Opinion
22-KH-1
01-20-2022
IN RE DENEIL GIROD v. DENEIL GIROD STATE OF LOUISIANA
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 14-5556
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
WRIT DENIED
Relator, Deneil Girod, seeks this Court's supervisory review of the trial court's August 17, 2021 ruling which denied his Motion to Correct Illegal Sentence, in which he alleged ineffective assistance of counsel at his habitual offender sentencing. For the reasons that follow, we deny the writ application.
On September 15, 2015, a jury found relator guilty of attempted second degree murder (count one), home invasion (count two), and armed robbery with a firearm (count three). The trial court sentenced relator to forty-seven years' imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one; twenty-five years' imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for the first ten years on count two; and forty-seven years' imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count three. The trial court ordered that relator serve an additional five years at hard labor on count three, pursuant to La. R.S. 14:64.3. The trial court also ordered the sentences to run concurrently with each other. The State subsequently filed a habitual offender bill of information against defendant. On January 28, 2016, the trial court found relator to be a second-felony offender, vacated the original sentence on count three, and resentenced relator to sixty-five years' imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court also ordered the habitual offender sentence to run consecutively to the five-year enhanced sentence under La. R.S. 14:64.3. On June 30, 2016, this Court affirmed relator's convictions and sentences. State v. Girod, 16-74 (La.App. 5 Cir. 6/30/16), 195 So.3d 1274. On May 26, 2017, the Louisiana Supreme Court denied relator's writ application. State v. Girod, 16-1547 (La. 5/26/17), 221 So.3d 80.
On July 13, 2021, relator filed his Motion to Correct Illegal Sentence, alleging that counsel rendered ineffective assistance at his habitual offender sentencing, relying on 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 August 17, 2021, the trial court denied relief. The trial court treated relator's motion as an Application for Post-Conviction Relief ("APCR"), and found that his APCR was untimely and failed to provide any exceptions to the time limitations of La. C.Cr.P. art. 930.8. The trial court further noted "even a review on the merits does not warrant relief" because relator "fail[ed] to establish or even suggest that he was not properly represented at sentencing by his attorney."
La. C.Cr.P. art. 930.8 states in pertinent part: "No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final."
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.
In any event, upon review, we find that the trial court did not err in finding that applying Harris to relator's case, his claim of counsel's ineffectiveness at the habitual offender sentencing does not meet his post-conviction burden under La. C.Cr.P. art. 930.2. According to relator, counsel failed to present any mitigating evidence during his habitual offender sentencing and further failed to file a motion for reconsideration of sentence and request a downward departure under State v. Dorthey, 623 So.2d 1276 (La. 1993). While relator complains that counsel failed to present mitigating evidence at his habitual offender sentencing, relator concedes that before relator's original sentencing, counsel submitted letters written in support of relator by members of the community. In addition, at relator's original sentencing, counsel argued that the bulk of relator's prior offenses were drug-related and further contended relator had "tremendous potential for rehabilitation." Thus, relator has not shown that the trial court imposed the habitual offender sentence without any awareness of mitigating evidence given counsel's previous presentation of letters and argument on relator's behalf. Our review of the transcript of relator's habitual offender hearing reflects that counsel focused his efforts on challenging the validity of the State's evidence.
In Dorthey, 623 So.2d at 1281, the Supreme Court held that a trial court has the authority to determine whether a mandatory minimum sentence is unconstitutionally excessive as applied to a particular defendant.
Additionally, the mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A defendant must also "show a reasonable probability that, but for counsel's error, his sentence would have been different." State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13), 113 So.3d 1129, 1142. Counsel objected to the severity of relator's habitual offender sentence as "unconstitutionally excessive." On appeal, this Court reviewed relator's claim of excessive sentence and found no abuse of discretion in the trial court's imposition of the seventy-year sentence. Girod, 195 So.3d at 1280. In Harris, supra, the defendant, a veteran with a drug addiction, was sentenced to life imprisonment for selling less than one gram of marijuana. Here, relator was convicted of crimes of violence which included a home invasion where a child was present. Therefore, we conclude counsel's failure to move for reconsideration of the sentence does not constitute deficient performance. See State v. Williams, 613 So.2d 252, 256-57 (La. 1992). In the same way, we find that counsel's failure to request a downward departure under Dorthey, supra, is not an unprofessional error given that the trial court did not impose the mandatory minimum sentence. See State v. Ballay, 99-906 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, 133, writ denied, 20-908 (La. 4/20/01), 790 So.2d 13.
Because relator was found to be a second-felony offender on the armed robbery count, pursuant to La. R.S. 15:529.1, he faced an enhanced sentencing range of 49½ to 198 years in prison, plus the consecutive five years for the firearm enhancement under La. R.S. 14:64.3. As discussed above, the trial court sentenced relator as a second-felony offender to a sixty-five-year term.
Consequently, on the showing made, we find that relator fails to make a prima facie case of ineffective assistance of counsel at sentencing based on Harris, supra. Accordingly, we find no merit to realtor's argument. This writ application is denied.
JGG
FHW
JJM