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State v. Davis

Court of Appeals of Louisiana, Fifth Circuit

November 29, 2017

STATE OF LOUISIANA
v.
JEREMY J. DAVIS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 07-862, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux

          COUNSEL FOR DEFENDANT/APPELLANT, JEREMY J. DAVIS Bertha M. Hillman

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE.

         In this appeal, defense counsel concludes that there are no non-frivolous issues for review, and requests permission to withdraw. Further, defense counsel requests that this Court conduct an errors patent review. For the following reasons, we affirm defendant's convictions and sentences. Further, we grant defense counsel's motion to withdraw.

         Factual & Procedural History

         On February 7, 2007, defendant, Jeremy Davis, was charged by bill of information with possession of MDMA and possession of cocaine. At his arraignment, on March 19, 2007, Mr. Davis pled not guilty. On September 16, 2016, Mr. Davis entered a guilty plea to both charges under Alford[1] and he was sentenced on each count to two years imprisonment with the Department of Corrections. The transcript of the trial court's proceedings on the day of Mr. Davis's plea and sentencing reflects that the sentences were to run concurrently with one another and with the sentence imposed in another matter, case number 07-863.

         On April 11, 2017, Mr. Davis filed an Application for Post Conviction Relief. On April 17, 2017, the trial court construed his pleading as a request for an out-of-time appeal, which it granted. In this appeal, defense counsel concludes that there are no non-frivolous issues for review, and requests that this Court conduct an errors patent review.

         Mr. Davis's convictions were the result of guilty pleas, and, therefore, the facts underlying the crimes of conviction are not fully developed in the record. However, during Mr. Davis's plea colloquy, the State explained that if the matter proceeded to trial, it would prove that on or about January 6, 2007, defendant possessed MDMA and cocaine in Jefferson Parish.

         Discussion

         Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), defendant's appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests permission to withdraw as counsel of record.

         In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he or she finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered 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 consideration." Jyles, 704 So.2d at 241.

         An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) ...


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