State v. Harris

• Citation: 340 So.3d 845
• Decision Date: 09 July 2020
• Docket Number: 2018-KH-1012
• Parties: STATE of Louisiana v. Derrick L. HARRIS
• Court: Supreme Court of Louisiana

340 So.3d 845

STATE of Louisiana

v.Derrick L. HARRIS

No. 2018-KH-1012

Supreme Court of Louisiana.

July 9, 2020

BODDIE, J., Justice ad hoc^*

We granted this writ to consider whether relator Derrick Harris, who is serving a life sentence imposed pursuant to the Habitual Offender law¹ , may litigate a claim of ineffective assistance of counsel at sentencing on post-conviction review. Given the fundamental right involved, after a review of the record, we hold relator's ineffective assistance of counsel at sentencing claim is cognizable on collateral review. Thus, we grant relator's writ, in part, and remand the matter to the trial court for an evidentiary hearing to consider his claim of ineffective assistance of counsel at sentencing.

FACTS AND PROCEDURAL HISTORY

On October 2, 2008, an undercover officer working with the Vermilion Parish Sheriff's Office located an individual on a street in Abbeville and inquired where he could purchase marijuana. The individual brought the officer to a residence where the officer purchased .69 grams of marijuana for thirty dollars. The officer identified relator as the individual who sold him the marijuana. Based on this transaction, the state charged relator with distribution of marijuana. After a bench trial, he was convicted and sentenced to fifteen years imprisonment at hard labor. Trial counsel filed a motion to reconsider sentence, which the court denied. However, after the state filed a habitual offender bill, the court adjudicated relator a fourth-felony offender² and resentenced him on November 15, 2012, to the mandated term of life imprisonment without benefits.

Relator's trial counsel did not object to the life sentence nor did he file a motion to reconsider sentence following the habitual offender adjudication, and thus relator was limited to a bare claim of constitutional excessiveness on appeal. See La. C.Cr.P. art. 881.1 (E). Citing extensively to State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, the court of appeal concluded that although relator is an extremely minor offender with regards to his present crime, his life sentence is not constitutionally excessive because he committed numerous predicate felonies. The court found the state proved that relator's conduct fell within the conditions necessary to trigger a mandatory life sentence under the Habitual Offender law. State v. Harris , 13-0133, pp. 7-8 (La. App. 3 Cir. 12/11/13), 156 So.3d 694, 700-01. (Cooks, J., dissents).

Also on direct review, relator argued in a pro-se brief that both his trial and appellate counsel rendered ineffective assistance. Id. , 13-0133, p. 5, 156 So.3d at 699. Although he did not raise an ineffective assistance claim related to the failure to object to the life sentence or file a motion to reconsider sentence, relator did argue that trial counsel had failed to adequately conduct pre-trial discovery and investigation, and that police officers could have been called to narrate the DVD that had captured the alleged drug transaction, as no audio was available. See id. , 13-0133, p. 5, 156 So.3d at 699. As to appellate counsel, relator claimed that his attorney should have raised the Confrontation Clause argument that relator was raising in proper person. Id. The court of appeal declined to consider relator's claim and instead relegated it to post-conviction relief, as is done with most ineffective assistance claims, given that the adequacy of pre-trial discovery and decisions of representation regarding the calling of witnesses and lodging of arguments may require the testimony of those involved. See id. , 13-0133, p. 6, 156 So.3d at 700.

Judge Cooks dissented, finding the trial court had erred by imposing a life sentence on relator, who had honorably served his country in Desert Storm and, after returning from service, had suffered from a drug addiction for which he had been unable to receive assistance from the U.S. Veterans’ Administration. While acknowledging that relator met the criteria requiring a life sentence under the habitual offender statute, she opined that he was not the type of individual the legislature had envisioned sending to prison for the remainder of his life when it had enacted La. R.S. 15:529.1(A)(4)(b). Judge Cooks noted it was clear from the record that the trial judge had been unaware of his authority and duty to deviate from the mandatory sentence if the court found justification for reducing the sentence. Judge Cooks also noted the habitual offender transcript reflected the trial judge's opinion that relator did not deserve a 30-year sentence for selling .69 grams of marijuana, let alone a life sentence as a habitual offender. She argued a remand was in order for further proceedings to evaluate the evidence presented at the sentencing hearing that supported a downward departure from the mandatory sentence. Id. , 13-0133, 156 So.3d at 703-05 (Cooks, J., dissenting).

The court of appeal denied rehearing on January 22, 2014. Relator's pro-se application seeking review of the court of appeal's affirmance was filed on February 27, 2014, six days too late in this Court. Notably, if it had been filed six days too late now, the application would have been treated as timely because the Court now affords pro-se prisoner litigants a 10-day grace period in an effort to honor the "mailbox rule" of Houston v. Lack , 487 U.S. 266, 108 S.Ct. 2379, 101 L. Ed. 2d 245 (1988). In 2014, however, the Court treated late pro se applications on direct review as "untimely KOs." Under the "untimely KO" procedure, a late application, rather than being denied, was considered as if it were an application for post-conviction relief (albeit one that had bypassed the lower courts), which afforded late pro-se filers a limited form of review. See State v. Jacobs , 504 So. 2d 817, 818 n.1 (La. 1987). However, because in this case the sentencing claims raised by relator were not cognizable on collateral review, they were not addressed, and this Court denied his writ application sub nom. State ex rel. Harris v. State , 14-0476 (La. 11/7/14), 152 So.3d 169 (Hughes, J., would grant).

Relator then timely filed an application for post-conviction relief in the district court, raising two claims. Claim I alleged trial counsel was ineffective for failing to: present an entrapment defense, inform relator of a seven-year plea offer, and file a motion to reconsider sentence. Claim II alleged the sentencing court was unaware of its authority to deviate below the mandatory life sentence required by the Habitual Offender law when such sentence would be constitutionally excessive.

On March 3, 2016, the district court³ rendered judgment denying Claim II, regarding the trial court's sentencing error. The district court noted that, generally, courts have held that challenges to a multiple offender adjudication cannot be heard on post-conviction relief, citing State v. Hebreard , 98-385 (La. App. 4 Cir. 3/25/98), 708 So. 2d 1291 ; State v. Daniels , 00-3369 (La. 11/2/01), 800 So. 2d 770 ; State v. ex rel. Brown v. State , 03-2568 (La. 3/26/04), 870 So. 2d 976 ; and State v. Shepard , 05-1096 (La. 12/16/05), 917 So. 2d 1086. The district court also ordered an evidentiary hearing on the ineffective assistance of counsel claims. (Claim I).

The evidentiary hearing was held on February 10, 2017. The district court first considered whether counsel had erred by failing to convey a plea offer, based on a seven-year plea offer noted in counsel's file, which was signed by the assistant district attorney, but which relator contended had never been conveyed to him. Relator testified that he remembered having received a 10-year plea offer which was later followed by a 20-year plea offer. Relator also testified that his memory was faulty due to past abuse of crack cocaine, but he was sure he would have remembered a seven-year offer. The court found that his "selective memory challenges his credibility and ability to accurately recall past events[,]" see tr. ct. ruling, and that his self-serving testimony was insufficient to carry his burden of proof.

The district court then considered whether counsel had erred by failing to argue an entrapment defense. The court noted that relator failed to produce any new evidence at the hearing concerning this issue and therefore failed to establish that his counsel had not exercised reasonable professional judgment. The court further noted that relator failed to show he had been deprived of a fair trial as required by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). Therefore, he failed to carry his burden of proof.

Lastly, the district court addressed whether relator's counsel was ineffective for failing to file a motion to reconsider sentence. Noting that the courts have generally held that challenges to a habitual offender adjudication cannot be heard post conviction, and that the defendant had failed to produce any new evidence concerning this issue, the court declined to consider it. The district court rendered a judgment with written reasons on March 3, 2017, denying relator's application for post-conviction relief.

Relator then sought writs in the court of appeal. The court of appeal noted that defendant did not contest the trial court's ruling but rather argued a claim of ineffective assistance of counsel at the February 10, 2017⁴ evidentiary hearing on relator's application for post-conviction relief. Because this issue had not been presented to or ruled upon by the trial court, the court of appeal observed that the issue was not properly before it, citing to Uniform Rules—Courts of Appeal, Rule 1-3. State v. Harris , 17-0545 (La. App. 3 Cir. 4/24/18) (unpub'd).⁵

Relator subsequently sought writs to this Court, wherein he asserts his underlying claims that his counsel was ineffective for failing to: inform him of a seven-year plea offer, raise an entrapment defense, and file a motion to reconsider sentence after the court had imposed the life...