author: ROBERTS, J.

text:
    Timothy Carlos COFFEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-1299
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.
    Rehearing Denied October 25, 2017

      Andy Thomas, Public Defender; Glen P. Gifford and Joanna Aurica Mauer, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Michael L. Schaub and Matthew Pavese, Assistant Attorneys General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Timothy Coffey, was charged by amended information with one count of using a computer to facilitate or solicit a parent to consent to the sexual conduct of a child, in violation of section 847.0135(3)(b), Florida Statutes (2013) (Count 1); one count of unlawful use of a two-way communications device, a cellular phone, to facilitate the commission of a felony, traveling to engage in sexual conduct with a minor, in violation of section 934.215, Florida Statutes (2013) (Count 2); and one count of traveling to meet a minor to engage in sexual conduct with consent by a parent, in violation of section 847.0135(4)(b), Florida Statutes (2013) (Count 3). Each crime was alleged to have been committed “on or about November 15, 2013.” The appellant filed a motion to dismiss on double jeopardy grounds, arguing that all three crimes were alleged to have occurred, and were charged as having occurred, on the same date. The motion was denied.

The appellant proceeded to a jury trial during which evidence was presented that on November 14, 2013, the appellant responded via email to an Internet advertisement posted by an undercover agent posing as a mother “looking for just the right mature male to help with a family problem.” After learning on November 14 that the “mother” wanted her daughter to “be with a man” for religious reasons, on November 15, the appellant emailed again, asked for a picture of the daughter, and was told that the girl was twelve years old. A few hours later, the appellant emailed his understanding was that he would have sex with the twelve-year-old. In the early morning hours of November 16, the appellant emailed, “What happens now?” The “mother” did not respond until November 17, after which the appellant emailed to request the mother’s phone number to arrange a meeting. On November 17 at around 9 a.m., the appellant called the “mother” at the phone number she had provided, he described the sexual acts he would perform on the girl, and they arranged a meeting at a gas station after 2:00 p.m. that day. Right after the phone called ended, the appellant texted the “mother” and during the exchange, asked for a picture of the girl, which request was denied. The texting continued over the next several hours, and the two made plans to meet at the gas station later that day where the appellant was arrested.

The appellant testified in his own defense and. stated it was not his intent to have sex with a child. He .-testified that he was emotionally affected upon learning the “mother” was looking for a sex partner for a twelve-year-old because he had been sexually abused by a foster parent from the ages of six to nine years old, The State’s relevancy objection to defense counsel’s questioning about the details of the appellant’s past sexual abuse was sustained. Defense counsel later informed the court that he intended to call the appellant’s brother and sister to go into the details of the appellant’s past sexual abuse. The trial court declined to allow the testimony, declaring it irrelevant. Defense counsel then argued the testimony should be admitted as character evidence, to bolster and corroborate the appellant’s testimony about past sexual abuse, and to show that he was not predisposed to engage in the behavior of seeking out a minor. The trial court denied the request for character evidence, ruling it called for speculation and was not admissible. The trial court allowed defense counsel to proffer the testimony for the record. The appellant only proffered the testimony of his sister, who testified about the sexual abuse the appellant experienced as a child, the effect that abuse likely had on the appellant’s actions, and the appellant’s character as a good father and uncle. The trial court denied defense counsel’s renewed attempt to have the testimony admitted.. The appellant was convicted on all counts.

In his first issue on appeal, the appellant argues that his dual convictions for traveling and solicitation constitute a violation of double jeopardy under State v. Shelley, 176 So.3d 914 (Fla. 2015) (holding dual convictions for traveling and solicitation violate double jeopardy). We disagree.

Our recent opinion on motion for rehearing en banc in Lee v. State, 223 So.3d 342, 2017 WL 2374401 (Fla. 1st DCA June 1, 2017), is instructive. Lee rejected a double jeopardy claim, under Shelley upon its finding that the record contained multiple criminal episodes of solicitation and multiple distinct acts of solicitation to support the charges of using a computer to facilitate or solicit the sexual conduct of a child, alleged to have occurred over an eleven-day-span,-and of traveling to meet-a minor to engage in sexual conduct, alleged to have occurred on the twelfth day. Id. at 356-58, at D1277-78. Lee held that Shelley did not compel reversal of the convictions because the holding in Shelley was limited to dual convictions for solicitation and traveling after solicitation that were based on the same conduct. Id. at 351-52, at D1275-76.

As in Lee, the appellant’s dual convictions for traveling after solicitation and solicitation were not based on the same conduct. The amended information alleged all of the charges occurred on or about November 15. Our review of the record evidence finds at least one distinct solicitation within the email exchange ’ between the appellant and the '“mother” that occurred between November’ 14 and November 17. We find evidence of at least one more separate solicitation in the text and phone calls between the appellant and the “mother” on November 17 to support the traveling charge that occurred that sarhe day. As such, we agree with the State’s argument that the temporal break between the email exchange and text/phone calls on the day of travel provided the appellant with time. to “pause, reflect, and form a criminal intent” to render the email conversation and the text/phone conversation separate and distinct criminal episodes such that no double jeopardy violation,exists. Id. at 356-57, at D1277-78.

In his second issue on appeal, the appellant argues his dual convictions for traveling and unlawful use of á two-way communications device violate double jeopardy. The State concedes error under Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015). We accept the State’s concession of error and vacate the appellant’s judgment and sentence in Count 2.

In his third issue on appeal, the appellant challenges the denial of a pretrial motion to dismiss based on subjective and objective entrapment. Section 777.201(1), Florida Statutes (2013), creates a three-pronged test for a finding of subjective entrapment. Munoz v. State, 629 So.2d 90, 99 (Fla. 1993). First, a defendant must prove by a preponderance of the evidence that he was induced to commit the charged offense. Id. If this is proven, the accused must then prove by a preponderance of evidence that he was not predisposed to commit the charged offense, at which point the burden shifts to the State to rebut the accused’s evidence beyond a reasonable doubt. Id. If the State meets this burden, an entrapment evaluation is submitted to the judge if the factual circumstances of the case are not in dispute. Id. at 100. Otherwise, this evatoation is to be submitted to the jury.

The appellant argues that he was ’induced to solicit because the ad was posted in an adult dating section of Craigslist and because the undercover agent brought up the. suggestion that her daughter needed to lose her virginity for religious reasons. However, the appellant seems to be confusing inducement with ihvitation, and his argument fails to take into'account the numerous instances wherein the courts of this state have made just such a distinction. See e.g., Cantrell v. State, 132 So.3d 931, 932 (Fla. 1st DCA 2014), decision quashed on other grounds by, Cantrell v. State, 2016 WL 1669260 (Fla. 2016).

The-appellant-also argues that he was objectively entrapped, i.e,, that the undercover agent’s conduct was so outrageous as to rise to the level of offending the due process protections of Article 1, section 9, of the Florida Constitution. The above analysis applies here equally as well. The appellant was not targeted; he initiated contact, and was not induced, but acted upon an invitation. Accordingly, we affirm the trial court’s denial of the motion to dismiss.

In his fourth issue on appeal, the appellant argues the trial court erred by excluding testimony that would have tended to create a reasonable doubt and would have shown the appellant’s.lack of intent, motive, and predisposition to commit the charged offenses. We disagree. We agree with the State that the appellant’s failure to proffer his and’his brother’s excluded testimony renders that portion of the issue not preserved for appeal. We also agree with the State that the trial court did not abuse its discretion in excluding the testimony.

“All relevant evidence is admissible [at trial], except as provided by law,” relevant evidence being “evidence tending to prove or disprove a material fact.” §§ 90.402 & 90.401, Fla. Stat. (2014). Relevant evidence is inadmissible, however, when “its probative value, is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence,” § 90.403, Fla. Stat. (2014).

The trial court, having allowed the appellant to offer unobjected-to testimony of his history of being -sexual abused, acted well within its discretion when it determined that further testimony into the nature of the- abuse was needlessly cumulative and likely to inflame the emotions of jurors and possibly distract them from the relevant legal issues. The appellant was able to argue his theory of defense. The proffered testimony from his sister was not probative to the appellant’s predisposition as she only reiterated the appellant’s past sexual abuse and provided her opinion that he was a good father and uncle. Trial courts have broad discretion to admit or exclude relevant evidence. Discretion is abused when “the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” White v. State, 817 So.2d 799, 806 (Fla. 2002). The trial court did not abuse its discretion in this regard.

Accordingly, we affirm, the appellant’s judgment ; and sentence under sections 847.0135(3)(b) and 847.0135(4)(b). We accept the State’s concession of error and vacate the appellants judgment and sentence under section 934.215.

AFFIRMED in part, VACATED- in part, and REMANDED.

LEWIS and RAY, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM. BILBREY, J.,

license: Public Domain

text:
    Richard M. RIGBY, Appellant, v. BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Trustee FOR the CERTIFICATEHOLDERS OF CWMBS, INC., Alternative Loan Trust 2006-8T1, Mortgage Pass-Through Certificates, Series 2006-7, Appellee.
    CASE NO. 1D16-665
    District Court of Appeal of Florida, First District.
    Opinion filed September 18, 2017.
    Rehearing Denied October 23, 2017

      Douglas L. Smith of Burke, Blue, Hutchison, Walters & Smith, P.A., Panama City; Michael R. Reiter, Lynn Haven, for Appellant.
    Mark P. Stopa of Stopa Lav? Firm, Tampa, for Amicus Curiae Mark P. Stopa, Esq. and Stopa Law Firm, in support of Appellant.
    . Mary J. Walter and Trida J. Duthiers of Liebler Gonzalez & Portuondo, Miami, for Appellee.
    Marissa M. Yaker, Robert K. Bowen and Timothy D. Padgett of Padgett Law Group, Tallahassee; Robert R. Edwards and Ari Miller of Choice Legal Group, P.A., Ft. Lauderdale; David Rosenberg of Robertson, Anschutz & Schneid, PL, Boca Raton; Andrea R. Tromberg and Jason Joseph of Gladstone Law Group, P.A., Boca Raton; Michelle Garcia Gilbert and Jennifer Lima-Smith of Gilbert Garcia Group, P.A., Tampa, for Amicus Curiae American Legal and Financial Network, in support of Appellee.
    Carrie Ann Wozniak, Joseph E. Foster and Sara A. Brubaker of Akerman LLP, Orlando; Richard H. Martin of Akerman LLP, Tampa, for Amicus Curiae The Florida Bankers Association, in support of Ap-pellee.
    Kenneth B. Bell and John W. Little, III of Gunster, West Palm Beach; Robert W. Goldman of Goldman Felcoski & Stone, P.A., Naples, for Amicus Curiae The Real Property Probate and. Trust Law Section of The Florida Bar.
   PER CURIAM.

AFFIRMED. Ashby v. Wells Fargo Bank, N.A., 221 So.3d 1217 (Fla. 1st DCA 2017).

B.L. THOMAS, C.J., and OSTERHAUS, J., CONCUR; BILBREY, J., DISSENTS WITH OPINION.

BILBREY, J.,

Dissenting.

Richard Rigby challenges the final judgment of foreclosure in favor of Bank of New York Mellon, f/k/a the Bank of New York, as Trustee for the Certificate Holders CWMBS, Inc., Alternative Loan Trust 2006-8T1 Mortgage Pass-Through Certificates Series 2006-7 (BONY), on grounds that certain evidence at trial was improperly admitted and that the evidence was insufficient to prove that BONY had standing to enforce the note on the date the original foreclosure complaint was filed. Having reviewed the documents and testimony presented at trial and in the record, I believe that evidence was improperly admitted, and without that improperly admitted evidence, there was insufficient proof of BONY’s standing. Therefore, I would reverse the final judgment and remand, for a new trial. Since the majority affirms the decision of the trial court, I respectfully dissent.

BONY filed the original complaint for foreclosure on May 14, 2010, alleging that Mr. Rigby’s mortgage was in default due to his failure to pay the amount due September 1, 2009, and amounts due thereafter. Paragraph 8 of the complaint alleged that BONY “owns and holds the note and mortgage.” Attached to the complaint was a copy of a promissory note obligating Mr. Rigby to repay a loan from lender Bank-Trust and a copy of the mortgage securing the note. The signature page of the copy of the note included an undated special in-dorsement from an officer of BankTrust to “the order of Countrywide Bank, N.A.” See § 673.2051(1), Fla. Stat. (stating that a special indorsement may only be negotiated by the person identified). In his answer and affirmative defenses, Mr. Rigby denied the allegations in paragraph 8 of the complaint pertaining to BONY’s ownership and possession of the note and mortgage.

With leave of court, BONY filed an amended complaint with the same allegations in paragraph 8 to assert BONY’s standing to enforce the note. However, the note attached to the amended complaint included two indorsements in addition to the special indorsement to Countrywide Bank, N.A., which appeared on the earlier filed copy. The next indorsement on the note attached to the amended complaint was from Countrywide Bank, N.A., to Countrywide Home Loans, Inc. The last of the additional indorsements was a blank indorsement from Countrywide Home Loans, Inc., making the note payable to bearer and negotiable by transfer of possession alone. See § 673.2051(2), Fla. Stat. (“When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”). No dates appeared on any of the three indorsements.

Consistent with his original answer, in his answer to the amended complaint, Mr. Rigby again denied BONY’s allegations that it owned and held the note and mortgage. Accordingly, BONY’s status as a holder or other person entitled to enforce the note, pursuant to section 673.3011, Florida Statutes, continued to be a contested matter which BONY was required to prove. See Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So.3d 152, 154 (Fla. 1st DCA 2014) (citing Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 214 (Fla. 5th DCA 2011)) (“Accordingly, throughout the litigation Appellants disputed the fact of Deutsche Bank’s right to enforce the note and attendant standing to maintain an action for foreclosure. Deutsche Bank’s ownership of the note was thus an issue it was required to prove.”).

It is well-settled that where “the plaintiff files the original note after filing shit, an undated blank endorsement [sic] on the note is insufficient to prove standing at the time the initial complaint was filed.” Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015); see also Kelly v. Bank of New York Mellon, 170 So.3d 145, 146 (Fla. 1st DCA 2015) (quoting Tilus, 161 So.3d at 1286). Because the blank indorsement on the note in this case was undated, and BONY’s status as the holder when the action was filed was a contested issue, BONY offered additional evidence at trial in an attempt to prove standing. See Walton v. Deutsche Bank Nat’l Trust Co., 201 So.3d 831, 833 (Fla. 1st DCA 2016) (“Where the documentary evidence is insufficient to prove standing at the time of the filing of the complaint, a witness may provide sufficient testimony to prove standing.”).

BONY presented the testimony of Melissa Sequete, Assistant Vice President of Residential Credit Solutions, Inc. (RCS), the most recent loan servicer connected with the mortgage. Through Ms. Sequete’s testimony, BONY presented a series of documents it advanced as proof that the note was indorsed in blank and in the possession of BONY as of the date the original complaint was filed. The trial court allowed the testimony and admitted the documents over Mr. Rigby’s attorney’s repeated hearsay objections. However, because Ms. Sequete began her employment with RCS in 2011, she had no personal knowledge of the location of the note on May 14, 2010; no explanation for the difference in thé indorsements appearing on the copy of the note filed in 2010 and the original filed with the amended complaint in 2011; and no personal knowledge to offer evidence that the blank indorsement on the original note was in place as of May 14, 2010.

• BONY attempted to prove standing by admitting certain business records through Ms. Sequete’s testimony. A sufficient evi-dentiary foundation must be provided to admit business records over a hearsay objection, § 90.803(6)(a), Fla. Stat. As the Florida Supreme Court has stated:

To secure admissibility under this exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record,

Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008).

“Proper authentication by a witness requires that the witness demonstrate familiarity with the record-keeping system of business that prepared the document and knowledge of how the data was uploaded into the system.” Burdeshaw v. Bank of New York Mellon, 148 So.3d 819, 823 (Fla. 1st DCA 2014). Although the witness attempting to authenticate the business records of a predecessor business need not be the person who prepared the records or who is the custodian of the records, “since records crafted by a separate business lack the hallmarks of reliability inherent in a business’s self-generated records, proponents must demonstrate not only that ‘the other requirements of [the business records exception rule] are met’ but also that the successor business relies upon those records and ‘the circumstances indicate the records are trustworthy,’ ” Nationstar Mortgage, LLC, v. Berdecia, 169 So.3d 209, 215 (Fla. 5th DCA 2015) (quoting Bank of New York v. Calloway, 157 So.3d 1064, 1071 (Fla. 4th DCA 2015) (citations omitted)).

The pooling and servicing agreement pertaining to BONY’s trust and a document Ms. Sequete described as a “note routing history” were admitted into evidence as business records over hearsay objections. Ms. Sequete testified that the note was indorsed in blank when put into the trust on February 28, 2006. The implication from Ms. Sequete’s testimony was that ■ the blank indorsed note remained there and BONY was the holder when suit was filed. Ms. Sequete-had knowledge of RCS’ records and systems, but not as to the prior servicer, Bank of America. When asked if she had knowledge of whether Bank of America kept the records offered in the regular course of business, all she could testify to. was industry standards. When asked about Bank of America’s practices in making records, all she could testify to was what she read in the documents. Her association with Bank of America consisted only of training in how to function as a servicer and not as to how Bank of America kept its records. As such Ms. Sequete’s testimony was an, insufficient basis for admission of the pooling and service agreement and the note routing history. See § 90.803(6)(a); Yisrael; Burdeshaw; Hunter v. Aurora Loan Servs., 137 So.3d 570 (Fla. 1st DCA 2014). Without these documents there was no evidence as to when the note went into the trust, so there was no evidence that BONY was the holder when the original complaint was filed. See Powers v. HSBC Bank USA, N.A., 202 So.3d 121 (Fla. 2d DCA 2016) (holding that the attempt to prove standing failed where thei’e was no evidence that a loan was included in a pooling and service agreement).

As a result of the improperly admitted evidence I would reverse the final judgment of foreclosure and remand for a new trial. See Evans v. HSBC Bank, USA, Nat’l Ass’n, 223 So.3d 1059, 2017 WL 1829484 (Fla. 2d DCA May 5, 2017); Miller v. Bank of America, N.A., 201 So.3d 1286 (Fla. 5th DCA 2016); Helton v. Bank of America, N.A., 187 So.3d 245 (Fla. 5th DCA 2016).

      . Other recent cases from the Fourth District hold a predecessor's business records are admissible by showing they were "boarded” into the successor’s records with certain indicia of reliability. See Ocwen Loan Servicing, LLC v. Gundersen, 204 So.3d 530 (Fla. 4th DCA 2016); Wells Fargo Bank, N.A. v. Eisenberg, 220 So.3d 517 (Fla. 4th DCA 2017). However, I respectfully submit that the "kept in the ordinary course of business” requirement of Yisrael requires proof of familiarity with the predecessor’s record-keeping practices, as Burdeshaw and Berdecia also require. Yisrael, 993 So.2d at 956.

      . Had BONY been able lay a proper predicate for admission of the pooling and service agreement and the note routing history under the business records exception, then I agree that they could have been-used to show that BONY held the note at the time the initial complaint was filed and therefore had standing to sue. See Ashby v. Wells Fargo Bank, N.A., 221 So.3d 1217 (Fla. 1st DCA 2017); Bolous v. U.S. Bank Nat. Ass'n, 210 So.3d 691 (Fla. 4th DCA 2016); Deutsche Bank Nat. Trust v. Marciano, 190 So.3d 166 (Fla. 5th DCA 2016).


author: PER CURIAM:

text:
    STATE EX REL. Derrick NELLON v. STATE of Louisiana
    No. 2017-KH-1686
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Carlos LAMPLEY v. STATE of Louisiana
    No. 2016-KH-1678
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS

PER CURIAM:

JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Benjamin WEBB v. STATE of Louisiana
    No. 2017-KH-1673
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Edward James MCKINNEY v. STATE of Louisiana
    No. 2017-KH-1672
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the fifing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the'Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Kinay R. MINGO v. STATE of Louisiana
    No. 2017-KH-1652
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON

PER CURIAM:

JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor. shown the.“extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Dominic A. IMBRAGUGLIO v. STATE of Louisiana
    No. 2017-KH-1650
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

JjWRIT NOT CONSIDERED. Petitioner-has not'demonstrated that he-sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review, La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. James BUNCH v. STATE of Louisiana
    No. 2017-KH-1535
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

1 ¶Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Jerrell Keith MALONE v. STATE of Louisiana
    No. 2017-KH-1497
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CAL-CASIEU

PER CURIAM:

I (Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Fernand AUTERY v. STATE of Louisiana
    No. 2017-CI-1450
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS

PER CURIAM:

11 Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Johnny B. WRIGHT v. STATE of Louisiana
    No. 2017-KH-1426
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

11 Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Terry M. FERGUSON v. STATE of Louisiana
    No. 2017-KH-1345
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| |Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Murphy L. CALLAIS v. STATE of Louisiana
    No. 2017-KH-1315
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN

PER CURIAM:

| (Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown' the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Fard A. DICKERSON v. STATE of Louisiana
    No. 2017-KH-1239
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES

PER CURIAM:

| Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Kevin PITTS v. STATE of Louisiana
    No. 2016-KH-1445
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA

PER CURIAM:

| denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Pitts v. State, 15-0329 (La. 11/20/15), 178 So.3d 984.


text:
    STATE EX REL. Darryl RAINEY v. STATE of Louisiana
    No. 2016-KH-1439
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

1 iDenied. On the showing made, relator is not entitled to an out-of-time appeal. See State v. Counterman, 475 So.2d 336 (La. 1985). By pleading guilty unconditionally, he waived all non-jurisdictional defects in the proceedings leading to his conviction, State v. Crosby, 338 So.2d 584, 586 (La. 1976), and relator cannot appeal or seek review of a sentence imposed in conformity with a plea agreement. La.C.Cr.P. art. 881.2(A)(2). Relator also fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief.in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in [¡¡accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Louis HUDSON v. STATE of Louisiana
    No. 2016-KH-1437
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has’now fully litigated his application for post-conviction relief in state court. Similar to federal habeas 'relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period’, as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the fling of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Otis BANKS v. STATE of Louisiana
    No. 2016-KH-1430
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF RICHLAND

PER CURIAM:

| denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). By pleading guilty unconditionally, relator waived all non-jurisdictional defects in the proceedings leading to his conviction, State v. Crosby, 338 So.2d 584, 586 (La. 1976), and relator cannot appeal or seek review of a sentence imposed in conformity with a plea agreement. La.C.Cr.P. art. 881.2(A)(2). We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive flings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can | ashow that one of the narrow exceptions authorizing the fling of a successive application applies, relator has exhausted his' right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

11 Attachment

2

3


text:
    STATE EX REL. Erin DOUCET v. STATE of Louisiana
    No. 2016-KH-1340
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

I denied. On the showing made, relator is not entitled to an out-of-time appeal. See State v. Counterman, 475 So.2d 336 (La. 1985).


text:
    STATE EX REL. Richard Dale KUHN v. STATE of Louisiana
    No. 2016-KH-1333
    Supreme Court of Louisiana.
    10/27/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON

PER CURIAM:

liDenied. Relator fails to show that''he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the fling of a second' or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive flings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    Glen STYLES v. Burl CAIN
    No. 2016-KP-1219
    Supreme Court of Louisiana.
    10/27/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON

PER CURIAM:

[denied. Relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Robert NEFF
    No. 2016-KP-1038
    Supreme Court of Louisiana.
    10/27/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF ST. JOHN THE BAPTIST

PER CURIAM:

| j Denied. Relator’s guilty plea waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby, 338 So.2d 584, 586 (La. 1976).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Charles ANDREWS
    No. 2016-KP-0876
    Supreme Court of Louisiana.
    10/27/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

PER CURIAM:

|, Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: McDonald, j.

text:
    STATE of Louisiana v. James J. SPIKES, Jr.
    2017 KA 0087
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 15, 2017

      Warren L. Montgomery, District Attorney and Matthew Caplan, Assistant District Attorney, Covington, Louisiana Attorneys for State
    Gwendolyn K. Brown, Frederick Kroenke, Baton Rouge, Louisiana Attorneys for Defendant James J. Spikes, Jr.
    James J. Spikes, Jr., Uollinston, LouisL ana Pro Se
    BEFORE: WHIPPLE, C.J., MCDONALD, and CHUTZ, JJ.
   McDonald, j.

I aThe defendant, James j. Spikés, Jr., was charged by bill of information with possession of contraband in a state correctional institution, a violation of LSA-R.S. 14:402. He pled not guilty and, after a jury trial, was found guilty as charged. The trial court sentenced the defendant to four years imprisonment at hard labor. The State filed a habitual offender bill of information based on the defendant’s prior convictions for illegal use of a weapon and possession of cocaine. After a hearing, the trial court adjudicated the defendant to be a third-felony habitual offender. The trial court vacated the previously imposed foür-year sentence and resentenced the defendant to eight years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant objected to the sentence as excessive. The defendant now appeals, designating one counseled assignment of error and one pro se assignment of error. We affirm the conviction, habitual offender adjudication, and sentence.

FACTS

On August 19, 2015, the defendant was an inmate housed at the- Washington Parish Jail. On that date, corrections officers conducted a cell' block ‘‘shake down,” wherein the cells were searched for contraband. During the searches, the inmates sat around tables in the day room. The defendant was sitting on one side of a table and another inmate was sitting across from him but with his back to the table. The other inmate leaned back and pushed a blanket over the surface of the table toward the defendant. The defendant then reached into his pocket, withdrew a cell phone, and placed it under the blanket. A corrections officer observed these actions and retrieved the cell phone. The incident was captured by a surveillance camera. The State then filed the instant charge against the defendant.

COUNSELED ASSIGNMENT OF ERROR

In his counseled assignment of error, the defendant argues that his eight-year sentence as a habitual offender is unconstitutionally excessive. Specifically, he Ucontends the trial court should have departed from the mandatory minimum sentence.

The Eighth Amendment to. the United States Constitution and Louisiana Constitution Article I, § 20 prohibit the imposition of gruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1 Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors the trial court must consider when imposing sentence. While the trial court need not recite LSA-C.Cr.P. art. 894.1’s entire checklist, the record must reflect, the trial court adequately considered the criteria. State v. Brown, 02-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The goal of LSA-C.Cr.P. art. 894.1 is the trial court’s articulation of the factual basis for the sentence, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where the trial court has not fully complied with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial court were to find that the punishment mandated by the Habitual Offender Law, LSA-R.S. 15:529.1, makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the court has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court re-examined the' issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law.

A sentencing court must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is ' constitutional. A court may only depart from the minimum sentence if it finds clear and convincing evidence in the particular case before it that rebuts this presumption of constitutionality. A trial court may not rely solely upon the non-violent nature of the instant or prior offenses as evidence that justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So.2d at 676.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that, because of unusual circumstances, this' defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Given the legislature’s constitutional authority to enact statutes such as Ifithe Habitual Offender Law, it is not the sentencing court’s role to question the legislatures wisdom in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So.2d at 676-77.

Under LSA-R.S. 14:402(G), the maximum sentence for possession of contraband in a state correctional institution, is five years. For a third-felony habitual offender under LSA-R.S. 15:529.1(A)(3)(a), the sentencing range is not less than two-thirds of the longest possible sentence and not more than twice the longest-possible sentence. Accordingly, in this case, the defendant’s sentencing range as a third-felony habitual offender was not less than 3.33 years and not more than 10 years. At sentencing, the trial court stated:

Based on what this offense was and your prior record, I don’t feel the maximum is appropriate. However, I will sentence you to eight years at hard labor with the Department of Corrections, that’s without benefit of probation or suspension of sentence.

Contrary to the defendant’s argument, he was not sentenced to eight years imprisonment for possession of contraband in a state correctional institution. Rather, he received this enhanced, sentence because of his .continued lawlessness as a repeat offender. The major reasons the Legislature passed the Habitual. Offender Law were to deter and punish recidivism. Under this statute, a defendant with multiple felony convictions is treated as a recidivist who is to be punished for .his instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law, Johnson, 709 So.2d at 677,

In brief, the defendant does not explain how his . circumstances are unusual or how he is exceptional. In any case, there is nothing particularly unusual about the defendant’s circumstances, that would justify a downward departure from the | ¿mandatory sentence under LSA-R.S. 15:529.1(A)(3)(a). The record before us establishes an adequate factual basis for the sentence imposed. The defendant has hot shown by clear and convincing evidence that he is exceptional such that the sentence is not meaningfully tailored to his culpability as the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory minimum sentence is warranted. The sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The defendant’s counseled assignment of error is without merit.

PRO SE ASSIGNMENT OP ERROR

In his pro se assignment of error, the defendant argues that one of his predicate convictions used to adjudicate him a third-felony habitual offender should not have been used because that conviction was “not firm and’ should be overturned[.]”

In this case, to establish the defendant’s status as a third-felony habitual offender, the State used two predicate convictions in the habitual offender hearing, namely, illegal use of a weapon and possession of cocaine. For the possession of cocaine charge, the defendant -entered an Alford plea in 2010. In his pro se brief, the defendant argues that this plea should be overturned because the confidential informant in that case was “non-existent.” According to the defendant, his arrest report was built “upon fabricated and fanc[i]ful tales.” Further, the defendant suggests, when a confidential informant’s identity is not revealed, the “charges should be quashed.”

. -This assertion is baseless. The defendant’s collateral attack here of a predicate conviction, based on alleged insufficient evidence, is improper. For á guilty plea to be used as a basis for actual imprisonment, enhancement of. actual |./imprisonment, or--conversion of a subsequent misdemeanor into a felony, the trial court must inform-the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The court must also ascertain that the accused understands what the plea connotes and its consequences. If the defendant denies the allegations of the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a proeeduraPirregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, i,e., either the transcript of the plea or the minute entry. State v. Henry, 00-2250 (La. App. 1 Cir. 5/11/01), 788 So.2d 535, 541, writ denied, 01-2299 (La. 6/21/02), 818 So.2d 791. See State v. Shelton, 621 So.2d 769, 779-80 (La. 1993); State v. Carson, 527 So.2d 1018, 1020 (La. App. 1 Cir. 1988).

At the defendant’s habitual offender hearing, the State introduced a certified pen pack of the defendant’s predicate convictions, including his possession of cocaine conviction. The pen pack included the defendant’s name, his photograph, and his fingerprints. Although this exhibit is not in the appellate record, the habitual offender hearing transcript shows the trial court considered the pen pack and found that the State sufficiently, established the defendant’s possession of cocaine conviction. Moreover, after having initially denied the charges in the habitual offender bill of information, the defendant took the stand at the habitual offender hearing in January of 2017 and admitted that both of the predicate convictions were his convictions.

The defendant presented no affirmative evidence at the habitual offender hearing that would indicate an infringement of his rights or a procedural irregularity. See State v. Clesi, 07-0564 (La. 11/2/07), 967 So.2d 488, 489-90 (per curiam). Thus, the State proved the defendant’s predicate convictions, and the trial court correctly adjudicated the defendant to be a third-felony habitual offender. Accordingly, the defendant’s pro se assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED,.

      . While the defendant did not file a motion to reconsider sentence, he did object to his enhanced sentence as excessive at the habitual offender hearing. This assignment of error, therefore, is properly before us for review. See State v. Bickham, 98-1839 (La. App. 1 Cir. 6/25/99), 739 So.2d 887, 891.

      . The defendant, thus, is confused in his brief when he argues both that he is entitled to less than the mandatory minimum sentence and that the "original four year sentence was appropriate.”

      . Under North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970), an individual accused of a crime may voluntarily, knowingly, and understandably consent to the imposition of a prison sentence even if he 'is unwilling to admit his participation in the acts constituting the crime.


author: MCDONALD, J.

text:
    STATE of Louisiana v. Corey SCOTT
    2017 KA 0209
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 15, 2017

      Gwendolyn K. Brown, Baton Rouge, Louisiana, Attorney for Appellant, Corey Scott
    Hillar C. Moore, III, District Attorney And Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for State of Louisiana
    BEFORE: WHIPPLE, C.J., McDonald, and chutz, jj.
   MCDONALD, J.

I aThe defendant, Corey Scott, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The. defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.

FACTS

On February 7, 2014, Marvin Thomas, after being dropped off by his father who had business at a nearby mechanic shop, walked to Ragusa’s Grocery Store at the corner of 15th Street and Terrace Avenue in Baton Rouge. Several people were standing outside of the grocery store, including the defendant and his fi'iend, Harold Retana, who testified at triaL When Marvin walked out of the grocery store, Harold followed him. During Marvin’s entry into and exit from the grocery store, he and Harold never exchanged any words. Harold approached Márvin and, without warning, punched him. Marvin staggered, turned, and ran into the street. Harold chased after Marvin. At this point, according to Harold, Marvin went for something near his (Marvin’s own) hip. Harold grabbed at Marvin’s hand near his hip to prevent Marvin from pulling what Harold thought might be a gun. According to Harold, he felt part of a gun tucked inside of Marvin’s underwear. As they struggled, according to Harold, for control over the gun, they fell to the ground. The defendant, who was standing nearby watching the fight, produced a semi-automatic 9mm handgun and fired eight times at Marvin, striking him seven times and killing him. There was no gun found at the scene or on Marvin’s body. A video of the attack and shooting was captured by the grocery store surveillance camera and played for the jury.

The. defendant did not testify at trial.

'^ASSIGNMENTS OF ERROR NOS. 1 and 2

In-these related assignments of er-rbr, the defendant argues, respectively; that the trial court erred in imposing' an unconstitutionally excessive sentence; and that defense counsel’s failure to file a motion to reconsider sentence constituted ineffective assistance of counsel.

The record does not contain an oral or written motion to reconsider sentence. Louisiana Code of Criminal Procedure article 881.1(E) provides that the failure to file or make a motion to reconsider sentence precludes the defendant from raising an- excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this Article and the holding of State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam), we would not consider an excessive sentence argument. Howevei’, in the interest of judicial economy, we will consider the defendant’s argument that his sentence is excessive, even in the absence of a motion to reconsider sentence, in order to address the defendant’s claim of ineffective counsel. See State v. Wilkinson, 99-0803 (La. App. 1st Cir. 2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La. 4/20/01), 790 So.2d 631.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competente of trial counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it can’not be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

In evaluating the performance of counsel, the inquiry must be whether counsel’s assistance was reasonable .considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La. App. 1st Cir. 1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La. App. 1st Cir.), writ denied, 476 So.2d 350 (La. 1985).

Failure to file a motion tó reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel’s error, his sentence would have been different, a basis for an ineffective assistance claim may be found. See State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 370, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894,1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.

|fiThe articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he -will commit another crime, and’ his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime”, he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory ihinimum sentences in the Habitual Offender Law. While both Dorthey and Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the penalties provided by La. R.S. 15:529.1. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam); State v. Collins, 2009-1617 (La. App. 1st Cir. 2/12/10), 35 So.3d 1103, 1108, writ denied, 2010-0606 (La. 10/8/10), 46 So.3d 1265.

For the defendant’s second degree murder conviction, the trial court imposed the mandatory life sentence at hard labor. See La. R.S. 14:30.1(B). The defendant argues in brief that the trial court failed to consider mitigating circumstances that would require a “tailoring of sentence.” The defendant points out that he was eighteen years old the “day that Marvin Thomas was shot,” and that the United States Supreme Court has “long recognized that youthful offenders- are categorically different than their adult peers.” While the defendant recognizes he was “legally considered” to be an adult when Marvin was killed, the trial court failed to consider that he was “still subject, to the vagaries of youth.”

There is no need for the. trial court to justify a sentence under La. Code Crim. P. art. 894.1 when it is legally required to impose that sentence. As such, the failure . to articulate reasons as set forth in Article 894.1 when imposing a mandatory life sentence is not an error; articulating such reasons or factors would be an exercise in futility since the court has no discretion. Felder, 809 So.2d at 371. See State v. Ditcharo, 98-1374 (La. App. 5th Cir. 7/27/99), 739 So.2d 957, writ denied, 99-2551 (La. 2/18/00), 754 So.2d 964; State v. Jones, 31,613 (La. App. 2nd Cir. 4/1/99), 733 So.2d 127, 146, writ denied, 99-1185 (La. 10/1/99), 748 So.2d 434; State v. Williams, 445 So.2d 1264, 1269 (La. App. 3rd Cir.), writ denied, 449 So.2d 1346 (La. 1984).

Mandatory sentences have been repeatedly upheld as constitutional and consistent with the federal and state constitutional provisions prohibiting cruel, unusual or excessive punishment. See State v. Jones, 46,758-59 (La. App. 2nd Cir. 12/14/11), 81 So.3d 236, 249, writ denied, 2012-0147 (La. 5/4/12), 88 So.3d 462. To rebut the presumption that the mandatory minimum sentence is 17constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676.

Those cases cited by the defendant regarding the Supreme Court’s recognition of the difference between youthful offenders and adult peers have no applicability to the instant matter. These decisions addressed minors who committed crimes while under the age of eighteen, having considered eighteen years old the age of majority. See Miller v. Alabama, 567 U.S. 460, 465, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012) (mandatory life imprisonment without parole for those offenders under the age of 18 years at the time they committed .a homicide offense violates the Eighth Amendment prohibition of cruel and unusual punishments); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eighth Amendment precludes sentencing juvenile offenders— those under the age of 18 years at the time of the offense—to life imprisonment without parole for nonhomicide crimes); State v. Shaffer, 2011-1756 (La. 11/23/11), 77 So.3d 939 (per curiam).

Furthermore, there is nothing particularly unusual about the defendant’s circumstances that would justify a downward departure from the mandatory sentence under La. R.S. 14:30.1(B). The record before us clearly established an adequate factual basis for the sentence imposed. The defendant has not proven by clear and convincing evidence that he is exceptional such that a mandatory life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory life sentence is warranted. The sentence imposed is not grossly |sdisproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive.

Because we find the sentence is not excessive, defense counsel’s failure to file or make a motion to reconsider sentence, even if constituting deficient performance, did not prejudice the defendant. See Wilkinson, 754 So.2d at 303; Robinson, 471 So.2d at 1038-39. The claim of ineffective assistance of counsel, therefore, must fall.

These assignments of error are without merit,

CONVICTION AND SENTENCE AFFIRMED.