The People v. Mourning CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD241345
- Trial judge
- Dwayne K. Moring
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author)
Analysis
The trial court denied Mourning's request for a certificate of probable cause regarding his ineffective assistance of counsel claim and affirmed his sentence following a recalculation of his release date. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on appeal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of request for certificate of probable cause (CPC) regarding ineffective assistance of counsel at probation revocation hearing.“On January 2, 2013, the superior court denied the request for certificate of probable cause.” | unclear | not reached | unsure The appellate court did not review the denial of the CPC because the appeal was treated as a direct appeal of the judgment under a Wende/Anders framework, and the court found no arguable issues in the record. The opinion does not state a standard of review for the trial court's procedural ruling on the CPC. |
Affirmance of the judgment (sentence and revocation).“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues raised by appellate counsel, and have not found any reasonably arguable appellate issues.” | de novo | correct | agree with court The court applied the Wende/Anders standard to review the entire record for any error. It concluded that the issues raised by counsel (ineffective assistance and mootness) were not arguable, and thus affirmed the judgment. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify any arguable issues when counsel finds none.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying any potentially arguable issues and requesting the court to review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a record where counsel identifies no arguable issues. It accurately reflects that the defendant was released and the sentence fully served, rendering the appeal largely moot or resulting in affirmance due to lack of arguable error.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Mourning's guilty plea to commercial burglary, imposed a 16-month split sentence under Penal Code section 1170, subdivision (h), later revoked his mandatory supervision after he admitted a nonreporting violation and ordered him to serve the remaining 280 days (with day-for-day credit, later corrected by an amended sentencing order), and denied his request for a certificate of probable cause. On appeal, appointed counsel filed a Wende/Anders brief identifying two possible but non-arguable issues (cognizability of an ineffective assistance claim after an admitted violation, and mootness); the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of mandatory supervision after Mourning admitted a nonreporting violation and order that he serve the remaining 280 days of his sentence“On November 20, 2012, Mourning's mandatory supervision was revoked after he admitted a nonreporting violation. He was ordered to serve out the remainder of his sentence which consisted of 280 days.” | unclear | correct | agree with court The opinion conducts the independent record review required by Wende and Anders and finds no arguable issue. The revocation rested on an admitted violation, the credit miscalculation by the sheriff was corrected by an amended order before appeal was decided, and Mourning had been released with his sentence deemed fully served, so no relief was available. Nothing in the opinion suggests a legal error in the revocation or the term ordered. |
Denial of request for certificate of probable cause premised on claimed ineffective assistance of counsel at the revocation hearing“On January 2, 2013, the superior court denied the request for certificate of probable cause.” | unclear | not reached | agree with court The appellate court did not separately rule on the certificate denial; it treated the ineffective-assistance question only as a possible issue identified under Anders and found it not reasonably arguable after reviewing the record. Because Mourning admitted the violation and the record on appeal would not show counsel's reasons or the excuse evidence, an IAC claim is not cognizable on this record, so the result is defensible, though the opinion offers no analysis of the issue. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may file a brief referring to anything in the record that might arguably support the appeal, after which the court independently examines the record.
The appellate opinion: sound — The court followed the Wende/Anders procedure, described the procedural history and the possible issues counsel raised, confirmed Mourning was offered the chance to file his own brief, and conducted an independent review before affirming. It did not explain why the two identified issues (cognizability of IAC after an admitted violation and mootness given Mourning's release) were not arguable, but a Wende affirmance does not require that analysis and the result is well supported by the record described.
Opinion
Filed 9/25/13 P. v. Mourning CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063241
Plaintiff and Respondent, v. (Super. Ct. No. SCD241345)
JEFFEREY MOURNING,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed.
Lewis A. Wenzell, under appointment of the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In July 2012 Jefferey Mourning pled guilty to commercial burglary. He was sentenced to the low term of 16 months to be served in the custody of the sheriff pursuant to Penal Code1 section 1170, subdivision (h).
1 All further statutory references are to the Penal Code. Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable, issues. We offered Mourning the opportunity to file his own brief on appeal, but he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2012 Mourning was charged with one count of commercial burglary. In July 2012 Mourning pled guilty to the charge under a bargain limiting his sentence to no more than two years in local custody. Mourning was thereafter sentenced to the low term of 16 months to be served in the custody of the sheriff. Mourning was ordered to serve four months in local custody and the remaining 12 months under mandatory supervision of the probation department pursuant to section 1170, subdivision (h)(5)(B).
On November 20, 2012, Mourning's mandatory supervision was revoked after he admitted a nonreporting violation. He was ordered to serve out the remainder of his sentence which consisted of 280 days. With respect to the 280 days left to serve, Mourning was entitled, under section 4019, subdivision (f), to day-for-day credit, leaving 140 actual days to serve.
On December 12, 2012, Mourning filed a notice of appeal. On December 14, 2012, he filed an amended notice of appeal in propria persona, which also requested that the superior court issue a certificate of probable cause. In the request for certificate of probable cause Mourning argued that his counsel ineffectively represented him at the revocation hearing. He argued his nonreporting was excused because of his memory problems caused by shock treatments he received and strong medications he was taking 2 for his seizures. On January 2, 2013, the superior court denied the request for certificate of probable cause.
Appellate counsel discovered that the sheriff had calculated his release date to be May 27, 2013, based upon application of one day of credit for each two days served, which was the credit amount under prior law. Counsel communicated with the trial court concerning this issue and the court issued an amended sentencing order. Mourning's release date was recalculated as April 9, 2013.
On April 9, 2013, Mourning was released from custody without conditions as his sentence, under section 1170, subdivision (h), was deemed to have been fully served.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies the following possible, but not arguable issues:
1. Whether a claim of ineffective assistance of counsel at a probation violation hearing is cognizable on appeal when a defendant admits the violation of probation, and 2. Whether Mourning's appeal is moot.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues raised by 3 appellate counsel, and have not found any reasonably arguable appellate issues.
Competent counsel has represented Mourning on appeal.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P, J.
McDONALD, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12