State Of Louisiana VS Antwine Magee
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 KA 1526 tJ j STATE OF LOUISIANA Y f d VERSUS ANTWINE MAGEE @ Judgment Rendered September 11 2009 Appealed from the Twenty Second Judicial District Court In and for the Parish of Washington Louisiana Trial Court Number 05 CR6 9220 1 Honorable Patricia T Walter P Reed District Franklinton LA Attorney Hedges Judge Attorneys for State Appellee and Kathryn Landry Baton Rouge LA Frank Sloan Mandeville LA and C Attorneys for Defendant Appellant Antwine Magee Gary Wainwright New Orleans LA BEFORE WHIPPLE HUGHES AND WELCH JJ WELCH J The defendant indictment with RS and 14 30 1 and 14 64 was pled found on count one of the robbery Count both counts Following he was five years found guilty thirty five years at hard labor without benefit of parole appeals sentences the in this to the sentence that the trial advise him of the properly a on Count I he violation of La R S On Count I he he was probation imposed on failure s to was sentenced to or suspension of Count I He imposed unconstitutionally court that trial counsel matter violation of La a trial jury now exceSSIve for reconsideration of move constituted ineffective assistance of counsel sentences failed at concurrently with contending a grand jury violation of La R S a On Count II hard labor to run II I charged as sentenced sentence to amended charged by degree murder Count of armed on was responsive offense of manslaughter Count II thirty Magee of second count guilty not guilty and 14 31 one Antwine and that the trial court delays for applying for post conviction relief We affirm the convictions and sentences Counts I and II on FACTS The victim in Franklinton Louisiana men stormed the victim trailer fatally nervously in a lived in Partman Phillip s On January trailer shot the victim and fled the car during the offense The victim s incident and heard went to cousin Derrick men house trailer 2005 wrapped wounds indicated he may have been Derrick 8 a a at or inside the house trailer was shot check on demanding seven was him but missed him 2 s trailer one waiting times and the shot the victim during the money from the victim get help and returned with another cousin Dennis Magee Dennis kicked open the door of the victim house ransacked the man was seen ducking as he went to s approximately midnight three A fourth The victim Magee his mother cord around his neck scene rotating near After of the assailants shot at Following concerning his later an anonymous involvement in the crime implicated himself Teamus In Gatlin in the crime indicated that he had been lick 10 meaning needed around pointed out commit to the victim Teamus to get his gun to 2005 a use car a passengers ounces of car s went back to Teamus that the to men to s s at men rob the victim Zulu s on trailer a on gun a men Thereafter went with and LaFrance door and held during the the victim while The defendant claimed that foot before the defendant Teamus one and one half 7 The during the trailer and Gatlin removed Dennis and shot the victim the defendant after the house divided up the needed that the victim sold The defendant claimed that he removed marijuana from the victim According the defendant The defendant claimed that but left defendant claimed that Teamus shot robbery agreed from Derrick in the robbery initially waited in the and Gatlin returned Toto The defendant drove the other robbery the defendant and Gatlin searched the victim Nicholas suggested someone T eamus forced open the victim robbery Torres statement audiotape trailer and advised the s marijuana The defendant and his the defendant borrowed any involvement but drinking beer snorting cocaine and smoking pot with Nicholas and Gatlin when Teamus initially denied He Magee Nicholas Magee and January a the defendant telephone call the police questioned robbery he marijuana and Gatlin Teamus and smoked blunts EXCESSIVE SENTENCES INEFFECTIVE ASSISTANCE OF COUNSEL In imposed assignment of on error Counts I and number 1 II gave him confession and the fact that he did involvement in the crimes have been the defendant argues that the not virtually no credit take the stand and try to He also argues that the sentences for his lie his way 3 voluntary out of his imposed should longer than those offered in the plea agreement he rejected of error number 2 he argues that trial counsel failed sentences to preserve the In not assignment right to appeal the and there sentences was no We will address timely motion to strategic assignment of reconsider would be necessary to do counsel claim See State 739 So 2d 887 sentence for counsel reason error number 1 failure s even in the absence of a contemporaneous objection because it or a part of the analysis of the ineffective assistance of so as Bickham 98 1839 pp 6 7 La 1 st Cir 6 25 99 891 92 v The Louisiana Code of Criminal Procedure considered by the trial court before imposing sets App forth items which La C Cr P art 894 1 sentence trial court need not recite the entire checklist of Article 894 1 reflect that it by Article adequately 894 1 sentencing decision 797 So 2d 75 83 light State court s stated may violate Hurst 99 2868 p v 10 writ denied 2000 3053 La 10 5 01 to subject punishment Although a defendant s judge is society to Generally the sentence expressed so sentence imposed of manifest abuse of discretion in the should as to shock States not or are st Cir 10 3 00 prohibits the imposition be is nothing set sense is aside as than the grossly light of the of justice sentences A trial within statutory excessive in the absence 10 11 797 So 2d at 83 analyzed under the Court in Strickland 4 more considered in one s Hurst 99 2868 at pp Supreme 1 798 So 2d 962 imposition of A claim of ineffectiveness of counsel is developed by the United App La A sentence is considered punishment disproportionate and factual basis for is considered excessive if it is of the crime severity given wide discretion limits and the must right against excessive punishment and a when the crime and it is The be within statutory limits it sentence may imposition of pain and suffering disproportionate if harm to a constitutional appellate review grossly disproportionate needless of the criteria reasons Article I Section 20 of the Louisiana Constitution of excessive but the record be review for individual excessiveness should consider the a circumstances of the crime and the trial its In considered the criteria must v two pronged test Washington 466 U S 668 687 104 S Ct that his trial attorney errors so was serious that he Amendment deficient which not was defense functioning This element serious that the defendant was requires requires deprived of a that the proceeding there is a had error reasonable the components probability to State applicable at here Count I the defendant benefit of not less than not more ten years parole probation Count II the defendant benefit of parole Shirley was probation Partman or to and than just like on the victim in Houston her first of the outcome unprofessional s errors performance and inadequate showing 859 860 on one of App 1st Cir La not to manslaughter La R S years thirty five years at shall be 14 31 B than ninety nine sentence thirty On hard labor robbery shall be imprisoned more mother s The victim At the La R S five years at years at hard without 14 64 B On hard labor without suspension of sentence She indicated the victim had been her siblings lived forty suspension of sentenced or must prove La 1993 Whoever commits the crime of armed labor for an 610 So 2d 857 sentenced was so It is not sufficient for the defendant whoever commits the crime of hard labor for errors were fair trial the defendant address the issues of both counsel Serigny v performance the outcome of the trial would have been different writ denied 614 So 2d 1263 imprisoned that the deficient conceivable effect some counsel made guaranteed by the Sixth showing that the a prejudice to the defendant if the defendant makes As showing that Rather he must show that but for the counsel s Further it is unnecessary 1992 a first show that the must counsel must prove prejudice before relief will be granted to show as In order to establish 1984 the defendant Secondly the defendant prejudiced the actual ineffective was attorney s performance 80 L Ed 2d 674 2052 2064 family testified at the sentencing hearing help around the house because his other was the third of her six children but he events 5 she missed the victim was raiding her she refrigerator and seeing what her what she and was high a offense due charge the defendant s was so attempted to part of he had a sentencing the youngest of football when he at was at his with participation and parole following his given the arrest a court few officer junior The defendant always away forever son ordered was a a complete pre sentence was a first felony another violent facing jail buddies in beating preparing the PSI indicated an that for the instant offenses indicated that statement s home and that he had of his active pled not not guilty participation in the the officer noted that the defendant and his friends had s home to rob him and had shot help the victim The officer asked shooting was a home alone with her when the court not to take her why did he not leaving the displayed a neighbors who If the defendant did victim to die complete disregard society and will learn the at not want to stop and help the victim instead of driving lack of respect for the property of others to was The PSI indicated that the defendant gone into the victim defendant had the at The officer also noted that the defendant had off with the shooter and danger good for what occurred in the victim Additionally intentionally a November 19 1977 and convictions s probation actions not sorry though to gifted artist also testified and that the defendant PSI The learned any lessons crimes mother s was a The PSI also indicated that the defendant inmate senseless was opinion played high school football the defendant investigation report offender on pleaded with She happened asking great in school Bessie Magee stated she knew that she was murderer Following be born The defendant her and to raised never even was school student that he listened this her house and in her Magee the defendant her three children he at The defendant hearing She also missed the victim cooking for dinner She indicated the victim had made electrical plumbing repairs Bessie cooking was The officer concluded that the for the laws of We believe that society and subject is a a total serious consequences of his choices and actions 6 by the maximum receiving The defense participating that charge counsel allowed by the law advised aggravated battery convicted of manslaughter The years that defendant the mentioned in the PSI had not pled denied guilty to the defendant had been the trial court noted and armed robbery after being initially charged with robbery and he had rejected a plea bargain offer for twenty five indicated court circumstances in the that it which case rob the victim that he arranged while the defendant intending victim s robbery to steal for the home and found was s car rather than house The calloused defendant had drugs no juvenile him that the crime wanting court found that the In to do the was a man regard or to one aggravating going was of his and left to own cars a man into the victim s in the trailer that the defendant ransacked the 7 that when the accomplice found got into was s on sped off a car defendant dead actions the floor and smoked extremely were dying on the floor of his home after stealing mitigating factors the court adult criminal record that he had solved because of the defendant right thing and that even denied any involvement in the crimes happened went car shooting started and the victim and that he had left his money and taking parked the while his that the defendant Teamus and Gatlin then marijuana of the that the defendant knew he money from him marijuana disturbed the considered all and Gatlin Teamus drugs and had were that the defendant drove to the victim the court degree murder and armed robbery and after standing trial for second degree murder and armed car the and had not been convicted of that offense sentencing the defendant In first in the penalty though s a family that the who loved mother and relatives the defendant had he had later told the and without his confession the crime noted probably would initially police what had never have been solved A thorough reVIew of the record reveals that the trial court 7 adequately considered the criteria of Article 894 1 and did the imposing B sentences Further the 33 herein sentences imposed severity of the offenses and thus defendant s claim that he and the fact that he did not lie at not were trial has 894 1 B not were given virtually was manifestly abuse its discretion in art See La C CrP not no 9 B no credit for his encourage and more severe defendant who refuses punishment plea bargain a 5th Cir 1979 L Ed 2d 779 In even to per curiam to the defendant assuming arguendo move defendant s a expect See Cousin denied confession voluntary to a listened court the to aggravating and permissible for defendant for the State to a guilty plea negotiated plea be refused A to receive the benefits of that v Blackburn 445 U S 945 597 F 2d 511 100 S Ct ineffective assistance of counsel claim s that the defense counsel performed deficiently for reconsideration of the sentences from the deficient prejudice cert The 1343 63 1980 regard timely should cannot abandoned agreement after conviction 512 it is guilty pleas by offering substantial benefits by threatening the to basis in the record rather the sentencing Further case 28 unconstitutionally excessive testimony reviewed the PSI and carefully considered all in the B grossly disproportionate transcript indicates that in sentencing the defendant the trial mitigating circumstances 21 excessive performance because we in note failing the defendant suffered this court no considered the argument in connection with the ineffective sentences assistance of counsel claim These assignments of error are without merit NOTICE OF PRESCRIPTIVE PERIOD FOR POST CONVICTION RELIEF In failed to assignment of error number 3 properly advise him of conviction relief The defendant is the the defendant argues that the trial court prescriptive period for filing for post correct 8 The trial court advised the defendant that under the provisions of Article 930 8 of the Louisiana Code of Criminal Procedure Im advising have for postconviction only two years to file any and all petitions Louisiana Code of Criminal Procedure article 930 8 A No application for post conviction relief than two years after the under the provisions judgment of Article 914 correct limitation provide to remand for the trial court to 922 or 930 8 A generally provides filed more than two years become final under the judicial that or has we an attorney who is in the position have done an time in the past note for st 1 arts Cir 11 3 06 914 decline abundance post conviction appeal shall be C Cr P an we that La C Cr P judgment of conviction provisions of La App we economy out of so Instead out of application no after the Godbolt 2006 0609 pp 7 8 La This and it is apparent that the defendant has provide such notice including applications which seek more Emphasis added Although of caution and in the interest of pertinent part provides of conviction and sentence has become final period him with such notice to relief shall be considered if it is filed As the issue has been raised herein notice of the in you that you or art relief considered if it is and 922 sentence has See State v 950 So 2d 727 732 assignment of error has merit CONCLUSION F or the foregoing reasons the defendant s convictions and sentences are affirmed CONVICTIONS AND SENTENCES AFFIRMED 9 ON COUNTS I AND II
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