State of Louisiana v. Devin Stuart Davis

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-722

STATE OF LOUISIANA

VERSUS

DEVIN STUART DAVIS

**********

APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR502-07
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW
GRANTED.

Edward John Marquet
Attorney at Law
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT APPELLANT:
Devin Stuart Davis

Michael Cade Cassidy
District Attorney - 31st JDC
Post Office Box 1388
Jennings, LA 70546
(337) 824-1893
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

12-722

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

Appellee

VERSUS

DEVIN STUART DAVIS

Defendant-Appellant

On Appeal from the Thirty-First Judicial District Court, Docket Number CR-502-
07, Parish of Jefferson Davis, State of Louisiana, Honorable Steve Gunnell, Judge.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel
and the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is
granted.

THUS DONE AND SIGNED this _____ day of _________________, 2012.

COURT OF APPEAL, THIRD CIRCUIT

_________________________________
Judge John D. Saunders

_________________________________
Judge Phyllis M. Keaty

_________________________________
Judge John E. Conery

SAUNDERS, Judge.

The Defendant, Devin Stuart Davis, was charged by bill of information with

aggravated assault with a firearm, in violation of La.R.S. 14:37.4. On April 3,

2007, pursuant to a plea agreement, the Defendant pled guilty to the charge in

exchange for the State’s recommendation of a deferred sentence pursuant to

La.Code Crim.P. art. 893 and three years supervised probation with the following

special conditions: 1. serve fourteen months in the parish jail with credit for time

served; 2. forfeit handgun seized at the time of his arrest; 3. pay a $1,000 fine and

court costs within the first two years of his probation; 4. complete an anger

management course; 5. pay a $50 per month probationary fee; 6. abstain from

possessing a firearm during probation term. Additionally, the State agreed to

dismiss a charge pending in an unrelated docket.

On May 3, 2011, the Defendant’s probation and parole officer filed a motion

and order for a hearing to revoke probation due to continued criminal activity. The

petition alleged that in Miami, Florida, the Defendant had been arrested on three

occasions and charged with a variety of offenses, including felonies. On March

21, he was convicted of battery of a transit system agent and armed robbery with a

deadly weapon and sentenced to serve one year and one day in the Florida

Department of Corrections. The Defendant’s probation was revoked following a

hearing on July 11, 2011, and he was sentenced on November 28, 2011, to serve

three years at hard labor, with credit for all time previously served. The

Defendant’s timely filed motion to reconsider sentence was denied following a

hearing on June 11, 2012.

Appellate counsel has filed an Anders v. California, 386 U.S. 738, 87 S.Ct.

1396 (1967) brief in 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:

On August 25, 2006, an argument ensued between the Defendant and

Jonathan Simms. The Defendant fired a shot towards Sims as he was attempting to

leave the scene.

ERRORS PATENT:

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

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

find that there are no errors patent.

ANDERS ANALYSIS:

Pursuant to Anders, 386 U.S. 738, the Defendant’s appellate counsel has

filed a brief stating that after a review of all matters filed in the record, court

proceedings, and the transcripts, he could find no non-frivolous issues that could

be advanced on appeal. Accordingly, appellate 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 C.Cr.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.
2

Id. at 531.

Pursuant to Anders and Benjamin, we have performed an independent,

thorough review of the record, including pleadings, minute entries, the bill of

information, and the transcripts. The Defendant was properly charged by a bill of

information and was present and represented by counsel at all crucial stages of the

proceedings. The Defendant pled guilty as charged to aggravated assault with a

firearm which, at the time of the commission of the offense, carried a maximum

possible sentence of five years, with or without hard labor or a fine of not more

than $5,000, or both. See La.R.S. 14.37.4. As such, the Defendant’s three-year

sentence was legal and just over half of the maximum possible sentence. He was

also spared a significant fine.

DECREE:

We find there are no rulings which arguably support an appeal. Thus,

Defendant’s conviction and sentence are affirmed and counsel’s motion to

withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO
WITHDRAW GRANTED.

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