Opinion
2021 KA 1181
02-25-2022
STATE of Louisiana v. Darren JARVIS
Jane L. Beebe, Louisiana Appellate Project, Addis, Louisiana, Counsel for Appellant, Defendant—Darren Luke Jarvis Darren Luke Jarvis, Slidell, Louisiana, Pro Se Appellant, Defendant—Darren Luke Jarvis Warren L. Montgomery, District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Covington, Louisiana, Counsel for Appellee, State of Louisiana
Jane L. Beebe, Louisiana Appellate Project, Addis, Louisiana, Counsel for Appellant, Defendant—Darren Luke Jarvis
Darren Luke Jarvis, Slidell, Louisiana, Pro Se Appellant, Defendant—Darren Luke Jarvis
Warren L. Montgomery, District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Covington, Louisiana, Counsel for Appellee, State of Louisiana
Before: McClendon, Welch, and Theriot, JJ.
WELCH, J. The State of Louisiana charged the defendant, Darren L. Jarvis, by bill of information with two counts of distribution of cocaine, violations of La. R.S. 40:967 that occurred in 1996. He pled not guilty. After a trial by jury, the jury found the defendant guilty as charged on both counts. The trial court sentenced the defendant to fifteen years imprisonment at hard labor on each count, to run consecutively. The trial court later adjudicated the defendant a fourth-felony habitual offender, vacated the original sentences, and resentenced the defendant to a single term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant appealed, challenging the sentence as being unconstitutionally excessive and not based on any statute, indictment, or verdict. This Court vacated the habitual offender adjudication and sentence and remanded the case to the trial court with instructions. State v. Jarvis, 98-1894 (La. App. 1st Cir. 5/14/99), 739 So.2d 1017.
Prior to sentencing, the defendant denied the allegations of a habitual offender bill of information filed by the State.
In the unpublished 1999 opinion, this Court noted that the defendant raised a patent sentencing error, as the trial court imposed only a single enhanced sentence of life imprisonment. As the habitual offender bill of information listed both of the defendant's convictions, this Court concluded that the single sentence was intended to enhance both convictions pursuant to La. R.S. 15:529.1. As the trial court was required to impose a separate sentence for each conviction, this Court vacated the habitual offender adjudication and sentence and remanded the case, instructing the State, in the event that it reinstituted habitual offender proceedings, to amend the habitual offender bill of information to name the conviction(s) being enhanced. Further, this Court instructed the trial court to thereafter impose two separate sentences, whether one or both of the convictions were enhanced pursuant to La. R.S. 15:529.1.
On remand, in open court, the State amended the habitual offender bill of information to list count one as the conviction to be enhanced. The defendant denied the allegations of the amended habitual offender bill of information. Subsequently, on August 3, 1999, the trial court adjudicated the defendant a third-felony habitual offender as to count one only, vacated the prior sentence, and resentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to run concurrent with the sentence imposed on count two. The defendant again appealed, challenging, in part, the sufficiency of the evidence. This Court affirmed the convictions, habitual offender adjudication, and sentences, and the Louisiana Supreme Court denied the defendant's application for writ of review. State v. Jarvis, 2000-1153 (La. App. 1st Cir. 2/16/01), writ denied, 2001-0799 (La. 2/1/02), 808 So.2d 338. In 2019, the trial court denied the defendant's pro se motion to correct illegal sentence, challenging the legality of the enhanced life sentence. The defendant filed a writ application in this Court seeking review of the trial court's ruling, and this Court denied the application on the showing made. State v. Jarvis, 2019-1620 (La. App. 1st Cir. 5/12/20), 2020 WL 2461758 (unpublished). The defendant then filed an application for supervisory review with the Louisiana Supreme Court. The Louisiana Supreme Court granted the defendant's writ application, vacated the habitual offender adjudication and sentence, and remanded the case to the trial court to conduct a new habitual offender adjudication. State v. Jarvis, 2020-00877 (La. 1/12/21), 308 So.3d 290, 291 (per curiam ).
As this Court had vacated the defendant's habitual offender adjudication and sentence, the trial court resentenced the defendant to fifteen years imprisonment at hard labor on each count, pending a hearing on the amended habitual offender bill of information. After resentencing, the defendant remained silent when he was rearraigned on the amended habitual offender bill of information.
The defendant's convictions became final when the Louisiana Supreme Court denied the defendant's writ. See La. C.Cr.P. art. 922(D).
Prior to the 2019 motion to correct illegal sentence, the defendant filed a prior motion to correct illegal sentence in 2011, alleging that the trial court improperly imposed his habitual offender sentence "at hard labor." The trial court denied that motion as well, and this Court and the Louisiana Supreme Court denied the defendant's writ applications seeking further review of that decision.
The Louisiana Supreme Court noted that the sentence reductions in 2001 La. Acts, No. 403, § 2 (eff. June 15, 2001) and 2002 La. Acts, No. 45, § 2 (1st Ex.Sess.) (eff. Aug. 15, 2002) are expressly applicable retroactively to inmates sentenced prior to 2001. See La. R.S. 15:308(A)(1) and (2) (prior to amendment by 2014 La. Acts, No. 340, § 1 (eff. Aug. 1, 2014)). Due to confusion in the record, the court further noted that the defendant's life sentence possibly exceeded that authorized by statute. See La. R.S. 15:529.1, as amended by 2001 La. Acts, No. 403, § 2 (eff. June 15, 2001). Finally, the court noted that on remand, the defendant would also have the opportunity to make excessive sentence and downward departure arguments. Jarvis, 308 So.3d at 291.
On remand, the defendant admitted to the allegations of the amended habitual offender bill of information and was adjudicated a third-felony habitual offender and resentenced to twenty-five years imprisonment at hard labor without the benefit of probation or suspension of sentence. The trial court subsequently granted the defendant's motion to reconsider sentence, vacated the sentence, and resentenced the defendant to twenty-four years imprisonment at hard labor without the benefit of probation or suspension of sentence.
On May 21, 2021, the trial court granted the defendant's motion for appeal.
In the instant appeal, appellate counsel filed a brief raising no assignments of error and a motion to withdraw as counsel of record. Appellate counsel states that she could not find any non-frivolous issues to raise or rulings to challenge on appeal. The sole issue presented in the counseled brief is whether the record reveals any errors patent such that the defendant's conviction or sentence should be reversed. The defendant filed a pro se brief contending that this Court should not allow appellate counsel to withdraw and listing five issues for review, all regarding his enhanced sentence. For the following reasons, we affirm the habitual offender adjudication and sentence and grant appellate counsel's motion to withdraw.
STATEMENT OF FACTS
The facts were set forth in our original decision in this matter, as follows: On August 14, 1996, Detective Wayne Couvillion, a Jefferson Parish Sheriff's Office detective assigned to the Narcotics Division, was loaned to St. Tammany Parish for the purpose of working undercover narcotics for them. He drove a truck equipped with audio and video recording equipment into an area of St. Tammany Parish, which was being observed for narcotics traffic. Detective Couvillion approached the defendant and asked if he could get some cocaine. The defendant guided the detective to a location, told him to park his truck, and then disappeared from view. He returned to Detective Couvillion's truck with crack cocaine, which Detective Couvillion then bought from the defendant. The same process occurred the next day, August 15, 1996. Both transactions were recorded and presented as evidence at trial. Testimony from a forensic scientist confirmed that the substances were crack cocaine. The defense urged at trial was that of entrapment.
ANDERS BRIEF
Appellate counsel for the defendant has filed a brief containing no assignments of error and requests this Court to grant her motion to withdraw as counsel of record. In her brief and motion to withdraw, referencing the procedures outlined in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appellate counsel indicated that after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal, and could find no ruling of the trial court that arguably supports the appeal. The State does not dispute appellate counsel's conclusion.
The procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), used in Louisiana, was discussed in State v. Benjamin, 573 So.2d 528, 529-31 (La. App. 4th Cir. 1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ), and expanded by the Louisiana Supreme Court in Jyles, 704 So.2d at 242. Specifically, according to Anders, 386 U.S. at 744, 87 S.Ct. at 1400, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles, appellate counsel must review not only the procedural history of the case and the evidence presented at trial, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 704 So.2d at 242 (quoting Mouton, 653 So.2d at 1177 ).
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. State v. Dyke, 2017-1303 (La. App. 1st Cir. 2/27/18), 244 So.3d 3, 6, writ denied, 2018-0622 (La. 2/18/19), 266 So.3d 285. Herein, appellate counsel has adequately complied with all the requirements necessary to file an Anders brief. Specifically, appellate counsel has summarized the procedural history, including the defendant's most recent habitual offender adjudication and sentencing.
Appellate counsel's motion to withdraw notes the defendant has been notified of the motion to withdraw and his right to file a pro se brief on his own behalf. As noted, the defendant filed a pro se brief in this case. However, without briefing or developing them, the defendant simply listed several issues regarding the habitual offender sentence. Pursuant to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. A mere statement of an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Smith, 2017-1333 (La. App. 1st Cir. 2/21/18), 2018 WL 1007350, at *2 (unpublished), writ denied, 2018-0405 (La. 2/18/19), 265 So.3d 771. Thus, we consider the issues listed in the defendant's pro se brief abandoned. Further, it appears the defendant is attempting to reassert challenges to his enhanced sentence that have already been fully litigated and resolved.
The defendant also asserts that the record is incomplete and that the Anders brief filed by appellate counsel amounts to "a complete denial of counsel on appeal." He specifically claims that the amended habitual offender bill of information and transcript of the March 31, 2021 habitual offender adjudication and sentencing are not contained in the record. Again, the defendant failed to develop any reviewable arguments regarding these assertions. Further, the defendant is incorrect in contending that the record does not contain the transcript of the proceedings on March 31, 2021. The transcript shows that the State amended the habitual offender bill of information in open court, the defendant admitted to the allegations of the amended habitual offender bill of information, and the trial court resentenced the defendant.
This Court has conducted an independent review of the entire record in this matter. We conclude there are no non-frivolous issues or trial court rulings which arguably support this appeal. As requested by appellate counsel and as routinely performed on appeal, this Court has conducted a review for patent error under Louisiana Code of Criminal Procedure article 920(2). We have found no reversible errors under Article 920(2). Accordingly, the defendant's habitual offender adjudication and sentence are affirmed. Appellate counsel's motion to withdraw, which has been held in abeyance pending the disposition in this matter, is hereby granted.
We note that the defendant's underlying convictions were by non-unanimous jury verdicts. However, the holding of Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020) (requiring a unanimous verdict for serious offenses) applies to matters pending on direct review when the case was decided. See Ramos, 140 S.Ct. at 1406 ; State v. Varnado, 2020-00356 (La. 6/3/20), 296 So.3d 1051 (per curiam ); State v. Curry, 2018-1764 (La. App. 1st Cir. 11/6/20), 315 So.3d 912, 913. The defendant's convictions herein became final in 2002, long before the United States Supreme Court's decision in Ramos. The defendant's 2021 habitual offender adjudication and resentencing entitled him to an appeal of his new habitual offender adjudication and resentencing, not the underlying convictions. Jarvis, 308 So.3d at 291. Thus, the instant matter is not before this court on direct review, and any issue regarding the defendant's convictions is outside of the scope of this appeal. See La. C.Cr.P. art. 912(C)(1) ; State v. Brown, 2020-00276 (La. 6/22/20), 297 So.3d 721 (Johnson, C.J., concurring), cert. denied, ––– U.S. ––––, 141 S.Ct. 1396, 209 L.Ed.2d 133 (2021) ; State v. Sewell, 53,571 (La. App. 2nd Cir. 11/18/20), 307 So.3d 362, 368-69.