State v. Scott

228 So. 3d 207, 2017 WL 4082425
CourtLouisiana Court of Appeal
DecidedSeptember 15, 2017
Docket2017 KA 0209
StatusPublished
Cited by27 cases

This text of 228 So. 3d 207 (State v. Scott) 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. Scott, 228 So. 3d 207, 2017 WL 4082425 (La. Ct. App. 2017).

Opinion

MCDONALD, J.

I aThe defendant, Corey Scott, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The. defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.

FACTS

On February 7, 2014, Marvin Thomas, after being dropped off by his father who had business at a nearby mechanic shop, walked to Ragusa’s Grocery Store at the corner of 15th Street and Terrace Avenue in Baton Rouge. Several people were standing outside of the grocery store, including the defendant and his fi'iend, Harold Retana, who testified at triaL When Marvin walked out of the grocery store, Harold followed him. During Marvin’s entry into and exit from the grocery store, he and Harold never exchanged any words. Harold approached Márvin and, without warning, punched him. Marvin staggered, turned, and ran into the street. Harold chased after Marvin. At this point, according to Harold, Marvin went for something near his (Marvin’s own) hip. Harold grabbed at Marvin’s hand near his hip to prevent Marvin from pulling what Harold thought might be a gun. According to Harold, he felt part of a gun tucked inside of Marvin’s underwear. As they struggled, according to Harold, for control over the gun, they fell to the ground. The defendant, who was standing nearby watching the fight, produced a semi-automatic 9mm handgun and fired eight times at Marvin, striking him seven times and killing him. There was no gun found at the scene or on Marvin’s body. A video of the attack and shooting was captured by the grocery store surveillance camera and played for the jury.

The. defendant did not testify at trial.

'^ASSIGNMENTS OF ERROR NOS. 1 and 2

In-these related assignments of er-rbr, the defendant argues, respectively; that the trial court erred in imposing' an unconstitutionally excessive sentence; and that defense counsel’s failure to file a motion to reconsider sentence constituted ineffective assistance of counsel.

The record does not contain an oral or written motion to reconsider sentence. Louisiana Code of Criminal Procedure article 881.1(E) provides that the failure to file or make a motion to reconsider sentence precludes the defendant from raising an- excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this Article and the holding of State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam), we would not consider an excessive sentence argument. Howevei’, in the interest of judicial economy, we will consider the defendant’s argument that his sentence is excessive, even in the absence of a motion to reconsider sentence, in order to address the defendant’s claim of ineffective counsel. See State v. Wilkinson, 99-0803 (La. App. 1st Cir. 2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La. 4/20/01), 790 So.2d 631.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competente of trial counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it can’not be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

In evaluating the performance of counsel, the inquiry must be whether counsel’s assistance was reasonable .considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La. App. 1st Cir. 1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La. App. 1st Cir.), writ denied, 476 So.2d 350 (La. 1985).

Failure to file a motion tó reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel’s error, his sentence would have been different, a basis for an ineffective assistance claim may be found. See State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 370, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894,1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.

|fiThe articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he -will commit another crime, and’ his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S.

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Bluebook (online)
228 So. 3d 207, 2017 WL 4082425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-lactapp-2017.