this time. State v.
Gassenberger, 02-658 (La. App. 5 Cir. 12/11/02), 836 So.2d 271, 274.
The record on resentencing was reviewed for errors patent. La. C.Cr.P. art.
920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175(La. App. 5th Cir.1990). The following errors patent require corrective action.
First, defendant was resentenced to twenty years of imprisonment at hard
labor without the benefit of probation, parole, or suspension of sentence. This
sentence was reflected in the transcript, the minute entry, and the Louisiana
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Uniform Commitment Order (UCO). The multiple offender statute, La. R.S.
15:529.1, however, does not provide for a restriction on parole. The underlying
statute, La. R.S. 40:967, also does not provide for a restriction of parole. Thus,
defendant’s enhanced sentence should not have been imposed with a restriction on
parole.
When a sentencing error involves the imposition of restrictions beyond what
the legislature has authorized in the sentencing statute, the Louisiana Supreme
Court has ruled that the appellate courts “should not rely on La. R.S. 15:301.1(A)
to correct the error as a matter of law but should correct the sentence on its own
authority under La. C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’”
State v. Payne, 17-12 (La. App. 5 Cir. 5/17/17), 220 So.3d 882, 888, citing State v
Sanders, 04-17 (La. 5/14/04), 876 So.2d 42. Accordingly, we amend defendant’s
sentence to delete the restriction on parole.
Second, a discrepancy exists between the minute entry, the UCO, and the
transcript involving the concurrent nature of defendant’s sentences. The minute
entry and the UCO provide that defendant’s enhanced sentence is to run concurrent
with any other time he may be serving. But the transcript provides that the trial
court did not specifically order that the defendant’s sentence be run concurrent
with all other sentences. Instead, the trial court resentenced defendant “consistent
with the principles enunciated in the opinion of the Fifth Circuit and sentence[d]
him to the mandatory minimum of 20 years with the Department of Corrections
without benefit of parole, probation, or suspension of sentence.” In its original
sentence, the trial court imposed a sentence of sixteen years to run concurrent with
any other sentence defendant may be serving. Thus, the transcript is ambiguous as
to whether resentencing “consistent with the principles enunciated in the opinion of
the Fifth Circuit” includes an order that this sentence run concurrent with any other
sentence defendant may be serving. See State v. Chirlow, 18-359 (La. App. 5 Cir.
24-KA-62 7
12/12/18), 260 So.3d 1282, 1290 (Transcript was ambiguous as to consecutive
nature of defendant’s sentences); State v. Reid, 16-201 (La. App. 5 Cir. 9/22/16),
202 So.3d 589, 593 (Remand for clarification was required as to the consecutive
nature of defendant’s sentences).
Third, we note that the adjudication date of the UCO is incorrect in that it
references November 10, 2021, the date of the jury trial, while defendant was
adjudicated as a fourth-felony offender on May 2, 2022.
Accordingly, defendant’s sentence is affirmed as amended except to remove
the parole restriction, and to remand for clarification of sentence as it relates to the
concurrent nature of defendant’s sentence with other existing sentences. We
further order the trial court to correct the UCO as set forth herein, to remove the
restriction on parole, and correct the adjudication date. We further order the Clerk
of Court for the 29th Judicial District Court to transmit the corrected UCO to the
officer in charge of the institution to which defendant has been sentenced and to
the Department of Corrections’ legal department.
Incomplete Advisal
Additionally, the trial court did not provide a complete advisal to defendant
of the prescriptive period to seek post-conviction relief pursuant to La. C.Cr.P. art.
930.8. The sentencing transcript reflects that the judge advised: “I’ll tell you that
there’s a two-year time limitation to file postconviction relief, which begins to run
once all appellate delays run and this conviction becomes final.” This advisal is
incomplete.
It is well-settled that if a trial court fails to advise, or provides an incomplete
advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error
by informing the defendant of the applicable prescriptive period for post-
conviction relief by means of its opinion. See State v. Tate, 22-570 (La. App. 5
Cir. 6/21/23), 368 So.3d 236, 250. Accordingly, we advise defendant that no
24-KA-62 8
application for post-conviction relief, including applications that seek an out-of-
time appeal, shall be considered if filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922.
DECREE
For these reasons, defendant’s resentencing is affirmed as amended to
remove the restriction on parole. The matter is remanded to the trial court for
clarification of the concurrent nature of the sentence with other existing sentences,
and for correcting the Uniform Commitment Order as described above. Appellate
counsel’s motion to withdraw as attorney of record for defendant is granted.
RESENTENCE AFFIRMED AS AMENDED;
REMANDED FOR CLARIFICATION OF
CONCURRENT NATURE OF SENTENCE AND FOR
CORRECTION OF THE UNIFORM COMMITMENT
ORDER; MOTION TO WITHDRAW GRANTED
24-KA-62 9
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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
OCTOBER 16, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-KA-62
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
HONORABLE ROCHELLE C. FAHRIG (DISTRICT JUDGE)
ELIZABETH B. MURRILL (APPELLEE) J. TAYLOR GRAY (APPELLEE)
MAILED
PRENTICE L. WHITE (APPELLANT) J. BRYANT CLARK, JR. (APPELLEE) KEVIN JOHNSON #331020 (APPELLANT)
ATTORNEY AT LAW ASSISTANT ATTORNEY GENERAL NELSON COLEMAN CORRECTIONAL
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16731 CICERO AVENUE POST OFFICE BOX 94005 5061 HIGHWAY 3127
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HON. JOEL T. CHAISSON, II (APPELLEE)
DISTRICT ATTORNEY
J. WILLIAM STARR (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-NINTH JUDICIAL DISTRICT
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