Opinion
2013 KA 1990
05-02-2014
STATE OF LOUISIANA v. BRYANT KEITH GERVIN
Hillar C. Moore, III Stacy L. Wright Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Prentice L. White Baton Rouge, Louisiana Counsel for Defendant-Appellant Bryant Keith Gervin Bryant Keith Gervin Angola, Louisiana In Proper Person
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 10-11-0387, SEC. 8, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TRUDY M. WHITE, JUDGE
Hillar C. Moore, III
Stacy L. Wright
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Prentice L. White
Baton Rouge, Louisiana
Counsel for Defendant-Appellant
Bryant Keith Gervin
Bryant Keith Gervin
Angola, Louisiana
In Proper Person
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: CONVICTIONS AND SENTENCES AFFIRMED. MOTION TO WITHDRAW GRANTED.
KUHK, J.
Defendant, Bryant Keith Gervin. was charged by bill of information with second degree battery, a violation of La. R.S. 14:34.1. He pled not guilty. Defendant subsequently withdrew his not guilty plea and, following a Boykin hearing, entered guilty pleas to second degree battery and possession of cocaine, a violation of La. R.S. 40:967(C). For each conviction, defendant was sentenced to five years imprisonment at hard labor. The sentences were ordered to run concurrently. Defendant now appeals, designating two pro se assignments of error. We affirm the convictions and sentences. We further grant defense counsel's motion to withdraw.
Boykin v. Alabama, 395 U.S. 238, 89 S.Cr. 1709, 23 L.Ed.2d 274 (1969).
Other cases unrelated to the present, one were combined for a single Boykin hearing. Thus, the defendant pled guilty to second degrce battery (Docket No. 10-11-0387. the instant matter) and possession of cocaine (Docket No. 05-09-0059). Charges of theft over $500 (Docket No: 10-11-0388) and home invasion (Docket No. 10-09-0338) were dismissed. A charge- of unauthorized Use of a motor vehicle, also part of the instant matter (Docket No. 10-11-0387), was dismissed.
FACTS
The following facts are taken from the Boykin hearing. On or about August 2, 2011, Yolanda Antoine was at a friend's house when defendant, Yolanda's ex-boyfriend, entered the house and attacked her. Defendant punched Yolanda in her face several times. She was able to get away from defendant only after defendant's brother pulled defendant off of her. Police officers observed swelling and bruising on the left side of Yolanda's face.
ISSUES PRESENTED
Defense counsel has filed a motion to withdraw from the case. In accordance with the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967): State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam); and State v. Benjamin, 573 So.2d 528 (La. App. 4th Cir. 1990), defense counsel has filed a supporting brief to the motion to withdraw asserting that, after a conscientious and thorough review of the record, he has found no nonfrivolous issues for appeal and no ruling of the trial court that arguably supports an appeal.
In State v. Mouton. 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), the Louisiana Supreme Court sanctioned the procedures outlined in Benjamin, for use by the appellate courts of Louisiana. See Jyles, 704 So.2d at 241.
Defendant filed an application for postconviction relief, and on October 9, 2013, the trial court granted an out-of-time appeal. On March 18, 2014, defendant filed a timely pro se brief, addressed below.
In a writ application to this court, the State sought review of the grant of the out-of-time appeal. In an unpublished action, the writ was denied. State v. Gervin, 2013-1983 (La. App. 1st Cir. 12/20/13).
This court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. Defendant was properly charged by bill of information, which was signed by an assistant, district attorney. Defendant was present and represented by counsel at the Boykin hearing (guilty plea) and sentencing. The sentences imposed are legal in all respects. See Benjamin, 573 So.2d at 531.
Defense counsel asks this court to examine the record for error under La. C.Cr.P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant or defense counsel. Under La. C.Cr.P, art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc) writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
Our independent review reveals no nonfrivolous issues which arguably support this appeal. Accordingly, defendant's convictions and sentences are affirmed. Defense counsel's motion to withdraw is hereby granted.
PRO SE ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related pro se assignments of error defendant urges that he was denied effective assistance of counsel. Specifically, he contends that his defense counsel failed to file pretrial motions, such as a motion for preliminary examination and a motion to suppress.
The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. State v. Serigny, 610 So.2d 857, 859-60 (La. App. 1st Cir. 1992). writ denied, 614 So.2d 1263 (La. 1993). Even if the defendant satisfied both prongs under Strickland, he would still have to show that there was a reasonable probability that, but for counsel's error(s), he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, where the record discloses sufficient evidence needed to decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Carter. 96-0337 (La. App. 1st Cir. 11/8/96), 684 So.2d 432, 438; see Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Defendant maintains in his first pro se assignment of error that to defend his client effectively, defense counsel should have filed a motion for preliminary examination. According to defendant, had defense counsel investigated the police reports, the investigation would have revealed the police entered his residence without a search or arrest warrant, Defendant asserts in his second pro se assignment of error that the police, based merely on his ex-girlfriend's accusation that he beat her, entered his dwelling and arrested him without a warrant. According to defendant, the police had no reasonable or trustworthy information that a crime had been committed and that "[m]ere suspicion" did not justify his arrest.
Defendant has set forth several unsupported claims that cannot be verified by review of the appellate record. Because defendant pled guilty, limited facts were developed in the record regarding the specifics of defendant's offense, the follow-up investigation by the police, and the arrest of defendant. Claims of ineffective assistance of counsel, by their very nature, are highly fact-sensitive, State v. Henry, 2000-2250 (La. App. 1st Cir. 5/11/01), 788 So.2d 535, 540, writ denied, 2001-2299 (La. 6/21/02). 818 So.2d 791. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. State v. Jordan, 35,643 (La. App, 2d Cir. 4/3/02), 813 So.2d 1123, 1134, writ denied, 2002-1570 (La. 5/30/03), 845 So.2d 1067. The only proper relevant evidence before this court for review is the transcript of the Boykin hearing, wherein defendant indicated his understanding of the proceedings and his willingness to plead guilty.
Defendant appears to suggest in his pro se assignments of error that the filing of a motion for preliminary examination and/or motion to suppress would have developed the facts necessary for defense counsel to more ably defend his client. The filing and pursuit of pretrial motions, however, are squarely within the ambit of the attorney's trial strategy, and counsel is not required to engage in efforts of futility. State v. Shed, 36,321 (La. App. 2d Cir. 9/18/02), 828 So.2d 124, 132, writ denied, 2002-3123 (La. 12/19/03), 861 So.2d 561. Moreover, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rest with an accused and his attorney, and the fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Folse , 623 So.2d 59, 71 (La. App. 1st Cir. 1993).
In the instant matter, the allegations of ineffective assistance of counsel cannot be sufficiently investigated from ah inspection of the record alone. Decisions relating to investigation, preparation, and strategy cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where defendant could present evidence beyond what is contained in the instant record, could these allegations be sufficiently investigated. Accordingly, these allegations are meritless or otherwise not subject to appellate review. See State v. Albert, 96-1991 (La. App. 1st Cir. 6/20/97), 697 So.2d 1355, 1363-64; see also State v. Johnson, 2006-1235 (La. App. 1st Cir. 12/28/06), 951 So.2d 294, 304.
Moreover, in order to receive such a hearing, defendant must satisfy the requirements of La. C.Cr.P. art. 924, et seq.
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These assignments of error are without merit or otherwise not subject to appellate review.
DECREE
For these reasons, we affirm the convictions and sentences of defendant, Bryant Keith Gervin, and grant defense counsel's mod on to withdraw.
CONVICTIONS AND SENTENCES AFFIRMED. MOTION TO WITHDRAW GRANTED.