STATE OF LOUISIANA v. KENNETH WAYNE WHITMORE (2024)

Writ application granted. See per curiam.

05/07/24

SUPREME COURT OF LOUISIANA

No. 23-KP-0945

STATE OF LOUISIANA

v.

KENNETH WAYNE WHITMORE

ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

Writ granted. Applicant has failed to make a prima facie showing of ineffective assistance of counsel at sentencing, and the district court erred in ordering the state to respond to the application for post-conviction relief on the merits. See State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d 845; State v. Marcus Harris, 2021-01641, p. 1 (La. 1/19/22); 331 So.3d 321, 322 (Crichton, J., concurring).

In this case, defendant filed a post-conviction application alleging his attorney provided ineffective assistance of counsel at his sentencing hearing. Defendant urged the district court to apply the holding of State v. Derrick Harris, 2018-1012 (La. 7/9/20), 340 So.3d 845, to his decades-old, final convictions and sentences. As I have stated previously, “[a] ruling from this Court addressing the issues in Harris and any potential retroactivity of that decision would certainly be beneficial for lower courts in their application of La. C.Cr.P. art. 930.8.” State v. Dugas, 2023-1008, p. 1 (La. 12/19/23), 375 So.3d 407 (Crichton, J., concurring); State v. Marcus Harris, 2021-1641, p. 1 (La. 1/19/22), 331 So.3d 321, 322 (Crichton, J., concurring). However, this case presents an inadequate vehicle to do so.

Defendant was convicted of two counts of armed robbery. While the sentences were imposed consecutively, the judge did not impose the maximum sentence for either offense. Unlike in Derrick Harris, 2018-1012, 340 So.3d 845, and State v. Robinson, 2019-1330 (La. 11/24/20), 304 So.3d 846 ¹ where the judges imposed the statutory mandatory minimum life sentences blind to any mitigating information about the defendants, in this case it appears that the judge exercised discretion and imposed the sentences believed to be appropriate under the circumstances. Further distinguishing this case from that of Derrick Harris, Defendant does not present any mitigating information that was not considered by the sentencing judge as a result of counsel's alleged deficient performance. Accordingly, as in Marcus Harris, 2021-1641, 331 So.3d 321, the defendant here likewise failed to make a prima facie showing of ineffective assistance at sentencing. For these reasons, I agree with the per curiam decision to grant the state's writ application and reverse the trial court ruling.

FOOTNOTES

1.   In Robinson, 2019-1330, 304 So.3d 846, defendant was sentenced to life imprisonment as a habitual offender for a marijuana conviction. Robinson made a sufficient showing in his post-conviction application that his attorney failed to argue for a downward departure from the mandatory minimum sentence even after the judge expressed discomfort imposing the sentence.

Crichton, J., additionally concurs and assigns reasons.