State v. Nash

112 So. 3d 409, 12 La.App. 3 Cir. 1146, 2013 WL 1319498, 2013 La. App. LEXIS 627
Louisiana Court of Appeal·Decided April 3, 2013·No. No. 12-1146·Published·Cited by 3 cases

Opinion

AMY, Judge.

11 The defendant was charged with attempted armed robbery and attempted armed robbery with a firearm. In separate cases, the defendant was charged with armed robbery and armed robbery with a firearm;1 possession of stolen things; and [411] a probation violation. Pursuant to a plea agreement, the State dismissed several of the charges, and the defendant pled guilty to attempted armed robbery in this case and an armed robbery charge in another case. The defendant also admitted his probation violation. Thereafter, the trial court sentenced the defendant to twenty years at hard labor, without benefit of probation, parole, or suspension of sentence for the attempted armed robbery charge. The trial court sentenced the defendant to thirty-five years at hard labor, without benefit of probation, parole, or suspension of sentence for the armed robbery conviction, and three years at hard labor for the probation violation. Further, the trial court ordered that all sentences be served consecutively. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that the defendant, Demetrius D. Nash, approached Amy Jo Tartaglia2 and Kayla Soileau as they were leaving an event at the Civic Center. Ms. Tartaglia and Ms. Soileau were using a baby stroller to transport a cooler and lawn chairs from the event. According to Ms. Tartaglia’s testimony, the defendant approached Ms. Tartaglia and Ms. Soileau and pointed a gun at the stroller. Realizing that there was no child in the stroller, the defendant pointed the gun at Ms. Tar-taglia and demanded money. Ms. Soileau ran, screaming for help, and Ms. 1 ¡.Tartaglia attempted to defend herself. Although Ms. Tartaglia was unable to disarm the defendant, he eventually ran away without taking anything from the two women.

The record indicates that the defendant was involved in another incident later that night. According to the State, the defendant and an accomplice approached two women, Morgan Abshire and Darlena Ab-shire, in a parking lot. After the defendant threatened the women with a gun, he and the accomplice took cash from both women and took Darlena’s cell phone. Several minutes after the robbery, the defendant used the cell phone; one of the phone calls was to his mother’s house. The State noted that this led to the defendant being identified as a suspect in both robberies.

In connection with , the attempted robbery of Ms. Tartaglia and Ms. Soileau, the defendant was charged in docket number 22567-09 with attempted armed robbery, a violation of La.R.S. 14:27 and La.R.S. 14:64, and attempted armed robbery with a firearm, a violation of La.R.S. 14:27 and La.R.S. 14:64.3. In connection with the robbery of Morgan and Darlena Abshire, the defendant was charged under docket number 27791-09 with armed robbery, a violation of La.R.S. 14:64, and armed robbery with a firearm, a violation of La.R.S. 14:64.3.

The defendant agreed to plead guilty to attempted armed robbery and armed robbery and to admit to a probation violation. In return, the State dismissed the charges of attempted armed robbery with a firearm and armed robbery with a firearm. The State also dismissed a charge of possession of stolen things over $500 under another docket number. At the change of plea hearing, the defendant initially disagreed with the State’s factual basis for the [412] attempted armed robbery charges, and the trial court refused to accept the defendant’s guilty plea. However, |3after speaking with his attorney, the defendant indicated that he wanted to plead guilty to that charge, and the trial court accepted his guilty plea. The defendant also pled guilty to armed robbery and admitted his probation violation.

The trial court subsequently sentenced the defendant to twenty years at hard labor, without the benefit of probation, parole, or suspension of sentence for the attempted armed robbery conviction. For the armed robbery conviction, the trial court sentenced the defendant to thirty-five years at hard labor, without the benefit of probation, parole, or suspension of sentence. With regard to the probation violation, the trial court ordered that the defendant’s probation be revoked and that he serve the previously suspended three-year term. The trial court ordered that all of the defendant’s sentences run consecutively.

Thereafter, the defendant filed a motion for reconsideration, alleging that “very important mitigation evidence” was missing from the pre-sentence investigation, namely, that the defendant “was the victim of a serious crime of violence committed by his step-father who attempted to kill him and essentially left him for dead, and that this experience has been a factor in his development and ability to adapt in society.” The trial court held a hearing on the defendant’s motion. After hearing the evidence presented, the trial court found that the defendant had a traumatic experience when he was a young boy. However, the trial court declined to grant the defendant’s motion for reconsideration, noting that the defendant failed to make good choices, showed no remorse for his actions, and “did not attribute very much of what his actions were” to the trauma he experienced as a child.

Herein, the defendant appeals his conviction and sentence for attempted armed robbery. The defendant’s conviction and sentence for armed robbery is on |4appeal in State v. Demetrius D. Nash, 12-1147 (La.App. 3 Cir. 4/3/13), 112 So.3d 419, 2013 WL 1319545. The defendant moved to consolidate briefing of the two cases on appeal. For this reason, we address the issues presented in both cases simultaneously.

The defendant appeals, asserting in his counseled brief that his sentence is unconstitutionally excessive. The defendant has also filed a pro se brief, asserting that his guilty plea was involuntary, that his sentence is excessive, and that the trial court was biased against him.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. After reviewing the record, the court finds no errors patent.

Invalidity of Guilty Plea

The defendant contends that his guilty plea with regard to the charge of attempted armed robbery is invalid because it was a product of fear and coercion.3 He also contends that his initial reticence to plead guilty should have put the trial court on notice of his claims of innocence and that the trial court accepted his guilty plea without having a substantial basis for the defendant’s guilt.

[413] In State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950, this court addressed the requirement that the trial court ascertain a factual basis in accepting a guilty plea, stating:

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State v. Nash, 112 So. 3d 409, 12 La.App. 3 Cir. 1146, 2013 WL 1319498, 2013 La. App. LEXIS 627 (La. Ct. App. 2013).

112 So. 3d 409 (State v. Nash) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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