State v. PayneState v. Payne
Jоseph Richard Kutch, George Edward Payne Jr., for George Edward Payne Jr.
Before YELVERTON and SULLIVAN, JJ., and KNIGHT*, J. Pro Tem.
SULLIVAN, Judge.
Defendant‘s counsel seeks to withdraw from this case as counsel of record pursuant to the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) as interpreted by State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990). For the following reasons, we deny defense counsel‘s motion to withdraw and instruct him to brief the error patent, which we found on review of the record, as discussed herein.
Defendant, George Payne, Jr., was charged by bill of information with possession of stolen goods having a value in excess of one hundred dollars but less than five hundred dollars, a violatiоn of
FACTS
On or about March 31, 1993, the defendant was found to be in possession of a Baretta handgun which hаd been stolen from the residence of Bobby Tullos during a burglary. Mr. Tullos identified the weapon at trial. Three witnesses testified at trial that the defendant possessed the weapon in question. As stated above, the jury returned a unanimous verdict of guilty of possession of stolen property.
ASSIGNMENT OF ERROR
Defendant‘s counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) as interpreted by State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel‘s review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel has moved to withdraw because he believes, after a conscientious review of the record, there are no non-frivolous issues to be raised on apрeal. A copy of counsel‘s brief was forwarded to the defendant and the defendant was informed that he had a right to file a brief on his own behalf. The defendant has not filed a brief though this court granted his request to file an untimely brief accompanied by a Motion to Accept Out-of-Time Brief.
As per Benjamin, 573 So.2d 528, this court has performed an independent, thorough review of all the pleadings filed in district court, all minute entriеs of the district court proceedings, the bill of information and the pertinent transcripts contained in the appellate reсord. The defendant was properly charged by bill of information with possession of stolen goods having a value in excess of onе hundred dollars but less than five hundred dollars, a violation of
An Assignment of Error and Designation of the Record was filed into the record. Defendant alleged that the evidence was insufficient to support guilt beyond a reasonable doubt. Appellate counsel did not brief this assignment of error but filed an Anders brief instead stating that he thoroughly reviewed the record and has found no non-frivolous issues to be raised on appeal. Appellate counsel has also filed a Benjamin/Anders Motion to Withdraw. As the assignment of error filed into the record was not briefed, it will be considered as abandoned in accordance with Uniform Rules—Courts of Appeal Rule 2-12.4. Therefore, we will only review defendant‘s appeal for errors patent as mandated by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
ERROR PATENT
After review of the record, we find one error patent. The defendаnt was not informed of his right to remain silent prior to his stipulating to his identity at the habitual offender hearing.
This court has held that where a defendant wаs not advised of his right to remain silent before admitting his prior convictions at a habitual offender hearing, defendant‘s acknowledgment is insufficient where the acknowledgment is the only proof of prior convictions offered by the state. State v. Norris, 94-1064 (La.App. 3 Cir. 3/1/95), 651 So.2d 490; State v. Gautreaux, 607 So.2d 1086 (La.App. 3 Cir.1992), citing State v. Johnson, 432 So.2d 815 (La.1983). However,
The issue of identity is interrelated to the right to remain silent. Anders requires an attorney seeking to withdraw to brief any issues arguably supported by the facts. This is the appropriate procedure to enable counsel for both the defendant and the state to have the opportunity to address whether Harris applies to appeals and, if so, whether the hearing was fundamentally fair.
DECREE
Accordingly, the motion to withdraw is hereby denied and counsel is ordered to brief the issue of whether Harris applies to cases on appeal and, if so, whether defendant‘s habitual offender hearing was fundamentally fair.
MOTION TO WITHDRAW DENIED. COUNSEL IS ORDERED TO BRIEF THE ISSUE AS INSTRUCTED.