State v. Farry

• Decision Date: 07 March 2019
• Docket Number: KA 18-721
• Citation: 270 So.3d 673
• Parties: STATE of Louisiana v. William Chester FARRY Jr.
• Court: Court of Appeal of Louisiana — District of US

270 So.3d 673

STATE of Louisiana

v.William Chester FARRY Jr.

KA 18-721

Court of Appeal of Louisiana, Third Circuit.

March 7, 2019

John Foster DeRosier, District Attorney, 14th Judicial District, Post Office Box 3206, Lake Charles, Louisiana 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana

Elizabeth Brooks Hollins, Assistant District Attorney, 14th Judicial District, 901 Lakeshore Drive, Suite 800, Lake Charles, Louisiana 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana

Ross Murray, Assistant District Attorney, 14th Judicial District Court, 901 Lakeshore Drive, Suite 600, Lake Charles, Louisiana 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana

Chad M. Ikerd, Louisiana Appellate Project, Post Office Box 2125, Lafayette, Louisiana 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: William Chester Farry Jr.

Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

CONERY, Judge.

Following proceedings on remand, Defendant, William Farry, appeals the trial court's rejection of his ineffective assistance of counsel claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A jury convicted Defendant of armed robbery. The trial court ultimately found Defendant to be a third habitual offender and sentenced him to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. This court affirmed Defendant's armed robbery conviction in State v. Farry , 16-210 (La.App. 3 Cir. 11/16/16), 206 So.3d 1222, writ denied , 17-301 (La. 10/16/17), 228 So.3d 753. By separate opinion, the court conditionally affirmed Defendant's habitual offender sentence. See State v. Farry , 16-211 (La.App. 3 Cir. 11/16/16), 207 So.3d 436. However, in this latter review, the panel remanded the matter for an evidentiary hearing to address Defendant's contention that his trial counsel was ineffective in failing to object to or to file a motion to reconsider sentence on the basis that a downward departure of the mandatory sentence was warranted. Id.

On remand, Judge David Ritchie conducted the ordered evidentiary hearing. The record establishes that Defendant appeared with appointed counsel, Edward Bauman, at that time. Mr. Bauman stated that he had intended to subpoena Defendant's original sentencing counsel, Robert Shelton, for the evidentiary hearing but determined the issue could be decided without Mr. Shelton. Mr. Bauman then urged the trial court to find the original sentencing counsel was ineffective for failing to file a motion to reconsider sentence. Mr. Bauman asked the trial court to, in turn, resentence Defendant.

Before addressing Defendant's argument, however, the trial judge noted that Mr. Shelton would likely be considered unavailable for testimony due to hospitalization. The trial court then moved on to the issue before it, stating that the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) must be applied in determining whether counsel was ineffective. As stated in the opinion remanding the matter: "In order to prove an attorney was ineffective, a defendant must show his attorney was deficient, and he was prejudiced by the deficiency." Farry , 207 So.3d at 439 (citing Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ).

Since Mr. Shelton was not present to testify as to why he did not object to the mandatory life sentence or to file a motion to reconsider the life sentence, the trial court stated that it would assume for purposes of determining ineffective assistance of counsel that Mr. Shelton was deficient in failing to object to the sentence and in failing to file a motion to reconsider sentence. Thus, the trial court focused on whether Defendant was prejudiced by that alleged deficiency. Focusing on the nature of the underlying armed robbery,¹ the trial court remarked on what it described as a "calculated violent" offense and one reflecting "a criminal mindset that has no consideration for anybody" but Defendant. The trial court further noted Defendant's "failure to take responsibility for or show any remorse for his crime is just another validation that I -- that I think that sentence under the habitual offender sentence was appropriate." Accordingly, the trial court concluded that "it would not have made a difference" if Mr. Shelton had objected to the life sentence or had filed a motion to reconsider sentence.

Subsequent to the hearing, Defendant's appointed counsel filed a motion to reconsider sentence. At the time the trial court convened an additional hearing for consideration of that motion, it explained that Defendant's original sentencing counsel, Mr. Shelton, had passed away since the prior hearing. Questioning whether the motion to reconsider sentence should be considered in light of the earlier determination that the prejudice prong of the Strickland standard had not been met, the trial court noted that it had reviewed all of the letters submitted on Defendant's behalf. The trial court then asked Defendant if he would like to put anything additional on the record. Defense counsel noted that Defendant would have liked to have some of his family members present and that Defendant's mother was present. The trial court allowed Defendant's mother to testify.

Afterwards, the trial court reiterated its finding that Defendant failed to prove ineffective assistance of counsel. Additionally, in denying the motion to reconsider sentence, the trial court cited State v. Lindsey , 99-3302 (La. 10/17/00), 770 So.2d 339, cert. denied , 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001) for the proposition that Defendant had the burden of demonstrating unusual circumstances so as to render the legislatively-prescribed mandatory sentence unconstitutional. The trial court determined that Defendant failed to do so, explaining, in part, that:

At this point I would say that after considering -- you know, after -- after the evidentiary hearing, after considering everything that was said previously on Mr. Farry's behalf, I can't say -- especially looking at his criminal history and the facts of the current case, I can't say -- and I don't believe that the defense could have met at the time that Mr. Shelton was representing him, had he made the motion, I don't see how he could have made the argument by clear and convincing evidence that Mr. Farry is an exceptional case and that these are unusual circumstances in light of his criminal history, the current charge, et cetera, to be able to prove that he -- you know, that the -- that the mandatory life sentence in this case is constitutionally excessive.

Accordingly, the trial court denied Defendant's motion.

Following that determination, Defendant filed the instant appeal. In briefing to this court, he assigns the following as error:

I. The trial court's determination that trial counsel was effective in this case was in error.

II. William Farry's appointed counsel to represent him at the evidentiary hearing on remand was ineffective and admittedly unprepared to fully represent William's interest. This matter should again be remanded for a new hearing.

III. William Farry's habitual sentence for life should be vacated and his case remanded for resentencing because his case was (is) not final as of November 1, 2017; thus, under the 2017 amendment to La.R.S. § 15:529.1, Williams is no longer subject to a mandatory life sentence. Denial of relief because of the 2018 change in law would constitute Ex Post Facto and Due Process Clause violations.

LAW AND DISCUSSION

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. That review reveals no such errors.

Proceedings on Remand

By his first assignment, Defendant asserts that the trial court erred in finding he was not prejudiced by Mr. Shelton's failure to object to or request reconsideration of the mandatory life sentence. Defendant acknowledges the facts of the case are "bad," but contends Defendant's counsel at the evidentiary hearing should have put on evidence as to the facts surrounding the two predicate convictions for simple burglary. Defendant argues:

Due to some of the reasons addressed in assignment of error 2 – namely the lack of preparedness on the part of William's counsel at the evidentiary hearings to provide effective representation on the issue of mitigation – and the trial court's own confusion about how to conduct the hearing, the trial court's failure to find prejudice was in error. The facts of this case are admittedly bad. But William was not being punished just for an armed robbery. He was also being punished for two prior simple burglary charges. The court made a point to say simple burglary is much worse than theft, but the record does not indicate the facts surrounding the two prior burglaries. Nowhere was it stated whether the burglaries where of a house versus a vehicle, whether anything was taken versus attempted to be taken, or whether there were occupants versus a vacancy. Because the court did not fully consider everything relevant to William Farry to determine if he was exceptional, it could not properly determine whether there was a mitigation argument trial counsel could have made that would have made a difference. Therefore, the basis of the court's decision was inadequate and its ruling erroneous.

Defendant asks this court to reverse the trial court's ruling and to remand the case for a hearing, at which he be given "the opportunity to fully defend himself and show prejudice existed when his trial counsel failed to object to his sentence."

In response, the State contends the record does not support Defendant's claim that the trial court erred in finding no prejudice. As for Defendant's assertion that the trial court did not fully consider all relevant evidence to determine whether Defendant was an exceptional person to which a downward departure was warranted, the State counters that Defen...