State v. MorrisState v. Morris
1. The appellant was denied his right to Due Process of law under the Fifth and
Fourteenth Amendment to the United States Constitution and Article I, § 2 of theLouisiana Constitution as there was insufficient evidence to support the verdict.2. Appellant was denied his right to a fair trial as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and Article I, Sections 2 and 16 of theLouisiana Constitution of 1974 as his trial counsel was ineffective when she failed to pursue her pre-trial motions to obtain a trial court ruling determining whether evidence seized was admissible or inadmissible at trial.3. Appellant was denied his right to judicial review pursuant to Article I, Section 19 of the
Louisiana Constitution of 1974 , as the trial record does not contain the trial court‘s decisions regarding seized evidence.4. The trial court erred in imposing a maximum sentence and an illegal sentence of twelve (12) years imprisonment at hard labor upon the appellant for simple burglary and attempting to obtain a controlled dangerous substance by fraud, as the sentences are excessive and thereby violate the appellant‘s rights under the
Eighth Amendment to the United States Constitution and Article I, Section 20 of theLouisiana Constitution of 1974 .
We affirm defendant‘s conviction.
On November 28, 1995, the Jefferson Parish District Attorney filed a Bill of Information charging the defendant, Philip Morris, with simple burglary, a violation of
A jury trial was held on October 20, 1997. A jury of six found the defendant guilty as charged. On November 17, 1997, the trial court sentenced the defendant to imprisonment at hard labor for twelve (12) years, with credit for time served. On November 21, 1997, defense counsel filed a Motion to Reconsider Sentence, which the trial court denied on November 26, 1997. On the same day, the defendant filed a Motion for an Appeal, which the trial court granted on November 26, 1998.
FACTS
The following facts were developed from trial testimony. Deputy Joe Moore of the
Mr. William Moran, the Vice President of the Corporate Security Department for Hibernia Bank, testified that he responded to the alarm on November 5, 1995. He told the jury that he investigated the damage to the ATM machine and estimated that there was about $3,000.00 worth of damage done to the machine and the structure housing it. He testified that the building housing the ATM was a self-contained structure into which the public is never allowed.
The defendant did not offer any witnesses or testimony on his own behalf. Based on the foregoing, the jury found the defendant guilty as charged.
ASSIGNMENT OF ERROR NUMBER ONE
The appellant was denied his right to Due Process of Law under the Fifth and
The defendant argues that the evidence presented at trial was insufficient to show that, 1) the ATM kiosk was a “structure” as defined by
The standard for reviewing the sufficiency of evidence was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and adopted by Louisiana in State v. Abercrombie, 375 So.2d 1170, 1177-1178 (La.1979), cert. denied, Abercrombie v. Louisiana, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). See also State v. Mussall, 523 So.2d 1305 (La.1988).
In Jackson, the court held that Due Process requires the reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. Under Jackson a review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d at 1310 (La.1988).
The defendant in this case was charged with a violation of
Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.
The defendant argues that the ATM kiosk was not a “structure” as contemplated by
Any construction, or any production or piece of work artificially built up or composed
of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind. A combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.
The Lopez court held that a storage trailer, enclosed on all four sides and containing a locked door, was a structure for purposes of
The defendant further argues that the evidence was insufficient to show that he had the requisite intent to commit simple burglary. To be found guilty of simple burglary, one must have made an unauthorized entry to a structure with the intent to commit a felony or any theft therein.
The defendant concedes that he was present in the building without authorization. He argues, however, that the state failed to show he had the intent to do more than damage the property. However, in this case the property damage to the kiosk itself is the “felony” committed therein. The evidence in this case shows that the defendant entered the kiosk by breaking the door, exited carrying two tools, one of which was some type of crowbar, and committed approximately $3,000.00 damage to the ATM machine. Criminal damage in this amount is considered a felony. See
ASSIGNMENT OF ERROR NUMBER TWO
Appellant was denied his right to a fair trial as guaranteed by the Sixth and
The defendant argues that trial counsel was ineffective for failing to file pre-trial motions to suppress the evidence, identification, and confession.
The Louisiana Supreme Court has held that a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. Truitt, 500 So.2d 355 (La.1987); State v. Brown, 384 So.2d 983 (La.1980). It is well settled, however, that where the record contains sufficient evidence to decide the issue, and the issue is properly raised by
A defendant is entitled to effective assistance of counsel under the
The defendant argues that trial counsel was ineffective for failing to file pre-trial motions to suppress the evidence, confession, and identification. This Court, in State v. Pendelton, 96-367 (La.App. 5 Cir. 5/28/97), 696 So.2d 144, writ denied, 706 So.2d 450 (La.1997), held that, for purposes of an ineffective assistance of counsel claim, pretrial motions are squarely within the ambit of the attorney‘s trial strategy, and counsel is not required to engage in futility. It is not enough for an accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. State v. Brogan, 453 So.2d 325 (La.App. 3 Cir.1984), writ denied, 457 So.2d 1200 (La.1984). The defendant in the instant case fails to show how he was prejudiced by failure to file these motions. There is no evidence in the record of a confession or identification. Further, the defendant does not allege any specific facts that would support a finding of an unconstitutional search or seizure requiring suppression of the evidence. See.
The defendant further argues that trial counsel was ineffective for misstating the crime in the Motion to Reconsider Sentence. The Motion to Reconsider Sentence filed in this case states that the defendant was convicted of simple burglary of an inhabited dwelling, a violation of
ASSIGNMENT OF ERROR NUMBER THREE
Appellant was denied his right to judicial review pursuant to Article I, Section 19 of the
The defendant, in his brief, bases this argument on the assumption that pre-trial motions were filed and hearings were held. As the state points out, this assumption may be based upon the cover sheet of an “omnibus motion” filed in the record which has an “x” by the category for Motion to Suppress Evidence, Confession, and Identification. However, a careful review of the record reflects that actual motions to suppress the evidence were never filed (as the defendant concedes in Assignment of Error Number Two) and suppression hearings were never held. It
ASSIGNMENT OF ERROR NUMBER FOUR
The trial court erred in imposing a maximum sentence and an illegal sentence of twelve (12) years imprisonment at hard labor upon the appellant for simple burglary and attempting to obtain a controlled dangerous substance by fraud, as the sentences are excessive and thereby violate the appellant‘s rights under the
The
A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentencing is 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. Bradham, 94-71 (La.App. 5 Cir. 5/31/94), 638 So.2d 428. The trial judge has wide discretion in imposing sentences within the statutory limits, and sentences will not be set aside as excessive absent manifest abuse of that broad discretion. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Riche, 608 So.2d 639 (La.App. 5 Cir.1992), writ denied, 613 So.2d 972 (La.1993).
The court should consider three factors in reviewing a judge‘s sentencing discretion: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Smith, 520 So.2d 1252 (La.App. 5 Cir.1988), writ denied, 523 So.2d 1320 (La.1988).
In the present case, defendant was found guilty of simple burglary, a violation of
Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years or both.
The defendant argues that the twelve year sentence imposed was excessive because the trial court failed to state his sentencing considerations in the record. As amended,
The sentence that the judge imposed was not the maximum sentence allowable by law, because no fine was imposed. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065. We find that the $3000.00 of damage done to the ATM machine and kiosk warranted the twelve year sentence despite the defendant‘s lack of a prior criminal history.
The defendant further asks this Court to review an excessiveness claim for the sentence he received in Case Number 96-0230. However, there is no evidence in the record that an appeal has been filed in that matter. Moreover, Case Number 96-0230 is not before us on appeal. Absent the filing of an appeal, this Court lacks jurisdiction to review this claim.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to
Accordingly, we affirm the defendant‘s conviction and sentence, and remand as per the above paragraph.
AFFIRMED; REMANDED WITH INSTRUCTIONS.