State of Louisiana Versus Jacob v. Robinson ( 2023 )

STATE OF LOUISIANA NO. 22-KA-310
VERSUS FIFTH CIRCUIT
JACOB V. ROBINSON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-2251, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
April 12, 2023
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Stephen J. Windhorst
AFFIRMED
SJW
JGG
MEJ
COUNSEL FOR DEFENDANT/APPELLANT,
JACOB V. ROBINSON
Prentice L. White
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Jennifer C. Voss
Christina Fisher
WINDHORST, J.
Defendant, Jacob Robinson, appeals his convictions and sentences for two
counts of armed robbery, in violation of La. R.S. 14:64, and one count of aggravated
battery, in violation of La. R.S. 14:34. After careful consideration of the law and
evidence, we affirm defendant’s convictions and sentences.
PROCEDURAL HISTORY
On April 27, 2020, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Jacob V. Robinson, with attempted armed robbery
(count one), armed robbery (count two), and aggravated second degree battery
(count three). At his arraignment, defendant pled not guilty to all counts.
On February 11, 2022, the State amended the bill of information. The State
amended the bill as to count one to change the charge of attempted armed robbery
to the armed robbery of Melbin Joel Chicas Galeas (“Mr. Galeas”). As to count two,
the State amended the bill of information to change the name of the victim from
Amaga Belator to Darbin Joel Amaya Villatoro (“Mr. Amaya”); and as to count
three, to change the charge from aggravated second degree battery to aggravated
battery of Melbin Joel Chicas Galeas. Before trial commenced, the trial court held
an arraignment on the amended bill, and defendant pled not guilty.
Trial commenced on February 15, 2022 before a twelve-person jury, and on
the following day, the jury unanimously found defendant guilty as charged on all
counts.1 On March 10, 2022, defendant filed a pro se Motion for New Trial.2 On
March 17, 2022, the trial court denied the motion for new trial.
On March 22, 2022, the trial court sentenced defendant to 99 years
imprisonment at hard labor without the benefit of parole, probation, or suspension
of sentence on counts one and two, and to ten years imprisonment at hard labor on
1 The trial court polled the jury and confirmed that the verdict was unanimous on all counts.
2 In his pro se motion for new trial, defendant argued that he received ineffective assistance of counsel.
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count three. The trial court further ordered that defendant serve the sentences on
counts one and three consecutively. Defendant objected to the sentences.
EVIDENCE and FACTS
Based on the testimony and evidence presented at trial, the following facts
were developed regarding the March 29, 2020 incident giving rise to the armed
robbery and aggravated battery convictions at issue in this appeal.
On March 29, 2020, Mr. Galeas and his wife, Herica Villararuy Gonzales
Caceres, were living in an apartment in Jefferson Parish, with their two children and
some relatives, Darbin Joel Amaya Viallatoro (“Mr. Amaya”) and Marbin.3 That
evening, they were all sitting down in the apartment when an unknown male, later
adduced to be defendant, entered the apartment without knocking on the door.
Defendant’s face was covered and he held a gun in his hand. Mr. Amaya described
defendant as tall and wearing black clothing with a “beanie” covering his face.
Defendant first put his gun to Mr. Amaya’s head, who was sitting near the door, and
said, “give me your money.” Mr. Amaya gave defendant eighty dollars in cash,
defendant then asked for his phone, and Mr. Amaya gave it to him. Defendant
pointed the gun at Mr. Amaya the entire time.
Defendant then demanded money from Mr. Galeas, who threw ten dollars on
the floor. Mr. Galeas testified that defendant said to him, “You only have this
f***ing $10” and took his phone. Defendant then started moving backwards and
had the “gun pointing.” Mr. Galeas testified that he was “very afraid” and believed
defendant would kill him. When defendant had backed away about twelve feet, Mr.
Galeas jumped up and tried to grab defendant. He grabbed defendant’s hand, lifted
defendant’s arm, and the weapon discharged three times. A bullet hit Mr. Galeas on
the head and scratched his skull, requiring two to three sutures and leaving a scar on
3 The record does not contain Marbin’s full name. He was not present at trial.
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his head. After the weapon discharged, the two other men in the apartment grabbed
defendant and forced him onto the floor. One of them grabbed a brick and hit
defendant with it. After this confrontation, defendant was bleeding from the head.
Soon thereafter, the police arrived, handcuffed everyone present, and spoke
with all of the individuals present. A Spanish-speaking officer eventually arrived at
the scene to assist with translation and speaking with those fluent only in Spanish.
An ambulance took defendant to the hospital where he received twelve staples
for his injury. Mr. Galeas testified that prior to defendant’s removal from the crime
scene, defendant said that he would come back for them. Mr. Galeas denied meeting
or seeing defendant before the night of the incident.
Miguel Antonio Varela (“Mr. Antonio”), a neighbor, testified at trial
regarding the events that he witnessed relative to the crimes at issue. On the day of
the incident, Mr. Antonio was living in another apartment at 1012 Orange Blossom
close to Mr. Galeas and Mr. Amaya. Mr. Antonio testified that after he returned
home that evening, Mr. Galeas’ “little boy” came to his apartment and told him that
there was a “man going with a mask.” He explained that he looked in his neighbors’
window and saw Mr. Galeas with a “serious face.” Because he did not see anyone
else inside, he returned to his apartment. Mr. Antonio testified that he heard a shot,
and Mr. Galeas and the “other guy” then called for his help. He described that upon
entering their apartment, he saw an unknown, young man lying on the floor and
trying to escape. Mr. Antonio told Mr. Galeas to call the police while he watched.
Upon arrival, the police detained them for about forty minutes, and he spoke to a
Spanish-speaking officer about what he saw.
Ms. Caceres was at the apartment when the incident occurred; however, she
was upstairs when defendant entered the apartment. She heard a voice she did not
recognize speak in English. She then heard a noise that sounded “like a bang” or “a
hit on the wall.” Ms. Caceres went to the living room and saw that “they [Mr. Amaya
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and Marbin] were struggling with someone,” and that Mr. Galeas had his hands up.
During the incident, one of her sons was upstairs, and the other was outside on the
porch. Ms. Caceres testified that while the stranger was still inside, she left the
apartment.
Detective Randal Collins of the Jefferson Parish Sheriff’s Office (“JPSO”),
who was dispatched to the crime scene, also testified at trial. He testified that upon
his arrival at the scene, he saw a young, Hispanic male exit an apartment that was
located in the back of the building. After handcuffing this individual, the detective
looked in the apartment and saw defendant lying on his back on the floor. He stated
that two other Hispanic males were in the living room and another individual came
down the stairs. He explained that for officer safety reasons, he handcuffed everyone
present except defendant, and conducted a pat down of the individuals present,
which revealed no weapons or illegal substances. Detective Collins indicated that
one male was bleeding from his head and that photographs were taken of his injury.
Detective Collins stated that there was an apparent language barrier, and he could
not speak Spanish.
Because defendant was conscious at the time and spoke English, Detective
Collins asked him about the incident. Defendant told him that he was “jumped” by
the “other gentlemen” because of thirty dollars. Soon thereafter, a Spanish-speaking
officer from the JPSO, Deputy Julio Alvarado, arrived and spoke with all of the
Hispanic individuals present. The men were all separated and unable to talk to each
other before Deputy Alvarado interviewed them. Deputy Alvarado relayed to
Detective Collins that each of their verbal statements were consistent with each
other, but inconsisent with defendant’s version of events. As a result, defendant
became a suspect, and Detective Collins questioned defendant about the
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inconsistences. He advised defendant of his Miranda4 rights, and defendant
acknowledged he understood. Detective Collins recalled that defendant maintained
that he “went over there and they jumped him.”
Detective Collins testified that one photograph depicted the “little skull” mask
worn by defendant, and another photo showed defendant lying on his back on the
floor. He pointed out that another photograph showed a bullet hole in the ceiling.
Defendant testified at trial and told a different story regarding that evening.
Defendant asserted that at the time of the incident, he had known the alleged victims
for a few months from “going that way” and claimed that they would ask him to
obtain drugs for them. He stated that he did not know their names; but that he called
them “friend”, and they called him “Ray.” Defendant testified that on the day in
question, he went to the alleged victims’ apartment because they wanted drugs and
the money that he owed them. Defendant recalled that after he knocked, Mr. Galeas
came outside, and they argued about the drugs not being what they “were supposed
to be.” He recalled that Mr. Galeas and “the other guy” wanted their money back.
When asked what happened to the drugs because there were none found at the crime
scene, he claimed that they must have gotten rid of the drugs.
Defendant contended at trial that Mr. Galeas hit him in the head with a brick,
that he went to the hospital by ambulance, and had 12 staples in his head due to the
injury. Defendant asserted that this took place outside the apartment, and that they
dragged him into the apartment to make it look like a robbery. He also claimed that
Mr. Galeas pulled a gun and pointed it at him. To sum up his self-defense argument,
counsel asked defendant, “So I just want to get this straight – after Melbin [Mr.
Galeas] pulled a gun on you, tried to shoot you, and then beat you, he then dragged
you in the house and then called 911 because you told him to call?” Defendant
4
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
22-KA-310 5
responded, “Yes, ma’am.” Defendant denied robbing the individuals in the
apartment.
LAW and ANALYSIS
In his counseled brief, defendant claims that his sentence of 109 years is
unconstitutionally excessive. In his pro se brief, defendant claims that his bill of
information was defective, that he was denied his sixth amendment right to effective
assistance of counsel, that his counsel was ineffective, and that the trial court abused
its discretion in denying his motion for new trial.
Excessive Sentence Claim
Defendant claims that his sentence of 109 years is unconstitutionally
excessive in that he was sentenced to the maximum 99 years as to counts one and
two (armed robbery), and that it was ordered to be served consecutively with his ten-
year sentence on count three (aggravated battery) for a total of 109 years
imprisonment.
Defendant concedes that he has a criminal history and admits to selling illegal
drugs, but asserts that he was employed before going to jail for these crimes. He
argues that he “should not have been sentenced to serve such a large amount of time
for getting into a physical struggle with two men where both he and one other person
received head injuries.” He also notes that he has four young children to support.
The State asserts that the trial court did not abuse its broad sentencing
discretion. The State contends, as to the nature of the crimes, that defendant’s
actions were especially egregious because small children were inside the home at
the time of the offense. The State also contends that defendant has prior criminal
history with convictions for theft, simple battery, resisting arrest, and drug
paraphernalia. The State further notes that it withdrew a multiple bill, which charged
defendant as a second-felony offender.
22-KA-310 6
The failure to file a motion to reconsider sentence limits defendant to a bare
review of his sentence for unconstitutional excessiveness. State v. Wilson, 14-878
(La. App. 5 Cir. 5/28/15), 171 So.3d 356, 366, writ denied sub nom. State v. Wilson,
2015-1204 (La. 5/27/16), 192 So.3d 741. Because defendant did not file a motion
to reconsider sentence, he is only entitled to have his sentences reviewed for
unconstitutional excessiveness.
The Eighth Amendment to the United States Constitution and Article I,
Section 20 of the Louisiana Constitution prohibits the imposition of excessive
punishment. A sentence is considered excessive, even if it is within the statutory
limits, if it is grossly disproportionate to the severity of the offense or imposes
needless and purposeless pain and suffering. State v. Hayman, 20-323 (La. App. 5
Cir. 4/28/21), 347 So.3d 1030, 1042; State v. Woods, 18-413 (La. App. 5 Cir.
12/19/18), 262 So.3d 455, 460. The appellate court shall not set aside a sentence for
excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4 D.
In reviewing a sentence for excessiveness, the reviewing court shall consider the
crime and the punishment in light of the harm to society and gauge whether the
penalty is so disproportionate as to shock the court’s sense of justice, while
recognizing the trial court’s wide discretion. Hayman, 347 So.3d at 1042-43; State
v. Calloway, 19-335 (La. App. 5 Cir. 12/20/19), 286 So.3d 1275, 1279, writ denied,
20-266 (La. 7/24/20), 299 So.3d 69.
It is well-settled that maximum sentences are generally reserved for cases
involving the most serious violations of the offense charged and the worst type of
offender. State v. Dixon, 18-79 (La. App. 5 Cir. 8/29/18), 254 So.3d 828, 837, writ
not considered, 18-1909 (La. 2/18/19), 263 So.3d 1154, and writ denied, 18-1909
(La. 4/8/19), 267 So.3d 606. The trial judge, however, has wide discretion in
determining a sentence, and the court of appeal will not set aside a sentence for
excessiveness if the record supports the sentence imposed. Wilson, 171 So.3d at22-KA-310 7
366; State v. Berry, 08-151 (La. App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ
denied, 08-1660 (La. 4/3/09), 6 So.3d 767. A trial judge is in the best position to
consider the aggravating and mitigating circumstances of a particular case. State v.
Holmes, 12-579 (La. App. 5 Cir. 5/16/13), 119 So.3d 181, 200.
The issue on appeal is whether the trial court abused its discretion, not
whether another sentence might have been more appropriate. Wilson, 171 So.3d at
366-67. On review, an appellate court considers three factors: (1) the nature of
the crime, (2) the nature and background of the offender, and (3) the sentence
imposed for similar crimes by the same court and other courts. State v. Williams,
16-600 (La. App. 5 Cir. 6/29/17), 224 So.3d 1194, 1197, writ denied, 17-1332 (La.
4/27/18), 241 So.3d 306.
Defendant was unanimously convicted of two counts of armed robbery
(counts one and two) and one count of aggravated battery (count three). Before
considering the three pertinent factors, we recognize that defendant’s sentence was
within the statutory limits, but was the statutory maximum sentence for armed
robbery under La. R.S.14:64 B.
Prior to sentencing, the trial judge noted that he considered all of the evidence
presented at trial, noting that defendant testified to “something totally different than
the witnesses.” The judge explained that the jury heard both sides, made a credibility
determination, and unanimously found defendant guilty as charged on all three
counts. The judge then provided the following in pertinent part:
I can’t think of a worse experience than [to] have someone break into
a condo or an apartment, and point a gun at them, and then rob them,
and then to shoot them. That to me is probably the worst experience
of all and I will always remember that when I came up in New
Orleans I had a judge say, the closest anyone comes to dying is when
someone is robbed with a dangerous weapon. And in this incidence,
it almost held true. The bullet happened to graze the top of his head
and not shoot him in the head. So, as the Sentencing Official in this
particular case, I’m going to rely on Code of Criminal Procedure
Article 894.1 of the Sentencing Guidelines . . . .
22-KA-310 8
The trial court imposed a 99-year sentence upon defendant on counts one and
two, to run consecutively to a 10-year sentence on count three. The sentencing range
for the crime of armed robbery is imprisonment at hard labor for not less than ten
years and for not more than ninety-nine years, without benefit of parole, probation,
or suspension of sentence. La R.S. 14:64 B.
As to the first factor, the nature of the crime, the Louisiana Supreme Court
has recognized that armed robbery “is a pernicious offense” which “creates a great
risk of emotional and physical harm to the victim, to witnesses, and, at times, even
to the offender.” State v. Celestine, 12-241 (La. 7/2/12), 92 So.3d 335, 337 (per
curiam); State v. Ross, 13-924 (La. App. 5 Cir. 5/28/14), 142 So.3d 327, 334. This
court has also stated that armed robbery is a “serious offense against the person.”
State v. Bruce, 10-121 (La. App. 5 Cir. 11/9/10), 54 So.3d 87, 97, writ denied, 10-
2756 (La. 4/29/11), 62 So.3d 109. The record in this case reflects that defendant
held a gun to multiple unarmed victims with children present and shot one victim.
In addition, at the March 22, 2022 sentencing hearing, the State read three victim
impact statements into the record. In these statements, the victims all indicated that
the incident seriously affected their lives, that it traumatized them and their families,
and that they live in fear.
As to the second factor, the defendant’s criminal history, defendant has prior
convictions for distribution of a controlled dangerous substance within the area of a
school, church, or playground, possession of marijuana, possession of drug
paraphernalia, shoplifting, simple battery, theft of goods, and resisting arrest. Thus,
the record is clear that defendant is prone to criminal activity.
Finally, as to the third factor, a review of the jurisprudence reveals that courts
have upheld similar sentences for similarly situated defendants. In State v. Lagarde,
07-123 (La. App. 5 Cir. 5/29/07), 960 So.2d 1105, writ denied sub nom. State ex rel.
Lagarde v. State, 07-1650 (La. 5/9/08), 980 So.2d 684, this court upheld a 99-year
22-KA-310 9
sentence for a defendant convicted of armed robbery, noting that the defendant
ordered the victim out of her vehicle at gunpoint and pushed the victim’s son out of
the vehicle, placing the lives of the victim and her son at risk of death or great bodily
harm. The defendant in Lagarde had two prior convictions for simple burglary and
unauthorized use of a vehicle. Id. at 1114-17.
In State v. Douglas, 389 So.2d 1263, 1264-67 (La. 1980), the defendant, who
had a criminal history that included three prior felony convictions, robbed the victim
at gunpoint after the victim responded to the defendant’s knock at his door. The
defendant pushed a pistol into the victim’s stomach, entered the house, and ordered
the victim to hand over his wallet. Id. at 1264-65. The victim was not injured. The
Louisiana Supreme Court affirmed defendant’s 99-year sentence, noting that an
armed invasion of a victim’s home at night presented an especially terrifying scene.
Id. at 1267-68.
In light of the circumstances surrounding the armed robbery, defendant’s
criminal record, and other sentences imposed on similarly situated defendants, we
do not find that defendants’ sentences for armed robbery are unconstitutionally
excessive.
We have also considered whether defendant’s sentence for aggravated battery
to ten years at hard labor is unconstitutionally excessive. Although defendant
received the maximum term of imprisonment as his sentence for this conviction, he
was not required to pay a fine. La. R.S. 14:34 B. He therefore did not receive the
maximum penalty of ten years imprisonment at hard labor with a fine of five
thousand dollars.5
The jurisprudence reveals that courts have upheld maximum ten-year
sentences for aggravated battery convictions. In State v. Hawkins, 95-28 (La. App.
5 See State v. Stewart, 15-721 (La. App. 5 Cir. 5/19/16), 193 So.3d 401, writ denied, 16-1166 (La. 5/12/17),
219 So.3d 1103, where this court found defendants were not sentenced to the maximum penalties under
the statutes as the maximum permissible fine was not imposed.
22-KA-310 10
4 Cir. 3/29/95), 653 So.2d 715, the appellate court affirmed the defendant’s ten-year
sentence where the defendant was convicted of aggravated battery for shooting at
the victim with an assault rifle. The appellate court determined that the defendant
demonstrated the requisite use of force with a dangerous weapon upon the person of
another. Further, the court found that the defendant’s complete lack of regard for
the safety of the victim and others in the crime scene area evidenced that the
defendant was the worst kind of offender and deserving of the maximum sentence.
In State v. Sullivan, 02-35 (La. App. 5 Cir. 4/30/02), 817 So.2d 335, 340-42,
this court upheld the defendant’s ten-year sentence for aggravated battery even
though the defendant was mentally ill and had no prior convictions but three adult
arrests. In this case, defendant attacked his neighbor without provocation causing a
cut over his left eye that required hospital care.
Considering the foregoing, we do not find defendant’s ten-year sentence for
his conviction of aggravated battery unconstitutionally excessive. This assignment
of error lacks merit.
Defendant’s Bill of Information
In his pro se brief, defendant argues that the amended bill of information
should be annulled because the bill was “upgraded” regarding counts one and three
without any additional evidence being submitted; the bill did not set out the elements
of armed robbery or contain a value amount; and he did not receive a copy of the
charges against him prior to trial.
The time for testing the sufficiency of an indictment or bill of information is
before trial by way of a motion to quash or an application for a bill of particulars.
State v. Parker, 10-1038 (La. App. 5 Cir. 6/14/11), 71 So.3d 383, 392. A court
should reject a post-verdict attack on the sufficiency of an indictment unless the
indictment failed to give fair notice of the offense charged or failed to set forth any
identifiable offense. Id. Defendant did not file a motion to quash in this matter.
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Therefore, we find defendant waived any claim based on the allegedly defective
indictment.
Notwithstanding the procedural bar to the claim, the Louisiana Constitution
of 1974 provides an accused shall be informed of the nature and cause of the
accusation against him. La. Const. art. I, § 13. Pursuant to La. C.Cr.P. art. 464:
The indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. It
shall state for each count the official or customary citation of the
statute which the defendant is alleged to have violated. Error in the
citation or its omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or omission did
not mislead the defendant to his prejudice.
The original bill of information, which was filed on April 27, 2020, charged
defendant with attempted armed robbery of Checas Melbam (count one), armed
robbery of Amaga Belator (count two), and aggravated second degree battery of
Checas Melbam (count three). On February 11, 2022, the State amended the bill of
information as to count one to charge defendant with armed robbery of Melbin Joel
Chicas Galeas; as to count two to change the name of the victim to Darbin Joel
Amaya Villatoro; and as to count three to change the second degree battery charge
to aggravated battery of Melbin Joel Galeas. Before the commencement of trial, on
February 15, 2022, defendant was arraigned on the amended bill and pled not guilty.
To the extent defendant claims he did not receive sufficient notice of the
charges against him, the transcript reflects that a discussion amongst the parties and
the trial court occurred regarding the amendments to the bill of information before
the commencement of trial. Defense counsel waived a reading of the bill of
information, stating, “I waive a reading because I’ve received it and we enter a plea
of not guilty.”
In addition, defense counsel did not file a bill of particulars, and the State
provided open-file discovery. Open-file discovery relieves the State of the necessity
of answering a motion for a bill of particulars. State v. Parker, 04-1017 (La. App. 5
22-KA-310 12
Cir. 3/29/05), 901 So.2d 513, 519, writ denied, 05-1451 (La. 1/13/06), 920 So.2d
235. The discovery receipt filed into the record on August 6, 2020 reflects that
defense counsel received, among other things, the arrest report, a probable cause
affidavit, and the police report.
Accordingly, upon review of the record, we find that defendant was fully
aware of the charges against him in the amended bill of information and did not show
any prejudice by any alleged defect in the amended bill of information. This
assignment of error lacks merit.
Right to Counsel of Choice
In his pro se brief, defendant asserts that the trial court abused its discretion
in allowing defense counsel to proceed to trial as his advocate because he fired his
defense counsel before trial due to a disagreement. Defendant contends that because
of the disagreement, his counsel sat “calmly and quietly throughout the proceedings
without making any objections prior to or during trial.” He argues counsel was
acting under the influence of an actual conflict that adversely affected his
performance at his trial, citing to Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708,
64 L.Ed.2d 333 (1980).
Before trial began, defendant informed the court he wanted to fire his counsel,
asserting that counsel was not ready for trial. Defense counsel stated for the record
that he moved to withdraw in light of his client’s feelings about him. The trial court
refused to allow defendant to fire his counsel and denied the motion to withdraw
because it appeared to be a dilatory tactic. The trial court stated that he would not
grant a continuance to delay the trial and noted defendant’s objection. The trial court
informed defendant that he had two good private lawyers, including his previous
counsel, Bruce Netterville, and his current defense counsel, Michael Idoyoga.
Generally, a person accused in a criminal trial has the right to counsel of his
choice. State v. Reeves, 06-2419 (La. 5/5/09), 11 So.3d 1031, 1057. A defendant’s
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right to choose his defense counsel is not absolute and cannot be manipulated to
obstruct orderly procedure in courts and cannot be used to thwart the administration
of justice. State v. Ventris, 10-889 (La. App. 5 Cir. 11/15/11), 79 So.3d 1108, 1119.
A defendant must exercise his right to choose an attorney at a reasonable time, in a
reasonable manner, and at an appropriate stage of the proceedings. State v.
Burbank, 07-125 (La. App. 5 Cir. 10/30/07), 971 So.2d 1173, 1178, writ denied, 07-
2287 (La. 4/25/08), 978 So.2d 364. The trial court’s ruling on this issue will not be
disturbed absent a clear showing of abuse of discretion. State v. Bridgewater, 00-
1529 (La. 1/15/02), 823 So.2d 877, 896, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266,
154 L.Ed.2d 1089 (2003).
Hiring new counsel on the day of trial obstructs the orderly proceedings of the
court. Ventris, 79 So.3d at 1120. A defendant in a criminal trial cannot force a
postponement by a last minute change of counsel. State v. Wilson, 09-108 (La. App.
5 Cir. 12/29/09), 30 So.3d 149, 154. Without a justifiable basis, there is no
constitutional right to make a new choice of counsel on the very date the trial is to
begin, with the accompanying necessity of a continuance and its disrupting
implications. State v. Bridgewater, 00-1529 (La. 1/15/02), 823 So.2d 877, 896. This
court has found no abuse of the trial court’s discretion in denying a motion for
continuance on the day of trial to replace attorneys where the defendant had counsel
that was prepared for trial. Wilson, 30 So.3d at 154.
In this case, defendant attempted to fire his defense counsel on the morning
of trial, February 15, 2022, because defendant did not believe counsel was ready for
trial. Defense counsel was prepared for trial, and had been representing defendant
since April 27, 2021 without issue. The trial court expressly informed defendant
that he could not terminate his current lawyer to obtain a continuance and delay trial.
The trial court noted that both defendant’s first lawyer and current lawyer were both
capable and qualified private lawyers. Given that defendant’s late request for new
22-KA-310 14
counsel was on the day of trial, and that counsel was qualified and, based on the
record, was evidently prepared, we find no abuse of discretion in the trial court’s
denial of defendant’s request for new counsel.
Every criminal defendant is entitled, not only to counsel, but also to conflict-
free counsel. U.S. Const. Amend. 6 and 14; La. Const. Art. I, § 13; State v.
Fontenelle, 17-103 (La. App. 5 Cir. 9/13/17), 227 So.3d 875, 885. An actual conflict
of interest is established when the defendant proves that his attorney was placed in
a situation inherently conducive to divided loyalties. State v. Kelly, 14-241 (La.
App. 5 Cir. 10/29/14), 164 So.3d 866, 878, writ denied, 14-2499 (La. 9/25/15), 178
So.3d 163. The phrase “actual conflict of interest” means “precisely a conflict that
affected counsel’s performance—as opposed to a mere theoretical division
of loyalties.” Id. at 879.
Defendant asserts defense counsel had an actual conflict of interest and relies
on Cuyler, supra, but we find that case distinguishable from the instant matter. In
Cuyler, the United States Supreme Court held that the participation of two privately
retained attorneys in the three separate trials of the petitioner and his codefendants
established as a matter of law that the two attorneys represented all the defendants
and that the consequent possibility of a conflict among the interests represented
violated the petitioner’s Sixth Amendment rights. The present case does not involve
a conflict of interest arising from the representation of multiple defendants.
Defendant fails to present anything to show defense counsel had an actual
conflict of interest that adversely affected the performance of defendant’s defense
counsel. Defendant’s conclusory assertions in his brief do not prove that counsel
was placed in a situation inherently conducive to divided loyalties or that an actual
conflict of interest arose between defendant and his attorney. We find that defendant
failed to prove any conflict of interest. This assignment of error lacks merit.
22-KA-310 15
Right to Effective Assistance of Counsel
The Sixth Amendment to the United States Constitution and Article 1, § 13 of
the Louisiana Constitution require that a defendant have effective assistance of
counsel. State v. McDonald, 04-550 (La. App. 5 Cir. 11/16/04), 889 So.2d 1039,
1042, 04-3088 (La. 4/1/05), 897 So.2d 599. A claim of ineffective assistance of
counsel 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). State v. Ott, 12-111 (La. App. 5
Cir. 10/16/12), 102 So.3d 944, 953; State v. Griffin, 14-450 (La. App. 5 Cir.
12/16/14), 167 So. 3d 31, 48, writ denied, 15-0148 (La. 11/20/15), 180 So.3d 315.
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. Strickland, 466 U.S. at 687, 104 S.Ct.
at 2064. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a trial whose result is reliable. Id. The defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. A reasonable probability is
a probability sufficient to undermine confidence in the outcome. Id.A court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Ott, 102 So.3d at 953.
Therefore, the defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial strategy.”
State v. Griffin, 14-450 (La. App. 5 Cir. 12/16/14), 167 So.3d 31, 48, writ denied,
15-148 (La. 11/20/15), 180 So.3d 315. An inquiry into the effectiveness of counsel
must be specific to the facts of the case, and must take into consideration the
counsel’s perspective at the time. Id. The Sixth Amendment does not guarantee
errorless counsel or counsel judged ineffective by hindsight. State v. LaCaze, 99-
22-KA-310 16
0584 (La. 1/25/02), 824 So.2d 1063, 1078-79, cert. denied, 537 U.S. 865, 123 S.Ct.
263, 154 L.Ed.2d 110 (2002).
Defendant contends that his counsel was unconstitutionally defective for
failing to follow up on pre-trial motions, failing to raise any objections during jury
selection and trial, and failing to object to the trial court’s rescheduling of trial. He
asserts that he was prejudiced by his attorney’s “ineffectiveness during the entire
court proceedings.” Defendant’s contentions as to the denial of his motion for new
trial are also based on allegations of ineffective assistance of counsel. Defendant
complains that the trial court abused his discretion in denying his motion for new trial
because the court saw and watched the deficient performance of his attorney prior to
and during trial. Defendant notes that he had to file a pro se motion for new trial.
It is well-settled that when a defendant proceeds to trial without raising the
issue that his pre-trial motions were outstanding, that defendant waives those
pending motions. See State v. Sims, 09-509 (La. App. 5 Cir. 2/12/10), 33 So.3d 340,
343, writ denied, 10-596 (La. 10/8/10), 46 So.3d 1264. Thus, because defendant
proceeded to trial without an objection to any outstanding pending pre-trial motions,
defendant has waived his right to object on the basis of these motions. In addition,
before the start of trial on February 15, 2022, the State informed the court that
“motions were previously waived, but specifically I wanted to put on the record that
defense counsel is waiving the motion to suppress the statement.” Defense counsel
informed the court that the statements at issue were not necessarily inculpatory, were
confusing, and were taken after defendant had been hit on the head with a brick.
Counsel did not believe that these statements were necessary to suppress.
In addition, in his brief, defendant fails to assert how the outcome of his trial
would have been different if defense counsel had pursued the omnibus pre-trial
motions at issue in this case. He fails to argue any specific reason why counsel’s
pursuit of a ruling on the suppression motion, or any of the motions, would have an
22-KA-310 17
effect on the outcome of his case. Defendant merely makes conclusory and non-
specific assertions as to counsel’s alleged failure to move to have these motions
heard. “General statements and conclusory allegations will not suffice to prove a
claim of ineffective assistance of counsel.” State v. Fisher, 19-488 (La. App. 5 Cir.
6/24/20), 299 So.3d 1238, 1247.
Further, for purposes of an ineffective assistance of counsel claim, the filing
of pretrial motions is squarely within the ambit of the attorney’s trial strategy. State
v. Jones, 09-688 (La. App. 5 Cir. 2/9/10), 33 So.3d 306, 325. Counsel’s decisions
as to which motions to file, or in this case, to pursue form a part of trial strategy. See
State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 577, cert. denied, 531 U.S.
946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). Hindsight is not the proper perspective
for judging the competence of counsel’s trial decisions and an attorney’s level of
representation may not be evaluated based on whether a particular strategy is
successful. Jones, supra. The burden is on the defendant to overcome the
presumption that, under the circumstances, counsel’s conduct falls within the wide
range of reasonable professional assistance and that the challenged action “might be
considered sound trial strategy.” State v. Starks, 20-429 (La. App. 5 Cir. 11/3/21),
330 So.3d 1192, 1198, citing Strickland, supra. There is nothing in the record to
support how trial counsel was deficient for failing to pursue the motion to suppress
or that he was prejudiced in any way. Thus, we find that defendant has not overcome
the presumption, under the circumstances, that defense counsel’s actions “might be
considered sound trial strategy.”
Defendant also asserts that defense counsel failed to object to the court’s
refusal to reschedule trial even though the defense was not properly prepared for
trial, failed to visit him in jail,6 failed to object to any testimony or evidence in this
6 At the hearing on the motion for new trial, defense counsel testified that he met with defendant several
times, and that they discussed the case, trial strategy, and other potential witnesses.
22-KA-310 18
matter, and failed to object to any peremptory challenges made by the State during
jury selection. Defendant makes conclusory and non-specific assertions regarding
these allegations and provides nothing that is sufficient to meet either prong under
Strickland, supra. “General statements and conclusory allegations will not suffice
to prove a claim of ineffective assistance of counsel.” State v. Fisher, 19-488 (La.
App. 5 Cir. 6/24/20), 299 So.3d 1238, 1247. Defendant’s allegations are conclusory
and speculative. In addition, defendant fails to make any arguments as to how these
allegations affected the outcome or how the outcome would have been different.
Further, many of these allegations relate to trial strategy and cannot support an
ineffective assistance of counsel claim.
In light of the foregoing, we find defendant has not demonstrated that, but for
counsel’s alleged unprofessional conduct, the outcome of his trial would have been
different. Thus, this assignment of error lacks merit.
ERRORS PATENT
The record was reviewed for errors patent, according to the mandates of La.
C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,
556 So.2d 175 (La. App. 5 Cir. 1990).
The record indicates the trial court did not expressly order that the sentence
on count two should run concurrent with the sentence on count one. La. C.Cr.P. art.
883 provides:
If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively
unless the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.7
7 The Official Revision Comment to the article provides that “[w]hen the court does not expressly direct
whether the sentences are to be served concurrently or consecutively, this article provides the rule of
construction.
22-KA-310 19
In the instant case, defendant’s criminal acts arise out of the same act or
transaction—the armed robbery where defendant entered the victims’ home and shot
one of the victims during the course of a robbery on March 29, 2020. We therefore
find that the armed robberies and the aggravated battery were part of the same
transaction. Therefore, the “presumption” of concurrent sentences under La. C.Cr.P.
art. 883 applies, and no corrective action is necessary.
DECREE
For the reasons stated, we affirm defendant’s convictions and sentences.
AFFIRMED
22-KA-310 20
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 12, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-310
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
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