State v. Collins

981 So. 2d 843, 2008 WL 1886649
CourtLouisiana Court of Appeal
DecidedApril 30, 2008
Docket43,135-KA
StatusPublished

This text of 981 So. 2d 843 (State v. Collins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Collins, 981 So. 2d 843, 2008 WL 1886649 (La. Ct. App. 2008).

Opinion

981 So.2d 843 (2008)

STATE of Louisiana, Appellee,
v.
Josh COLLINS, III, Appellant.

No. 43,135-KA.

Court of Appeal of Louisiana, Second Circuit.

April 30, 2008.

*845 Louisiana Appellate Project by G. Paul Marx, Lafayette, for Appellant.

Jerry L. Jones, District Attorney, Charles Brumfield, E. Dion Young, Assistant District Attorneys, for Appellee.

Before WILLIAMS, GASKINS and MOORE, JJ.

MOORE, J.

Josh Collins, III appeals his concurrent sentences of 99 years and 49½ years at hard labor for his convictions of armed robbery and conspiracy to commit armed robbery. He contends that the district court had no authority to vacate the original sentences of 44 years and 10 years at hard labor, even though it did so pursuant to a motion for reconsideration, and that the 99-year sentence is constitutionally excessive. We affirm.

Factual Background

Carla Slack and Christy Fife were working at Butch's Texaco station and convenience store, north of Bastrop on U.S. Hwy. 425, on the evening of November 4, 2002. Near closing time, two men entered wearing dark clothes and ski masks. One of the men came to the counter, threw up a gun at Ms. Slack and demanded, "Where's the money?" Ms. Slack thought it was a joke until the armed man jumped the counter, shoved her to the floor and repeatedly shouted, "Where's the money?" The second robber walked around the counter and screamed at the armed man, "Shoot! Shoot!" At gunpoint, Ms. Slack crawled toward the store's bank bag and pointed to it. The armed man grabbed it, and both men fled the store. Ms. Slack testified that the bag contained about $6,500 cash, plus a rent check for $150 made out to the store's owner, Butch Larche.

Ms. Slack could not describe the robbers, but Ms. Fife, who had been at the other end of the counter when the incident began, told deputies that both were black men, and the one wielding the gun was somewhat smaller and lighter-skinned than the other. She described the weapon as a square machine gun with a round barrel.

Before Ms. Slack phoned to report the robbery, a sheriff's sergeant driving south on U.S. Hwy. 425 saw a dark, small truck, perhaps an S-10 or a small Chevy Blazer, parked on the side of the road and facing north. When he heard about the robbery, he immediately relayed the truck's description to other officers.

Minutes later, Deputy Odell Stone noticed a dark blue Ford Ranger headed north on La. Hwy. 142. Seeing that it was occupied by two black men, he stopped the truck. The driver was the defendant, Josh Collins, and the passenger was Marcus Battle. Deputy Stone verified that Battle had an outstanding warrant from Bastrop, so he placed Battle under arrest. Deputy Quentin Mewborn, who came to assist in the stop, asked Collins if he would come to the sheriff's office and answer questions; *846 Collins agreed. Neither Collins nor Battle admitted anything about the robbery. A brief search of the extremely cluttered truck, under darkness and heavy rain, yielded no evidence of the crime.

Two days later, however, Battle waived his Miranda rights and gave a statement incriminating both him and Collins in the robbery. At trial he testified that they had driven around most of the day, first looking for jobs and then drinking beer and playing pool at a club. They went to a pawn shop and bought bullets for Collins's Tec 9 handgun, which looks like a small machine gun. After a preliminary stop at Butch's for beer and cigarettes, they then went to Family Dollar to buy sweater caps; Collins cut eye holes in these, and gave Battle gloves to wear. They then returned to Butch's to "hit a lick." Collins entered the store first, held the gun to the cashier's head and carried the bank bag to the truck. Battle added that as they drove away, they tossed the gloves, caps and gun out the window.

Deputy Derrick Quillar testified that using Battle's information, he located clothing strewn alongside Hwy. 425; the gun was not found. Deputy Terry Wyatt obtained a search warrant for Collins's truck, and after a thorough search he found $180 in $20 bills hidden in a heater vent under the dash, and a $150 check made out to Butch Larche. Collins declined to make a statement, but told Dep. Wyatt that with the proper consideration from the DA, the rest of the money could probably be located, although it was more like "a couple of thousand," not the $6,500 reported missing.

Procedural History

As noted, Collins was charged by bill of information with armed robbery and conspiracy to commit armed robbery. The matter proceeded to jury trial in June 2006.

Judge Dennis Waldron of the Parish of Orleans District Court, Criminal Division, was appointed by the supreme court to serve pro tempore and assist in the Fourth JDC for six months, commencing in January 2006. Judge Waldron presided over the instant trial because Judge Stephens Winters, who received the original assignment, was ill. After a two-day trial, the 12-member jury found Collins guilty as charged on both counts.

By the time of sentencing on August 10, 2006, Judge Waldron's appointment had ended and Judge Winters had long since returned to the bench. Collins objected to being sentenced by any judge other than the one who heard the trial. Judge Winters noted the objection, and then conducted a full sentence hearing, utilizing the presentence investigation report ("PSI") ordered by Judge Waldron. Judge Winters imposed concurrent terms of 44 years and 10 years at hard labor without benefits.

Collins filed a motion to reconsider, urging that the sentence was excessive and reiterating his objection to being sentenced by Judge Winters. At a hearing on October 5, 2006, Judge Winters recognized that Judge Waldron's pro tem appointment allowed him to handle any ongoing matters or unfinished business. He then questioned Collins and trial counsel, Mr. Spires, to see if they truly wanted the court to vacate the sentence and Judge Waldron to impose a new sentence; both affirmatively requested this. Judge Winters granted the motion, ordered the sentencing transcript sealed, and directed the attorneys and court personnel not to communicate to Judge Waldron about the prior sentence.

At the second sentence hearing on October 18, 2006, Judge Waldron confirmed he was unaware of the prior sentence. He *847 acknowledged letters from Collins's wife and other family members, and the contents of the PSI. He recapped the facts of the offense, noting the large economic loss to the business and the severe psychological effects on at least one of the female cashiers. He noted Collins's serious criminal history, with two prior felony convictions for offenses involving armed robbery and theft, prison sentences totaling 13 years, and a possible detainer for another felony in Arkansas. Judge Waldron sentenced Collins to 99 years at hard labor for the armed robbery and 49½ years at hard labor for the conspiracy, to run concurrently and with credit for time served. Collins filed an application for post conviction relief, which the district court converted to an out-of-time appeal.

Discussion: Illegal Vacation of Sentence

By his first assignment of error, Collins urges the district court could not vacate his sentence to allow a different judge to impose sentence after execution began. In support, he cites La. C. Cr. P. art. 881 A, which permits the court to amend or change the sentence "prior to the beginning of execution of the sentence." He also cites State v. Harris,

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Bluebook (online)
981 So. 2d 843, 2008 WL 1886649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-collins-lactapp-2008.