State Of Louisiana VS Ernest Battle, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1651 STATE OF LOUISIANA lJ VERSUS ERNEST BATTLE 7R On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 518143 Division D Honorable Peter 7 Garcia ludge Presiding Walter P Reed Attorneys for Appellee District Attorney State of Louisiana Covington LA and Kathryn Landry Special Appeals Counsel Baton Rouge LA Frederick Kroenke Louisiana Appellate Baton Rouge LA Project Attorney for Appellant Defendant Ernest Battle r BEFORE PARRO WELCH AND KLINE JJ 7udgment rendered MAY 0 fi 2013 udge 1 William F Kline rretired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO J The defendant Ernest Battle Jr was charged by bill of information with obscenity a violation of LSA 14 He pled not guilty and following a jury trial S R 106 was found guilty as charged The state subsequently filed a multiple ofFender bill of information Following a hearing on the matter the defendant was adjudicated a third felony habitual offender and sentenced to two years of imprisonment at hard labor without benefit of probation or suspension of sentence The defendant now appeals designating two assignments of error We affirm the conviction adjudication as a third felony habitual offender and sentence FACTS Shortly before noon on February 3 2012 Angel Trinchard was sitting in her Honda Pilot at the Heritage Park in Slidell Angel testified at trial that while she was reading a book and waiting for her boyfriend and his brother to meet her for lunch someone later identified as the defendant knocked on her driver side window which s was rolled up When she looked at the defendant he walked away and got into a white Mazda 626 that was right next to her vehicle She did not know the defendant and assumed his knocking and walking away was a case of mistaken identity As she began reading she detected motion in her periphery When she looked toward the Mazda which was to her left she saw the defendant masturbating in the driver seat She s observed the defendanYs exposed erect penis She got out of her vehicle and approached several city workers eating lunch at a table She told them what happened They told her the defendant was at the park almost every day and that she needed to call 911 which she did As one of the workers approached the defendant he drove away Several days later Angel identified the defendant in a photographic lineup The defendant testified at trial He denied the allegation made by Angel and claimed that if she did see someone in the park masturbating it was not him According to his testimony he owned a white Mazda 626 but he was not in the park on February 3 2012 2 ASSIGNMENTS OF ERROR NOS 1 and 2 In these related assignments of error the defendant argues respectively that the sentence imposed is excessive and that defense counsel sfailure to file a motion to reconsider sentence constitutes ineffective assistance of counsel The record does not contain an orai or written motion to reconsider sentence Louisiana Code of Criminal Procedure article 881 provides that the failure to make E 1 or file a motion to reconsider sentence or to include a specific ground on which a motion to reconsider sentence may be based precludes the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal Ordinarily pursuant to the provisions of this article and the holding of State v Duncan 94 La App lst Cir 12 667 So 1141 1143 en banc per 1563 95 15 2d curiam we would not consider an excessive sentence argument However in the interest of judicial economy we will consider the defendant argument that his s sentence is excessive even in the absence of a motion to reconsider sentence in order to address the defendant sclaim of ineffective counsel See State v Wilkinson 99 0803 La App lst Cir 2 754 So 301 303 writ denied 00 La 00 18 2d 2336 01 20 4 790 So 631 2d In Strickland v Washington 466 U 668 687 104 S 2052 2064 80 S Ct 2d Ed L 674 1984 the United States Supreme Court enunciated the test for evaluating the competence of trial counseL First the defendant must show that counsel performance was deficient s This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the h Si 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 cannot 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 2d So 934 937 La App lst Cir 1985 Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim State v 3 Robinson 471 So 1035 1038 La App lst Cir writ denied 476 So 350 2d 39 2d La 1985 Failure to file a motion to reconsider sentence in ineffective assistance of counsel itself does not constitute However if the defendant can show a reasonable probability that but for counsel error his sentence would have been different a basis s for an ineffective assistance claim may be found See State v Felder 00 La 2887 App lst Cir 9 809 So 360 370 writ denied 01 La 10 827 O1 28 2d 3027 02 25 2d So 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 falis within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 A sentence is considered constitutionally 2d 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 0842 94 La App lst Cir 5 655 So 448 454 95 2d 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 State v Holts 525 So 1241 1245 La App ist Cir 1988 2d See Louisiana Code of Criminal Procedure article 894 sets forth the factors for the trial court to consider 1 when imposing sentence While the entire checklist of Article 894 need not be 1 recited the record must reflect the trial court adequately considered the criteria State v Brown 02 La App lst Cir 5849 So 566 569 2231 03 9 2d The articulation of the factual basis for a sentence is the goal of LSA art P Cr C 1 894 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 Article 894 State v Lanclos 1 419 So 475 478 La 1982 The trial court should review the defendant 2d spersonal history his prior criminal record the seriousness of the offense the likelihood that he 4 j will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v Jones 398 So 1049 1051 La 2d 52 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 La 10 719 So 49 50 1144 98 9 2d per curiam Having been adjudicated a third habitual offender the defendant faced a felony sentence from See LSA 14 and LSA S G R 106 1 S R two years to six years a 3 A 1 529 15 The trial court imposed the minimum sentence of two years The defendanYs two prior convictions were accessory after the fact to second degree murder and third DWI The defendant argues in his brief that there is nothing offense in his background or history that would implicate him in the instant crime of obscenity and as such the trial court should have made a downward departure from the minimum two sentence year In State v Dorthey 623 So 1276 1280 La 1993 the Louisiana 2d 81 Supreme Court opined that if a trial judge were to find that the punishment mandated by LSA 15 makes no measurable contribution to acceptabie goals of S 1 R 529 punishment or that the sentence amounted to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime he has the option indeed the duty to reduce such sentence to one that would not be constitutionally excessive In State v 7ohnson 97 La 3 709 1906 98 4 2d So 672 675 the Louisiana Supreme Court reexamined the issue of when 77 Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law A sentencing court must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it that would rebut this presumption of constitutionality A trial court may not rely solely upon the nonviolent nature of the instant crime or of past crimes as evidence that justifies rebutting the presumption of constitutionality 5 While the classification of a defendanYs instant or prior offenses as nonviolent should not be discounted this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders ohnson 709 So at 676 2d To rebut the presumption that the mandatory minimum sentence is constitutional the defendant must clearly and convincingly show that he is exceptional which means that because of unusual circumstances this defendant is a victim of the s legislature failure to assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case Given the legislature sconstitutional authority to enact statutes such as the Habitual OfFender Law it is not the role of the sentencing court to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders Instead the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations Johnson 709 So at 676 2d 77 The defendant argues that the sparcity sic of the sentencing transcript indicates the trial court did concerning him not consider his individual circumstances or the facts See 7ohnson 709 So at 676 2d It is clear from the following exchange between the trial court and the defendant that the trial court considered the facts concerning the defendant and the mitigating factors of LSA art 894 P Cr C 1 including the defendant criminal history in arriving at an appropriate sentence s By the Court Is there anything you like to tell the Court before I d impose sentence Defendant I sorry about the prior conviction you know m By the Court Would you like to tell me anything about the charge today and your position on the charges that I about to sentence you for m Defendant Well you know yeah pretty much Your Honor I have a family From those charges that I have now I really have changed I bought a house for my wife and kids and grandkids and here I am again By the Court You changed since the old charges ve Defendant Yes sir I have I changed I made a whole u turn Me and my family we got closer and just like I guess got caught up in something else wrong 6 By the Court All right Are you admitting to me you did something wrong That important to me s Defendant I guess I did I got found guilty of it By the Court Mr Battle it a very serious part of my sentence to decide s whether or not you are sorry for what you did Defendant I am sorry I am very sorry for what I did By the Court Then you admitting that you did in fact do something re wrong Defendant Yes sir Yes sir By the Court m I not forcing you to say that just a get a light sic sentence You admitting that re Defendant I very sorry Your Honor m By the Court I also going to state for the record that I received a m ve number of letters from people in the communiry I received a letter from you I shared that with the state and I shared it with Mr Almerico ve ve defense counsel and he provided me with a letter also in support of s sentencing you to a minimum sentence because of your involvement with your family and the community What I got to balance that with is the nature of your offense ve where it was committed and how the community would feel about any sentence that I would impose Having taken all of that into consideration I think it appropriate for me to sentence you to the minimum sentence s under the law which is two years with the Department of Corrections Considering the trial court careful review of the circumstances the defendant s s criminal history and the nature of the instant crime we find no abuse of discretion by the trial court There is nothing particularly unusual about the defendanYs circumstances that would justify a downward departure from the mandatory minimum sentence of two years The defendant has not proven by clear and convincing evidence that he is exceptional such that a two sentence would not be meaningfully year tailored to the culpability of the offender the gravity of the offense and the circumstances of the case See Johnson 709 2d So at 676 Accordingly no downward departure from the presumptively constitutional sentence is warranted The sentence imposed is not grossly disproportionate to the severity of the offense and therefore is not unconstitutionally excessive Because we find the sentence is not excessive defense counsel failure to make s or file a motion to reconsider sentence even if constituting deficient performance did 7 not prejudice the defendant See Wilkinson 754 So at 303 Robinson 471 So 2d 2d at 1038 His claim of ineffective assistance of counsel therefore must fall 39 These assignments of error are without merit CONVICTION ADJUDICATION AS OFFENDER AND SENTENCE AFFIRMED 8 A FELONY THIRD HABITUAL
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