State v. GuyState v. Guy
- Reporters:
- ,
- Before:
- Bagneris
BAGNERIS, Judge.
STATEMENT OF THE CASE
Defendant Wilfred Guy was charged by bill of information on April 21, 1998 with
FACTS
New Orleans Police Detective Cathy Carter answered a call regarding a shooting that occurred in the 3000 block of First Street on March 29, 1997. Upon arriving on the scene, Johnny Andrew, the victim, was unable to speak, but his wife informed the detective that a tenant had chased Andrew around a car and shot him. City of New Orleans Emergency Medical Technician Miles Watts responded to the shooting on March 29, 1997, and found Andrew suffering from three gunshot wounds to his person.
New Orleans Police Detective Michael Roussel testified that Andrew suffered multiple gunshot wounds and appeared to be in lot of pain. He testified that Andrew‘s wife and a neighbor both identified defendant as the person that shot the victim. Detective Roussel obtained an arrest warrant for defendant based upon the statements given by the witnesses.
Mr. Philip Donald testified that on March 29, 1997, he was sitting on the corner of First and Johnson Streets, and observed Andrew, several houses away working on his truck. During the two hours Mr. Donald was on the corner, he saw defendant, whom he knew by name, but not personally, “swapping words” with Andrew about a “bill.” Andrew told defendant to go and see his wife, at which time defendant got up and walked away. Defendant called out to Andrew, referring to him as a “bitch.” Andrew replied, “and you.” At that point defendant pulled a silver pistol from underneath his shirt and fired shots in the direction of Andrew. He fired at Andrew over his truck. Andrew ran, and defendant followed, shooting at him. Andrew attempted to make it inside to his residence, but fell at his door, into his flowerbed. At that point defendant stood over Andrew and shot him. Mr. Donald said he went into his residence to retrieve a handgun, but said that when he returned, defendant got into his truck and left. Andrew was bleeding on his porch of his house. Mr. Donald said he heard five shots fired before Andrew fell, and heard more than one shot afterward. He said the two men were loudly arguing.
Cassandra Andrews, Andrew‘s wife, testified that she knew defendant, and that defendant had been renting a residence from her. As of the day of the shooting, she had served defendant, who lived in the residence with a female companion and his two daughters, an eviction notice. She said she had spoken to defendant about the situation and said he had not expressed any anger. She was inside her home when she saw defendant walk by, then heard Andrew say “talk to my wife.” She went outside just in time to see defendant shoot her husband. Mrs. Andrews stated that her husband had been shot five times, and stayed in the hospital for approximately six weeks.
Mrs. Andrews admitted on cross-examination that her husband was walking behind defendant before defendant started shooting. She admitted that her husband owned a gun, but said he kept it in the bedroom and did not have it outside with him on the day of the shooting.
Andrews testified that defendant first shot him in his hand then continued to
Detective Roussel, recalled by the defense, reiterated that Andrew had been unable to talk, and that he got the defendant‘s name from Mrs. Andrews and another witness. Detective Roussel was shown the application he completed for an arrest warrant, in which he attested that Andrew and two witnesses had positively identified the perpetrator. Detective Roussel admitted that this was incorrect insofar as Andrew having identified the perpetrator.
Jacqueline LeBan, defendant‘s sister, testified that her sister had died on March 29, 1997. She said defendant was at the hospital that morning. She later saw defendant at her mother‘s home in Gentilly. She could not recall precisely what time this was, but said it was after 11:00 a.m. She said defendant was still there around 1:00 p.m., but he was not there after 3:00 p.m., when police came looking for him. She was not sure whether defendant was at their mother‘s home at 2:00 p.m.
Gregory Guy, defendant‘s brother, testified that after he and defendant left the hospital on March 29, 1997, they went to his mother‘s residence. They arrived there at approximately 12:30 p.m. He could only say that the last time he noticed his brother there, it might have been approximately 1:00 p.m.
ERRORS PATENT
A review of the record reveals an error patent.
DISCUSSION
The defendant argues that the trial court erred in adjudicating him a third-felony habitual offender, as the alleged predicate conviction was a guilty plea entered pursuant to
A. Whenever any person who has not previously been convicted of any offense under this part pleads guilty to or is convicted of having violated R.S. 40:966C, R.S. 40:967C, R.S. 40:968C, R.S. 40:969C, R.S. 40:970C of this Part, and when it appears that the best interests of the public and of the defendant
will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as may be required. Among such conditions the court shall order that the defendant perform not less than one hundred hours of court-approved community service that may include manual labor. B. Upon the defendant‘s violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.
C. Upon fulfillment of the terms and conditions of probation imposed in accordance with this section, the court shall discharge such person and dismiss the proceedings against him.
D. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for a second or subsequent convictions under R.S. 40:982.
E. Discharge and dismissal under this section may occur only once with respect to any person.
The State claims that defendant is precluded from raising this issue because he did specifically object on
Defendant pleaded guilty to possession of cocaine on August 31, 1993. The waiver of constitutional rights and plea of guilty form has handwritten next to the printed words “Plea of Guilty,” “under 40:983.”
In State v. Christian, 618 So.2d 559 (La.App. 4 Cir.1993), the defendant appealed his habitual offender adjudication. On appeal, the State conceded that the defendant should not have been adjudicated a habitual offender, as the predicate offense had been a guilty plea entered pursuant to
The State submits that because the only evidence of a plea pursuant to
Defendant received a sentence of two years at hard labor for the 1993 guilty plea, which was suspended, and he was placed on two years active probation. The docket master does not indicate either that defendant fulfilled the terms and conditions of his probation, or that the trial court discharged him and dismissed the prosecution against him pursuant to
In Randall, the defendant pleaded guilty in August 1982 to possession of heroin, was given a suspended ten-year sentence, and placed on probation for five years. He was arrested in November 1983 and charged with being a convicted felon in possession of a firearm. The trial court quashed the indictment, and this court affirmed, stating:
Because the defendant‘s plea to the charge of simple possession of heroin was made pursuant to the provisions of
LSA-R.S. 40:983 , such plea cannot be considered an adjudication of guilt and cannot, therefore, serve as the basis for the convicted felon in possession of weapon charge.
Thus, in Randall it was the plea of guilty pursuant to
It is axiomatic that to prove a defendant is a second-felony habitual offender under
PRO SE ASSIGNMENTS OF ERROR NOS. 1 & 4
In the defendant‘s pro se brief he claims that he was denied his statutory right to a speedy trial pursuant to
Defendant filed a motion to quash after he was convicted based upon a supposed violation of his statutory right to speedy trial under
In addition to the limitations provided for by
Besides these statutory provisions, a defendant has the right to a speedy trial under the Sixth Amendment to the United States Constitution and
In the instant case, defendant was indicted or re-indicted while he was in federal prison, on April 21, 1998. Due to his incarceration in federal prison, defendant did not appear for arraignment in state court until May 13, 1998. A minute entry reflects that defendant was still in federal custody as late as May 11, 1998, and presumably remained in federal custody until transferred to state custody between then and his May 13 state court arraignment. Defendant‘s trial commenced less than ten months after his arraignment. Accordingly, the ten-month delay between defendant‘s entrance into state custody and his trial was not presumptively prejudicial, and no further inquiry is warranted. Defendant‘s constitutional rights to a speedy trial were not violated. The trial court properly denied it assuming defendant‘s motion to quash was based on his constitutional rights to a speedy trial.
There is no merit to this assignment of error.
PRO SE ASSIGNMENT OF ERROR NO. 2
By this assignment of error, defendant claims his sentence was excessive. Although we have vacated the defendant‘s sentence as a habitual offender and remanded the case for resentencing, this assignment of error will be addressed, as the original sentence was the same as the sentence imposed on defendant as a habitual offender-twenty-five years at hard labor without benefit of probation, parole or suspension of sentence.
In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in
In State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, writ denied, 98-2171 (La.1/15/99), 735 So.2d 647, this court stated:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.
La. C.Cr.P. art. 881.4(D) .
96-1214 at p. 10, 708 So.2d at 819.
In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:
On appellate review of sentence, the only relevant question is “`whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.\‘” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La. 1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in
La. Const. art. I, § 20 , i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentencing is appropriate only when “there appear[s] to be a substantial possibility that the defendant‘s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La. 1982).
Defendant claims the trial court did not consider, as he claims was required by
Defendant was convicted of attempted murder, a violation of
The record contains Andrew‘s medical records. Andrew was sixty-years old at the time he was shot. The shooting was triggered when defendant said, “fuck you” to Andrew, and Andrew replied “man, same to you.” Defendant was the instigator of the encounter. He shot Andrew once in the hand. Andrew ran, and defendant chased him, continuing to shoot at him. Bullet holes were found in two vehicles at the scene, including Andrew‘s. Andrew said he fell down onto his porch when hit by the second bullet. Defendant kept on shooting as Andrew attempted to get inside, and was shot again as he hung onto his screen door. Andrew said he begged defendant not to shoot him or kill him. Andrew said he was in Charity Hospital
In State v. Talbert, 543 So.2d 585 (La. App. 4 Cir.1989), this court affirmed a twenty-five year sentence imposed on a first offender convicted of attempted second degree murder where the armed defendant waited for Andrew in an area crowded with Mardi Gras participants, walked to within three to five feet of him, shot him in the shoulder, then chased him and fired two more shots at him.
Considering the egregious nature of this crime, and even considering that if defendant serves his full sentence he will be approximately seventy-seven years old before he gets out of prison, it cannot be said the sentence of one-half of the possible maximum sentence makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and or is grossly out of proportion to the severity of the crime. Considering the harm done to Andrew and, consequently, society, it cannot be said that the sentence shocks the sense of justice.
There is no merit to the claim that the sentence is excessive.
There is no merit to this assignment of error.
PRO SE ASSIGNMENT OF ERROR NO. 3
By this assignment of error, defendant claims the trial court erred in not vacating his original sentence before imposing his sentence as a habitual offender. The transcript of the original sentencing shows that the original sentence was twenty-five years at hard labor-not twenty years as asserted by defendant. The transcript of the habitual hearing and sentencing shows that the trial court vacated the original sentence before imposing the habitual offender sentence. Furthermore, this issue is moot, since the habitual offender adjudication and sentence have been vacated, and the case remanded for resentencing.
We pretermit discussion of this assignment or error in light of the court‘s disposition of the issue presented with defendant‘s argument that the trial court erred in adjudicating him a second felony habitual offender.
CONCLUSION
Accordingly, the defendant‘s conviction be affirmed. The defendant‘s adjudication and sentence as a habitual offender are vacated, and the case remanded for resentencing.
CONVICTION AFFIRMED, HABITUAL ADJUDICATION AND SENTENCE VACATED, AND REMANDED FOR RE-SENTENCING.