Opinion
21-KH-735
01-18-2022
STATE OF LOUISIANA v. MICHAEL BROOKS IN RE MICHAEL BROOKS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE R. CHRISTOPHER COX, III, DIVISION "B", NUMBER 12-693
Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
WRIT DENIED
Relator, Michael Brooks, seeks review of the district court's denial of his applications for post-conviction relief ("APCR"), in which he raised claims alleging the unconstitutionality of his non-unanimous jury verdict and ineffective assistance of counsel at sentencing. For the reasons that follow, we deny relator's writ application.
On October 25, 2012, relator was found guilty by a jury of distribution of cocaine within 2, 000 feet of a drug free zone. On December 7, 2012, the district court sentenced relator to fifteen years imprisonment at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence. On the same date, the State filed a multiple offender bill of information, alleging that relator was a second felony offender. After relator stipulated to being a second felony offender, the district court vacated relator's original sentence and sentenced him to twenty-two and one-half years imprisonment at hard labor. The sentence was ordered to be served without benefit of probation or suspension of sentence, with the first two years to be served without benefit of parole as well. On July 30, 2013, this Court affirmed relator's conviction and sentence. State v. Brooks, 13-111 (La.App. 5 Cir. 7/30/13), 121 So.3d 788. Relator did not file a writ application seeking review of this decision with the Louisiana Supreme Court.
In April of 2021, relator filed an APCR in the district court challenging the constitutionality of his non-unanimous jury verdict in light of the decision in Ramos v. Louisiana, 590 U.S. --, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). On May 17, 2021, the district court denied relator's APCR, finding that "the Ramos decision affects only cases not yet final," and that relator's case "is not on direct review and in fact, the petitioner's conviction and sentence have long been final." The official court record indicates that relator noticed his intent to seek review of this ruling, and the district court set a return date of July 14, 2021. There is no indication that relator filed a writ application in this Court on July 14, 2021, seeking review of the district court's May 17, 2021 ruling.
Rather, on July 14, 2021, relator filed another APCR in the district court, alleging ineffective assistance of counsel at his multiple offender sentencing. In his subsequently filed memorandum in support of his APCR, relator alleged numerous deficiencies in counsel's performance at sentencing, including counsel's failure to investigate and present mitigating factors, request a pre-sentence investigation report, and present character witnesses. Relator further alleged that his attorney was ineffective for failing to consult with him to develop a sentencing strategy, give any statements on his behalf, and object to the failure of the district court to give any reasons for sentencing. Relator maintained that this successive APCR was timely pursuant to the exception set forth in La. C.Cr.P. art. 930.8(A)(2) as it was filed within one year of the finality of the decision in 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.
On October 14, 2021, the district court denied relief, finding that relator's APCR was untimely as it was filed more than two years after the finality of relator's judgment of conviction and sentence. The district court determined that relator failed to prove any exception to the time delays set forth in La. C.Cr.P. art. 930.8, and specifically failed to establish that the decision in Harris is retroactively applicable to his case as required to fall within the exception for time delays set forth in La. C.Cr.P. art. 930.8(A)(2). Relator now seeks review of this denial.
In his writ application, relator raises two issues. First, relator asserts that the district court erred "in finding that Ramos did not announce a 'new rule' of criminal procedure and that it does not apply retroactively on state collateral review." The district court denied relator's APCR, which challenged the constitutionality of his non-unanimous jury verdict, on May 17, 2021. Although relator noticed his intent to seek review of this ruling and was given a return date of July 14, 2021, he never filed a writ application in this Court. Therefore, his attempt to now seek review of this issue is untimely. See Rule 4-3 of Uniform Rules-Courts of Appeal. Furthermore, at the time the Ramos decision was rendered, relator's conviction and sentence had long been final. As of this date, neither the Louisiana Supreme Court nor this Court has ruled that the Ramos decision is to be applied retroactively on state collateral review.
Second, relator challenges the district court's ruling that his ineffective assistance of counsel at sentencing claims are procedurally barred as untimely, asserting that the district court erred "in finding that State v. Harris does not establish an exception to the strict time barriers mandated by LSA-C.Cr.P. art. 930.8."
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, we find that relator failed to establish a prima facie case of ineffective assistance of counsel at sentencing to warrant relief under State v. Harris, supra. Relator generally complains that counsel was ineffective at sentencing for failing to adequately prepare, for failing to request a pre-sentence investigation or present any mitigating evidence to the sentencing judge, and for failing to call character witnesses on his behalf.
In the present case, the sentencing transcript, included in relator's writ application, reflects that relator, after being advised of his rights, stipulated to being a second felony offender and agreed to a sentence of twenty-two and one-half years. In exchange for his stipulation, relator, who faced a maximum term of ninety-nine years, received the minimum possible sentence, and, in addition, the State agreed "not to multiple bill him further." As relator's agreed upon sentence was imposed in conformity with a plea agreement that was set forth in the record at the time of the plea, relator's counsel "was not expected to present mitigating evidence to persuade the judge to consider a lower sentence or object to the sentence as excessive when the sentence was agreed upon." State v. McAvoy, 21-529 (La.App. 5 Cir. 11/24/21), -- So.3d --, 2021 WL 5831380. As such, relator failed to establish a prima facie case of ineffective assistance of counsel at sentencing to warrant relief under State v. Harris, supra.
Accordingly, this writ application is denied.
RAC
SMC
JJM