Opinion
NO. 2016 KA 0186
09-16-2016
STATE OF LOUISIANA v. CHRISTOPHER HYMES
Lieu T. Vo Clark Mandeville, Louisiana Counsel for Defendant/Appellant Christopher Hymes Hillar C. Moore, III District Attorney Cristopher J. M. Casler Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
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. 11-12-0887 The Honorable Louis R. Daniel, Judge Presiding Lieu T. Vo Clark
Mandeville, Louisiana Counsel for Defendant/Appellant
Christopher Hymes Hillar C. Moore, III
District Attorney
Cristopher J. M. Casler
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
The defendant, Christopher Hymes, was charged by bill of information with one count of armed robbery (count 1), a violation of La. R.S. 14:64; and three counts of attempted armed robbery (counts 2-4), violations of La. R.S. 14:27 and 14:64. He pled not guilty and, following a jury trial, was found guilty as charged on all counts. For the armed robbery conviction, the defendant was sentenced to twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. For each attempted armed robbery conviction on counts 2 and 4, the defendant was sentenced to twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. For the attempted armed robbery conviction on count 3, the defendant was sentenced to fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The four sentences were ordered to run concurrently. The defendant now appeals, designating one assignment of error. We affirm the convictions and sentences.
Co-defendant Eric Russell was also charged in the bill of information. The defendant filed a pretrial motion to sever the defendants, which the trial court denied. Less than five months before trial, the bill of information was amended by an assistant district attorney, wherein the handwritten language was added, "Dismissed as to Eric Russell only." It is not clear if Russell was dismissed entirely from all charges or only as to individual counts. Regardless, the defendant was tried alone.
FACTS
On November 9, 2012, at about 5:30 p.m., Tiffany Smith was standing in her driveway at her house located in Baton Rouge, Louisiana. Ms. Smith was talking to her sister, Renee Berryhill, and three brothers, Ronald, Donald (Jr.), and Kevin Butler. They were all standing in the driveway or on the sidewalk near the driveway. Earlier that day, the three brothers had been shooting dice at another house, about three blocks away. The defendant had also been there when the brothers were shooting dice. Three young men, wearing jackets with hoods over their heads, walked past the five siblings and briefly conversed with them. The three men then turned around, pulled handguns, approached the five siblings, and ordered them to "give it up" and to take off their pants. One gunman stayed in the street, while the other two gunmen, one of whom was the defendant, walked onto the driveway, very near to the siblings. The Butler brothers recognized the defendant from the neighborhood and/or as the person who had been at the house when they were shooting dice that day.
Donald Butler was ordered to lay on the ground, face-down. The defendant went through his pockets, then pulled Donald's pants off. The pants contained money, which the defendant took. Ronald Butler ran to the front of Tiffany's house. Before he could get inside, the gunman who was next to the defendant shot Ronald three times, twice to the leg and once to the buttock. He survived his injuries. Kevin ran toward the house next door. As Kevin got to the side of the house, the gunman in the street fired at him, but missed. The two gunmen who fired fled the scene. The defendant fled the scene while carrying Donald's pants. The defendant was identified by the victims and witnesses at the scene via photographic lineup. The defendant eventually turned himself in to the police.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues his sentence is unconstitutionally excessive.
The defendant's brief is inaccurate insofar as it refers to his "sentence." The defendant received multiple sentences that were run concurrently. Nevertheless, we understand the meaning behind the assignment of error and proceed with our analysis. --------
A thorough review of the record indicates the defendant did not make or file a motion to reconsider sentence following the trial court's imposition of the sentences. Under La. Code Crim. P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). The defendant, therefore, is procedurally barred from having this assignment of error reviewed due to his failure to file a motion to reconsider sentence after being sentenced. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).
The assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.