State of Louisiana v. Jamarlon W. Pierre

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-914

STATE OF LOUISIANA

VERSUS

JAMARLON W. PIERRE

************

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. C 21363
HONORABLE DESIRÉE DUHON DYESS, DISTRICT JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremillion, Judges.

HABITUAL OFFENDER SENTENCES AFFIRMED;
MOTION TO WITHDRAW GRANTED.

Edward Kelly Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Jamarlon W. Pierre

Van Hardin Kyzar
District Attorney—Tenth Judicial District
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

Defendant, Jamarlon W. Pierre, is again before this court appealing his

habitual offender sentences. Defendant’s original convictions of attempted second

degree murder and armed robbery were affirmed by this court in State v. Pierre,

14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d 348.1 In a separate opinion rendered

the same date, this court affirmed Defendant’s adjudication as a third habitual

offender, but vacated the single life sentence imposed by the trial court. State v.

Pierre, 14-1333 (La.App. 3 Cir. 5/6/15), 165 So.3d 365.2 This court found the

single life sentence indeterminate, since both convictions (attempted second degree

murder and armed robbery) were included in the habitual offender bill, and the trial

court failed to specify which of the convictions was being enhanced or whether

both were being enhanced. Id. This court granted Defendant’s appellate counsel’s

motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967), affirmed Defendant’s adjudication as a third habitual offender, vacated the

life sentence, and remanded the case for the appointment of defense counsel and

for resentencing. Id. This court instructed the trial court to clarify which

sentence(s) was (were) being enhanced and to impose a separate sentence on the

remaining conviction should only one sentence be enhanced. Id.

Pursuant to this court’s remand, the trial court held a resentencing hearing on

June 25, 2015. At the resentencing hearing, the trial court enhanced both

1
Defendant was originally charged with attempted first degree murder, aggravated
burglary, and armed robbery. Pierre, 170 So.3d 348. The bill of information was subsequently
amended to charge Defendant with attempted second degree murder and armed robbery. Id. On
January 22, 2014, Defendant was convicted by a jury of both counts and was subsequently
sentenced on each count to forty-five years at hard labor without benefits, to run concurrently.
Id.
2
Pursuant to a habitual offender bill of information filed by the State in April 2014, the
trial court adjudicated Defendant a third habitual offender, vacated the previously imposed
sentence, and sentenced him to life without benefits. Pierre, 165 So.3d 365.

convictions under the habitual offender provision and imposed a life sentence

without benefit of parole, probation, or suspension of sentence on each count, to

run concurrently. Defendant filed a motion to appeal and is now before this court

appealing his habitual offender sentences. Appellate counsel has filed a brief

pursuant to Anders, alleging the record does not contain any non-frivolous issues

for appeal; thus, he requests this court grant his accompanying motion to withdraw.

For the following reasons, we affirm Defendant’s habitual offender sentences and

grant Defendant’s appellate counsel’s motion to withdraw.

FACTS

On December 12, 2011, the victim, Conswayla Mitchell, was living in

Natchitoches, Louisiana, with her fiancé, Tyrell Thomas. Mr. Thomas, a known

drug dealer, was out of town at the time. At approximately 9:00 a.m., the front

door of their home was kicked in, and two men entered the house. They rushed

into the bedroom, and one of the men shot Ms. Mitchell. The men then took

$2,200.00 and a gun from the bedroom. A tip and police investigation resulted in

the arrest of several individuals, including Defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we find no

errors patent.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, Defendant’s appellate counsel has filed a

brief stating he could find no errors on appeal that would support reversal of

Defendant’s habitual offender sentences and seeks to withdraw.

2

An appellate court must conduct an independent review of the
trial court record to determine whether the appeal is wholly frivolous.
“When counsel files an Anders brief, an appellate court reviews
several items: a) the Bill of Information to ensure that the charge is
proper, b) all minute entries to ensure that defendant was present at all
crucial stages of the prosecution, c) all pleadings in the record, and d)
all transcripts to determine whether any ruling of the trial court
provides a basis for appeal.” State v. Defrene, 07-823, p. 4 (La.App. 5
Cir. 2/19/08), 980 So.2d 31, 33. 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.

State v. Newman, 12-359, p. 7 (La.App. 5 Cir. 12/11/12), 107 So.3d 775, 780, writ

denied, 13-121 (La. 6/21/13), 118 So.3d 407.

Defendant’s appellate counsel’s Anders brief must “‘assure the court that the

indigent defendant’s constitutional rights have not been violated.’” State v. Jyles,

96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of

Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903 (1988)). Counsel

must fully discuss and analyze the trial record and consider “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.” Id. (citing United States v. Pippen, 115 F.3d 422 (7th Cir. 1997)).

Thus, counsel’s Anders brief must review the procedural history and the evidence

presented in the trial court and 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.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176,

1177.

Since this court’s remand was for resentencing only, the only possible issue

in the current appeal is the trial court’s resentencing of Defendant. Pierre, 165

So.3d 365. Defendant’s appellate counsel’s brief to this court recites the

3

procedural history of the case and asserts that there were no non-frivolous errors

found after he performed a conscientious review of the record. He cites State v.

Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233, for the proposition that there was

no prohibition against the trial court’s enhancement of both convictions.

Additionally, he notes that since the life sentences were ordered to run

concurrently with one another, a claim that the sentences are excessive would be

frivolous.

In accordance with Anders and Newman, we have performed a thorough

review of the record, including minute entries and the resentencing transcript, and

have confirmed the statements made by Defendant’s appellate counsel. The only

issue before the court in this appeal is Defendant’s resentencing, for which

Defendant was present. As stated previously, the trial court chose to enhance both

of Defendant’s convictions as a third habitual offender, a decision that was

authorized by the supreme court in Shaw, 969 So.2d 1233. In Shaw, the supreme

court allowed all five of Shaw’s sentences to be enhanced as a third habitual

offender, even though the sentences all stemmed from the same episode of criminal

behavior. Id. Shaw held that “all multiple sentences imposed after a single course

of criminal conduct can be enhanced under the Habitual Offender Law.” Id. at

1235. Thus, Defendant’s appellate counsel correctly asserts that there was no

prohibition against the trial court’s enhancement of both sentences in the present

case.

Further, we find that the sentences imposed are legal in all respects.

Defendant was adjudicated a third habitual offender under La.R.S.

15:529.1(A)(3)(b), which provides:

4

If the third felony and the two prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), a sex offense as
defined in R.S. 15:540 et seq. when the victim is under the age of
eighteen at the time of the commission of the offense, or as a violation
of the Uniform Controlled Dangerous Substances Law punishable by
imprisonment for ten years or more, or any other crimes punishable by
imprisonment for twelve years or more, or any combination of such
crimes, the person shall be imprisoned for the remainder of his natural
life, without benefit of parole, probation, or suspension of sentence.

In adjudicating Defendant a third habitual offender, the trial court found that one of

Defendant’s prior offenses was a crime of violence (armed robbery), that another

of Defendant’s prior offenses was a violation of the Uniform Controlled Dangerous

Substances Law punishable by imprisonment of ten years or more (possession with

the intent to distribute schedule II on 1/23/06), and that Defendant’s two present

convictions were both crimes of violence (attempted second degree murder and

armed robbery). Pierre, 165 So.3d at 365. Thus, the trial court imposed the

sentence mandated by La.R.S. 15:529.1(A)(3)(b) for both of Defendant’s enhanced

sentences—life imprisonment, without benefit of parole, probation, or suspension

of sentence. The trial court also ordered the sentences to run concurrently.

Beyond the legality of the sentences, the only possible issue reviewable on

appeal would be the excessiveness of the sentences. We note, however, that

Defendant did not object to the sentences imposed or file a motion to reconsider

sentence. In accordance with La.Code Crim.P. art. 881.1(E), the failure to make or

file a motion to reconsider sentence precludes a defendant from seeking review of

the sentence on appeal. Thus, even if the excessiveness of the sentences was raised

as an assignment of error on appeal, review of the sentences would be precluded

for failure to object or file a motion to reconsider sentence. Furthermore,

Defendant neither requested nor established for the trial court that he was entitled

to a downward departure from the mandatory sentences imposed. Finally, the life

5

sentences were ordered to run concurrently, effectively sentencing Defendant to

only one life sentence. For these reasons, we find Defendant’s appellate counsel is

correct in his assertion that any argument as to the excessiveness of the sentences

would be frivolous. Accordingly, we grant Defendant’s appellate counsel’s motion

to withdraw.

DISPOSITION

Defendant’s habitual offender sentences are affirmed, and Defendant’s

appellate counsel’s motion to withdraw is granted.

HABITUAL OFFENDER SENTENCES AFFIRMED;
MOTION TO WITHDRAW GRANTED.

6