State of Louisiana v. Johnny Otis Davis

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-885

STATE OF LOUISIANA

VERSUS

JOHNNY OTIS DAVIS

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 61488
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
J. David Painter, Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

Hon. Don M. Burkett
District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT APPELLANT:
Johnny Otis Davis

Johnny Otis Davis
Claiborne Par. Detention Ctr.
1415 Hwy 520
Homer,, LA 71040
COUNSEL FOR DEFENDANT APPELLANT:
Johnny Otis Davis

SAUNDERS, J.

The Defendant, Otis Davis, was charged by bill of information with

possession or introduction of contraband into a penal institution, to wit: marijuana,

a violation of La.R.S. 14:402.

On August 9, 2006, the Defendant entered an Alford plea to the charge. The

plea agreement provided that after the State filed a habitual offender bill, a fifteen

year sentence would be imposed.

The Defendant filed a pro-se “Motion to Withdraw Guilty Plea.” A hearing

on the motion was held. At the hearing, the Defendant asserted that the matter

should have been handled by the penal institution through regulations set up by the

legislature for the Department of Public Safety and Corrections (DOC). The trial

court denied the motion finding that he knowingly and intelligently entered into the

plea.

The State filed a Habitual Offender Bill charging the Defendant as a fourth

felony offender. The State alleged that the Defendant had previously been

convicted of aggravated battery, a violation of La.R.S. 14:34, accessory after the

fact to armed robbery, violations of La.R.S. 14:25 and 14:64, and distribution of

cocaine, a violation of La.R.S. 40:967. A hearing was held, and the trial court

found the Defendant was a fourth felony offender. As per the plea agreement, the

Defendant was sentenced to fifteen years at hard labor.

Appellate counsel filed an Anders brief on this matter. We find there are no

non-frivolous issues in this matter. Accordingly, the Defendant’s conviction and

sentence are affirmed, and counsel’s motion to withdraw is granted.

FACTS:

At the guilty plea proceeding, the State set forth a factual basis explaining

that while incarcerated, the Defendant was searched and two joints of marijuana

were found in his front pocket.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

ASSIGNMENT OF ERROR:

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

appellate counsel filed a brief stating she could find no errors on appeal that would

support reversal of the Defendant’s conviction or sentence. Thus, counsel seeks to

withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit

explained the Anders analysis:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf. This court’s review of the record will consist of (1) a review
of the bill of information or indictment to insure the defendant was
properly charged; (2) a review of all minute entries to insure the
defendant was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any ruling provides
an arguable basis for appeal. Under [La.Code Crim.P.] art. 914.1(D)
this Court will order that the appeal record be supplemented with
pleadings, minute entries and transcripts when the record filed in this
Court is not sufficient to perform this review.

Id. at 531.

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Pursuant to Anders and Benjamin, we have performed a thorough review of

the record, including pleadings, minute entries, the charging instrument, and the

transcripts. The Defendant was properly charged by bill of information. He was

present and represented by counsel at all crucial stages of the proceedings. The

Defendant entered a free and voluntary guilty plea after properly being advised of

his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709

(1969). Additionally, the Defendant received a sentence that did not exceed the

statutory maximum.

We have found no issues which would support an assignment of error on

appeal. Therefore, counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW

GRANTED.

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