State v. Martin

• Decision Date: 28 May 2014
• Docket Number: No. 2013–KA–0628.,2013–KA–0628.
• Citation: 141 So.3d 933
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. Anthony MARTIN.

141 So.3d 933

STATE of Louisiana
v.
Anthony MARTIN.

No. 2013–KA–0628.

Court of Appeal of Louisiana,
Fourth Circuit.

May 28, 2014.

[141 So.3d 935]

Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.

Holli Herrle–Castillo, Louisiana Appellate Project Marrero, LA, for Defendant/Appellant.

Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS.

ROLAND L. BELSOME, Judge.

The defendant, Anthony Martin, was convicted of manslaughter; two counts of attempted second degree murder; six counts of attempted armed robbery with a firearm; one count of attempted aggravated burglary; and one count of illegal use

[141 So.3d 936]

of weapons by discharging a firearm while committing a crime of violence. Several errors patent and a sentencing error result in this matter being affirmed in part, vacated in part and remanded.

PROCEDURAL HISTORY

In a thirteen count grand jury indictment,¹ the defendant was charged with second degree murder (Count I); illegal use of weapons by discharging a firearm while committing a crime of violence (Count II); aggravated burglary of an inhabited dwelling (Count III); attempted second-degree murder (Counts IV, V, and VI); attempted armed robbery with a firearm (Counts VII, VIII, IX, X, XI, and XII); and possession of a firearm after having been previously convicted of an enumerated felony (Count XIII).² He pleaded not guilty at his arraignment.

Subsequently, the trial court denied his motion to quash the indictment. ³ After a twelve-person jury trial, he was found guilty of the responsive verdicts of manslaughter as to Count I, and attempted aggravated burglary as to Count III. He was found not guilty as to Count V, attempted second degree murder of Victor Garcia. The defendant was found guilty as charged on the remaining nine counts: one count of illegal discharge of a firearm during the commission of a violent crime (Count II), three counts of attempted second degree murder (Counts IV and VI), and six counts of attempted armed robbery (Counts VII through XII).

The trial court denied the defendant's motion for new trial ⁴ and sentenced him to forty years at hard labor for manslaughter Count I; fifteen years at hard labor on Count II; twelve years at hard labor on Count III; fifty years at hard labor on Counts IV and VI; and forty-nine and one-half years at hard labor on Counts VII through XII. All sentences were imposed without the benefit of parole, probation, or suspension of sentence, and ordered to be served consecutively. On the same day, he was adjudicated a second-felony habitual offender as to Count IV (attempted second degree murder) only; the trial court vacated the original sentence imposed on that count and sentenced him to one hundred years at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court denied his motion to reconsider the sentence,⁵ and this appeal followed.

FACTS

On August 22, 2007, three men forced their way into a residence located at 4810 Nighthart Street, in New Orleans. At the time of the incident, there were five men and two women at home: Jose Guevara,

[141 So.3d 937]

Julio Benitez–Cruz, Danilo Garcia Pavon,⁶ Victor Garcia, Michael Sanchez Ramirez,⁷ Fanny Villalta Flores, and Jessica Maldonado. Mr. Ramirez and Mr. Pavon were outside eating when they were accosted by the men at gunpoint, and quickly moved inside to the living room.

Once inside, they were held face-down on the floor at gunpoint, while the other perpetrators gathered the remaining occupants, except Mr. Garcia, into the living room and ordered them to lie on the ground as well. When Ms. Flores was ordered to lie face down in the living room, one of the male victims explained to the perpetrators that she could not lie on the ground because she was pregnant. Ms. Flores was then ordered to sit while the perpetrators demanded the victims' money. Following a brief struggle with one of the gunmen, Mr. Benitez–Cruz was shot in the chest. After hearing the shot, Mr. Guevara jumped on the defendant in an attempt to commandeer his gun. During the struggle, the defendant fired twice, striking Mr. Ramirez in the arm and right side of the chest. Mr. Garcia exited from a room in the rear of the home and was also shot by the defendant.

Ultimately, Mr. Guevara was able to take hold of the gun. When the defendant attempted to flee, Mr. Guevara grabbed him by the shorts, pulling his shorts and tennis shoes off. The police later recovered the defendant's identification card from the shorts left at the scene.⁸ Mr. Pavon, Mr. Guevara, Ms. Flores, and Mr. Ramirez all identified the defendant in a photographic lineup. He was later apprehended in Mississippi, and extradited to New Orleans.

ERRORS PATENT

A review of the record reveals two major errors.

First, the minute entry and transcript from the sentencing are inconsistent. Though the minute entry from sentencing reflects that all of the defendant's sentences are to be served without benefits, the transcript reflects that the trial court restricted benefits in the multiple offender sentence on Count IV only. The minute entry further reflects that the multiple offender sentence is to run consecutively to the other sentences; however, the transcript is silent. Generally, when there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, the entries should be amended to delete both the restriction of benefits and the consecutive sentence on Count IV, then the amendments should be forwarded to the officer in charge of the institution to which the defendant has been sentenced, as well as to the legal department of the Department of Corrections. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06–244 (La.9/15/06), 937 So.2d 846 (per curiam).⁹

[141 So.3d 938]

Next, the trial court failed to expressly impose an additional five year sentence on Counts VII–XII, for using a firearm in connection with an attempted armed robbery, on each of those counts, as required by La. R.S. 14:64.3.¹⁰ The defendant was convicted of six counts of attempted armed robbery with a firearm, and sentenced to forty-nine and one-half years at hard labor on each count, the maximum. In State v. Burton, 09–826, p. 3 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076, this Court held that in cases where it is unclear whether the trial court imposed a firearm enhancement, the sentence is indeterminate, requiring it to be vacated and the matter remanded for resentencing for clarification of whether the defendant's sentence includes the additional punishment pursuant to La. R.S. 14:64.3. See also State v. Adams, 10–1140 (La.App. 4 Cir. 6/1/11), 68 So.3d 1165; and State v. Carter, 13–74, p. 5 (La.App. 4 Cir. 12/11/13), 131 So.3d 153, 158. Thus, the defendant's sentences in Counts VII–XII are vacated and remanded for resentencing.

DISCUSSION

On appeal, the defendant assigns four errors in reference to three issues: 1) the motion to quash; 2) the habitual offender plea; and 3) the sentencing.¹¹ The defendant argues that the trial court erred in denying his motion to quash, which was based on the allegation that the State abused its prosecutorial discretion by improperly entering a nolle prosequi as to his first indictment, on the morning his second trial ¹² was set to begin, and then reinstituting prosecution the following day.

In support of his argument that the trial court erred in denying his motion to quash, the defendant contends that: 1) the State abused its prosecutorial authority entering a nolle prosequi in order to circumvent the authority of the trial court; 2) the State violated the defendant's due process rights by obtaining a procedural advantage not available to him; 3) the State violated the separation of powers clause; and 4) the State's misuse of its powers prejudiced the defendant.

Generally, a trial court's ruling on a motion to quash should not be disturbed absent a clear abuse of discretion. State v. Sanders, 12–409, pp. 4–5 (La.App. 4 Cir. 11/14/12), 104 So.3d 619, 624. Louisiana courts understand that the determination of motions to quash in which the district attorney entered a nolle prosequi and later reinstituted charges should be decided on the basis of the facts and circumstances of the individual case. State v. Love, 00–3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209.

The defendant argues that the dismissal and reinstitution of prosecution circumvented the authority of the trial

[141 So.3d 939]

court to the defendant's disadvantage. However, the Louisiana Supreme Court and this Court have recognized the State's authority to enter a nolle prosequi and reinstitute the same charge. State v. Bias, 06–1153, p. 2 (La.App. 4 Cir. 12/20/06), 947 So.2d 797, 799; Love, 00–3347 at pp. 12–13, 847 So.2d at 1208–1209. See alsoLa.C.Cr.P. art. 691; La.C.Cr.P. art. 693. Even “a prosecutor's evident, flagrant, objectionable, and ill-motived ‘flaunting’ is not in itself specific prejudice to the defense at a forthcoming trial.” State v. Hayes, 10–1538, pp. 9–10 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 15, writ denied,11–2144 (La.3/2/12), 83 So.3d 1043. The jurisprudence clearly rejects the notion that the State's action alone would have supported the granting of a motion to quash under the circumstances of the instant case. “In order to sustain a motion to quash [based on the prosecutor's abusive exercise of its power to nolle prosequi and reinstitute], the resulting specific prejudice to his right to a fair trial must be shown by the defendant.” Id.

Further, the due process and separation of powers arguments raised by the defendant have consistently been rejected by this Court. Hayes, 10–1538 at p. 3, 75 So.3d at 11–12 (where this Court rejected the defendant's due process and related separation of powers claim, in which he primarily...