Opinion
2023 KA 0277
01-10-2024
STATE OF LOUISIANA v. DENVER CARTER
Hillar C. Moore, III District Attorney Dylan C. Alge District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Lieu T. Vo Clark Mandeville, Louisiana Attorney for Defendant/Appellant Denver Carter
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Court No. 05-18-0288 Honorable Tarvald Smith, Judge Presiding
Hillar C. Moore, III District Attorney Dylan C. Alge District Attorney Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana
Lieu T. Vo Clark Mandeville, Louisiana Attorney for Defendant/Appellant Denver Carter
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
PENZATO, J.
The defendant, Denver Carter, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty of the responsive verdict of manslaughter, a violation of La. R.S. 14:31. He was sentenced to thirty-five years at hard labor. He now appeals, challenging his sentence as unconstitutionally excessive and arguing trial counsel rendered ineffective assistance by failing to preserve review of the sentence. For the following reasons, we affirm the conviction and sentence.
Jordale Carter, the defendant's cousin, was charged by the same indictment with the same offense. He was jointly tried with the defendant.
FACTS
On December 29,2017, the victim, Karl Anthony Moore, Jr., was shot and killed outside Prestige Barbershop (Prestige) in Baton Rouge, Louisiana. The wounds indicated that Moore was shot from behind. There were no eyewitnesses to the shooting and no physical evidence at the scene linked the defendant to the homicide.
Surveillance video from Prestige showed Moore enter Prestige at 1:03 p.m., followed by a younger male carrying a black bag. Approximately twenty minutes later, the defendant and Jordale Carter entered Prestige. While inside Prestige, video showed Moore placing a large gold chain in the black bag. At 2:53 p.m., the defendant, Jordale Carter, and Moore exited Prestige, with Moore carrying the black bag. Approximately three minutes later, gunfire was heard outside the building.
Surveillance footage from a business across the street from Prestige showed three individuals running from the direction of Prestige after gunshots were fired. Police identified two of the individuals as the defendant and Jordale Carter, based upon what they were seen wearing in Prestige. The individual fitting the defendant's clothing description was carrying a black object that resembled the bag Moore had been carrying. Additionally, an eyewitness in the area reported hearing gunshots and, less than two minutes later, seeing three or four young black men, including a man wearing a distinctive print shirt similar to that worn by the defendant while inside Prestige, climbing through a broken fence. The men hid behind a trailer before a vehicle picked them up.
Later that day, at 4:33 p.m., the defendant pawned a large gold chain for $300.00 at a pawn shop approximately one mile away from Prestige. At approximately 5:00 p.m., Christopher Carter, the defendant's brother, an inmate at West Baton Rouge Parish Jail, called the defendant's home. Christopher Carter had heard about the shooting and called to see if the defendant was all right. In the recorded conversation, the defendant referenced committing a crime in order to get a firearm. In the same conversation, Jordale Carter referenced a killing and mentioned Moore's nickname. Later that night, at 10:50 p.m., Jordale Carter posted a video on Instagram in which he fanned out hundreds of dollars of cash and said "[d]rop that bag. I am coming to get you," which the State argued was a reference to Moore's bag.
On January 5, 2018, the defendant and Jordale Carter were apprehended and charged with the second degree murder of Moore.
EXCESSIVE SENTENCE; INEFFECTIVE ASSISTANCE OF COUNSEL
In assignment of error number one, the defendant contends the trial court erred in imposing a sentence that is unconstitutionally excessive. In assignment of error number two, the defendant contends the failure of trial counsel to file a motion to reconsider sentence should not limit this Court in considering the excessiveness of the sentence; however, in the event that it does limit this Court's consideration, then the failure of trial counsel constitutes ineffective assistance of counsel.
We will address assignments of error numbers one and two, even in the absence of a timely motion to reconsider sentence or a contemporaneous objection, because it will be necessary to do so as part of the analysis of the ineffective assistance of counsel claim. See State v. Moore, 2012-0876 (La.App. 1st Cir. 2/15/13), 2013 WL 595670, *2 (unpublished), writ denied, 2013-0600 (La. 10/11/13), 123 So.3d 1216.
Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. State v. Scott, 2017-0209 (La.App. 1st Cir. 9/15/17), 228 So.3d 207, 210, writ denied. 2017-1743 (La. 8/31/18), 251 So.3d410.
Louisiana Code of Criminal Procedure article 894.1 sets forth factors the trial court must consider before imposing a sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. Moore, 2013 WL 595670 at *2. In light of the criteria expressed by Article 894.1, an appellate court's review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. Id. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. Id.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence falls within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Alexander, 2021-1346 (La.App. 1st Cir. 7/13/22), 344 So.3d 705, 725, writ denied, 2022-01262 (La. 11/8/23), 373 So.3d 62. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. Moore, 2013 WL 595670 at *2. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of abuse of discretion. Id.
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the trial court where a full evidentiary hearing may be conducted. However, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Moody, 2000-0886 (La.App. 1st Cir. 12/22/00), 779 So.2d 4, 8, writ denied, 2001-0213 (La. 12/7/01), 803 So.2d 40; see State v. Mance, 2000-1903 (La.App. 1st Cir. 5/11/01), 797 So.2d 718, 720.
A court analyzes a claim of ineffectiveness of counsel under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. Moore, 2013 WL 595670 at *3. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Id. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. Id.
As applicable here, whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. La. R.S. 14:31(B). The defendant was sentenced to thirty-five years at hard labor.
The defendant testified at the sentencing hearing that he had one prior conviction for an offense committed when he was sixteen years old. Thereafter, the court found that the defendant and Jordale Carter acted as principals in committing the offense. The court noted that the barbershop outside of which the offense occurred was occupied by many people, including children, and the offense occurred in broad daylight. The court further noted that it had to consider the defendant's propensity to reoffend. In that regard, the court noted that just over two months prior to the instant offense, the defendant was paroled from a conviction for the armed robbery of an eighty-five-year-old woman that included the theft of her oxygen tank.
On appeal, the defendant argues that the sentence was unconstitutionally excessive because it was near the statutory maximum, the case was circumstantial, and his prior armed robbery occurred when he was a juvenile. He further argues that despite the substantial differences between his criminal record and that of Jordale Carter, the trial court sentenced them both to the same sentence of thirty-five years.
A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See La. Code Crim. P. art. 894.1(A)(1), (B)(5), (B)(6), (B)(9), (B)(10), (B)(18), and (B)(21). Further, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. Moore, 2013 WL 595670 at *4. A maximum sentence was not imposed in this case. Further, the sentence was imposed in this matter after the defendant was found guilty of committing the offense by unanimous verdict, and because he has not challenged the sufficiency of the evidence on appeal, the issue of whether the evidence against him was direct, circumstantial, or some combination of both is not before this court. See La. Code Crim. P. art. 920. Lastly, the trial court was well aware of the defendant's age when he committed his prior offense, but found the aggravating factors of that offense and the instant offense outweighed the mitigating effect, if any, of the defendant's age.
In regard to the defendant's ineffective assistance of counsel claim, we note, even assuming, arguendo, defense counsel performed deficiently in failing to timely move for reconsideration of the sentence, the defendant suffered no prejudice from the deficient performance because this Court considered the defendant's excessive sentence argument in connection with the ineffective assistance of counsel claim. See Moore, 2013 WL 595670 at *4. These assignments of error are without merit.
CONVICTION AND SENTENCE AFFIRMED.