State of Louisiana v. Javonta Jermel Harrison

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-239

STATE OF LOUISIANA

VERSUS

JAVONTA JERMEL HARRISON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, 24557-14
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy H. Ezell, John E. Conery, Judges.

CONVICTIONS AND SENTENCES AFFIRMED WITH
INSTRUCTIONS; MOTION TO WITHDRAW GRANTED.

John Foster DeRosier
District Attorney – Fourteenth Judicial District
Karen C. McLellan
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR APPELLANT:
Javonta Jermel Harrison

Ezell, Judge.

Defendant, Javonta Jermel Harrison, was indicted on September 18, 2014,

for aggravated burglary, a violation of La.R.S. 14:60; aggravated rape, a violation

of La.R.S. 14:42; armed robbery, a violation of La.R.S. 14:64; and armed robbery

with the use of a firearm, a violation of La.R.S. 14:64.3.1 He originally pled not

guilty, but he changed his plea to not guilty by reason of insanity. A sanity and

competency hearing began on November 9, 2016, and concluded on December 14,

2016. After hearing the testimony of three physicians, the trial court determined

Defendant was competent to proceed to trial.

The State made minor amendments to the indictment on February 17, 2017,

and Defendant maintained a plea of not guilty and not guilty by reason of insanity.

A jury found Defendant guilty as charged on February 23, 2017. The trial court

sentenced Defendant to the mandatory life sentence at hard labor without benefit of

parole, probation, or suspension of sentence for aggravated rape; thirty years at

hard labor for aggravated burglary; and ninety-nine years at hard labor for armed

robbery, enhanced by an additional five years without benefit of parole, probation,

or suspension of sentence because the armed robbery was committed with a

firearm. The terms are to run concurrently with each other except the five-year

term of enhancement is to run consecutively to the other sentences.

Defendant filed a motion for appeal on May 22, 2017. The trial court denied

that motion without comment on May 25, 2017. Defendant filed a supplemental

motion for appeal on August 2, 2018, and the trial court granted it.

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Aggravated rape is now known as first degree rape. The elements of the two crimes are
the same.

Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues exist on which to

base an appeal and seeking to withdraw as Defendant’s counsel. We grant the

motion to withdraw and affirm Defendant’s convictions and sentences.

FACTS

The victim was in bed asleep in the early morning hours on August 15,

2014, when she felt someone get into bed with her. At first, she thought he was

her boyfriend. However, when the man spoke, she realized the voice was of

someone else. The man forced oral and vaginal sex on the victim at gunpoint and

then placed the gun inside her vagina. He then placed the gun in the victim’s

mouth. Defendant told the victim “his name was Jermaine . . . .”

Defendant took the victim’s debit card from her purse and demanded that

she tell him the PIN. He was still armed with the gun. He had gained access to the

victim’s home by removing a window air conditioning unit. The victim’s phone

and the keys to her boyfriend’s vehicle were found during a search of Defendant’s

residence. A video on Defendant’s phone documented the rape.

Crime lab analysis showed Defendant’s DNA in dried secretions taken from

the victim’s hand and in seminal fluid from the victim’s vaginal swab. That

analysis also showed the victim’s DNA on the slide of the pistol found near

Defendant at the time of his arrest.

Police who responded to the call found two individuals in the area dressed as

the victim had described. One of them was Defendant. The officer found a black

handgun next to the bicycle that was with the two men, and he also found a pink

cell phone case. The other man with Defendant advised the officer Defendant told

him he had sex with a female and took her cell phone. The victim identified
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Defendant to the officer who arrested him, and she also testified at trial she was

“[a] million percent sure” Defendant was her attacker.

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 have found

one error patent.

Defendant was advised that he has two years from the “date of the signing of

the judgment” to file an application for post-conviction relief. Louisiana Code of

Criminal Procedure Article 930.8(A) (emphasis added) provides that “[n]o

application for post-conviction relief . . . shall be considered if it is filed more than

two years after the judgment of conviction and sentence has become final under the

provisions of Article 914 or 922[.]” Therefore, we direct the trial court to correctly

inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to Defendant within ten days of the rendition of the

opinion and to file written proof in the record of the proceedings that Defendant

received the notice. State v. Barconey, 17-871 (La.App. 3 Cir. 3/7/18), 241 So.3d

1046.

ANALYSIS

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

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

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
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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 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, and have confirmed the statements by counsel. Defendant was

properly charged in his indictment, he was present and represented by counsel at

all crucial stages of the proceedings, the jury composition and verdict were correct,

Defendant’s sentences comply with the statutory sentencing range, and review of

the transcripts in the record provide only frivolous issues for appeal.

While it is not necessary for Defendant’s counsel to “catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit[,]” 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 (citing

Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983) and 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

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consideration.” Jyles, 704 So.2d at 241 (citing United States v. Pippen, 115 F.3d

422 (7th Cir. 1997). Thus, counsel’s Anders brief must review the procedural

history, the evidence presented at trial and “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. Our review of the record shows counsel’s brief to this court

accurately recites the facts found therein. Defendant offered no witnesses and no

evidence at trial. The record shows no non-frivolous issues regarding the

sufficiency of the evidence submitted to convict Defendant.

Our review of the record also shows Defendant requested several challenges

for cause that were denied. However, he used less than his allotted number of

peremptory challenges in jury selection. Counsel made no substantive objections

that the trial court overruled. Medical testimony at trial established Defendant was

competent to stand trial and understood right from wrong at the time he committed

these crimes.

Prior to trial, the judge notified the parties he had previously presided over a

juvenile matter involving Defendant. Although defense counsel requested recusal

of the judge, he admitted he had no statutory or codal provision to support the

request. The trial judge denied the motion to recuse. Defendant could not make a

non-frivolous argument on appeal concerning this issue.

Additionally, Defendant did not file a motion to reconsider his sentence.

Ordinarily, the failure to seek reconsideration of a sentence precludes a defendant

from raising the issue on appeal. La.Code Crim.P. art. 881.1. However, this court

has reviewed sentences for bare excessiveness in the interest of justice even where

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no motion for reconsideration is filed. State v. Davis, 06-922 (La.App. 3 Cir.

12/29/06), 947 So.2d 201.

Defendant received the maximum sentences for aggravated burglary and

armed robbery and a mandatory life sentence for aggravated rape. Counsel made

no objection to the sentences. Appellate counsel notes an error by the trial court

regarding the two maximum sentences, if any at all, would be harmless because of

the mandatory life sentence. Defendant has no non-frivolous grounds on which to

appeal his sentences.

In short, our review of the record reveals no non-frivolous issues Defendant

could raise on appeal. Accordingly, we grant counsel’s motion to withdraw and

affirm Defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED WITH

INSTRUCTIONS; MOTION TO WITHDRAW GRANTED.

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