NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 KA 0303

STATE OF LOUISIANA

VERSUS

JOSEPH PAUL GRANT DATE OF JUDGMENT. NOV 0 9 2023

APPEAL FROM THE TWENTY- SECOND JUDICIAL DISTRICT COURT V PARISH OF ST. TAMMANY, STATE OF LOUISIANA NUMBER 697- 2019, DIVISION G

HONORABLE SCOTT GARDNER, JUDGE

Warren LeDoux Montgomery Counsel for Appellee District Attorney State of Louisiana Matthew Caplan Assistant District Attorney Covington, Louisiana

Gwendolyn K. Brown Counsel for Defendant -Appellant Baton Rouge, Louisiana Joseph Paul Grant

BEFORE: GUIDRY, C. J., CHUTZ, AND LANIER, JJ.

Disposition: CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFU MED.

CHUTZ, J.

The defendant, Joseph Paul Grant, was charged by amended bill of

information with first degree robbery, a violation of La. R.S. 14: 64. 1. 1 Prior to his arraignment and following a sanity hearing, the trial court found that the defendant was not competent to proceed. Subsequently, after his competency was found to be restored, the defendant pled not guilty. After a trial by jury, he was found guilty as charged. The trial court denied the defendant' s motion for post -verdict judgment of acquittal and motion for new trial. The defendant was sentenced to

forty years at hard labor without the benefit of probation, parole, or suspension of sentence. After he admitted the allegations of the multiple offender bill of

information filed by the state, the defendant was adjudicated a fourth -felony habitual offender. The trial court vacated the original sentence imposed and

sentenced the defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence.' The trial court denied the defendant' s oral

motion to reconsider sentence.

The defendant now appeals, maintaining that his enhanced sentence is unconstitutionally excessive and that he was denied the effective assistance of counsel. For the following reasons, we affirm the conviction, habitual offender adjudication, and sentence.

FACTS

At approximately 12: 50 a.m. on April 4, 2019, Serenity Wright was working alone at the Shell gas station located on Old Spanish Trail Road in Slidell, Louisiana. While Wright was standing behind the counter at the register, the defendant entered the store, walked behind the counter to where Wright was

standing, and grabbed her. The defendant pinned Wright against the counter,

pulled her hair, punched her, and told her to give him the money or he would shoot her. The defendant then stole five packs of cigarettes and most of the cash that was

inside the register. He then exited the store, ran to his waiting vehicle, and left the premises.

Wright locked the door and called 911, and the police arrived approximately five minutes later. The responding officer, Officer Michael Koch with the Slidell Police Department, watched the store' s surveillance footage and obtained a

description of the suspect and his vehicle, which was determined to be a dark colored Infiniti SUV, Using the information obtained from the surveillance footage, officers apprehended the defendant during a traffic stop several hours after the robbery.

EXCESSIVE SENTENCE

In his first assignment of error, the defendant argues that the trial court erred

by imposing an excessive sentence.' After adjudicating the defendant a fourth -felony habitual offender, the trial court imposed the mandatory sentence of life imprisonment without benefit of probation, parole, or suspension of sentence, pursuant to La. R.S.

15: 529. 1( A)(4)( c). 4 Defense counsel then stated, without articulating any specific

Reconsideration." The trial court denied the oral motion, and no written motion to

reconsider sentence was filed.

Herein, the defendant failed to adequately preserve this issue for appeal.

While defense counsel made an oral " motion for reconsideration," he did not

specify the grounds upon which the objection was based. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion

to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground on appeal that was not raised in the motion. La. Code

Crim. P. art. 8$ 1. 1( E). Where the defendant failed to object to his sentence as

excessive and failed to state any specific circumstances that would justify a more lenient sentence, the defendant is procedurally barred from having this assignment of error reviewed. See State v. Brown, 12- 0752 ( La. App. 1st Cir. 4110113), 2013 WL 1459156, * 7 ( unpublished).

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second assignment of error, the defendant contends his trial counsel

was ineffective based on his failure to file a detailed, written motion to reconsider

sentence.

Specifically, the defendant argues that his trial counsel failed to argue that the statutorily mandated sentence of life imprisonment was excessive due to his diminished mental capacity at the time the crime was committed.

As a general rule, a claim of ineffective assistance of counsel is more

properly raised in an application for post -conviction relief in the district court rather than on appeal. This is because post -conviction relief provides the

opportunity for a full evidentiary hearing under La. Code Crim. P. art. 930.

However, when the record is sufficient, this court may resolve this issue on direct imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence."

appeal in the interest of judicial economy. State v Miller, 15- 1031 ( La. App. 1st Cir. 12123115), 185 So. 3d 811, 815, writ denied, 16- 0152 ( La. 1/ 23/ 17), 215 So. 3d N.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, § 13, of the Louisiana Constitution. State v. LaCaze, 99- 0584 ( La. 1125/ 02), 824 So. 2d 1063, 1078, cert.

denied, 537 U.S. 865, 123 S. Ct. 263, 154 L.Ed.2d 110 ( 2002). A claim of

ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed. 2d 674 ( 1984).

In order to establish that his trial attorney was ineffective, the defendant must first show 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 actually prejudiced him by showing that the errors were so serious that the defendant was deprived of a fair trial. Miller, 185 So. 2d at 815.

The 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. Id. at 816.

Moreover, when the sentence was imposed pursuant to the Habitual Offender Law,

the defendant must rebut the presumption that the sentence was constitutional.

State v. Johnson, 97- 1906 ( La. 3/ 4/ 98), 709 So. 2d 672, 676.

On appeal, the defendant argues that his trial counsel failed to articulate to

the court the extent to which his mental health affected his culpability for the instant offense, as well as for his predicate convictions. In support of his

argument, the defendant points out that the trial court previously observed his V emotional and mental distress and determined he was not competent to proceed at that time. Accordingly, the defendant contends his counsel was ineffective in failing to argue, either orally or in a written motion, that the sentence of life imprisonment was excessive due to the defendant' s diminished capacity and obvious mental health concerns.

We have reviewed the record herein and find that it is insufficient to make a

definitive finding as to the defendant' s claim of ineffective assistance of counsel.

At a sanity hearing on August 9, 2019, the trial court referenced a prior hearing where the defendant was " visibly disturbed, disoriented, and did not seem to understand why he was [ in court]." Accordingly, pursuant to a doctor' s report and both parties' stipulation, the trial court found that the defendant was not competent

to proceed. On June 3, 2020, based on the medical reports prepared after the

defendant' s reevaluation, the parties stipulated that his competency had been restored. The record before us, however, does not contain the defendant' s medical

records ( either prior to the instant offense or leading up to his competency restoration), the medical reports prepared regarding his mental competency, or any additional information regarding his mental capacity at the time the instant offense was committed, or his overall mental health and acuity, or impairments thereto.

Accordingly, considering the nature of the defendant' s allegations, we find that his ineffective assistance of counsel claim cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond what is contained in the instant record, could these

allegations be sufficiently investigated.' See State v. Tingle, 12- 1928 ( La. App.

1st Cir. 617113), 2013 WL 2454316, * 7 ( unpublished); see also State v. Dantin, 19-

0407 ( La. App. 1st Cir. 12117119), 291 So. 3d 1096, 1102. Therefore, this

assignment of error is not subject to appellate review.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.