Opinion
22-KH-6
01-11-2022
KEVIN BAYE v. STATE OF LOUISIANA IN RE KEVIN BAYE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M. TAYLOR, DIVISION "O", NUMBER 17-5555
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
WRIT DENIED
The relator, Kevin Baye, seeks supervisory review of the trial court's October 14, 2021 denial of his application for post-conviction review (APCR). The relator claims the trial court erred by denying his APCR without an evidentiary hearing and his conviction and sentence were unconstitutional due to ineffective assistance of counsel at sentencing. The relator asserts that the Louisiana Supreme Court's decision in State v. Harris, 18-1012 (La. 7/9/20), ---So.3d ---, 2020 WL 3867207, allows claims of ineffective assistance of counsel to be raised on collateral review.
The relator was sentenced on July 18, 2018, pursuant to a plea agreement, to twenty years imprisonment without the benefit of probation, parole, or suspension of sentence for first-degree robbery and ten years for simple burglary, to run concurrently. He was resentenced as a second felony offender to twenty years imprisonment for first-degree robbery.
The relator claims that his trial counsel was ineffective for failing to inform the court of his family ties and that a multiple offender sentence would be without the benefit of diminution of sentence. Despite the State's argument that the claim was untimely, the trial court assumed that Harris applied, as the APCR was filed within one year of the Harris ruling, and denied the relator's claims of ineffective assistance on the merits without an evidentiary hearing.
La. C.Cr.P. art. 929(A) provides that the trial court may grant or deny an APCR without the need for further proceedings if the court determines that the issues raised can be resolved based upon the application, answer and supporting documents. The trial judge was able to review the transcript from the sentencing, and she was the presiding and sentencing judge, therefore, we find no error in her determination to rule on the APCR without the need for an evidentiary hearing.
We also find no error in the trial court's finding that the relator failed to meet his burden of proof under La. C.Cr.P. art. 930.2 to show deficiencies in counsel's performance or resulting prejudice. Although the relator claims that his counsel failed to challenge his prior predicate convictions, the relator entered a plea agreement waiving his right to a multiple offender hearing to be considered a second felony offender, when the State alleged that he was a fourth felony offender. Although the relator claims that the ineffective assistance resulted in an excessive sentence, he was sentenced to twenty years for first-degree robbery as a second felony offender. Under La. R.S. 14:64.1, first-degree robbery carries a potential punishment of imprisonment at hard labor for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence; as a second felony offender, the relator faced a potential sentence of eighty years.
Accordingly, the relator's writ application is denied.
JJM
SMC
JGG