State v. Barnes
| Docket Number | 23-KA-208 |
| Decision Date | 27 December 2023 |
| Parties | STATE OF LOUISIANA v. JOSEPH BARNES |
| Court | Court of Appeal of Louisiana — District of US |
1
STATE OF LOUISIANA
v.
JOSEPH BARNES
No. 23-KA-208
Court of Appeals of Louisiana, Fifth Circuit
December 27, 2023
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 07-401, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING.
AFFIRMED
SMC
JGG
JJM
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Thomas J. Butler, Matthew R. Clauss
COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH BARNES Jane L. Beebe.
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
SUSAN M. CHEHARDY, C.J.
In this appeal the defendant, Joseph Barnes, argues that the sentences the trial court imposed were excessive. For the reasons that follow, we affirm defendant's sentences.
STATEMENT OF THE CASE
This is defendant's second appeal. In defendant's first appeal, we outlined this matter's procedural history:
On January 22, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph Barnes, with one count of sexual battery in violation of La R.S. 14:43.1. The State subsequently amended the bill of information, adding a second count of sexual battery, in violation of La. R.S. 14:43.1. Defendant pled not guilty to both counts
On October 14, 2010, after trial, a six-person jury found defendant guilty as charged on both counts. On October 22, 2010, defendant filed a motion for new trial and a motion for appeal.
On October 28, 2010, the trial judge sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence, on each count, concurrent. At sentencing, the trial court also informed defendant of the sex offender registration and notification requirements. At that hearing, the State filed a multiple bill of information alleging that relator was a fourth felony offender.
On November 4, 2010, the trial court found defendant to be a fourth felony offender, vacated his underlying sentences, and imposed a concurrent sentence of life imprisonment without benefit of probation or suspension of sentence on each count. Defendant's motion for appeal was granted on December 1, 2010.
State v. Barnes, 11-80 (La.App. 5 Cir. 12/13/11), 92 So.3d 9, 13 (internal footnotes omitted).[1] After considering the merits of defendant's assignments of
error on rehearing, this Court affirmed defendant's convictions, multiple offender adjudication, and sentences. Id. at 21. The Louisiana Supreme Court denied defendant's writ application. State v. Barnes, 12-951 (La. 11/9/12), 100 So.3d 828.
In December 2021, defendant filed a Motion to Correct Illegal Sentence, alleging that his multiple offender sentences were now illegal because two of the three predicate convictions used to enhance his sentences were vacated due to constitutional infirmities. On June 1, 2022, the trial court denied defendant's Motion to Correct Illegal Sentence as untimely pursuant to La. R.S. 15:529.1(D)(1)(b), stating that defendant was obliged to raise any constitutional challenges to the predicate offenses before the sentences were imposed.
Defendant sought review in this Court, which granted defendant's writ application. This Court found that the trial court erred in denying defendant's Motion to Correct Illegal Sentence, given the evidence that defendant had successfully made two separate post-conviction applications in Orleans Parish Criminal District Court, which resulted in two of the three predicate offenses being vacated. This Court therefore granted defendant's writ application, vacated his habitual offender adjudication and enhanced sentences on both counts, reinstated the original sentences imposed, and remanded to the trial court for further proceedings to determine defendant's habitual offender status, and for resentencing, if appropriate. See Barnes v. Hooper, 22-280 (La.App. 5 Cir. 7/22/22) (unpublished writ disposition). The Louisiana Supreme Court denied the State's writ application seeking review of this Court's ruling. State ex rel. Barnes v. Hooper, 22-1293 (La. 11/16/22), 349 So.3d 1001.
On December 7, 2022, the State filed State's Legal Memorandum of Authorities in Support of Multiple-Offender Resentencing. On January 18, 2023, defendant filed a pro se Motion to Quash Habitual Offender's Bill of Information and Petitioner's Memorandum in Opposition to Multiple Offender's Resentencing
and Support of Motion to Quash. Also on January 18, 2023, the trial court held a habitual offender hearing after first considering, and denying, defendant's Motion to Quash Habitual Offender Bill of Information.[2] The trial court adjudicated defendant a second felony offender as to both counts, vacated the original sentences of ten years imprisonment at hard labor on each of the counts, and sentenced defendant as a second felony offender to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one. On count two, the trial court sentenced defendant to ten years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to run consecutively with count one.[3] The trial court also ordered defendant to register as a sex offender. Defense counsel orally moved for reconsideration of the sentences. The trial court stated that it would address a written motion for reconsideration.
On January 24, 2023, the trial court issued written reasons for adjudicating defendant a second felony offender. The trial court explained that it found that defendant was the same individual who was convicted of a violation of La. R.S. 40:967 on June 3, 2003, under case number 363-670 in Orleans Parish Criminal District Court. The Waiver of Constitutional Rights Plea of Guilty form associated with that conviction, which the State introduced at the January 18, 2023 habitual offender hearing, reflected that defendant pled guilty to possession with intent to
distribute cocaine. The trial court did not rule on defense counsel's oral motion to reconsider sentencing because counsel did not specify grounds for the motion, as La. C.Cr.P. art. 881.1 requires. See State v. King, 22-371 (La.App. 5 Cir. 5/24/23), 365 So.3d 897, 918.
On February 1, 2023, defense counsel filed a notice of intent to appeal, which the trial court granted. On February 2, 2023, defendant filed a pro se Motion for Appeal and Designation of Record pertaining to the January 18, 2023 sentencing, which the trial court granted on February 3, 2023. Defendant also filed a pro se notice of intent to seek a writ application with respect to the denial of his motion to quash the habitual offender bill, and defendant timely filed a writ application with this Court on March 14, 2023.
On March 23, 2023, defendant filed a pro se Motion for Reconsideration of Sentence. Defendant asserted that the trial court did not consider the factors in La. C.Cr.P. art. 894.1(A). Defendant further argued that the trial court erred in increasing the original sentence after execution had commenced, and erred in allowing the State to use a predicate offense from 1993 because the cleansing period of five years had lapsed. Defendant contended that the trial court should have considered the factors of the prior offense and that it was his only prior offense. He averred that the State caused multiple delays in the proceedings and that the trial court erred in denying his motion to quash. Further, he asserted that his background was not considered and that the sentences were excessive. He suggested that a downward departure from the statutory minimum sentence should be considered.
On March 30, 2023, the trial court denied the motion for reconsideration, explaining that it was untimely under La. C.Cr.P. art. 881.1, and that defendant was procedurally barred from relief pursuant to La. C.Cr.P. art. 881.
On May 3, 2023, this Court declined to exercise its supervisory jurisdiction to review the trial court's ruling on the motion to quash the habitual offender bill, because defendant's timely motion for appeal, which preserved the issue, was already granted. Barnes v. Hooper, 23-130 (La.App. 5 Cir. 5/3/23) (unpublished writ disposition).[4]
Defendant now challenges his sentences as excessive.
FACTS
The underlying facts were set forth in this Court's first opinion:
In January of 2006, Joseph Barnes stayed with his aunt's family in Harvey. His aunt was stepmother to two girls, K.B., who was 16 years old, and D.B., who was 13 years old, at that time. Around the end of that month, when neither of the girls' parents were home, Barnes hugged K.B. and tried to kiss her on the lips. When K.B. rejected Barnes' advances, he asked if she was uncomfortable and if his actions were inappropriate and K.B. told him they were.
A day or so later, K.B. told her boyfriend that Barnes had tried to kiss her, and her boyfriend encouraged her to tell her father. When K.B. told her father, he was upset and concerned, especially since Barnes was at their house with D.B. at the time. K.B. and her father immediately returned home and Mr. B confronted Barnes.
K.B. went upstairs with her stepmother and her little sister. Because they could hear Mr. B yelling at defendant downstairs, D.B. asked her sister about the argument and K.B. told her that Barnes had tried to kiss her. D.B. then said, "[a]t least that's all he tried to do to you is kiss you." D.B. then disclosed that Barnes had hugged her on two occasions, picked her up and instructed her to wrap her legs around his waist, put his hands on her buttocks, and put D.B.'s hand on his clothed and unclothed penis. At K.B.'s encouragement, D.B. went downstairs and told her father that Barnes had been "messing" with her, too. The girls' father immediately called the police.
At trial, D.B....
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