STATE v. DAVIS (2017)

 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) identified by the court, or grant the motion and appoint substitute appellate counsel. State v. Dufrene, 07–823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33.

 Mr. Davis's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. The bill of information in this case properly charged Mr. Davis and presents no non-frivolous issues supporting an appeal. As required, it plainly and concisely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged. See La. C.Cr.P. arts. 464–466.

As reflected by the minute entries and commitment, Mr. Davis appeared at each stage of the proceedings against him, including his arraignment, his plea and his sentencing. Mr. Davis's presence does not present any issue that would support an appeal. Accordingly, we affirm Mr. Davis's convictions and sentences, and grant defense counsel's motion to withdraw.

Errors Patent Review

Mr. Davis requests an errors patent review, which this Court routinely conducts in accordance with La. C.Cr.P. art. 920;  State v. Oliveaux, 312 So.2d 337 (La. 1975);  and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. We have reviewed the record and do not find any errors that require corrective action.

Conclusion

For the above discussed reasons, defendant's convictions and sentences are affirmed and defense counsel's motion to withdraw is granted.

CONVICTIONS AND SENTENCES AFFIRMED;  MOTION TO WITHDRAW GRANTED

FOOTNOTES

1.   See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

WINDHORST, J.