Opinion
22-KH-7
02-22-2022
RONALD MORGAN v. STATE OF LOUISIANA IN RE RONALD MORGAN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 03-4931
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
WRIT DENIED
Relator-defendant, Ronald Morgan, seeks review of the trial court's denial of his application for post-conviction relief. For the following reasons, we deny the writ.
This case has a lengthy procedural history involving five appeals and has been set forth by this Court previously as follows:
In defendant's first appeal, this Court affirmed defendant's convictions for forcible rape and aggravated incest and the finding that defendant was a third felony offender. State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199. This Court vacated defendant's sentences and remanded the case to the trial court for a ruling on defendant's outstanding counseled motion for new trial....
On remand, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, and on Count 2, aggravated incest, to imprisonment at hard labor for 10 years, with both sentences to run concurrently. State v. Morgan, 07-943, p. 2 (La.App. 5 Cir. 3/11/08), 982 So.2d 172, 173. Three months later, the trial judge, Judge Robert Burns, denied defendant's pro se motion for new trial after a hearing. One week later, Judge Burns vacated the original sentences and resentenced defendant as a third felony offender to a term of 40 years to be served without benefit of parole, probation, or suspension of sentence on both counts to run concurrently. State v. Morgan, 07-943 at 2-3, 982 So.2d at 173.
In the second appeal, this Court again vacated defendant's sentences and remanded for a ruling on the outstanding counseled motion for new trial, since the trial court erroneously ruled on defendant's pro se motion for new trial, which had already been denied, instead of his outstanding counseled motion for new trial three months after sentencing. State v. Morgan, 07-943 at 3, 982 So.2d at 173. This Court stated that, if the trial judge denied the motion and subsequently resentenced defendant, it reserved defendant's right to appeal an adverse judgment with respect to his sentencing. Id.
On remand, the trial judge, Judge Donald Rowan, denied defendant's motion for new trial after a hearing on October 3, 2008. Afterwards, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, with "at least two" years to be served without benefit of parole, probation, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with Count 1 to run consecutively with Count 2. The trial judge then vacated the original sentence and resentenced defendant as a third felony offender on Count 1 to imprisonment at hard labor for 40 years without benefit of parole or suspension of sentence and on Count 2 to imprisonment at hard labor for 10 years "without benefits," with the sentences on both counts to run consecutively. Defendant filed a motion to reconsider sentence that was denied. State v. Morgan, 08-1299 at 2-4, 15 So.3d at 1027-28.
In his third appeal, defendant appealed his sentence and the trial court's ruling on his motion to reconsider sentence. He argued that the trial court erred by increasing his sentence without justification following his successful appeal. He contended that vindictiveness must reasonably be inferred from the record. This Court stated that it was possible, based on the record that the trial judge may not have had a personal animus against defendant, but rather he may have thought concurrent sentences were too lenient considering the disturbing facts of this case, that defendant raped his own biological daughter numerous times over a period of years. Since the trial court did not provide reasons for the increased sentence on remand after appeal, this Court vacated defendant's enhanced sentence and remanded the matter to the trial court for resentencing with orders that the trial court provide reasons for the sentence imposed. State v. Morgan, 08-1299 at 10, 15 So.3d at 1031-32.
Additionally, this Court vacated the trial court's order denying defendant's motion to reconsider sentence and remanded this matter to the trial court. State v. Morgan, 08-1299 at 13, 15 So.3d at 1033. This Court also found that the ten-year enhanced sentence on Count 2 was illegally lenient because it was below the mandatory minimum of 13.3 years. As such, this Court instructed the trial court to take note of this error when resentencing on remand. Id., 08-1299 at 14, 15 So.3d at 1034.
On July 10, 2009, on remand, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years,
with the first two years to be served without benefit of probation, parole, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with the sentences to run consecutively to each other. The trial judge then vacated the original sentence on Count 1, forcible rape, and resentenced defendant as a third felony offender to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. He also resentenced defendant as a third felony offender on Count 2, aggravated incest, to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, with the sentences on Counts 1 and 2 to run consecutively with each other. Defendant filed a timely motion for appeal that was granted.
In his fourth appeal, Morgan argued that the sentencing judge erred by increasing his sentence following his successful appeal without justification, and the increase in harshness was motivated by vindictiveness. Morgan challenged not only the consecutive nature of the sentences but also the increased enhanced sentence on Count 2, which he also claimed was based on the judge's vindictiveness. In that appeal, we found that the increased sentence was based on the sentencing judge's strong view of Morgan's actions and the judge's concern for the child victim, and not on Morgan's successful appeals.2 Additionally, we stated that the sentencing judge increased the sentence on Count 2 from 10 to 15 years because this Court had found that the mandatory minimum sentence was 13.3 years and that the 10-year sentence was illegally lenient. We determined that the sentencing judge did not err by imposing consecutive sentences (which increased the total number of years) or by increasing the enhanced sentence on Count 2.
In that appeal, Morgan also argued that the trial court should not have enhanced both of his convictions because they were obtained on the same date. We held that the trial court did not err by enhancing both of Morgan's convictions that were obtained on the same date, even though they appeared to have arisen out of a single criminal episode.3 We affirmed the sentence on Count 2, but we found that the enhanced sentence on Count 1, forcible rape, had to be vacated and the case remanded for resentencing on that count only because the judge did not order that at least two years of the sentence be served without benefit of parole.
On March 19, 2010, on remand, Judge Donald Rowan resentenced Morgan on Count 1 to imprisonment at hard labor for 40 years, with the first two years to be served without benefit of parole, probation, or suspension of sentence, and with the remainder of the sentence to be served without benefit of probation or suspension of sentence. The judge vacated the original sentence on Count 2 and resentenced Morgan under the multiple offender statute to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, ordering the sentences to run consecutively with each other.State v. Morgan, 10-416 (La.App. 5 Cir. 3/29/11), 63 So.3d 261, 264-66.
In his fifth and final appeal, this Court affirmed relator's enhanced sentences. State v. Morgan, 10-416 (La.App. 5 Cir. 3/29/11), 63 So.3d 261. As to his 40-year enhanced sentence for his forcible rape conviction, this Court found that the trial judge did not abuse his discretion, pointing out:
[H]e could have been sentenced to a maximum term of imprisonment of 80 years under the multiple bill statute. We note that the rape of one's underage daughter is among the most serious violations of the crime of forcible rape and, based solely on the nature of that offense, a maximum sentence could have been appropriately imposed.State v. Morgan, 10-416 (La.App. 5 Cir. 3/29/11), 63 So.3d at 268.
Next, as to relator's enhanced 15-year sentence for his aggravated incest conviction, this court found that "defendant faced a sentencing range of 13.3 years to 40 years" and that "the 15-year sentence imposed was at the "very low end" of his sentencing range." Morgan, 10-416 (La.App. 5 Cir. 3/29/11), 63 So.3d at 268. This Court found the sentence reasonable and stated that "the offense against his own biological daughter over a period of years is particularly offensive and disturbing." Id.
On August 18, 2021, relator filed an application for post-conviction relief, asserting an ineffective assistance of counsel claim relating to counsel's performance during his multiple offender adjudication and sentence. In his APCR, relator asserted that the claims raised in his APCR, filed more than two years after his convictions and sentences, fell within an exception to the time delays for filing post-conviction relief, citing to State v. Harris, 18-1012 (La. 7/9/20), So.3d, 2020 WL 3867207, in which the Louisiana Supreme Court held that an ineffective assistance of counsel at sentencing claim is cognizable on collateral review.
As to his ineffective assistance of counsel claim, relator alleged generally that his counsel "[f]ail[ed] to articulate to the Court the family ties of the Appellant and the fact that sentence imposed herein under the multiple offender bill is without the benefit of dimunition of sentence." Relator argued that his counsel should have informed the trial judge that he would not be eligible for good time and asserted that his sentences are "proximity to life in prison."
On October 14, 2021, the trial court denied relator's APCR. The trial court found, "[a]ssuming Harris applies to overcome the procedural bars to petitioner's claim, this court finds that petitioner fails to make a prima facie showing that would support his claims of ineffective assistance of counsel." The trial court found relator's allegations to be "speculative and conclusory" and denied his APCR.
In application to this Court, relator presents identical allegations as those presented in his APCR, specifically that his counsel was ineffective for failure to inform the Court that he would not be eligible for "good time dimunition of sentence" under La. R.S. 15:571.3 and that he would be required to serve the entirety of his 40-year sentence "day to day."
A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1092, writ denied, 09-1394 (La. 2/26/10), 28 So.3d 268. To prove ineffective assistance of counsel, a defendant must prove both that his attorney's performance was deficient and that he was prejudiced by the deficiency. Id., 9 So.3d at 1092-93 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). In order to show prejudice, a defendant must demonstrate that but for counsel's deficient performance, the outcome of the proceedings would have been different. Id.
The Sixth Amendment does not guarantee a defendant errorless counsel or counsel judged ineffective by hindsight. State v. Cambre, 05-888 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 460, writ denied, 06-2121 (La. 4/20/07), 954 So.2d 158, citing State v. LaCaze, 99-584 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). There is a strong presumption that counsel's conduct will fall within the wide range of reasonable professional assistance. State v. Gorman, 11-491 (La.App. 5 Cir. 2/14/12), 88 So.3d 590, 600.
With regard to relator's claim of ineffective assistance of counsel at the sentencing portion of the proceedings, we recognize that both the Louisiana Supreme Court and this Court have permitted Harris-based claims to move forward in cases where La. C.Cr.P. art. 930.8's prescriptive period for filing an APCR has expired, and the defendant has presented a prima facie case of ineffective assistance of counsel at sentencing. State v. Robinson, 19-1330 (La. 11/24/20), 304 So.3d 846 (per curiam); Eugene v. Boutte, 21-414 (La.App. 5 Cir. 8/12/21), 2021 WL 3569220.
Upon review of relator's writ application and attachments thereto, we find that relator failed to present a prima facie case of ineffective assistance of counsel. Although relator's counsel did not file a motion to reconsider sentence in connection with the most recent enhanced sentences imposed, the enhanced sentences have been considered for constitutional excessiveness by this Court in relator's previous appeal and affirmed. Morgan, 10-416 (La.App. 5 Cir. 3/29/11), 63 So.3d 261. Moreover, relator's counsel previously filed a motion to reconsider relator's 40-year enhanced sentence on count one and his 15-year enhanced sentence on count two, setting forth specific alleged sentencing errors. Specifically, in connection with relator's fourth appeal, this Court considered the trial court's denial of counsel's motion to reconsider relator's enhanced sentences on counts one and two based upon the trial judge's alleged vindictiveness toward relator, the imposition of an enhanced sentence on both counts despite the fact that both counts arose out of a single occurrence or crime, and the imposition of consecutive sentences under the facts of this case. This Court reviewed counsel's motion to reconsider sentences based on those specific arguments and found relator's sentences to be appropriate given the nature of the crimes involved. State v. Morgan, 09-694 (La.App. 5 Cir. 2/23/10), 34 So.3d 909, 916.
Relator failed to attach a copy of the multiple offender adjudication or sentencing transcript.
Based upon the writ application and the documents attached thereto, we cannot find that relator has met his burden to prove that but for counsel's alleged errors the outcome of his multiple offender sentencing proceedings would have been different. Consequently, we find that relator has failed to set forth a prima facie case of ineffective assistance of counsel in connection with his multiple offender sentencing. Accordingly, this writ is denied.
In his writ application to this Court, relator additionally argues that the trial court erred in failing to hold an evidentiary hearing on the claims raised in his application for post-conviction relief. La. C.Cr.P. art. 929(A) provides that the trial court may grant or deny an application for post-conviction relief without the need for further proceedings if the court determines that the issues raised can be resolved based upon the "application and answer, and supporting documents, including relevant transcripts, depositions, and other reliable documents…" Upon review of the writ application and attachments there to, we find the trial judge did not err in denying relator's APCR without an evidentiary hearing.
FHW
RAC
SJW