State v. Westbrook, 19-237

286 So.3d 474

STATE of Louisiana

v.Richard Douglas WESTBROOK

19-237

Court of Appeal of Louisiana, Third Circuit.

November 27, 2019

Paula Corley Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Richard Douglas Westbrook

John Foster DeRosier, 14th JDC District Attorney, Shelley A. Deville, Assistant District Attorney, P. O. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

KYZAR, Judge.

Defendant, Richard Douglas Westbrook, appeals his sentence of forty years at hard labor after pleading guilty to manslaughter, in violation of La.R.S. 14:31. For the reasons herein, we affirm the sentence.

FACTS AND PROCEDURAL HISTORY

Defendant was indicted on March 30, 2017 by a Calcasieu Parish Grand Jury charging that on or about February 14, 2017, he committed the second degree murder of Julie LeBlanc McQuilliams in violation of La.R.S. 14:30.1. After initially pleading not guilty, Defendant subsequently changed his plea to not guilty by reason of insanity. A written motion to appoint a sanity commission was filed wherein Defendant, through counsel, stated that he may not have the mental capacity to proceed, resulting in the court appointing a sanity commission by order signed on March 28, 2017. Following a hearing on June 21, 2017, Defendant was deemed competent to proceed to trial.

Defendant's trial commenced on August 27, 2018, and the jury was empaneled and sworn on August 28. Immediately thereafter, Defendant changed his plea from not guilty by reason of insanity to guilty of manslaughter, in violation of La.R.S. 14:31, pursuant to a plea offer by the State. The trial court was presented with a form entitled "Felony Plea of Guilty and Waiver of Constitutional Rights," signed by Defendant and his counsel, who advised that the same had been discussed and understood. Thereafter, the trial court advised Defendant of his constitutional rights as it pertains to the plea, to which Defendant responded that he understood and waived these rights. The trial court further advised Defendant that it was not bound to accept any recommendation of sentence which may be presented, to which Defendant stated that he understood.

During the plea, the State placed into the record the facts of the case as follows:

[I]f called to trial, the State would intend to prove that on or about February the 14th, 2017, at approximately 4:00 a.m., after the defendant had been up all night partaking in Methamphetamines with his roommates, he did set out towards the My Place Bar, which was located near his home.

During that route -- or during that trip, he did encounter the victim, Julie McQuilliams, where an incident took place between them. Approximately twenty minutes later, he returned to his home and indicated that he had killed her.

His roommates did go to the location that he pointed them to where they did find the deceased body of Julie McQuilliams.

During an interview with police, the defendant did indicate that, as he was walking past McQuilliams, they did have some interaction, but that at some point she did begin to attack him.

During that interview, detectives did discover some evidence of him having been attacked on the back of his head. That's us taking into account any excited issues that occurred, or actions that occurred, during this incident.

She was found to have been stabbed to death. This occurred within Calcasieu Parish.

The trial court questioned Defendant, who admitted to the recited facts before tendering the plea of guilty to the reduced charge of manslaughter, which the trial court accepted. The sentencing took place on November 7, 2018, during which the trial court heard the testimony of the victim's uncle and aunt. It also heard the statement of Defendant, as follow:

Good morning, Your Honor. I'd like -- first off, I'd like to apologize to the whole family. And this was – They're right; it was senseless, you know. Drugs had overtaken my life, and I was spiraling down, and this is just a culmination of it, and I apologize to the family, and I wish it never would have happened. I -- I really wished it never would have happened. But here we are today, and all we can do is move forward.

And I, just for the record, Mr. Casanave said I had three, I've only got one felony conviction.

Defendant was thereafter sentenced to serve forty years at hard labor. After pronouncing the sentence, counsel for Defendant inquired as to whether Defendant could participate in substance abuse and mental health programs available through the Department of Corrections. The trial court then recommended that any such program participation not result in good time credits towards the sentence. On December 27, 2018, Defendant filed a motion to reconsider the sentence urging only that the sentence imposed is excessive. The motion was denied on the same date, without a hearing. Defendant thereafter filed for this appeal. Herein, he asserts two assignments of error:

1. The maximum 40- year hard labor sentence is excessive for this offense and offender with substance abuse and mental health issues.

2. The trial court erred in recommending denial of good time as good time calculations are solely within the authority of the department of corrections.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is an error patent, although we determine the same to be harmless error on the record here.

Defendant entered a plea of not guilty on April 17, 2017, and then a plea of not guilty by reason of insanity on May 5, 2017. A written motion questioning Defendant's mental incapacity was filed on or about March 28, 2017, resulting in the trial court signing an order appointing a sanity commission the same day. The hearing on the motion was held on June 21, 2017 wherein the trial court found that the Defendant had the requisite mental capacity to proceed to trial. However, in this interim period, between March 28, 2017 and the determination of competency on June 21, 2017, Defendant orally moved to and did change his plea from not guilty to not guilty by reason of insanity as set forth above. Further, during this same period, the following motions and pleadings were filed: (1) a pro se motion of Defendant for discovery and inspection; (2) a pro se motion of Defendant for a preliminary examination; (3) a Motion for Discovery and Inspection on behalf of Defendant; (4) a Motion for Discovery and For Production of Initial Police Report, Criminal History and NCIC Reports and Brady Motion on behalf of Defendant; (5) a Joint Stipulation filed and signed by the State and Defendant, through counsel; (6) the State's Production of Discoverable Materials; (7) an Authorization to Permit Discovery; (8) the State's Motion for Discovery and Inspection; (9) a Melendez-Diaz Notice and Intent to Use La.R.S. 15:499 Certificates of Analysis; and (10) a Notice of Intent.

Louisiana Code of Criminal Procedure Article 642 provides:

The defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

It was error to allow steps in furtherance of the prosecution to take place between the trial court signing the motion appointing a sanity commission and June 21, 2017, when Defendant was found competent to proceed. However, that does not end the inquiry. "Whether a patent error, like other statutory error, requires reversal must be evaluated in light of the potential impact on the fairness of the proceedings[,]" and "[j]ust as non-prejudicial violations of the accused's statutory rights do not mandate reversal, an error in procedure which does not affect the fundamental fairness of the process does not necessarily require reversal and remand, unless prejudice is shown." State v. White , 404 So.2d 1202, 1204-1205 (La.1981) (citing La.Code Crim.P. art. 921).

In State v. Kelly , 95-1663 (La.App. 3 Cir. 5/8/96), 677 So.2d 495, this court held that it was patent error to arraign the defendant after he raised the issue of mental incapacity but before a determination was made as to his competency to proceed to trial. This court found the lack of a contemporaneous objection resulted in a waiver of the error and rendered the error patent harmless. Accordingly, we reach the same conclusion in the present case as to the entry of the first plea of not guilty in April 2017 and the subsequent withdrawal of the not guilty plea and substitution of the plea of not guilty by reason of insanity in May 2017.

We further find the filing of the various motions, pleadings, and actions between March 28, 2017 and June 21, 2017, while steps in furtherance of the prosecution, resulted in no harm or prejudice to Defendant, nor did any of these actions affect the fundamental fairness of the process. As reflected, these actions were taken by all parties, including Defendant himself in the filing of pro se motions. The filing of such motions by Defendant and counsel for Defendant and the failure to object to any of the filings by the State waives any objection thereto. State v. Beauchamp , 510 So.2d 22 (La.App. 1 Cir.), writ denied , 512 So.2d 1176 (La.1987). Accordingly, while we find error in allowing any actions in furtherance of the prosecution to occur during this period, we find the error to be harmless in the case at hand.

Excessive Sentence

Defendant first asserts that the sentence of forty years for his conviction of manslaughter in his particular case amounts to an unconstitutionally excessive sentence. H...