State v. Williams

1

STATE OF LOUISIANA v. DAMION WILLIAMS

No. 2022 KA 0538

Court of Appeals of Louisiana, First Circuit

November 4, 2022

NOT DESIGNATED FOR PUBLICATION

Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 08-13-0994 The Honorable William Jorden, Judge Presiding

Jane Hogan Hammond, Louisiana Damion Williams Counsel for Defendant/ Appellant

Hillar C. Moore, III District Attorney Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

THERIOT, J.

Defendant Damion Katraiel Williams, was charged by bill of information with armed robbery with a firearm, a violation of La. R.S. 14:64 and 14:64.3 (count one); second degree kidnapping, a violation of La. R.S. 14:44.1 (count two); and attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1 (count three). He pled not guilty and, following a jury trial, was found guilty as charged on all three counts.^[1] On count one, the trial court imposed 25 years at hard labor, without the benefit of parole, probation, or suspension of sentence; on count two, the trial court imposed 15 years at hard labor, with the first 2 years to be served without the benefit of parole, probation, or suspension of sentence; and on count three, the trial court imposed 40 years at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences to be served concurrently, with the exception that the first 5 years on count one be served consecutively to all other sentences.^[2]

Later, after the State filed a habitual offender bill of information, the trial court adjudicated defendant a third-felony habitual offender on count one, vacated the prior sentence, and imposed an enhanced sentence of 66.33 years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence.^[3]Defendant subsequently appealed, alleging six assignments of error, and this court affirmed the convictions, habitual offender adjudication, and sentences. State v. Williams, 2016-0519 (La.App. 1st Cir. 9/15/17), 2017 WL 4082077, at *10 (unpublished). Defendant filed an application for writ of certiorari and/or review, and the Louisiana Supreme Court, in part, granted his writ to vacate the enhanced sentence on count one and remanded for resentencing thereon. State v. Williams, 2017-1753 (La. 6/15/18), 245 So.3d 1042 (per curiam).^[4] Defendant did not seek review of the supreme court's ruling affirming the convictions and remaining sentences.

On remand, the trial court resentenced defendant on count one as a habitual offender to 45 years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence, to be served concurrently with any other sentence.^[5] The trial court denied defendant's motion to reconsider the enhanced sentence. Defendant now appeals, challenging the trial court's denial of his re-urged motion for new trial on remand, the trial court's calculation of the sentencing range applicable to the enhanced offense, and the constitutionality of the enhanced sentence imposed on count one on remand. For the following reasons, we affirm the enhanced sentence on count one.

STATEMENT OF FACTS^[6]

In the early morning hours of May 19, 2013, Leroy Grant was walking in the Glen Oaks area of Baton Rouge when he was approached by men in an SUV, forced inside at gunpoint, and driven to Oaklon Avenue. Once there, he was forced to lie in a ditch, at which point he ran and was shot three times.

Following the incident, Grant met with a detective and identified defendant as the man who forced him into the car at gunpoint, robbed him of a Samsung Galaxy phone, and later shot him. At trial, Grant partially recanted this statement, indicating that defendant was not present at the time of the offenses.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one; defendant argues the trial court erred on remand in failing to grant his re-urged motion for new trial based on a constitutional challenge of the petit jury in this case. Defendant cites State v Cannon, 2019-590 (La. 4/18/19), 267 So.3d 585 (per curiam), wherein the Louisiana Supreme Court held that the exclusion of those born after June 2, 1993 from the jury pool resulted in a general venire that was improperly constituted,^[7]Herein, defendant argues his jury venire was made deficient by the same process that existed in Cannon and was not a fair cross-section of the community. Defendant concedes that this Court, in State v. Young II, 2019-0761 (La.App. 1st Cir. 11/15/19), 290 So.3d 1130, 1133, writ denied, 2019-01986 (La. 5/7/20), 296 So.3d 617, held the trial court lacked authority to consider a motion for new trial asserted by the defendant therein on remand for the sole purpose of sentencing. However, defendant argues this case is distinguishable from Young II, noting that while the defendant therein attempted to challenge the sufficiency of the evidence for a second time on remand, defendant herein moved for a new trial "based on a substantial defect in the proceeding."

Citing Young II, the State argues the trial court did not err in finding it lacked jurisdiction to consider defendant's motion for new trial on remand. The State alternatively argues that the trial court did not err in denying defendant's claim on the merits because: (1) defendant waived his right to challenge the venire by not filing a pretrial motion to quash; and (2) age is not a "distinctive group" for purposes of fair-cross-section analyses (citing State v. Germany, 2020-00878 (La. 11/4/20), 303 So .3d 631, 632 (per curiam)).

In denying the motion for new trial urged by defendant on remand, the trial court agreed with the State's argument that it was without jurisdiction considering the limited purpose of the remand by the Louisiana Supreme Court, and the supreme court's ruling denying in part defendant's application for review, affirming the convictions and unenhanced sentences. The trial court further found that even if it had jurisdiction, it would deny the motion due to defense counsel's failure to exercise due diligence and timely raise the issue that would have been visibly apparent based on the makeup of the jury pool.

Pursuant to La. Code Crim. P. art. 853, a motion for new trial can be filed and disposed of prior to sentencing. However, once a case is appealed, the trial court is without jurisdiction to entertain a motion for a new trial unless the case is remanded to that court for that purpose. State v. Brown, 451 So.2d 1074, 1078 (La. 1984); State v. Guerin, 2007-1429 (La.App. 1st Cir. 12/21/07), 2007 WL 4480738, at *1 (unpublished).

Initially, in State v. Young I, 2017-1101 (La.App. 1st Cir. 12/21/17), 2017 WL 6524554, writ denied, (unpublished) 2018-0126 (La. 10/29/18), 254 So .3d 701, the defendant was convicted of computer-aided solicitation of a minor and indecent behavior with a juvenile after a bench trial, tie moved for post-verdict judgment of acquittal on the basis of double jeopardy, and the motion was granted as to count one. After sentencing, the defendant and the State appealed. While the defendant challenged the sufficiency of the evidence on count two, the State challenged the granting of a post-verdict judgment of acquittal on count one. This court affirmed the conviction and sentence on count tv/o, reversed the ruling of double jeopardy on count one, reinstated the conviction on count one, and remanded for sentencing on count one. Young I, 2017 WL 6524554 at * 1.

On remand, the trial court resentenced the defendant and denied defendant's motion in arrest of judgment and motion for new trial. Young II, 290 So.3d at 1131. In doing so, the trial court, in part, stated: "This court sees no procedural mechanism by which this court, the trial-court, can do anything other than what the First Circuit remanded this court to do.'1 Young II, 290 So.3d at 1133. On appeal, the defendant argued the trial court had authority to grant a new trial on count one under La. Code Crim. P. art. 851(B)(1), when the verdict is contrary to the law and the evidence, and under La. Code Crim. P. art. 851(B)(5), if it is of the opinion that the ends of justice would be served. Young II, 290 So.3d at 1131. This court disagreed, found no error in the trial court's denial of the motion for new trial, and cited Brown and Guerin in holding "'[t]he trial court lacked authority upon remand for sentencing to grant a new trial." Young II, 290 So.3d at 1133.

Herein, as previously stated, this court affirmed all three of defendant's convictions and sentences. The Louisiana Supreme Court granted, in part, defendant's application for review, vacated his enhanced recidivist sentence for armed robbery on count one, and remanded the case to the trial court solely "for resentencing for [the armed robbery] offense in accordance with 2017 La. Acts 282." Williams, 245 So.3d at 1042. Thus, the trial court lacked authority upon remand for sentencing to grant a new trial. See Young II, 290 So.3d at 1133.

Moreover the proper procedural vehicle for alleging that the general or petit jury venire was improperly drawn, selected, or constituted is a motion to quash. La. Code Crim. P. art. 532(9). A motion to quash based on the grounds that the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. Code Crim, P. arts. 521, 532(9), and 535(C); State v. Smith, 2017-1333 (La.App. 1st Cir. 2/21/18), 2018 WL 1007350, at *4, writ denied, 2018-0405 (La. 2/18/19), 265 So.3d 771. The Cannon decision does not provide grounds to disregard defendant's failure to...