State of Louisiana v. Cody Nicholas Davis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-156

STATE OF LOUISIANA
VERSUS

CODY NICHOLAS DAVIS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 11424-19
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED IN PART AND VACATED IN PART.

Edward K. Bauman

Louisiana Appellate Project

P. O. Box 1641

Lake Charles, LA 70602-1641

(337) 491-0570

COUNSEL FOR DEFENDANT/APPELLANT:
Cody Nicholas Davis

Stephen C. Dwight

District Attorney

Charles H. Robinson

Karen McClellan

Assistant District Attorneys

Fourteenth Judicial District

901 Lakeshore Drive, Suite 600

Lake Charles, La 70601

(337) 437-3400

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

The defendant, Cody Nicholas Davis, appeals his adjudication and sentence
as a third habitual offender for the offense of obstruction of justice by tampering
with evidence. For the reasons herein, we vacate and set aside the adjudication and
enhanced sentence for this offense.

FACTS AND PROCEDURAL HISTORY

Defendant was charged as a third and subsequent offender, a violation of
La.R.S. 15:529.1, by bill of information filed on May 15, 2019. Therein, the State
sought to enhance Defendant’s sentences for illegal possession of a stolen firearm,
a violation of La.R.S. 14:69.1; aggravated flight from an officer, a violation of
La.R.S. 14:108.1(C); unauthorized use of a motor vehicle, a violation of La.R.S.
14:14:68.4; obstruction of justice by tampering with evidence, a violation of La.R.S.
14:130.1(A)(1); and aggravated criminal damage to property, a violation of La.R-S.
14:55.

On August 2, 2019, the trial court adjudicated Defendant a third habitual
offender and sentenced him to serve three years at hard labor for illegal possession
of a stolen firearm, four years at hard labor for aggravated flight from an officer, two
years at hard labor for unauthorized use of a motor vehicle, two years at hard labor
for obstruction of justice by tampering with evidence, and seven and one-half years
at hard labor for aggravated criminal damage to property. The trial court ordered
the sentences imposed for aggravated criminal damage to property and aggravated
flight from an officer to be served consecutively and all other sentences to be served

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concurrently.

' Defendant was also convicted of possession of a weapon by a convicted felon in trial
court docket number 9273-18 on September 7. 2018. The State did not seek to enhance that
sentence. However, the trial court resentenced Defendant to ten years for that offense. The trial
court subsequently realized its error and noted the sentence for that offense was to remain six years
at hard labor.

Defendant was convicted of the above-listed offenses in trial court docket
number 9273-18 on September 7, 2018. He was subsequently adjudicated and
sentenced as a habitual offender under docket number 11424-19. The underlying
offenses occurred on April 10, 2018.

Defendant filed a motion for appeal in both cases on August 14, 2019, and
that motion was granted. The appeals were not consolidated. Thus, Defendant’s
appeal from the underlying convictions was lodged separately with this court and is
dealt with in a separate opinion. State v. Davis, 20-155 (La.App. 3 Cir. _/ /21), _
So.3d_. Therein, in light of Ramos v. Louisiana, 590 U.S._, 140 S.Ct. 1390 (2020),
we vacated Defendant’s conviction for obstruction of justice by tampering with
evidence, as the verdict of the jury was not unanimous. On appeal, Defendant re-
filed the identical brief as the one filed in the companion appeal, asserting no
assignments of error regarding his habitual offender adjudication, other than urging
in his third assignment of error that the sentence imposed for obstruction of justice
for tampering with evidence be vacated because the verdict for that offense was not
unanimous.

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 none.
DISCUSSION

In his third assignment of error, Defendant contends his underlying conviction
for obstruction of justice by tampering with evidence is unconstitutional as the
verdict was rendered by a less than unanimous verdict. As a result, he urges that the
enhanced sentence imposed is likewise invalid and should be vacated. We agree.

Defendant’s conviction for obstruction of justice by tampering with evidence

has been vacated for lack of unanimity of the verdict. It was and is an illegal and

invalid verdict. In State v. Goodley, 423 So.2d 648 (La.1982), the supreme court
reasoned that an illegal verdict is equivalent to no verdict, either of conviction or
acquittal. A sentence based on an invalid verdict is itself invalid. See La.Code
Crim.P. art. 872(3); State v. Thibodeaux, 380 So.2d 59 (La.1980). Accordingly,
Defendant’s enhanced sentence for that offense is vacated.
DECREE

Defendant’s adjudication as a third felony offender and enhanced sentence of
three years at hard labor for obstruction of justice by tampering with evidence is
vacated, and the remaining habitual offender sentences are affirmed.

AFFIRMED IN PART AND VACATED IN PART.