State v. Jones

• Decision Date: 13 December 2011
• Docket Number: No. 11–KA–87.,11–KA–87.
• Citation: 81 So.3d 835
• Parties: STATE of Louisiana v. Terrence J. JONES.
• Court: Court of Appeal of Louisiana — District of US

81 So.3d 835

STATE of Louisiana
v.
Terrence J. JONES.

No. 11–KA–87.

Court of Appeal of Louisiana, Fifth Circuit.

Dec. 13, 2011.

[81 So.3d 837]

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.

Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Terrence Jones, In Proper Person, Cottonport, LA, Defendant/Appellant.

Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.

MARION F. EDWARDS, Chief Judge.

[5 Cir. 2] This is defendant/appellant Terrence Jones' (“Jones”) second appeal. In 1997, Jones was originally charged with one court of first degree murder, a violation of La. R.S. 14:30, and he pled not guilty. On February 3, 1998, Jones was arraigned a second time, and again he pled not guilty. Following numerous pre-trial motions, the State amended the bill of indictment on July 17, 2000, reducing the charge to second-degree murder under La. R.S. 14:30.1. The procedural history prior to his second trial is recounted in his first appeal.¹ At that trial, Jones was found guilty as charged and that verdict was affirmed by this Court.²

Thereafter, Jones was granted federal habeas relief, and the case was remanded for a new trial.³

[5 Cir. 3] On remand, on August 6, 2010, the indictment was again amended to one count of manslaughter, a violation of La. R.S. 14:31. On that same date, Jones pled guilty as charged to the amended bill of information. Pursuant to a plea agreement, he was sentenced to thirty-five years at hard labor, without benefits, and with credit for time served. After his motion to reconsider sentence was denied, this appeal was granted.

Because the conviction was obtained by a guilty plea, the details of the facts surrounding the arrest and charges are not contained in the record on appeal. At the

[81 So.3d 838]

time of the plea, the State provided the following statement: “DISTRICT ATTORNEY: If this matter had gone to trial the State would have proven beyond a reasonable doubt that on July 28, 1997 the defendant violated Louisiana Revised Statute, Title 14:31 in that he did commit manslaughter in the killing of Marty Martin (assumed spelling) in Jefferson Parish.”

Under the procedure set forth in State v. Benjamin,⁴ and adopted by this Court in State v. Bradford,⁵ appointed appellate counsel has filed an Anders ⁶ brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests 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 the 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 [5 Cir. 4] 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.” ⁷

In Jyles, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The 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 the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” ⁸

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.⁹ 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.¹⁰

In the present matter, Jones' appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal.

[5 Cir. 5] Counsel notes that Jones filed a Motion to Reconsider Sentence, but he received

[81 So.3d 839]

the exact sentence that he had bargained for in exchange for his guilty plea. La.C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.¹¹

Appellate counsel has filed a motion to withdraw as attorney of record, which states he has mailed Jones a copy of his brief. Additionally, this Court sent Jones a letter by certified mail informing him that an Anders brief had been filed and that he had until March 25, 2011 to file a pro se supplemental brief. Jones has filed a supplemental memorandum.

The State filed a response to appellate counsel's brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case. The State contends that counsel has “cast an advocate's eye” over the record and found no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm Jones' conviction and sentence.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief is filed, the appellate court reviews: 1) the bill of information/indictment to insure the defendant was properly charged, 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal, 3) all pleadings in the record, and 4) all transcripts to determine if...