State v. Palmer

775 So. 2d 1231, 2000 WL 1871747
CourtLouisiana Court of Appeal
DecidedDecember 22, 2000
Docket00 KA 0216
StatusPublished
Cited by13 cases

This text of 775 So. 2d 1231 (State v. Palmer) 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. Palmer, 775 So. 2d 1231, 2000 WL 1871747 (La. Ct. App. 2000).

Opinion

775 So.2d 1231 (2000)

STATE of Louisiana
v.
Andre PALMER.

No. 00 KA 0216.

Court of Appeal of Louisiana, First Circuit.

December 22, 2000.

*1233 Donald D. Candell, Asst. District Attorney, Gonzales, LA, Counsel for Appellee State of Louisiana.

Frederick Kroenke, La. Appellate Project, Baton Rouge, LA, Counsel for Defendant/Appellant Andre Palmer.

Before: WHIPPLE, FOGG and CRICHTON, JJ.[1]

CRICHTON, Judge Pro Tern.

Defendant, Andre Palmer, was charged by bill of information with armed robbery and attempted first-degree murder, violations of La. R.S. 14:64, and 14:27 and 14:30, respectively.[2] After defendant's first jury trial ended in a mistrial when the jury was unable to reach a verdict, defendant was found guilty as charged of armed robbery following a second jury trial. The trial court sentenced defendant to imprisonment at hard labor for a term of sixty-five years without benefit of parole, probation or suspension of sentence. The court further ordered that the sentence run consecutively to any other sentence defendant was serving. Defendant has appealed, urging two counseled and two pro se assignments of error.

At about 6:00-6:30 p.m. on December 1, 1995, the day of the instant offense, defendant drove over in his Chevrolet Cavalier and picked up his then seventeen-year-old cousin, co-defendant Brunson, at the home of Brunson's sister.[3] Defendant told Brunson they were going to steal a car. They went to an office building where defendant broke into a Honda Accord. After defendant started the car, the two left the scene with Brunson driving the Cavalier and defendant driving the Accord. After arriving in Prairieville, Louisiana, they parked the Cavalier, left in the Accord, and drove past the Side Track Grocery Store (the store) in Prairieville. They parked the Accord at a car wash a short distance behind the store and walked to it. Defendant had a small caliber handgun, and Brunson was armed with a .38 revolver, which he obtained from defendant.

At about 7:45 p.m., Sarah S. Parker stopped at the store to buy a Coke. While Parker was standing in the doorway on her way out, defendant and co-defendant Brunson, both of whom were wearing masks, entered the store with their guns drawn. Defendant put his gun to Parker's face and told her to get back inside the store. She complied and he took her to the back office where she got beneath a desk as he instructed.

When Brunson made his entry, he jumped over the counter and put his gun to the head of Debra Denise Swanson, the store clerk. Brunson handed Swanson a bag and told her to give him the money and that he was not going to shoot her because she was "a sister." She took the money from the cash register and put it in the bag.

Defendant came out of the office armed with his gun and pulled Swanson into the office where he had taken Parker. Defendant told Swanson to open the safe. She told him she could not open it, because she did not have the combination for the safe. Defendant got upset and briefly put the gun to Swanson's mouth and told her again to open the safe. She repeated she did not *1234 have the combination. Defendant then made Swanson get under the desk where she joined Parker.

Meanwhile. Lloyd Daniel Barry, another customer, had entered the store. Defendant came out of the office. Barry saw defendant was armed with a gun and started running for the door. Defendant told Barry: "Hit the floor, mother f_____." Barry did not comply and kept running. Defendant started shooting, firing two or three times, and Barry got shot in his right arm. Barry slipped and fell out the door into the parking lot. Defendant followed and stood over Barry with the gun. Barry took out his wallet and threw it to defendant who caught it and took it. Barry observed someone drive up in the parking lot and saw Brunson exit the store, which apparently provided Barry the opportunity to run to his truck in the parking lot and hide behind the truck. Shortly thereafter, Barry got inside his truck and started driving away.

In the meantime, defendant and Brunson, both of whom were shooting, ran and got into the Accord and started leaving with defendant driving. While they were doing so, defendant began firing shots at Barry's truck. Barry went one way and defendant and Brunson took off in another direction. Defendant and Brunson went back to the Cavalier, parked the Accord, and left in the Cavalier. Defendant dropped Brunson off at the home of Brunson's sister. On the following day, Brunson received about one hundred to one hundred twenty-five dollars from defendant.

About twelve hundred dollars belonging to the owner of the store was taken during the robbery. Additionally, Barry was robbed of forty dollars he had in the wallet that defendant took.

Subsequently, while Brunson was being questioned by Baton Rouge City Police, the subject of the Side Track Grocery Store robbery came up. Ascension Parish Sheriff's Sgt. Mike Toney was contacted and went to Baton Rouge. After Toney gave Brunson Miranda warnings, Brunson made a taped confession to the instant robbery and related defendant's role in the crime. Toney obtained arrest warrants for defendant and Brunson, and their arrests followed.

COUNSELED ASSIGNMENTS OF ERROR NOS. 1 & 2:

In these assignments, defendant contends his sentence is unconstitutionally excessive and, alternatively, if his trial counsel's failure to move for reconsideration of the sentence is found to preclude appellate review of the excessiveness claim, counsel's failure constitutes ineffective assistance of counsel. While conceding that his criminal conduct merits a period of incarceration, defendant argues that as a first felony offender, a sentence of sixty-five years at hard labor without benefit of parole consecutive to any other time he was serving is unconstitutionally excessive. Thus, defendant submits that he was denied effective assistance of counsel, inasmuch as his trial counsel's failure to move for reconsideration of the sentence was deficient performance that prejudiced him.

Initially, we note that the record does not contain a written motion to reconsider sentence and does not reveal that defendant's trial counsel made an oral motion to reconsider sentence. Although the failure to move for reconsideration of sentence ordinarily would preclude our consideration of an excessive sentence argument, in the interest of judicial economy, we choose to consider defendant's excessiveness argument in order to address the claim of ineffective assistance of counsel. See State v. Wilkinson, 99-0803, p. 3 (La. App. 1st Cir.2/18/00), 754 So.2d 301, 303.

The Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La.Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the *1235 guidelines. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La.App. 1st Cir.1988).

Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

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Cite This Page — Counsel Stack

Bluebook (online)
775 So. 2d 1231, 2000 WL 1871747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-palmer-lactapp-2000.