State v. James

670 So. 2d 461, 1996 WL 61118
CourtLouisiana Court of Appeal
DecidedFebruary 14, 1996
DocketCr95-962
StatusPublished
Cited by51 cases

This text of 670 So. 2d 461 (State v. James) 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. James, 670 So. 2d 461, 1996 WL 61118 (La. Ct. App. 1996).

Opinion

670 So.2d 461 (1996)

STATE of Louisiana
v.
William P. JAMES.

No. Cr95-962.

Court of Appeal of Louisiana, Third Circuit.

February 14, 1996.

*463 William E. Tilley, Leesville, for State of Louisiana.

Jack L. Simms Jr., Leesville, for William P. James.

Before THIBODEAUX, SAUNDERS and SULLIVAN, JJ.

SULLIVAN, Judge.

Defendant, William P. James, was charged by bill of information with one count of conspiracy to commit armed robbery, in violation of La.R.S. 14:26 and La.R.S. 14:64, and one count of armed robbery, in violation of La. R.S. 14:64. Defendant entered pleas of not guilty, which he later withdrew and, with the assistance of counsel, entered a plea of guilty to armed robbery. Before accepting the plea, the trial court fully Boykinized defendant and informed him of the possible penalty. Defendant was sentenced to 15 years at hard labor without benefit of suspension of sentence, probation, or parole. The trial judge noted for the record that defendant was given credit for time served and advised defendant of the three year prescriptive period in which to file for post conviction relief.

Defendant filed a motion to reconsider sentence which was denied by the trial judge. Defendant also filed a post-conviction relief application which the trial court denied, except that defendant was given an opportunity to establish in an evidentiary hearing that defense counsel was at fault in failing to perfect a timely appeal. The trial court subsequently granted defendant an out-of-time appeal. Defendant now seeks review with this court alleging eight assignments of error.

FACTS

On September 23, 1992, defendant and Russell Hawkins planned to rob the North City Branch of Merchants and Farmers Bank in Leesville, Louisiana, with defendant as the gunman and Hawkins the get-away driver. Defendant entered the bank brandishing a loaded pistol in front of four employees and demanded money from the tellers. Over $20,000.00 was taken from the bank, with authorities later recovering all but $8,700.00 of the stolen money.

A review of the record reveals no errors patent.

EXCESSIVE SENTENCE

Defendant's assignments of error numbers one through four concern the sentence *464 imposed. Defendant argues that his sentence was excessive, that the trial court failed to justify its deviation from the sentencing guidelines with adequate oral or written reasons as required by law and that the trial court failed to consider and/or give proper weight to mitigating factors.

Defendant was sentenced on July 30, 1993. At sentencing, the trial court informed defendant of the five day period within which to appeal. However, defendant did not make or file a timely appeal. Further, defendant did not file a motion to reconsider sentence until March 8, 1995. The motion was denied by the trial judge on March 15, 1995. Defendant also sought an out-of-time appeal which was granted by the trial court on June 16, 1995.

La.Code Crim.P. art. 881.1 provides the mechanism for preserving the review of a sentence on appeal:

A. (1) Within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentencing, the state or the defendant may make or file a motion to reconsider sentence.
* * * * * *
D. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion to appeal or review.

Where the defendant did not file a motion to reconsider sentence within the 30 day period allowed by La.Code Crim.P. art 881.1 and the trial court did not set a longer period at sentencing for filing the motion, this court held it was precluded from reviewing defendant's sentence. See State v. King, 95-344 (La.App. 3 Cir. 10/4/95); 663 So.2d 307.

In King, the defendant appealed his sentence as excessive; however, this court refused to consider that claim because the defendant did not file a motion to reconsider sentence nor did he orally object at sentencing on the basis of excessiveness. After that appeal was dismissed in an unpublished opinion, King sought and was granted leave to file an "out-of-time motion to reconsider sentence" in the trial court. That motion was denied without a hearing. Thereafter, King filed a second appeal to this court, again raising the issue of excessiveness of sentence. This court dismissed the appeal after determining that neither the Code of Criminal Procedure nor jurisprudence contemplated an "out-out-time motion to reconsider sentence." State v. King, 95-344 n. 1 (La.App. 3 Cir. 10/4/95); 663 So.2d 307.

In the present case, the motion to reconsider sentence was filed approximately one year and eight months after sentencing, well beyond the 30 day requirement provided by La.Code Crim.P. art. 881.1. The record of sentencing does not reflect that the trial court gave any additional time in which to file the motion.

Because the motion to reconsider sentence was not timely filed, defendant's assigned errors one through four lack merit. However, we will review defendant's sentence in the context of his ineffective assistance of counsel claim.

INEFFECTIVE ASSISTANCE OF COUNSEL

In assignments of error numbers four through eight, defendant argues that the ineffective assistance of his retained counsel resulted in a denial of due process, deprived him of a full sentencing hearing and resulted in the trial court basing the sentence imposed upon false, unsubstantiated statements in the presentence investigation report. As defendant combined these assignments of error in his brief, we will do likewise.

Although defendant has assigned as error ineffective assistance of counsel, this claim is properly raised in an application for post-conviction relief. State v. Burkhalter, 428 So.2d 449 (La.1983). This enables the district judge to order a full evidentiary hearing on the matter. State v. Seiss, 428 So.2d 444 (La.1983). However, where the record contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue should be *465 considered. Accordingly, we will address defendant's claim of ineffective assistance of counsel.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is constitutionally mandated by the Sixth Amendment of the U.S. Constitution. In order to prove that counsel was ineffective, the defendant must meet the two-pronged test enunciated by the Supreme Court. First, the defendant must show that counsel's performance was deficient. Second, the defendant must show that this deficiency prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his defense attorney failed to meet the level of competency normally demanded of attorneys in criminal cases. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Fickes, 497 So.2d 392 (La.App. 3 Cir.1986),

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Cite This Page — Counsel Stack

Bluebook (online)
670 So. 2d 461, 1996 WL 61118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-james-lactapp-1996.