State of Louisiana v. Lavoy Atrail Abrams

DO NOT PUBLISH

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-386

STATE OF LOUISIANA

VERSUS

LAVOY ATRAIL ABRAMS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 84069
HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

APPEAL DISMISSED. DEFENDANT IS
PERMITTED TO FILE AN APPLICATION FOR
SUPERVISORY WRITS WITHIN THIRTY DAYS
FROM THE DATE OF THIS DECISION.
MOTION TO WITHDRAW GRANTED.

Asa Allen Skinner
District Attorney - 30th Judicial District Court
Terry Wayne Lambright
Assistant District Attorney
P. O. Box 1118
Leesville, LA 71496-1118
COUNSEL FOR APPELLEE:
State of Louisiana

Mitchel Mark Evans, II
416 North Pine Street
DeRidder, LA 70634
COUNSEL FOR APPELLANT:
Lavoy Atrail Abrams

Lavoy Atrail Abrams
Elayn Hunt Correctional Center
P. O. Box 174
St. Gabriel, LA 70776

Painter, Judge

Defendant, Lavoy Atrail Abrams, was charged with armed robbery, a

violation of La.R.S. 14:64; second degree battery, a violation of La.R.S. 14:34.1;

false imprisonment, a violation of La.R.S. 14:46.1; and home invasion, a violation

of La.R.S. 14:62.8, on December 4, 2012. Defendant originally entered a plea of

not guilty, but he changed his plea to guilty of second degree battery and guilty of

home invasion on April 3, 2013. The State dismissed the remaining charges.

On June 19, 2013, for second degree battery charge, the trial court sentenced

Defendant to five years with the Department of Corrections, imposed a fine of

$1,000, and assessed court costs. For home invasion, the court sentenced

Defendant to ten years with the Department of Corrections, imposed a fine of

$2,000, and assessed court costs. The trial court suspended five years of the

sentence for home invasion, ordered supervised probation for five years upon

release, and imposed various conditions of probation. The sentences were ordered

to run concurrently. The trial judge advised Defendant that any motion to appeal

had to be filed within thirty days, and that an application for post-conviction relief

(PCR) had to be filed within two years.

Defendant timely filed a motion to reconsider his sentence on July 15, 2013.

The trial court denied the motion without a hearing on July 12, 2013.1 Defendant

filed a pro se post-conviction motion for discovery on October 17, 2013. Counsel

filed a “Motion for Devolutive Appeal and/or Out-of-Time Appeal (Pursuant to

1
Although the motion is file-stamped July 15, 2013, the verification indicates it was
forwarded to all parties on July 12, 2013, the same date the trial court denied the motion.

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the provisions of LSA-C.CR.P. Arts. §§936, et seq)” on November 18, 2013.2, The

motion sought “appellate review of that certain conviction entered on June 19,

2013, wherein Defendant herein was formally sentenced . . .” and requested an out-

of-time appeal. The trial court denied the motion without a hearing or comment on

November 19, 2013.

Defense counsel then filed an application for PCR on January 13, 2014.

Counsel did not request an out-of-time appeal. The trial court found the application

without merit and denied it on January 13, 2014. Counsel filed a second “Motion

for Devolutive Appeal (Pursuant to the provisions of LSA-C.C.P. Arts. §§2087, et

seq)” on February 14, 2014.3 Counsel did not request an out-of-time appeal. The

trial court granted the motion on February 20, 2014, allowing an appeal of the

January 13, 2014 “judgment dismissing Defendant’s Application for Post-

Conviction Relief.”

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), on May 9, 2014, alleging no non-frivolous issues

existed on which to base an appeal and seeking to withdraw as Defendant’s

counsel. After additional briefing ordered by this court, counsel satisfied the court

in oral argument that, indeed, no non-frivolous issues existed for appeal. For

2
The motion was not timely filed pursuant to La.Code Crim.P. art. 914. However, our
supreme court has held a remand to the district court “would only prolong the delay without
serving any useful purpose” where the trial court has granted a motion for appeal, and the State
failed “to complain about any procedural irregularities in the ordering of the out-of-time
appeal[.]” State v. S.J.I., 06-2649 (La. 6/22/07), 959 So.2d 483, 483. Counsel’s untimely motion
for devolutive appeal equates to a properly-filed motion for appeal, and the S.J.I. reasoning
applies.
3
We note a devolutive appeal does not exist in Louisiana criminal law. Further, the Code
of Civil Procedure has no effect in Louisiana criminal law.

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reasons set forth below, we now dismiss Defendant’s appeal but allow him to seek

supervisory writs within thirty (30) days of the date of this decision and grant

counsel’s motion to withdraw.

FACTS:

The State submitted this factual basis for Defendant’s guilty plea at the plea

hearing: “[T]his defendant, along with other defendants, did go to and chase into a

hotel room where the victim, Efrain Ramirez, was staying at the Sandman Motel,

forced their way into his hotel room and proceeded to beat him and inflict serious

injury to him.”

ANALYSIS:

The motion for appeal sought appellate review of the trial court’s denial of

Defendant’s application for PCR. Louisiana Code of Criminal Procedure Article

930.6(A) allows a defendant only to “invoke the supervisory jurisdiction of the

court of appeal if the trial court dismisses the application or otherwise denies relief

on an application for post conviction relief.” It also provides that “[n]o appeal lies

from a judgment dismissing an application or otherwise denying relief.” Thus, it

specifically prohibits the possibility of keeping an appeal viable where the appeal

seeks review of the denial of an application for post-conviction relief. Counsel has

already filed briefs indicating that he has found no non-frivolous issues for appeal,

and this court has denied Defendant’s motion for an extension of time to file a pro

se brief.

Accordingly, we dismiss Defendant’s appeal but allow him to file a proper

application for supervisory writs regarding the trial court’s February 20, 2014

order within thirty (30) days of the date of this decision. Defendant is not required

to file a notice of intent to seek writs or obtain an order from the trial court setting
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a return date, as is generally required by Uniform RulesCourts of Appeal, Rule

4-3. Further, counsel’s motion to withdraw is granted

APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN
APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY
DAYS FROM THE DATE OF THIS DECISION. MOTION TO
WITHDRAW GRANTED.

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