Opinion
NUMBER 2015 KA 0960
12-23-2015
STATE OF LOUISIANA v. STANLEY GRIGSBY
Hillar Moore District Attorney Stacy L. Wright Assistant District Attorney Baton Rouge, LA Counsel for Appellee State of Louisiana Mary E. Roper Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Stanley Grigsby
NOT DESIGNATED FOR PUBLICATION
Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Parish State of Louisiana
Docket Number 03-13-0824
Honorable Anthony J. Marabella, Jr., III, Judge Presiding Hillar Moore
District Attorney
Stacy L. Wright
Assistant District Attorney
Baton Rouge, LA Counsel for Appellee
State of Louisiana Mary E. Roper
Louisiana Appellate Project
Baton Rouge, LA Counsel for Defendant/Appellant
Stanley Grigsby BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ GUIDRY, J.
Defendant, Stanley Grigsby, was charged by bill of information with attempted second degree murder, a Violation of La. R.S. 14:27 and 14:30.1 (count one), and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count two). He pled not guilty. Following a jury trial, defendant was found guilty as charged on both counts. He filed a motion for new trial, which the trial court denied. The state subsequently filed a habitual offender bill of information, alleging defendant to be a second-felony habitual offender. Following a hearing, the trial court adjudicated defendant a second-felony habitual offender on count one only. On count one, the trial court sentenced defendant as a second-felony habitual offender to seventy years at hard labor, without benefit of probation or suspension of sentence. On count two, the trial court sentenced defendant to twenty years at hard labor, to be imposed concurrently with the sentence on count one. Defendant filed a motion to reconsider his sentences, which the trial court denied. Defendant now appeals, alleging in a single assignment of error that his sentence on count one is excessive. For the following reasons, we affirm defendant's convictions and habitual offender adjudication, but vacate the sentences and remand to the trial court for resentencing.
The predicate convictions set forth in this habitual offender bill of information were October 22, 2009 convictions for aggravated assault with a firearm and illegal use of weapons or dangerous instrumentalities under East Baton Rouge Parish (19th JDC) docket number 06-08-0132.
FACTS
Around 9:00 a.m. on January 1, 2012, Todd Nicholas (the victim) went to his brother's apartment on Mohican-Prescott Crossover in Baton Rouge to spend the day with family. At some point during the day, Nicholas went outside and saw some other males hanging out in the area. Among this group of men, Nicholas recognized defendant, who he knew as "Boonie." Nicholas described at trial that defendant gave him a funny look, but indicated they had never had any problems before. Nicholas left his brother's apartment close to midnight. When he got into his vehicle and prepared to back out, he saw a man begin to stagger across the street in his direction. As the man approached, Nicholas testified that they looked each other in the eye, and then Nicholas noticed the man had a "chrome automatic" when the man began to fire at his car. Nicholas recognized defendant - "Boonie" - as the shooter. Nicholas drove away from the scene before ultimately crashing his vehicle on Scenic Highway, where he was able to find bystanders to call 911. As a result of the shooting, Nicholas was struck eight times. Surgeons removed Nicholas's left kidney and placed a plate in his left arm because of the damage from the projectiles. Two bullets are still lodged in Nicholas's body, both near an artery.
While Nicholas was in the hospital, he told his dad that Boonie shot him, but he did not immediately relay this information to the police. Detective Steven Woodring, of the Baton Rouge Police Department's homicide division, later received an anonymous tip informing him that defendant was a possible suspect in the shooting. Detective Woodring prepared a six-person photographic lineup and met with Nicholas, who immediately identified defendant as the person who shot him. At trial, defendant was identified as having previously been convicted of aggravated assault with a firearm and illegal use of weapons.
PATENT ERROR
For errors not assigned, we are limited in our review under La. C. Cr. P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. See State v. Price, 05-2514, p. 18 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277. After careful review, we have found an error in defendant's habitual offender sentence.
For his conviction and second-felony habitual offender adjudication on count one (attempted second degree murder), defendant was sentenced to seventy years at hard labor, without benefit of probation or suspension of sentence. For his conviction on count two (possession of a firearm by a convicted felon), defendant was sentenced to twenty years at hard labor The trial court ordered that these sentences be served concurrently. For the reasons described below, both of these sentences are illegally lenient.
Whoever is convicted of attempted second degree murder shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(1)(a) & 14:30.1(B). For a second-felony habitual offender convicted of attempted second degree murder, the appropriate sentencing range is twenty-five to one hundred years at hard labor, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(1)(a), 14:30.1(B), & 15:529.1(A)(1); see also State v. Bruins, 407 So. 2d 685, 687 (La. 1981) ("[C]onditions imposed on the [habitual offender] sentence are those called for in the reference statute"). Consequently, defendant's habitual offender sentence on count one fails to restrict the benefit of parole.
Whoever is convicted of possession of a firearm by a convicted felon shall be imprisoned at hard labor for not less than ten nor more than twenty years, without benefit of parole, probation, or suspension of sentence, and be fined not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). Defendant's sentence on count two fails to restrict the benefit of parole or impose the mandatory fine associated with this offense.
Pursuant to La. R.S. 15:301.1(A), if a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of parole, probation, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of parole, probation, or suspension of sentence. However, La. R.S. 15:301.1(A) cannot apply where the district court must exercise discretion concerning any portion of the sentence that is to be served without benefit of parole, probation, or suspension of sentence. See State v. Dorsey, 12-1816, p. 6 (La. App. 1st Cir. 2/4/14), 137 So. 3d 651, 656, writ denied, 14-0378 (La. 9/19/14), 148 So. 3d 951, cert. denied, ___ U.S. ___, 135 S.Ct. 1495, 191 L.Ed.2d 435 (2015).
In Dorsey, the defendant had been convicted of aggravated incest and sentenced to the minimum term for that offense - twenty-five years. However, this sentence failed to comply with La. R.S. 14:78.1(D)(2) (prior to repeal), which mandated "at least" twenty-five years of the defendant's sentence to be served without benefit of parole, probation, or suspension of sentence. See Dorsey, 12-1816 at p. 6, 137 So. 3d at 655-56. Recognizing that defendant had been given the minimum-possible term for this offense and that the minimum restriction-of-benefits period coincided with this minimum term, this Court concluded that no discretion would be involved in correcting Dorsey's illegally lenient sentence. Therefore, we deemed Dorsey's sentence to contain the twenty-five year restriction of benefits. See Dorsey, 12-1816 at pp. 6-7, 137 So. 3d at 656.
While the titled crime of aggravated incest has been repealed, the same conduct prohibited by this offense is now incorporated into the crime of aggravated crime against nature, La. R.S. 14:89.1(A)(2). See 2014 La. Acts, No. 177, § 1.
The sentencing scheme in Dorsey is distinguishable from that applicable to each of the statutes in the instant case. The aggravated incest statute from Dorsey required that "at least" twenty-five years of any potential sentence for Dorsey's offense be served without benefit of parole, probation, or suspension of sentence. Thus, had Dorsey been sentenced to some term longer than twenty-five years, this Court would have vacated the sentence and remanded for the trial court to resentence the defendant.
In the instant case, defendant's habitual offender sentence on count one and his sentence on count two both require that the entirety of each sentence imposed be served without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27(D)(1)(a), 14:30.1(B), 14:95.1(B), & 15:529.1(A)(1); Bruins, 407 So. 2d at 687. In this sense, these sentences do not require the trial court's discretion regarding what "portion" of each sentence will be served without benefit of parole, probation, or suspension of sentence. See Dorsey, 12-1816 at p. 6, 137 So. 3d at 656. However, if the trial court had recognized that defendant's sentence on count one should have been imposed without the benefit of parole and his sentence on count two imposed without benefits of parole, probation, or suspension of sentence (and with a fine), it might have imposed different sentences. Allowing La. R.S. 15:301.1(A) to act by operation of law on the illegal sentences in this case would impinge upon the trial court's sentencing discretion. Under State v. Haynes, 04-1893 (La. 12/10/04), 889 So. 2d 224 (per curiam), we vacate defendant's sentences on both counts and remand this matter to the trial court for resentencing. Because defendant's sole assignment of error relates to his habitual offender sentence on count one, we pretermit discussion of that assigned error.
We note that the sentence on count two also failed to include the mandatory fine. See La. R.S. 14:95.1(B). --------
CONVICTIONS AND HABITUAL OFFENDER ADJUDICATION; AFFIRMED. SENTENCES VACATED AND REMANDED FOR RESENTENCING.