The opinion
STATE OF LOUISIANA * NO. 2022-KA-0339
VERSUS *
COURT OF APPEAL
JARVIS BROWN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 520-744, SECTION “I”
Honorable Karen K. Herman, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge
Paula A. Brown)
Bruce G. Whittaker
LOUISIANA APPELLATE PROJECT
1215 Prytania Street
Suite 332
New Orleans, LA 70130-4357
COUNSEL FOR DEFENDANT/APPELLANT
Jarvis Brown #710737
MPW - Hickory 3
Louisiana State Penitentiary
Angola, LA 70712
DEFENDANT/APPELLANT PRO SE
AFFIRMED
MOTION TO WITHDRAW GRANTED
NOVEMBER 16, 2022
PAB
RLB
RML
In his second criminal appeal, Defendant, Jarvis Brown, seeks review of the
district court’s judgment, which resentenced him to sixty years imprisonment at
hard labor without the benefit of probation, parole or suspension of sentence for
convictions of three counts of armed robbery with a mandatory five-year
enhancement for the use of a firearm. Defendant’s court-appointed appellate
counsel has filed an Anders brief 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, p. 3 (La.
12/12/97), 704 So.2d 241, 242 (per curiam), along with a motion to withdraw as
appellate counsel. After consideration of the record before this Court and the
applicable law, we affirm Defendant’s sentence and grant appointed appellate
counsel’s motion to withdraw.
FACTUAL AND PROCEDURAL HISTORY
On June 20, 2014, the State of Louisiana (the “State”) charged Defendant,
by bill of information, with three counts of armed robbery with a firearm pursuant
to La. R.S. 14:64 and 14:64.3; one count of possession of marijuana pursuant to
La. R.S. 40:966; and one count of access device fraud pursuant to La. R.S.
14:70.4(E)(3). After a two-day jury trial, the district court sentenced Defendant to
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sixty years imprisonment at hard labor without the benefit of probation, parole or
suspension of sentence on each count of armed robbery to be served concurrently
with all other sentences. Defendant appealed.
On May 3, 2017, this Court affirmed Defendant’s convictions, vacated his
sentences on each of the counts of armed robbery and remanded the case for
resentencing. State v. Brown, 16-0965 (La. App. 4 Cir. 5/3/17), 219 So.3d 518.
This Court, finding an error patent in the bill of information, explained:
[I]n the bill of information, the State invoked the firearm provision of
La. R.S. 14:64.3, which provides that when a firearm is used in the
commission of an armed robbery the “offender shall be imprisoned for
an additional period of five years without benefit of parole, probation,
or suspension of sentence.” Id. At the sentencing hearing, the district
court sentenced Mr. Brown to sixty years at hard labor without the
benefit of probation, parole, [or] suspension of sentence for each of
the three convictions for armed robbery with a firearm. The district
court did not, however, specify whether Mr. Brown’s sentences
included the mandatory additional five years imprisonment pursuant
to La. R.S. 14:64.3(A). This court has held that a sentence is
indeterminate when it fails to impose the additional five-year
enhancement as required by La. R.S. 14:64.3. State v. Amos, 15-0954,
pp. 5-6 (La. App. 4 Cir. 4/6/16), 192 So.3d 822, 827; see also State v.
Burton, 09-0826, p. 3 (La. App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076
(finding the failure to impose the mandatory additional five years
imprisonment pursuant to La. R.S. 14:64.3(A) illegally lenient). We
thus vacate Mr. Brown’s sentences for the three armed robbery
convictions and remand for resentencing for the imposition of the
additional punishment as mandated by La. R.S. 14:64.3(A).
Brown, 16-0965, pp. 7-8, 219 So.3d at 526.
Thereafter, Defendant filed a motion to correct illegal sentence, which was
denied, and later sought supervisory writs with the Louisiana Supreme Court. On
review, the Supreme Court found that although the district court failed to specify
whether Defendant’s sixty-year sentences included the mandatory five-year
imprisonment, “the appellate court erred in finding as an error patent that they
were indeterminate and in vacating them, absent any complaint by the State that
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the district court failed to apply the mandatory firearms enhancement.” State v.
Brown, 19-00771, p. 2 (La. 10/14/20), 302 So.3d 1109, 1110. The Supreme Court
granted Defendant’s writ application for the limited purpose of remanding to the
district court for resentencing, but otherwise denied the application.
Pursuant to the Supreme Court’s order to remand, on November 10, 2020,
the district court vacated its originally imposed sentence and resentenced
Defendant to sixty years imprisonment at hard labor without the benefit of
probation, parole, or suspension of sentence and included a mandatory five-year
enhancement for the use of a firearm required by La. R.S. 14:64.3(A). Defendant
orally objected to the resentencing and was subsequently appointed appellate
counsel.
This appeal followed.
ANDERS BRIEF/MOTION TO WITHDRAW
Appointed appellate counsel, in accordance with the procedures outlined in
State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir. 1990), has filed a brief pursuant
to Anders, 386 U.S. 738, 87 S.Ct. 1396 and Jyles, 704 So.2d 241, and submits that
he has conducted a thorough review of the record; that he cannot find any non-
frivolous issues to raise on appeal; and that he seeks permission to withdraw as
counsel of record. Defendant filed a supplemental brief, wherein he assigned two
pro se errors. The State declined to file a response to either appointed counsel’s
Anders brief or Defendant’s supplemental brief.
This Court has previously discussed the criteria for review of an Anders
brief in State v. Smith, 19-0097, pp. 6-8 (La. App. 4 Cir. 7/17/19), ___ So.3d ____,
____, 2019 WL 4197550 at *3 (citing State v. Benjamin, 573 So.2d 528, 531 (La.
App. 4 Cir. 1990)):
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In Anders, the United States Supreme Court stated that appointed
counsel may request to withdraw from representation if counsel finds
the case to be “wholly frivolous, after a conscientious examination of
it.” Id., 386 U.S. at 744, 87 S.Ct. 1396. In Jyles, 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 the contemporaneous objection rule,
had a significant, adverse impact on shaping the evidence presented to
the jury for its consideration.” Jyles, 704 So.2d at 241.
An appellate court conducts an independent review of the record to
determine whether the appeal is wholly frivolous. In Benjamin, 573
So.2d at 531, this Court set forth the appellate court’s duty when
reviewing an Anders brief filed by appointed appellate counsel:
When appointed counsel has filed a brief indicating that
no non-frivolous issues and no ruling arguably
supporting an appeal were found after a conscientious
review of the record, Anders requires that counsel move
to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the
record after providing the appellant an opportunity to file
a brief in his or her own behalf. This court’s review of
the record will consist of (1) a review of the bill of
information or indictment to insure the defendant was
properly charged; (2) a review of 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) a review of all
pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any
ruling provides an arguable basis for appeal.
If, after an independent review, the reviewing court determines there
are no non-frivolous issues for appeal and no ruling of the trial court
which arguably supports an appeal, the appellate court may grant
counsel’s motion to withdraw and affirm a defendant’s conviction and
sentence. Benjamin, 573 So.2d at 531; State v. Smith, 15-0241 (La.
App. 4 Cir. 1/27/16), 186 So.3d 794; and State v. Preston, 18-0786,
[p. 8] (La. App. 4 Cir. 4/3/19), 267 So.3d 667, 672.
Appointed appellate counsel asserts that after a review of the district court
record, specifically the transcript of the resentencing on remand and the decisions
of this Court and the Supreme Court, there were no non-frivolous issues to raise on
appeal. Appointed counsel points out that at the resentencing hearing Defendant
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raised a contemporaneous objection that his bill of information was invalid,
stating:
THE DEFENDANT:
Your Honor, I’m in prison illegally. I’m incarcerated illegally on an
invalid Bill of Information. I’m trying to see why I’m here being
what – under what charges I’m being resentenced under. My sentence
was declared illegal. I was convicted under an invalid Bill of
Information. So if the Bill of Information is invalid and no new bill
has been filed, there can be no resentencing unless the error has been
corrected.
Thereafter, Defendant attempted to explain his claim, arguing: “[t]hey charged me
with 14:64.3. That’s not a statute of convicting [sic] you give me 60 years. It’s
14:64. That’s the only charge you give me, from 10 to 99 [years]. It’s 14:64.
14:64.3 is an additional penalty.” Appointed appellate counsel notes that the June
20, 2014 bill of information, specifically, counts three, four and five, charged that
on April 23, 2014, Defendant, “while armed with a dangerous weapon, to wit: a
firearm, robbed” three named victims of their respective valuables. Thus, it was
evident that Defendant was being charged with armed robbery. We agree.
Louisiana Revised Statute 14:64(A) provides that “[a]rmed robbery is the
taking of anything of value belonging to another from the person of another or that
is in the immediate control of another, by use of force or intimidation, while armed
with a dangerous weapon.” “An information is a written accusation of crime made
by the district attorney or the city prosecutor and signed by him.” La. C.Cr.P. art.
384. “It must be filed in open court in a court having jurisdiction to try the offense,
or in the office of the clerk thereof.” Id.
La. C.Cr.P. art. 464 provides that:
The indictment shall be a plain, concise, and definite written statement
of the essential facts constituting the offense charged. It shall state for
each count the official or customary citation of the statute which the
defendant is alleged to have violated. Error in the citation or its
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omission shall not be ground for dismissal of the indictment or for
reversal of a conviction if the error or omission did not mislead the
defendant to his prejudice.
Our review of Defendant’s bill of information reveals that it did not
specifically set forth that Defendant’s alleged actions were in violation of La. R.S.
14:64(A). Notwithstanding, such an omission does not warrant a finding that the
bill of information was invalid or defective. Defendant’s June 20, 2014 bill of
information placed him on notice that he was charged with armed robbery because
the essential facts constituting armed robbery were set forth. This Court has
previously held that “[p]ursuant to La. C.Cr.P. art. 464, the omission of the citation
will not be ground for dismissal if the omission did not mislead [the defendant] to
[his] prejudice.” State v. Olivia, 13-0496, p. 4 (La. App. 4 Cir. 3/26/14), 137 So.3d
752, 755, writ denied, 14-0884 (La. 11/14/14), 152 So.3d 879. In the case sub
judice, there is no evidence to suggest that Defendant was misled to his prejudice
due to the omission of the citation to the precise statute under which he was being
charged. To the contrary, the record supports that Defendant was being charged
with armed robbery.
Appointed appellate counsel further notes that Defendant’s challenge to his
bill of information came after the jury rendered its guilty verdicts and was thus
untimely. “It is well-settled that ‘[a] post-verdict attack on the sufficiency of an
indictment does not provide grounds for setting aside a conviction unless the
indictment failed to give fair notice of the offense charged or failed to set forth any
identifiable offense.’” State v. Pittman, 18-0821, p. 12 (La. App. 4 Cir. 4/3/19),
267 So.3d 672, 679 (citing State v. Brazell, 17-0032, p. 12 (La. App. 4 Cir.
4/18/18), 245 So.3d 15, 28). As previously stated in this opinion, the June 20,
2014 bill of information provided Defendant with fair notice that he was being
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charged with armed robbery. Thus, appointed appellate counsel’s conclusion that
Defendant’s appeal contains no non-frivolous claims has merit.
PRO SE ASSIGNMENTS OF ERROR
Pro Se Supplemental Assignment of Error 1
Defendant contends in his first pro se assigned error that the district court
failed to comply with sentencing guidelines set forth in La. C.Cr.P. art. 894.1,1 thus
making enhancement harsher.
In State v. Johnson, this Court wrote:
[R]igid compliance with article 894.1 has been deemed unnecessary
where the record clearly shows an adequate factual basis for the
sentence imposed, [but] the record should reflect the considerations
taken into account by the [district] court in determining the sentence
to aid the reviewing court in determining whether the sentence is
warranted in light of the particular circumstances of the case.
State v. Johnson, 13-0343, p. 23 (La. App. 4 Cir. 10/1/14), 151 So.3d 683, 697-698
(citing State v. Quebedeaux, 424 So.2d 1009 (La. 1982)).
In the case sub judice, the district court explained at the November 10, 2020
hearing that Defendant’s resentencing was for the limited purpose of clarifying the
originally imposed sentence. The district court elucidated that the “60-year term
per count includes the mandatory [five]-year sentence enhancement required by
[La.] [R.S.] 14:64.3(A).” Thus, we find that the limited purpose of the
resentencing was achieved and further consideration of the La. C.Cr.P. art. 894.1
factors by the district court was unnecessary.
Defendant further argues that the Louisiana Supreme Court vacated the
original sentence and remanded for resentencing, but that the resentence is harsher
than the original sentence of 60 years without eligibility for parole. We disagree.
1 La. C.Cr.P. art. 894.1, which set forth sentencing guidelines, contains a checklist of aggravating
and mitigating factors the district court must consider upon sentencing.
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A review of the November 20, 2020 hearing transcript clearly reflects that the
district court did not increase Defendant’s concurrently-running sixty-year
sentences, but instead specified that the five-year mandatory enhancement required
under La. R.S. 14:64.3(A) was included within the originally-imposed sixty-year
imprisonment term. This assignment of error lacks merit.
Pro Se Supplemental Assignment of Error 2
In his second pro se assignment of error, Defendant insists that he was
“sentenced under a defective Bill of Information” because it “never had the proper
statute of 14:64 in it which makes it defective….” As previously discussed in this
opinion, Defendant’s bill of information provided fair notice that he was charged
with armed robbery. This assignment of error lacks merit.
CONCLUSION
After an independent review of the record, we find no errors patent and no
non-frivolous issues on appeal. Accordingly, the resentence of Defendant, Jarvis
Brown, is affirmed and appointed appellate counsel’s motion to withdraw is
granted.
AFFIRMED
MOTION TO WITHDRAW GRANTED
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