State v. Mouton

Granted. The judgment of the Third Circuit is reversed and its previous decision in State v. Brister, 626 So.2d 955 (La.App. 3rd Cir.1993) is reinstated.

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the subsequent Supreme Court decisions relying on it, Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) and McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988), offer little instruction on the content of a brief that appointed counsel representing an indigent defendant on appeal must file to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy, 486 U.S. at 439, 108 S.Ct. at 1902. In the absence of that explicit direction, this Court has sanctioned the procedures outlined by the Fourth Circuit Court of Appeal in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990), see State v. 2Robinson, 590 So.2d 1185 (La. 1992), and directed other circuit courts of appeal in Louisiana to follow them. See, e.g., State v. Royals, 600 So.2d 653 (La.1992).

The brief filed on behalf of the appellant in the court of appeal by his appointed counsel not only complies with the letter of the Benjamin procedures but also provides a detailed discussion of various aspects of the case, including sufficiency of the evidence, the lack of objection to any of the testimony presented at trial, and the adequacy of the trial court’s compliance with Louisiana’s Sentencing Guidelines. In short, counsel has given the defendant the “benefit of what wealthy defendants [contemplating an appeal] are able to acquire by purchase — a diligent and thorough review of the record and an identification of any arguable issues revealed by that review....” McCoy, 486 U.S. at 439 and n. 12, 108 S.Ct. at 1902 and n. 12. Counsel has thereby provided a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place. Under these circumstances, we find no need for any departure from or refinement of the Benjamin procedures, which adequately protect the indigent defendant’s constitutional right to a meaningful appeal in Louisiana.

CALOGERO, C.J., concurs and assigns reasons.

LEMMON, J., concurs and will assign reasons.

KIMBALL, J., not on panel.