State Of Louisiana VS Deondra Dejohn Johnson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 KA 0342 STATE OF LOUISIANA VERSUS DEONDRA DEJOHN JOHNSON 7udgment Rendered NOV 0 1 2013 On Appeal from the 32 Judicial District Court In and for the Parish of Terrebonne State of Louisiana No 572 Section B 670 1I he Honorable John R Walker Judge Presiding 7i Dennis Elfert Assistant District Attorney Joseph L Waitz Jr District Attorney Houma Louisiana Attorneys for Appellee Bertha M Hillman Attorney for DefendantlAppellant Louisiana Deondra Dejohn Johnson Appellate Project State of Louisiana Thibodaux Louisiana Deondra Dejohn Jolulson Winnfield Louisiana BEFORE Appellant Defendant Pro Se PARRO GUIDRY AND DRAKE JJ DRAKE J The defendant Deondra Dejohn Johnson was charged by bill of information with armed robbery a violation of Louisiana Revised Statutes 14 64 The defendant pled not guilty and was found guilty as charged after a trial by jury The trial court imposed twenty years of imprisonment at hard labor without five the benefit of probation parole ar suspension of sentence The trial court denied the defendant motion s to reconsider sentence challenging the constitutionality of the sentence The defendant now appeals in a counseled brief The defendant also filed a pro se brief in which he raises a claim of ineffective assistance of counsel For the following reasons we affirm the conviction and sentence FACTS On February 6 2010 Rene Hebert his teenage sister Emily Hebert and a few of their friends went to a Mardi Gras parade in their hometown of Houma Louisiana After the parade the group went to the Hebert residence where there s was no parental supervision since their father with whom they lived was out of town Through the early morning hours of February 7th there were numerous guests at the Hebert residence Two of the guests brothers Josh and Jeremy Duthu arranged far an acquaintance Brett Hebert to bring two females to the residence to join the rest of the group A verbal altercation took place outside when the Duthu brothers began arguing with Brett Hebert and Jeremy Dardar who arrived with Brett Hebert and the two female invitees over who should pay for gas used to bring the female guests to the residence Rene asked Brett and Dardar to leave and they did so but returned with a black male later identified as the defendant and the altercation resumed outside of the residence We note that there was no indication that Brett was related to the other Heberts 2 Emily heard the commotion looked outside and observed the defendant as he partially exposed a gun that was in his pocket Emily retrieved her father rifle s from his bedroom and walked toward the door with it and Rene who was standing in the doorway at the time and had not yet seen the defendant gun stopped her s and told her to put the rifle back Emily put the rifle back in her father bedroom s and Rene continued to attempt to diffuse the situation The defendant pulled out his gun pointed it at Rene instructed him to step back into his residence and he Brett and Dardar followed Rene into the house as he complied Once the defendant Brett and Dardar were in the residence the defendant brandished the gun at the other occupants and they scattered The defendant made several demands of the occupants including ordering Rene to retrieve his father rifle s who then indicated to the defendant that he did not know where the rifle was located The defendant sat his gun on an entertainment center when he attempted to remove a television Rene testified that the defendant picked his gun back up and struck him in the jaw with it when he tried to grab it The defendant Brett and Dardar took items including a laptop computer and Sony P1ayStation console before leaving the residence COUNSELED ASSIGNMENT OF ERROR In the counseled erred in imposing a assignment of error the defendant argues that the trial constitutionally excessive sentence The court defendant specifically contends that the trial court failed to consider as mitigating factors his lack of a prior criminal history and the fact that he was only seventeen years old at the time of his arrest The defendant further contends that adequate consideration was not given to the sentencing guidelines in particularizing the sentence specifically arguing that several aggravating circumstances listed in Louisiana Code of Criminal Procedure 1 article 894 are inapplicable to this case The defendant acknowledges that the sentence is within the sentencing range but 3 I argues that based on the facts of this case and insufficient aggravating circumstances the sentence is grossly out of proportion to the severity of the offense The Eighth Amendment to the United States Constitution and Article I Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 2d 762 767 La 1979 State v Lanieu 98 1260 La App 1 Cir 4 734 So 2d 89 97 writ denied 99 La 99 1 1259 99 8 10 750 So 2d 962 A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness ofthe 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 one sense ofjustice s The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court wide discretion to sentence within the statutory limits State v s Andrews 94 La App 1 Cir 5655 So 2d 448 454 0842 95 Louisiana Code of Criminal Procedure article 894 sets forth the factors for 1 the trial court to consider when imposing a sentence The trial court need not cite the entire checklist of Article 894 but the record must reflect that it adequately 1 considered the criteria State v B 2002 La App 1 Cir 5 849 own 2231 03 9 So 2d 566 569 The articulation of the factual basis far a sentence is the goal of Article 894 not rigid or mechanical compliance with its provisions Where the 1 record clearly shows an adequate factual basis far the sentence imposed remand is unnecessary even where there has not been full compliance with Article 894 1 State v Lanclos 419 So 2d 475 478 La 1982 We note that although the defendant faced the potential of ninety years nine of imprisonment the imposed sentence is at the lower end of the spectrum Before 4 the sentence was imposed the State noted that it was dismissing a charge for second degree battery In imposing the sentence the trial court noted its consideration of the sentencing guidelines The trial court noted the use of a dangerous weapon the fact that the victim Rene Hebert was struck during the offense and the fact that multiple other individuals were in the home at the time of the offense The trial court noted that the individuals were put at the risk of death or great bodily harm In accordance with our review of the trial testimony we note that there was testimony that the female victims were crying and distraught during the offense as they tried to hide from the defendant and the other intruders Before the sentence was imposed the defense attorney noted that the defendant did not have a criminal history We find that the recard demonstrates compliance with Article 894 and adequate support far the sentence imposed 1 Considering the circumstances we find no abuse of discretion by the trial court This court will not set aside a sentence on the ground of excessiveness if the recard supports the sentence imposed La C art 881 The imposed sentence is not grossly P Cr D 4 disproportionate to the severity of the offense or shocking to the sense of justice and therefore is not unconstitutionally excessive Thus the counseled assignment of error is without merit PRO SE AS5IGNMENT OF ERROR In his pro se assignment of error the defendant contends that his trial counsel was ineffective in failing to properly advise him regarding his rejection of a six plea bargain The defendant specifically contends that his trial counsel year did not inform him of the strength of the State case and the correct elements of s the offense The defendant argues that but for his counsel failure to properly s advise him he would have accepted the six years which is less than the twenty five years imposed after the finding of guilt by the jury The defendant in part 5 prays that this court vacate his guilty verdict and that he be allowed to plead guilty with the imposition of a six sentence year A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constiturion and Article I Section 13 of the Louisiana Constitution In assessing a claim of ineffectiveness a two test pronged is employed The defendant must show that 1 his attorney performance was s deficient and 2 the deficiency prejudiced him Strickland v Washington 466 S U 668 687 104 S 2052 2064 80 L 674 Ct 2d Ed 1984 The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or a trial whose result is reliable Strickland 466 U at 687 104 S at 2064 In order S Ct to show prejudice the defendant must demonstrate that but for counsel s unprofessional conduct the result of the proceeding would have been different Strickland 466 U at 694 104 S at 2068 State v Felder 2000 La S Ct 2887 App 1 Cir 9 809 So 2d 360 369 writ denied 2001 La O1 28 70 3027 02 25 10 827 So 2d ll 73 Further it is unnecessary to address the issues of both sperformance and prejudice to the defendant if the defendant makes an counsel inadequate showing on one of the components See State v Serigny 610 So 2d 857 860 La App lst Cir 1992 writ denzed 614 So 2d 1263 La 1993 A claim of ineffectiveness is generally relegated to post proceedings conviction where an evidentiary hearing may be conducted unless the record permits definitive resolution on appeal State v Miller 99 La 9 776 So 2d 0192 00 6 396 411 cert denied 531 U 1194 121 S 1196 149 L l ll S Ct 2d Ed 2001 In support of his claim that his attorney was ineffective during the plea bargaining z The defendant also prays that c counsel be appointed on direct appeal to free onflict perfect this issue and to have his claim remanded fox an evidentiary hearing with conflict free counsel as indigent reserving my right to appeal any adverse judgment We note that not only is the defendant not entitled to a remand as will be furthex discussed herein he has not identified nor does the record reveal any conflicY of interest xegarding his appellate counsel 3 The defendant would have to satisfy the requirements of Louisiana Code of Criminal Procedure article 924 et seq to receive such a hearing 6 process the defendant cites two United States Supreme Court cases Lafler v Cooper S U 132 S 1376 182 L 398 2012 and Glover v Ct 2d Ed United States 531 U 198 121 S 696 148 L 604 2001 S Ct 2d Ed In Lafler the defendant was charged under Michigan law with assault with intent to murder and three other offenses The prosecution offered to dismiss two of the charges and to recommend a fi to eighty month sentence on the one y five other two in exchange for a guilty plea The defendant admitted his guilt before the court and expressed a willingness to accept the offer however he later rejected the offer after his attorney convinced him that the prosecution would not be able to establish intent to murder as the victim had been shot below the waist The defendant proceeded to trial and was convicted on all counts receiving a mandatory minimum 185 to 360 month sentence The defendant subsequently urged that his attorney advice to reject the plea constituted ineffective assistance s of counsel and after his state appeals were exhausted he sought relief in a federal habeas proceeding After noting that the parties stipulated that counsel s performance was deficient the Court found that the Michigan appellate court erred because it applied the wrong standard the Michigan appellate court inquiry was s whether the rejection of the plea was knowing and voluntary The proper standard under Strickland is the prejudice test namely whether there was a reasonable probability that but for counsel unprofessional errors the result of the s proceeding would have been different The Court held that when the prejudice alleged is having to go to trial a defendant must show that but for the ineffective advice there is a reasonable probability that the plea offer would have been presented to the court that the court would have accepted the terms and that the conviction or sentence or both under the offer terms would have been less s severe than under the actual judgment and sentence imposed Lafler 132 S at Ct 88 1383 The requisite showing was made in that case 7 In Glover the petitioner sattorneys did not submit papers or offer extensive oral arguments contesting a supposed error in a Sentencing Guidelines determination that allegedly increased the petitioner sentence by six to twenty s one months The Court elaborated on the requisite showing that deficient performance prejudiced the defense in noting that any amount of actual jail time has Si Amendment significance Glover 531 U at 203 121 S at 700 h S Ct Nonetheless the Court fiirther noted that while the amount by which a s defendant sentence is increased by a particular decision may be a factor to consider in determining whether counsel sperformance in failing to argue the point constitutes ineffective assistance under a determinate system of constrained discretion such as the Sentencing Guidelines it cannot serve as a bar to a showing of prejudice Glover 531 U at 204 121 S at 701 In Glover the Court S Ct considered a sentencing calculation resulting from a ruling which if it had been error would have been correctable on appeal In remanding the Court did not express an opinion on the ultimate merits of Glover claim because the question of s deficient performance was not before the Court In the instant case the record reveals that prior to the trial the defendant was advised regarding a plea bargain offer and the offer was presented to the court In eaplaining the terms of the plea offer the State noted 7udge I want to make sure that Mr Johnson understands what the plea is in front of him and what it means And likewise Mr Johnson also understands the ramifications if he is found guilty of the armed robbery in this case The State proceeded to explain that the plea bargain offer on the table would result in the reduction of the charge to simple robbery the dismissal of the second degree battery charge an agreement to nollepros any charges as a result of an April 23 2010 arrest and the recommendation of a six sentence on the instant offense The defendant was year specifically reminded of the fact that he was facing the potential of ninety nine 8 years imprisonment if found guilty of the instant offense After the terms of the plea bargain offer were fully disclosed the following colloquy took place between the defendant and the defense counsel Mr Pastor Besides the things the district attorney just said you and I discussed those things right Mr Johnson Yes sir Mr Pastor All the facts of what they were willing to nol pros sic and not charge you with at all Mr Johnson Yes sir Mr Pastor And reduce the charge to a simple robbery Mr Johnson Yes sir Mr Pastar And with a six year recommendation to the Judge You understand that Mr Johnson Yes sir Mr Pastor Right And your decision to me was that you wanted to go to trial Mr Johnson Yes sir Mr Pastor That you not guilty is that correct re Mr Johnson Yes sir The recard also discloses that the defendant sdecision was made in spite of the fact that the defense was having difficulty contacting a potential defense witness Thus in this case the defendant has failed to make an adequate showing of deficient performance The record shows that the defendant made the decision to maintain his not guilty plea and go to trial despite and not as a result of his s counsel advice After making a decision to reject a plea bargain offer and to go to trial the defendant is not entitled to have the guilty verdict vacated nor is he entitled to another opportunity to accept the plea bargain simply because the verdict and sentence are not to his liking Cf State v Parker 2012 La App 1550 1 Cir 4 ll 6 So 3d 744 750 where in reviewing the trial court denial of 13 26 s 9 the defendant motion to withdraw guilty plea this court stated It is not s unreasonable for a trial court to deny a defendant the luxury of gambling on his sentence then being able to withdraw his plea if and when he discovers the sentence is not to his liking V find that the defendant pro se assignment of j e s error is without merit CONVICTION AND SENTENCE AFFIRMED 10
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