Opinion
22-KH-8
02-03-2022
STATE OF LOUISIANA v. JERALD J. JENKINS IN RE JERALD J. JENKINS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 04-7001
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg
WRIT DENIED
Relator, Jerald Jenkins, seeks review of the trial court's October 18, 2021 Order, denying his "Motion to Correct an Illegal Sentence." For the following reasons, we deny this writ application.
Relator was convicted of aggravated burglary and sentenced to thirty years imprisonment at hard labor. The State filed a multiple offender bill of information and, after a hearing, the trial court found relator to be a second-felony offender, vacated the original sentence, and resentenced him to sixty years at hard labor without benefit of probation or suspension of sentence. Relator's conviction was affirmed by this Court. State v. Jenkins, 07-423 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166. In a subsequent appeal, relator's habitual offender adjudication and sentence were affirmed by this Court. State v. Jenkins, 07-586 (La.App. 5 Cir. 1/22/08), 977 So.2d 142. The Louisiana Supreme Court denied relator's writ application. State v. Jenkins, 07-2243 (La. 5/30/08), 983 So.2d 895.
Relator filed his Motion to Correct Illegal Sentence on July 13, 2021. In his motion, relator claimed that counsel rendered ineffective assistance at his habitual offender hearing and sentencing, relying on State v. Harris, 18-1012 (La. 7/9/20), 2020 WL 3867207, in which the Louisiana Supreme Court held that an ineffective assistance of counsel at sentencing claim is cognizable on collateral review. By Order dated October 18, 2021, the trial court denied relief.
In its ruling, the trial court referred to relator's Motion to Correct Illegal Sentence as an application for post-conviction relief. We agree with this assessment, as relator has not pointed to an illegal term in his sentence.
In this writ application, relator argues that the trial court erred by denying his Motion to Correct Illegal Sentence, because he received ineffective assistance of counsel at sentencing. He contends that his trial counsel was unprepared and erred by failing to: (1) challenge the State's habitual offender evidence; (2) file a motion to reconsider sentence; 3) request a downward departure pursuant to State v. Dorthey, 623 So.2d 1276 (La. 1993); and (4) present mitigating evidence.
In its October 18, 2021 Order denying relief, the trial court stated: "assuming 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." We agree with the trial court.
To prove ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show: (1) that counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13), 113 So.3d 1129, 1141.
In support of his claim that counsel was unprepared to challenge the State's proof at the habitual offender hearing, relator notes that during the hearing, counsel indicated that the defense motion for discovery was incomplete and stated: "For the first time, today, I did get to see the transcript of the actual colloquy that took place." However, following that statement, counsel made it clear that he was able to proceed, presented his argument for quashing the habitual offender bill, and objected after the trial court denied relator's oral motion to quash. In addition, counsel cross-examined the State's expert in fingerprint identification during the habitual offender hearing. On appeal of relator's habitual offender finding and sentence, this Court found that "the State established the defendant's second-offender status by competent evidence." Jenkins, 977 So.2d at 147. Based on the foregoing, we find no merit to relator's argument that counsel was unprepared and thus, ineffective.
Next, relator asserts that counsel was ineffective for failing to file a motion to reconsider sentence. He contends that his sixty-year sentence was the maximum sentence he could receive under the habitual offender law and that his trial counsel should have filed a motion to reconsider sentence asking the court to perform a Dorthey analysis.
In order to prove ineffective assistance of counsel, a defendant must also "show a reasonable probability that, but for counsel's error, his sentence would have been different." Casimer, 113 So.3d at 1142. In the instant case, counsel objected to the enhanced sixty-year sentence on excessiveness grounds but did not file a motion to reconsider sentence. However, on appeal, relator argued that his sixty-year sentence was excessive. This Court found no abuse of the trial court's sentencing discretion, stating "defendant has made no showing of exceptional circumstances sufficient to justify a downward departure from the maximum sentence." Jenkins, 977 So.2d at 149. Under these circumstances, it is unlikely that a motion to reconsider sentence would have resulted in a reduction in his sentence.
In addition, although relator argues that counsel's performance was deficient because he failed to request a downward departure from the minimum sentence under State v. Dorthey, supra, we find the holding in Dorthey to be inapplicable here. In Dorthey, 623 So.2d at 1281, the Louisiana Supreme Court held that a trial court has the authority to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. In the present case, the trial court did not impose the mandatory minimum sentence; rather, the maximum sentence was imposed. 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.
Finally, relator argues that counsel failed to present any mitigating evidence in support of a reduced sentence. However, relator does not suggest any mitigating factors counsel should have presented to the trial court. Without more than this conclusory allegation, relator has failed to meet his burden under La. C.Cr.P. art 930.2.
Accordingly, we find no error in the trial court's ruling, and this writ application is denied.
HJL
FHW
MEJ