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STATE of Louisiana v. Craig M. JONES
Defendant, Craig M. Jones, was convicted of first degree robbery and attempted carjacking. For the following reasons, we affirm defendant's convictions and sentences. However, based on our errors patent review, we remand this matter to the trial court for correction of the sentencing minute entry and the Louisiana Uniform Commitment Order, as discussed below.
On March 28, 2022, the Jefferson Parish District Attorney filed a bill of information charging defendant with armed robbery with a firearm in violation of La. R.S. 14:64 (count one), attempted carjacking in violation of La. R.S. 14:27 and La. R.S. 14:64.2 (count two), and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count three). On March 29, 2022, defendant pled not guilty. On August 8, 2022, count one of the bill of information was amended to change the enumeration of the statute violated to a violation of La. R.S. 14:64.3,1 and on the same date, defendant entered a plea of not guilty.
On August 9, 2022, the case proceeded to trial, and on August 10, 2022, the twelve-person jury found defendant guilty of the lesser offense of first degree robbery in violation of La. R.S. 14:64.1 on count one, guilty as charged on count two, and not guilty on count three.
On August 22, 2022, the trial court sentenced defendant to thirty-five years’ imprisonment in the Department of Corrections as to count one and eight years’ imprisonment as to count two. The trial court further ordered these sentences to be served consecutively with each other. Thereafter, on September 8, 2022, defendant filed a written Motion for Appeal, which was granted by the trial court on September 15, 2022.
In his counseled appellate brief, defendant argues that the trial court erred by imposing an unconstitutionally excessive sentence. Additionally, in his pro se assignments of error, defendant argues that it was an error for the trial court to allow the introduction of prior offenses at his trial without a Prieur 2 hearing, and that the record does not contain evidence that the jury verdicts were unanimous.
On January 27, 2022, Alonzo Duncan was at his grandmother's house on Sheldon Street in Metairie, Louisiana, performing maintenance work on his Pontiac Grand Prix, which he wanted to sell in order to purchase a new car for his daughter's college graduation. While he was looking at the Pontiac, an unknown man wearing a black jacket and black gloves, later identified as defendant, walked up to him and said, “I need to get that.” Mr. Duncan did not initially understand what defendant wanted. Mr. Duncan testified that defendant then pointed a firearm 3 at him and said, “I need to get that car.” Defendant removed the keys from Mr. Duncan's hand and drove away in the Pontiac. Mr. Duncan got into his other vehicle, an Avalanche, and followed defendant.4
While driving away from Mr. Duncan, defendant hit a Chevy Silverado at South Sibley Street and Milan Street.5 Defendant then left the scene of that accident in the Pontiac, driving toward Airline Drive. Mr. Duncan continued to follow defendant. Once Mr. Duncan arrived on Airline Drive, he saw that his Pontiac had been involved in another accident and that defendant had fled the scene. Subsequently, while at the scene of the accident on Airline Drive, Mr. Duncan identified defendant as the person who pointed a firearm at him and took his Pontiac.
On January 27, 2022, Ricardo Cedillo was driving his Dodge Ram truck on Airline Drive with his wife as a passenger. As he was turning right onto Roosevelt Boulevard, a silver Pontiac hit his Dodge. After the impact, the Pontiac hit a pole and crossed several lanes of travel resulting in the Pontiac being “destroyed.” Mr. Cedillo testified that as a result of the accident, his wife was hurt and received medical treatment. Mr. Cedillo testified that he saw a man get out of the Pontiac that hit him, but he was not able to make an identification of the driver.
Ryan Griffin was driving on Airline Drive on January 27, 2022, when he heard a noise that sounded like a car wreck behind him.6 He testified that when he looked over, he saw a Pontiac “flying past” him on the shoulder. He watched the Pontiac hit and ricochet off a telephone pole, almost hitting his Chevy truck. When the Pontiac came to a rest in the median, Mr. Griffin exited his Chevy to check on defendant and to render aid. Defendant exited the Pontiac stumbling, appearing dazed and confused.7 Mr. Griffin testified that defendant shoved Mr. Griffin away from him and ran toward Mr. Griffin's Chevy, jumping into the driver's seat. Mr. Griffin ran behind defendant and held the truck's door open. As Mr. Griffin reached into the Chevy, shut the ignition off, and started pulling the keys out, defendant started to “fight” with him, punching him and trying to rip Mr. Griffin's thumb off the keys. After Mr. Griffin was able to pull the keys out of the truck, defendant grabbed Mr. Griffin's arm and slammed it in the truck's door. Mr. Griffin was able to open the door and pull defendant out of his Chevy. Defendant then ran away from the accident scene. Later, Mr. Griffin identified defendant as the person who tried to steal his Chevy.
Officer Jordan Cusimano with the Kenner Police Department testified that on January 27, 2022, he responded to a call for service regarding a carjacking by a suspect wearing a black hoodie. Officer Cusimano first saw a man fitting the description of the suspect running on Tenth Street and relayed his location to other officers. Officer Michael George Romano with the Kenner Police Department received Officer Cusimano's location and saw the man running on “Fairway,” then down an alley. Officer Romano then found defendant hiding underneath a raised house at 1020 Fairway and placed him under arrest. A firearm was not located on defendant when he was arrested. Officer Romano and other officers searched in and around the area where defendant was located; they were not able to locate a firearm.
John Walsdorf of the Jefferson Parish Sheriff's Office testified that on January 27, 2022, he was contacted by the Kenner Police Department for assistance. Detective Walsdorf said that defendant was already in custody and an identification had been made prior to his arrival. Detective Walsdorf searched the Pontiac and did not locate a firearm. He collected defendant's clothes and one glove, and conducted a video-recorded interview of defendant at the Jefferson Parish Sheriff's Office Investigations Bureau. Detective Walsdorf identified the Miranda 8 warnings form that he read to defendant in the interview.9 After interviewing defendant, Detective Walsdorf prepared and obtained an arrest warrant for armed robbery, attempted carjacking, and possession of a firearm by a convicted felon.
ASSIGNMENT OF ERROR NUMBER ONE
Excessiveness of sentences
In his only counseled assignment of error, defendant argues that his sentences are excessive because: 1) the trial court penalized defendant for possessing a firearm even though he was found not guilty of possession of a firearm by a convicted felon and he was found guilty of the lesser offense of first degree robbery and not the charged offense of armed robbery with a firearm; 2) he was sentenced near the statutory maximum; 3) he received a consecutive sentence; and 4) and the trial court abused its discretion by not ordering a presentence investigation or articulating into the record that it gave a meaningful review of defendant's age, education, employment history, or criminal background before the sentencing hearing.
Prior to sentencing, the trial court set forth detailed reasons for defendant's sentence, saying:
This was a case that we tried, I believe it was last week. Mr. Jones was charged with armed robbery with a firearm, I believe, attempted carjacking, convicted felon with a weapon. He was found not guilty of convicted felon with a weapon, he was found guilty of first degree robbery with – – for the armed robbery, and he was found guilty as charged from the attempted carjacking.
I watched the trial, I heard the testimony. There were two victims in the case. One of the victims, a fine gentleman, was outside his mother's house, fixing his car so that he can give the car to his daughter who was graduating from Xavier. His testimony was that the defendant walked up to him, pointing a gun at him, took the keys from him, took the car. He takes the car and he goes down Airline Highway at a high rate of speed. He gets into a car accident, he totals the car, he injures another car with some people in it, he gets out of his car, and there's a Good Samaritan who stops and the Good Samaritan sees the defendant getting out of his car and he looks pretty hurt, and he's a little bit dazed. So the Good Samaritan gets out of his car and tries to help the defendant while the defendant tries to jump in his car and take his car. The Good Samaritan tries to stop him. There's a big fight. The Good Samaritan gets beat up. There's some bruising. The defendant is banging the door on his arm. The Good Samaritan is able to fight him off. The defendant runs about a couple of blocks away, and they find him underneath a house.
So throughout the trial by Mr. Jones, I was chastised throughout the trial. He didn't want to remain quiet. He told me that I wasn't treating him properly, I was treating him disrespectfully, wasn't treating him like a human, I wasn't treating him like a man, and that he was a human, and he was a man. And, Mr. Jones, I can tell you, you certainly didn't treat your victims like they were human. I can tell you that. And thank God for that –– for that victim in Florida. He didn't have to come back for the trial. He did. He came back for the trial. He didn't have to because he doesn't live in Jefferson Parish, but he did, and I give him credit for that.
So, Mr. Jones, I didn't see anything in that trial for me to think that you could rehabilitate yourself. You caused a scene throughout the whole trial. At one point, I was gonna have to duct tape you, and you didn't want to cooperate at all. We gave you every benefit of every Constitutional protection that you were entitled to. You complained about your lawyer. You said your lawyer didn't know what he was doing. Well, your lawyer did a fine job. Your lawyer found –– got you a not guilty, got you guilty for a lesser charge. Your problem is not your lawyer. Your problem is going to be the Judge, and that's me. Because what I see, saw, I didn't like and I saw the two victims who were two fine gentlemen, two fine gentlemen, couldn't ask for better people. In fact, the jury –– I guess the jury didn't think you had a gun, but I'll tell you what, I certainly did. Because I can tell you I saw that victim testify whose car you took who was outside his mother's house. And I can tell you this just by looking at him, if you didn't have a gun, you'd have been in the hospital after he got through with you. So you had a gun. I know you had a gun. The victim described the gun. You know you had a gun. And then to boot, the Good Samaritan tries to help you. He sees you're hurt. The Good Samaritan's going to try and help you, take you to the hospital, do whatever he needs to, and you turn on him and you beat him up, and you try and take his car. So you were a one-man crime wave that day, a one-man crime wave.
So as to the first charge of first degree robbery, I hereby sentence you to thirty-five (35) years in the Department of Corrections; as to the attempted carjacking, the 14:27[:]64.2, I find you –– I sentence you to eight (8) years on that charge, and I'm running them both consecutive for a total of forty-three (43) years.
Good luck to you, Mr. Jones.
Defense counsel did not object to the sentences, and he did not file a motion to reconsider sentence. This Court has consistently held that a defendant's failure to make or file a motion to reconsider sentence limits the defendant to a review of the sentence for unconstitutional excessiveness only. La. C.Cr.P. art. 881.1(E); See also State v. Bartholomew, 18-670 (La. App. 5 Cir. 10/23/19), 282 So.3d 374, 384-85, writ not considered, 19-1869 (La. 1/28/20), 288 So.3d 123.
Additionally, because defendant failed to challenge the consecutive nature of his sentences in the trial court, the issue was not preserved for review on appeal. See State v. Manuel, 20-172 (La. App. 5 Cir. 6/2/21), 325 So.3d 513, 569, writ denied, 21-926 (La. 10/12/21), 325 So.3d 1071. As such, the review here is limited to unconstitutional excessiveness.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for unconstitutional excessiveness. State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is 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. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622.
A trial judge has broad discretion when imposing a sentence because he or she is in the best position to consider the aggravating and mitigating circumstances of a particular case. State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). A reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.
In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616, 623, writ denied, 21-1128 (La. 12/7/21), 328 So.3d 425; State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880.
In this case, in count one, defendant was charged with committing armed robbery with the use of a firearm, but was convicted by a jury of the lesser offense of first degree robbery. At the time of the offense, the penalty for first degree robbery under La. R.S. 14:64.1(B), provided: “Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.” As to count two, attempted carjacking, defendant was found guilty as charged. The penalty for attempted carjacking requires review of two statutes. La. R.S. 14:64.2(B) provides in part: “whoever commits the crime of carjacking shall be imprisoned at hard labor for not less than two years and for not more than twenty years, without benefit of parole, probation or suspension of sentence.” La. R.S. 14:27(D)(3) provides in part, “[H]e shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term if imprisonment prescribed for the offense so attempted, or both.” Therefore, whoever commits the crime of attempted carjacking shall be imprisoned at hard labor for not more than ten years, without the benefit of parole, probation, or suspension of sentence. The trial court sentenced defendant to thirty-five years’ imprisonment for his first degree robbery conviction and eight years’ imprisonment for his attempted carjacking conviction. The sentences were ordered to be served consecutively to each other. As such, defendant's sentences are within the statutory ranges and are not the maximum sentences allowable by the statutes.
Considering the first factor, the nature of the crime, in the instant matter, defendant committed multiple crimes, affecting several victims. In the sentencing hearing transcript, the trial judge summarized the facts he took into consideration, including the nature of the crimes against Mr. Duncan and the “Good Samaritan”, Mr. Griffin. The judge was present throughout the trial of this matter in which the evidence established that defendant took Mr. Duncan's Pontiac with “force or intimidation.” Mr. Duncan testified that defendant pointed a firearm at him. After taking and fleeing in Mr. Duncan's Pontiac, defendant hit a Chevy truck at Milan Street and South Sibley Street. After leaving the scene of that accident, defendant hit Mr. Cedillo's truck, which was also occupied by his wife. Mr. Cedillo testified that his wife required medical treatment. After defendant hit Mr. Cedillo's truck, the Pontiac defendant was driving hit a pole and landed on the median of Airline Drive. The Pontiac was described as “destroyed.” After witnessing this accident, Mr. Griffin attempted to assist defendant, but defendant responded violently and injured Mr. Griffin. Defendant pushed Mr. Griffin away from him, ran to Mr. Griffin's truck, entered the driver's seat and attempted to drive away. Defendant punched Mr. Griffin, grabbed his fingers, and closed the truck door on Mr. Griffin's arm. Mr. Griffin was able to pull the keys out of the ignition. Defendant then fled on foot and was found hiding underneath a nearby raised home. The testimony also established that defendant attempted to take Mr. Griffin's truck by use of “force or intimidation.”
As indicated above, the nature of defendant's crimes was violent. The evidence shows that defendant's actions caused physical injuries to Mr. Cedillo's wife and Mr. Griffin, and he caused damage to three vehicles. Additionally, first degree robbery and attempted carjacking are enumerated crimes of violence pursuant to La. R.S. 14:2(B). The record reflects that the trial court considered the violent nature of the offenses and the multiple victims defendant affected, calling defendant a “one man crime wave.”
Defense counsel argues that defendant was “penalized” for having a firearm even though the jury found defendant not guilty of possession of a firearm by a convicted felon.
An element of the crime of first degree robbery is reasonable belief by the victim that defendant is armed with a dangerous weapon.10 In the present case, the trial judge stated he believed Mr. Duncan when he testified that defendant had a gun and stated, “I guess the jury didn't think you had a gun, but I'll tell you what, I certainly did.” He continued, “I know you had a gun. The victim described the gun. You know you had a gun.” The trial court clearly stated it was certain that defendant used a firearm when committing the robbery against Mr. Duncan.
In determining a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions, but may properly review all prior criminal activity. Hankton, 325 So.3d. at 624; State v. Hampton, 50,561 (La. App. 2 Cir. 5/18/16), 195 So.3d 548, 561, writ denied, 16-1181 (La. 5/26/17), 221 So.3d 854. The sources of information relied upon are varied and may include information not normally admissible at trial, such as hearsay, prior arrests without disposition, and suspicions of criminal activity without actual proof the defendant committed other offenses. Id. In Hampton, supra, the defendant was acquitted of a second degree kidnapping offense, but the court noted that it was considering the second degree kidnapping in the defendant's sentence.
Thus, upon review, we find that the trial court did not err in considering defendant's possession of a firearm during the commission of the robbery against Mr. Duncan in its determination of the sentence to be imposed.
Considering the second factor, the nature and background of the offender, defense counsel argues that the trial court abused its discretion by imposing sentences without taking into account defendant's background. Defense counsel also argues that there is no indication that defendant had any prior felony convictions.
The record shows that the trial court considered defendant's use of a firearm and defendant's demeanor throughout trial. The trial court also considered defendant's past criminal acts and the violent nature of the charged offenses at the sentencing hearing. Additionally, there is evidence in the record of two prior felony convictions. Two prior convictions are in the bill of information—possession of a controlled dangerous substance and unauthorized entry of an inhabited dwelling. Additionally, the testimony of Ms. Sharp elicited the same two prior convictions from defendant's certified conviction packet.
Defense counsel further argues that the trial court abused its discretion by not ordering a presentence investigation report. The record shows that defense counsel did not request a presentence investigation report, and no objection to the lack of a presentence investigation report was made at defendant's sentencing hearing. A presentence investigation report is not a statutorily required basis for a valid sentence. La. C.Cr.P. art. 872, et seq. Additionally, La. C.Cr.P. art. 875(A)(1) provides that a court may order a presentence investigation report. (Emphasis added.) The code article's use of the word “may” reflects that a presentence investigation report is discretionary. A presentence investigation report is an aid to help the court, not a right of defendant, and the court is not required to order a presentence investigation report. State v. Bell, 377 So.2d 275 (La. 1979); State v. Jones, 11-87 (La. App. 5 Cir. 12/13/11), 81 So.3d 835, 840.
Defense counsel next argues that the trial court did not articulate into the record that it gave a meaningful review of defendant's age, education, employment history, or criminal background before defendant was sentenced. The trial court need not list or articulate every aggravating and mitigating factor therein, and the record need only reflect that the trial court considered the guidelines in particularizing defendant's sentence. State v. Chess, 00-163 (La. App. 5 Cir. 6/27/00), 762 So.2d 1279, 1283. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary. State v. Garrison, 15-285 (La. App. 5 Cir. 12/23/15), 184 So.3d 164, 171, writ denied, 16-258 (La. 2/10/17), 215 So.3d 700. In Garrison, the court noted: “The important elements which should be considered are defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation.” Id. at 171. However, there is no requirement that specific matters be given any particular weight at sentencing. Id. at 172.
As noted above, the record reflects two prior criminal convictions. Also, defendant's age and educational background are in the record. Defendant's certified conviction packet contains defendant's date of birth (January 2, 1993) and his educational background (ninth grade of high school). Ms. Sharp also provided testimony that included defendant's date of birth. Additionally, the record reflects the court considered the likelihood of rehabilitation. During the sentencing hearing, the court noted rehabilitation and stated: “So, Mr. Jones, I didn't see anything in that trial for me to think you could rehabilitate yourself.” Therefore, we find that the trial court was not in error by not specifically articulating and outlining defendant's age, education, employment history, or criminal background.
Finally, considering the third factor, the sentence imposed for similar crimes by the same court and other courts, defendant's thirty-five-year sentence for first degree robbery does not appear to be unconstitutionally excessive. The sentencing range for first degree robbery, La. R.S. 14:64.1, is three to forty years at hard labor without the benefit of parole, probation, or suspension of imposition or execution of sentence.
In State v. Mitchell, 35,970 (La. App. 2 Cir. 5/8/02), 818 So.2d 807, 809, the defendant was charged with armed robbery, and the jury found him guilty of first degree robbery. The trial court sentenced the defendant to thirty years’ imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Id. The appellate court held the sentence was not excessive even though it was the defendant's first offense and he was sixteen years old. The court also noted that the defendant used a firearm and multiple victims suffered trauma both during and subsequent to the crime of violence. Id. at 819.
In the instant case, defendant was also charged with armed robbery, the jury found him guilty of first degree robbery, and the trial judge believed that defendant used a firearm. Additionally, the instant case is not defendant's first felony conviction.
Defendant was also convicted of attempted carjacking under La. R.S. 14:27 and La. R.S. 14:64.2. The sentencing range for this offense is imprisonment at hard labor for no more than ten years without the benefit of parole, probation, or suspension of sentence. Defendant was sentenced to eight years, to be served consecutively to his sentence for first degree robbery. Defendant's eight-year sentence for attempted carjacking does not appear to be unconstitutionally excessive when considering other sentences for similar offenses under similar circumstances.
In State v. Taylor, 47,267 (La. App. 2 Cir. 8/8/12), 103 So.3d 517, the defendant jumped into the victim's truck and fought with the victim for the keys. The defendant eventually ran away and entered another vehicle. He was found guilty of attempted carjacking. During sentencing, the court noted that the defendant had two prior convictions and sentenced the defendant to serve ten years at hard labor, without the benefit of parole, probation, or suspension of sentence, consecutively to any other sentence. The offense was designated as a crime of violence under La. R.S. 14:2(B). The court of appeal held that the defendant's sentence was not unconstitutionally excessive.
In considering the three factors for reviewing a sentence for unconstitutional excessiveness—the nature of the crimes, the nature and background of defendant, and the sentences imposed for similar crimes by other courts—we find that defendant's thirty-five-year sentence for first degree robbery and eight-year sentence for attempted carjacking are not unconstitutionally excessive and not an abuse of discretion. The record supports both sentences imposed. Accordingly, this assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
Notice of prior offenses
In defendant's first pro se assignment of error, he alleges that there was no notice given that the State was going to introduce evidence of “prior offenses” or that an “expert” would be used to identify defendant as the perpetrator of “those offenses.” He then contends that the State introduced “other crimes” as evidence without going through a balancing test or holding a Prieur hearing. Defendant's brief does not specifically state the prior offenses or other crimes that were introduced in error. It appears in regards to the expert used, that defendant is referring to fingerprint comparison expert, Gena Sharp.
The record reflects that prior to trial, on August 5, 2022, the State filed “Notice of intent to Call Expert Witness – Gena Sharp,” including her curriculum vitae and her report that states defendant's fingerprints match the fingerprints from his prior convictions. At trial, defendant did not object to the admission of Ms. Sharp's fingerprint comparison report and defendant's certified conviction packet, nor was there an objection to the testimony of Ms. Sharp, who testified that defendant is the same person previously convicted of unauthorized entry into an inhabited dwelling and possession of hydrocodone as shown in defendant's certified conviction packet.
In order to preserve the right to seek appellate review of an alleged trial court error, the party claiming the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841(A); State v. Patin, 13-618 (La. App. 5 Cir. 9/24/14), 150 So.3d 435, 443, writ denied, 14-2227 (La. 4/22/16), 191 So.3d 1043; State v. McGowan, 16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1161, writ not considered, 17-1675 (La. 10/27/17), 228 So.3d 1227. In the instant case, defense counsel stipulated to Ms. Sharp's expertise. When defendant's fingerprints and certified conviction packet were introduced, the defense responded, “No objection.” Therefore, we find that this issue has not been preserved for appellate review.
Nevertheless, defendant's assignment of error lacks merit. Defendant was charged with violating La. R.S. 14:95.1, possession of a firearm by a convicted felon, and his two prior convictions were admissible for the purpose of proving that defendant had a prior felony conviction. See State v. Williams, 13-497 (La. App. 3 Cir. 11/6/13), 124 So.3d 1236, 1246, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024.
Defendant also argues that the State erroneously introduced “other crimes evidence” without first going through any balancing test or holding a Prieur hearing. State v. Prieur, 277 So.2d 126 (La. 1973), addresses the admissibility of other crimes, which is also addressed in La. C.E. art. 404(B) titled “Other crimes, wrongs, or acts.” Upon review, we find that the introduction of defendant's prior convictions did not require a Prieur hearing or balancing test under La. C.E. art. 404(B). Defendant's prior convictions are not impermissible evidence of other crimes because the prior convictions were an element to the offense of La. R.S. 14:95.1, possession of a firearm by a convicted felon. Accordingly, this assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
Whether the jury's verdicts were unanimous
In defendant's second pro se assignment of error, he alleges that the record does not contain evidence of the unanimity of the jury's verdicts, and requests that this matter be remanded to the trial court for determination of whether the jury's verdicts were unanimous. He concedes that he did not request polling, but asserts he has standing because of errors patent review pursuant to State v. Monroe, 20-335 (La. 6/3/20), 296 So.3d 1062 (per curiam).
In Monroe, supra, the Louisiana Supreme Court held: “If the non-unanimous jury claim was not preserved for review in the trial court or was abandoned during any stage of the proceedings, the court of appeal should nonetheless consider the issue as part of its error patent review. See La. C.Cr.P. art. 920(2).” The scope of appellate review is limited to assigned errors as well as “an error that is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence.” See La. C.Cr.P. art. 920.
After the verdict was returned in this case, defendant did not request that the jury be polled. The following conversation occurred regarding polling:
The court: Do you want them to be polled?
The court: You're not asking for polling?
Defense: No, sir.
La. C.Cr.P. art. 812 provides in part: “The court shall order the clerk to poll the jury if requested by the state or the defendant.” The record shows that neither the State nor defendant requested polling. Defense counsel declined polling when offered by the court. In order to preserve the right to seek appellate review of an alleged trial court error, the party claiming the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841(A).
In his brief, as support to remand this matter to the trial court, defendant cites State v. Norman, 20-109 (La. 7/2/20), 297 So.3d 738, and State v. Robinson, 21-254 (La. App. 4 Cir. 2/18/22), 336 So.3d 567, 586, writ denied, 22-437 (La. 5/24/22), 338 So.3d 1185, reconsideration not considered, 22-437 (La. 9/7/22), 345 So.3d 430.
In Norman, the defense requested polling, but polling was stopped after the first ten jurors, so the matter was remanded to ascertain whether the verdict was unanimous. The instant case is distinguishable from Norman because defense counsel in this case did not request polling and declined polling when it was offered by the court.
In Robinson, the trial court asked the jury if there were at least ten jurors who agreed with the verdict, and the jury foreperson responded affirmatively. The record showed the jury was not polled, and polling was not requested. The appellate court, citing Monroe, supra; Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), and Norman, supra, held “the Louisiana Supreme Court has directed appellate courts to consider non-unanimous jury verdicts as part of the appellate courts’ error patent review, even if a defendant did not preserve the claim for review or abandoned the claim at some stage of the proceedings.” Robinson, 336 So.3d at 580. The appellate court held that it must determine if the defendant was convicted by unanimous verdicts and remanded the matter. Id. at 586.
In State v. Lamizana, 21-409 (La. App. 4 Cir. 3/23/22), ––– So.3d ––––, 2022 WL 869670, the unanimity of the verdict was considered under the court's errors patent review. The record showed that polling was not requested; therefore, the jury was not polled. The appellate court considered the State's argument that the defense failed to request polling, and defense lacked standing to contest the unanimity of the verdicts. However, the appellate court found that the defendant did have standing and citing Monroe, supra, held, “[A] challenge to the unanimity of the verdict is an error patent under Louisiana law; and, as such, an objection to the jury's verdict, in the form of polling the jury, is not required.” The court found that a remand was necessary to clarify the record on the issue of whether the jury's verdicts were unanimous.
However, both the Second and Third Circuits have not remanded cases where polling was not requested and there was no evidence that the verdicts were not unanimous.
In State v. Bradley, 53,550 (La. App. 2 Cir. 11/18/20), 307 So.3d 369, 374, the defense requested polling on count one, but did not request polling on count two. The appellate court considered defense counsel's assigned error of failure to request jury polling on count two and held:
Unlike the circumstances in State v. Norman, supra, and State v. Fortune, supra, the record in this case clearly demonstrates that defense counsel made the conscious decision not to poll the jury regarding the four convictions for second degree rape. The matter was clearly before the parties and the court gave defense counsel the opportunity to make a request to have the jury polled on those convictions.
In State v. Phillips, 337 So.2d 1157 (La. 1976), the supreme court held that where the record is silent as to any request made by the defendant to poll the jury and as to any denial of such request by the court, and the defendant made no contemporaneous objection to the lack of polling, the matter cannot be considered on appeal. Similarly, in State v. Green, 10-0008 (La. App. 4 Cir. 11/17/10), 52 So.3d 253, the court held that the defendant lacked standing to assert an appellate challenge of a non-unanimous jury verdict based on his failure to poll the jury.
In State v. Wilkinson, 22-846 (La. App. 1 Cir. 3/6/23), 2023 WL 2362735 (unpublished opinion; not designated for publication), the defendant was found guilty on multiple counts and neither the State nor the defense requested polling. On appeal, the defendant argued that there was no evidence that his verdicts were unanimous. Citing Bradley, supra, the appellate court found the defendant's assignment of error to be without merit and highlighted that the defendant did not request to poll the jury and the jury instructions informed the jury that all twelve jurors must concur.
In this Court, in State v. Alexander, 20-95 (La. App. 5 Cir. 11/3/21), 330 So.3d 1179, 1181-82, the defendant was found guilty and neither the defendant nor the State requested that the jury be polled. This Court issued an Order to the clerk of court to supplement the record with the jury polling slips. The district court issued a per curiam stating that no polling slips existed because the parties waived polling of the jury. Thereafter, the defendant filed a “Motion for Matter to be Remanded to Trial Court,” and he requested the matter be remanded based on an affidavit from a juror attesting that she voted not guilty on all counts. In his appeal, the defendant also argued his conviction violated due process because the jury was instructed that at least ten of the jurors must concur, and he again requested this Court remand the matter to question the jurors regarding their verdicts. In its order dated January 29, 2021, this Court remanded the matter to the trial court to determine if the verdict on each count was unanimous because this Court found that the affidavit was some indication that the verdicts were not unanimous.11
However, the instant case is distinguishable from Alexander, supra, because there is no indication in this case that the juror's verdicts were improper. In the instant case, defense counsel decided not to poll the jury regarding defendant's two convictions and specifically declined when the court asked a second time if he wanted the jury polled. Similar to the facts in Wilkinson, supra, the trial court instructed that the verdict must be unanimous.12
There is no evidence in this record to indicate the jury's verdicts were improper or non-unanimous. Louisiana law does not require polling in criminal cases under La. C.Cr.P. art. 812. See State v. Alexander, 21-1346 (La. App. 1 Cir. 7/13/22), 344 So.3d 705, 724. As such, we find that under the facts of this case, defendant's assignment of error is without merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).
The sentencing minute entry indicates that defendant was advised that he had “two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief.” However, a review of the transcript of the proceedings on August 22, 2022, reveals that the trial judge did not advise defendant of the prescriptive period for filing post-conviction relief at his sentencing. Where there is a discrepancy between the minute entry and the transcript, the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
If the trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Perez, 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864, 870. Therefore, we advise defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.
Imposition of sentence without benefits
The sentencing hearing transcript and the minute entry do not reflect that defendant was advised that both of his sentences are to be served without the benefit of parole, probation, or suspension of sentence, even though both sentences should have been imposed with the restriction of benefits.13 The Louisiana Uniform Commitment Order contains a column that states, “Amount of time to be served without benefit, if applicable (8).” The column is void of the amount of time to be served without benefits for counts one and two.
Under La. R.S. 15:301.1 and State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, a statute's requirement that a defendant be sentenced without the benefit of parole, probation, or suspension of sentence is self-activating. Therefore, the trial court's failure to impose defendant's sentences without the benefit of parole, probation, or suspension of sentence requires no corrective action by this Court. Nevertheless, we remand this matter for correction of the minute entry and Uniform Commitment Order to show that defendant's sentences are to be served without the benefit of parole, probation, or suspension of sentence, and direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the institution to which defendant has been sentenced and to the Department of Corrections’ legal department.
The minute entry reflects that the trial court sentenced defendant to imprisonment at hard labor for count one, first degree robbery, and imprisonment at hard labor for count two, attempted carjacking; however, the transcript states that the sentence for first degree robbery would be served in the Department of Corrections and is silent as to how the sentence for attempted carjacking would be served. This Court has previously held that when the trial judge states that the defendant is sentenced to the “Department of Corrections,” the sentence is necessarily at hard labor. See State v. Jamison, 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2. Defendant was sentenced on count two pursuant to La. R.S. 14:27 and La. R.S. 14:64.2, which mandates that the sentence is to be served at hard labor. As such, no corrective action is required. See State v. Dennis, 12-818 (La. App. 5 Cir. 5/16/13), 118 So.3d 1166, 1174, writ denied, 13-1384 (La. 12/6/13), 129 So.3d 530.
For the foregoing reasons, defendant's convictions and sentences are affirmed. The matter is remanded to the trial court with instructions to correct the sentencing minute entry and the Louisiana Uniform Commitment Order, as noted above.
AFFIRMED; REMANDED WITH INSTRUCTIONS
1. The amended bill of information reflects the statutory citation of La. R.S. 14:64.3 but does not include the underlying statutory citation of La. R.S. 14:64 for armed robbery. Pursuant to La. C.Cr.P. art. 464, a clerical error in the statutory citation does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead defendant to his prejudice. In the instant case, defendant's bill of information uses the language in La. R.S. 14:64, and the error or omission appears to be a clerical error. See State v. Sam, 11-470 (La. App. 5 Cir. 2/14/12), 88 So.3d 587, 590.
2. State v. Prieur, 277 So.2d 126 (La. 1973).
3. Mr. Duncan testified defendant “upped on me,” and “he got close to me and waved it up.” Mr. Duncan clarified that he meant that he saw a firearm pointed at him. He further testified that he was familiar with firearms and knew that the firearm was black, and it was not a revolver.
4. Mr. Duncan was not able to call 9-1-1 because his cell phone was in the Pontiac that defendant had taken.
5. Deputy Kevin McGuffie with the Jefferson Parish Sheriff's Office traffic division testified that on January 27, 2022, he investigated a hit-and-run at Milan Street and South Sibley Street. He testified that a Chevy Silverado had been struck on the passenger side front and rear doors by a silver Pontiac, but he had been advised that the driver left the scene. While Deputy McGuffie was conducting his investigation, he received notice of another accident on Airline Drive that also involved a silver Pontiac.
6. Mr. Griffin testified that he was from Florida but was working in Louisiana doing storm restoration.
7. Mr. Griffin described defendant as a black male, wearing blue jeans and a black hoodie.
8. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
9. Gena Sharp who is employed with the Louisiana State Police testified at trial as an expert in fingerprint comparison. Ms. Sharp testified that State's Exhibit 5 showed that on January 14, 2015, under docket 143135, defendant entered a plea of guilty to unauthorized entry of an inhabited dwelling, and under docket 143136, defendant entered a plea of guilty to Possession of Schedule III, controlled dangerous substance, Hydrocodone. She further stated that the fingerprint card of defendant's fingerprints taken on the day of her trial testimony (August 9, 2022), matched the fingerprints from defendant's convictions, and all of the fingerprints she reviewed from defendant's prior convictions and arrests matched defendant's.
10. La. R.S. 14:64.1(A) provides: “First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.”
11. However, in the dissent, Hon. Molaison argued that he would deny the request to remand because there was no evidence in the record before the court to show whether a non-unanimous jury convicted the defendant. He also stated, “[A]s a court of record, we must limit our review to that which is in the official record before us,” citing Ventura v. Rubio, 00-682 (La. App. 4 Cir. 3/16/01), 785 So.2d 880, writ denied, 01-1065 (La. 5/4/01), 791 So.2d 662, and Uniform Rules, Courts of Appeal Rule 1-3.
12. The jury instructions state: “All twelve of you must concur to reach a verdict on each count in this case. That is, any verdict or verdicts you return must be unanimous.” The transcript of the jury charges is not part of the record. However, the “Criminal Jury Charges” were filed into the record on August 10, 2022.
13. La. R.S. 14:64.1(B) provides that the sentence is to be served without the benefit of parole, probation, or suspension of imposition or execution of sentence. La. R.S. 14:64.2(B) provides that the sentence is to be served without the benefit of parole, probation, or suspension of sentence.
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Docket No: NO. 22-KA-527
Decided: May 24, 2023
Court: Court of Appeal of Louisiana, Fifth Circuit.
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