Opinion
No. 91-KH-2330.
November 13, 1992.
In re Burton, Glen; — Defendant(s); applying for supervisory and/or remedial writs; Parish of Orleans, Criminal District Court, Div. "J", Nos. 292-198, 292-027; to the Court of Appeal, Fourth Circuit, No. 91KW-1730.
Granted. Relator was constructively denied the assistance of counsel on appeal when his appointed attorney merely filed error patent briefs to the appellate court. Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990); State ex rel. Deverney v. Whitley, (La. 1992); State v. Robinson (La. 1992). That relator was able to present pro se assignments of error to the reviewing court did not alleviate the constitutional harm he suffered from the denial of counsel on appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.CT. 346, 102 LEd.2d 300 (1988). Accordingly, the district court is ordered to grant relator out-of-time appeals and to appoint counsel to handle the appeals on relator's behalf. If appointed counsel, after reviewing the records in the instant cases, finds no basis for assigning error on appeal, he or she may follow the procedure outlined in State v. Benjamin, (La.App. 4th Cir. 1990).