State of Louisiana v. Donald Ray Johnson, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-160

STATE OF LOUISIANA

VERSUS

DONALD RAY JOHNSON, JR.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 144812
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

CONVICTION AND SENTENCE AFFIRMED WITH
INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Donald Ray Johnson, Jr.

Charles A. Riddle, III
District Attorney – Twelfth Judicial District
Michael F. Kelly, First Assistant District Attorney
Post Office Box 1200
Marksville, Louisiana 71351
(318) 253-6587
COUNSEL FOR APPELLEE:
State of Louisiana

Donald Ray Johnson, Jr.
#453914, Camp J, Bass Dorm
Louisiana State Penitentiary
Angola, Louisiana 70712

GENOVESE, Judge.

The Defendant, Donald Ray Johnson, Jr., was charged by bill of indictment

filed on May 29, 2008, with unauthorized use of a motor vehicle, a violation of

La.R.S. 14:68.4. The Defendant entered a plea of not guilty on June 24, 2008. On

October 14, 2008, the Defendant withdrew his former plea of not guilty and entered

a plea of guilty.1 He was subsequently sentenced, in accordance with the plea

agreement, to serve ten years at hard labor to run concurrently with any other

sentence previously imposed. A Motion for Appeal was filed and granted on

November 21, 2008.

Appellate counsel has filed an Anders brief and a motion to withdraw in this

matter. For the following reasons, we affirm and grant the motion to withdraw.

FACTS

On March 29, 2008, the Defendant killed Janaver Lynn Ann Distefano, drove

away in her vehicle, and subsequently used her bank access card.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are no errors patent; however, the minutes of sentencing are in need of correction.

The minutes of sentencing state, in pertinent part:

AS REQUIRED BY ARTICLE 890.1 OF THE CODE OF CRIMINAL
PROCEDURE AND ARTICLE 894.1D OF THE CODE OF
CRIMINAL PROCEDURE, THE COURT DESIGNATED THAT THE
CRIME INVOLVED WAS A CRIME OF VIOLENCE AS DEFINED
OR ENUMERATED IN R.S. 14:2"13", AND ALSO INFORMED THE

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The Defendant was charged in trial court docket number 144811 with first degree murder
and in trial court docket number 144813 with unauthorized use of an access card. These charges
arose from the same course of events as the offense of unauthorized use of a motor vehicle and are
before this court in appellate court docket numbers 09-159 and 09-161 respectively.

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DEFENDANT WHETHER, PURSUANT TO THE PROVISIONS OF
R.S. 15:571.3, THE DEFENDANT'S SENTENCE IS NOT SUBJECT
TO DIMINUTION FOR GOOD BEHAVIOR, AND WHETHER THE
SENTENCE WAS ENHANCED PURSUANT TO R.S. 15:529.1 ET
SEQ, ARTICLE 893.3, OR ANY OTHER RELEVANT PROVISION
OF LAW.

Yet, the transcript of sentencing provides, in pertinent part:

I inform [you] that the crimes of Unauthorized Use of a Motor
Vehicle and Unauthorized Use of a Credit Card are not crimes of
violence, they are not enhanced sentences and those sentences would be
subject to diminution for good behavior.

Due to the disparity between the minutes of sentencing and the transcript of

sentencing, the trial court is ordered to amend the minutes of sentencing to accurately

reflect the sentencing transcript.

ANDERS ANALYSIS

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), the

Defendant’s appellate counsel has filed a brief stating that she could find no errors

on appeal that would support reversal of the Defendant’s conviction or sentence.

Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the Anders analysis:

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. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal

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record be supplemented with pleadings, minute entries and transcripts
when the record filed in this Court is not sufficient to perform this
review.

Pursuant to Anders and Benjamin, we have performed a thorough review of the

record, including pleadings, minute entries, the charging instrument, and the

transcripts. The Defendant was properly charged in an indictment, was present and

represented by counsel at all crucial stages of the proceedings, and entered a free and

voluntary guilty plea after properly being advised of his rights in accordance with

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, the Defendant

received a legal sentence.

Our review of the record has not revealed any issues which would support an

assignment of error on appeal. Thus, appellate counsel’s motion to withdraw is

granted.

DISPOSITION

The Defendant’s conviction and sentence are affirmed. Additionally, the

district court is hereby instructed to amend the minutes of sentencing to accurately

reflect the sentencing transcript.

CONVICTION AND SENTENCE AFFIRMED WITH INSTRUCTIONS.
MOTION TO WITHDRAW GRANTED.

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09-160

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Appellee

VERSUS

DONALD RAY JOHNSON, JR.

Defendant-Appellant

On Appeal from the Twelfth Judicial District Court, Docket Number 144812,
Parish of Avoyelles, State of Louisiana, Honorable William Bennett, Judge.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel and
the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is
granted.

THUS DONE AND SIGNED this _____ day of September , 2009.

COURT OF APPEAL, THIRD CIRCUIT

_______________________________
Judge John D. Saunders

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Judge Jimmie C. Peters

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Judge James T. Genovese