State of Louisiana v. Devonta Mitchell

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-792

STATE OF LOUISIANA

VERSUS

DEVONTA MITCHELL

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 302702
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

James C. Downs
District Attorney, Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Michael W. Shannon
Assistant District Attorney
P.O. Box 1792
AlexandriA, LA 71309
COUNSEL FOR APPELLEE:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
400 Travis St., Suite 1702
Shreveport, LA 71101
(318) 222-1700
COUNSEL FOR DEFENDANT/APPELLANT:
Devonta Mitchell

Ezell, Judge.

On July 2, 2010, the State filed a bill of information apparently charging

Defendant Devonta Mitchell with one count of attempted first degree murder, a

violation of La.R.S. 14:27 and La.R.S. 14:30, and one count of aggravated

burglary, a violation of La.R.S. 14:60. On January 11, 2011, the State amended

the first count to attempted second degree murder, a violation of La.R.S. 14:27 and

La.R.S. 14:30.1.1 Jury selection began on the same date; said jury began hearing

evidence the next day and found Defendant guilty as charged on both counts. On

April 18, 2011, the court sentenced him to twenty years at hard labor, without

benefit of probation, parole, or suspension of sentence for attempted murder, and to

a concurrent ten-year sentence at hard labor for aggravated burglary.

Defendant now appeals his sentence through counsel, assigning a single

error. He challenges his conviction pro se, assigning three errors.

FACTS

In May of 2010, Defendant participated in an armed home invasion of victim

Sammie Williams’s trailer. Ms. Williams was there with two infants, her great

niece, and great nephew. While Defendant and an accomplice were searching the

trailer, another woman, Mabel Fisher, parked in the driveway. The men

approached her and ordered her to leave; one of them leveled a pistol at her.

Nonetheless, she refused their order, and they ran toward a white SUV. Ms. Fisher

drove after them, and the man with the pistol turned and shot at her. When they

drove away, she gave chase and tried to write down the license plate number. At

some point, the SUV stopped; the driver got out, ran toward Ms. Fisher’s car, and

fired two shots.
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We observe that in his pro se brief, Defendant spells his name “Davonta Mitchell.”
Pursuant to this court’s standard practice, we have spelled his first name “Devonta” because that
spelling appears on the charging instrument. (R. p. 7).

ASSIGNMENT OF ERROR

In his sole counsel-filed assignment of error, Defendant argues his twenty-

year sentence for attempted murder and his ten-year concurrent sentence for

aggravated burglary are excessive. This court recently explained:

This court has previously discussed the standard for reviewing
excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees
that, “[n]o law shall subject any person to cruel or
unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so
grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no
measurable contribution to acceptable penal goals and is,
therefore, nothing more than a needless imposition of
pain and suffering. The trial court has wide discretion in
the imposition of sentence within the statutory limits and
such sentence shall not be set aside as excessive absent a
manifest abuse of discretion. The relevant question is
whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been
more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808
So.2d 331 (citations omitted)(second alteration in original). “[T]he
trial judge need not articulate every aggravating and mitigating
circumstance outlined in art. 894.1[;] the record must reflect that he
adequately considered these guidelines in particularizing the sentence
to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

In State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726
So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, the
fifth circuit held that a reviewing court should consider three factors
in reviewing sentences imposed by the trial court: (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. Chaisson, 09-119, pp. 25-26 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166,

1182-83.

The nature of the crimes is that they are both violent felonies. In the

particular facts of this case, the home invasion victim was an elderly woman with

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two very young children in the residence. As for the nature of the offender, he was

a sixteen-year-old first offender at the time he participated in the crimes. The trial

court considered that Defendant’s accomplice was twenty-one at the time.

As for the third Lisotta factor, we note an earlier survey of the jurisprudence

by this court:

The Defendant’s sentence is in the middle of the range between
the minimum ten years and the maximum fifty years for the convicted
offense. A pertinent review of sentencings for attempted second
degree murder is set forth in State v. Napoleon, 01-1222, pp. 6-7
(La.App. 5 Cir. 2/26/02), 811 So.2d 980, 983-84, as follows:

A review of the jurisprudence indicates that similar
sentences have been upheld for defendants without prior
felony records. In State v. Ethridge, 96-1050 (La.App. 3
Cir. 2/5/97), 688 So.2d 1274, 1276, the Third Circuit
upheld defendant’s 45 year sentence for attempted
second degree murder despite the fact defendant had no
prior criminal record. The defendant had fired six shots
into the victim’s residence through a bedroom window
severely wounding the victim.

In State v. Owens, 606 So.2d 876 (La.App. 2
Cir.1992), the Second Circuit affirmed defendant’s 30
year sentence for attempted second degree murder
despite defendant’s claim the sentence was excessive
based on his youthful age of 25 years old and the fact he
had no prior felony convictions. Defendant had fired
several shots at the victim in a crowded barroom.

In State v. Camese, 00-1943 (La.App. 4 Cir.
7/11/01), 791 So.2d 173, the Fourth Circuit affirmed
defendant’s 50-year sentence for attempted second
degree murder despite the fact defendant had no prior
criminal record. Defendant approached the victim at the
security gate of the victim’s apartment, pointed a gun to
his head, and demanded the victim’s car. The victim
gave defendant the car at which time defendant shot him
in the head.

State v. Clark, 06-508, p. 5 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, 802-03, writ

denied, 06-2857 (La. 9/21/07), 964 So.2d 324.

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Clark shows the present sentence for attempted second degree murder does

not fall outside of jurisprudential norms. As for the aggravated burglary sentence,

the court notes:

We further find that a comparison of sentences for similarly
situated defendants and a like crime shows that the trial court’s
sentencing choice in the present case conforms with rather than
deviates from those cases. See State v. Williams, 448 So.2d 659
(La.1984) (a twenty-one year old defendant with two prior convictions
was sentenced to twenty years for the aggravated burglary of a sixty-
one year old woman who resided alone); State v. Cormier, 534 So.2d
994 (La.App. 3 Cir.1988), writ denied, 587 So.2d 691 (La.1991) (a
twenty-year sentence for a first-time offender for the aggravated
burglary of the defendant’s great-grandmother’s home was not
excessive where the defendant armed himself with a hatchet).

State v. Prejean, 10-480, pp. 5-6 (La.App. 3 Cir. 11/3/10), 50 So.3d 249, 253.

Prejean shows that Defendant’s ten-year sentence for aggravated burglary

does not fall outside the norms of Louisiana jurisprudence. Further, review of the

Lisotta factors demonstrates Defendant’s sentences are not excessive.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Defendant’s first pro se assignment of error is not clear. The first portion of

his argument appears to allege racial discrimination during jury selection as

prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). However,

as the State observes in its supplemental brief, no Batson claim was raised below.

Defendant cannot raise such a claim for the first time on appeal. State v. West, 419

So.2d 868 (La.1982).

Defendant also appears to make an ineffective assistance of counsel claim.

This argument will be addressed under the third assignment of error, which is

composed of several ineffective assistance of counsel arguments.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, Defendant claims that after the trial court issued

a sequestration order to the witnesses, he “has reason to believe the witnesses
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communicated the case [sic]” and therefore they should have been disqualified.

However, Defendant cites nothing to support his “reason to believe,” nor does he

claim he made an objection below. As Defendant’s argument lacks any factual

support, the assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his final pro se assignment, Defendant argues his trial counsel was

ineffective for picking an all-white jury. The standard for such a claim has been

explained by this court:

Defendant’s first trial ended in a mistrial. Thus, any alleged
errors of counsel during the Defendant's first trial are not appealable.
See La.Code Crim.P. art. 912.

In State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03),
838 So.2d 34, 40, our brethren of the Fourth Circuit, with whom we
agree, reviewed the law applicable to claims of ineffective assistance
of counsel stating as follows:

Generally, the issue of ineffective assistance of
counsel is a matter more properly addressed in an
application for post conviction relief, filed in the trial
court where a full evidentiary hearing can be conducted.
State v. Prudholm, 446 So.2d 729 (La.1984); State v.
Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v.
Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the
record discloses sufficient evidence to rule on the merits
of the claim do the interests of judicial economy justify
consideration of the issues on appeal. State v. Seiss, 428
So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528
(La.1982); State v. Garland, 482 So.2d 133 (La.App. 4
Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4
Cir.1986).

The defendant’s claim of ineffective assistance of
counsel is to be assessed by the two part test of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119
(La.1984). The defendant must show that counsel’s
performance was deficient and that he was prejudiced by
the deficiency. Counsel’s performance is ineffective
when it can be shown that he made errors so serious that
counsel was not functioning as the “counsel” guaranteed
to the defendant by the Sixth Amendment. Strickland,
supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s
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deficient performance will have prejudiced the defendant
if he shows that the errors were so serious as to deprive
him of a fair trial. To carry his burden, 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. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, supra, 466 U.S.
at 693, 104 S.Ct. at 2068. The defendant must make both
showings to prove that counsel was so ineffective as to
require reversal. State v. Sparrow, 612 So.2d 191, 199
(La.App. 4 Cir.1992).

This Court has recognized that if an alleged error
falls “within the ambit of trial strategy” it does not
“establish ineffective assistance of counsel.” State v.
Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986).
Moreover, as “opinions may differ on the advisability of
a tactic, hindsight is not the proper perspective for
judging the competence of counsel’s trial decisions.
Neither may an attorney’s level of representation be
determined by whether a particular strategy is
successful.” State v. Brooks, 505 So.2d 714, 724
(La.1987).

Of the numerous errors Defendant alleges were committed by
counsel, many appear to fall “within the ambit of trial strategy.”
However, Defendant also sets out a number of alleged inconsistencies
in the case which he asserts, had counsel investigated and questioned
witnesses thoroughly, there would have been a different result at trial.
Many of the alleged inconsistencies can be found in the exhibits
attached to Defendant’s brief. However, none of the those [sic]
exhibits were introduced into evidence at the trial which resulted in
the Defendant’s convictions.

We cannot determine from the record what trial counsel did or
did not do, what documents counsel possessed, or the basis for any
decision made by counsel. As stated above, a number of the various
complaints made by Defendant appear to involve counsel’s trial
strategy.

State v. Schexnaider, 03-144, pp. 17-19 (La.App. 3 Cir. 6/4/03), 852 So.2d 450,

462-63.

Defendant argues that trial counsel incorrectly selected jury members, and

“the Defendant was not allowed the opportunity to access [sic] in picking a jury.”

The court interprets the latter statement as a claim that his counsel denied him any

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input in the jury selection process. Such a claim inherently involves client-attorney

matters that are outside the record. Therefore, this portion of Defendant’s

argument should be relegated to the post-conviction process.

Returning to the first part of the argument, the court finds that trial counsel’s

methodology in picking the jury was a matter of trial strategy and thus does not

establish that trial counsel was ineffective pursuant to Schexnaider and the

authorities therein. The State argues that counsel pursued a strategy of picking an

all-white female jury, but the record does not clearly support the contention.

Further, counsel’s specific strategy need not be determined; Defendant’s argument

directly attacks that aspect of trial counsel’s strategic methodology. Therefore, this

portion of Defendant’s argument lacks merit.

In his first assignment of error, Defendant also makes an ineffective

assistance of counsel argument. Without naming the case, he appears to argue that

trial counsel should have argued that African-Americans were unfairly excluded

from the jury pursuant to Batson, which was cited in the earlier assignment. This

issue could be viewed as being subsumed within the ambit of trial strategy.

Although trial counsel did not argue Batson, he did argue that the venire did not

represent a cross-section of the community. Apparently, he thought attacking the

venire was a better strategy than asserting Batson. Also, as mentioned earlier, the

State alleges that trial counsel deliberately selected a jury composed entirely of

white females. However, a determination of counsel’s trial strategy in this context

would necessarily involve matters outside the current record.

In the post-conviction process the parties can further develop the record.

The current record contains the jury sheets which show the parties’ peremptory

challenges. However, as mentioned earlier, the strategic motivations of Defense

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counsel and the State’s counsel necessarily fall outside the record. The exact

reason for the latter’s strike against Elie is not clear.

The supreme court has stated:

Second, defendant contends that he received ineffective
assistance of counsel because his attorney did not object to the
prosecutor’s attempt to eliminate potential jurors on the basis of race,
in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986). Defendant argues that it was ineffective for his
attorney, whose Batson objection after the prosecutor used
peremptory challenges to strike two black jurors was overruled, not to
pursue challenges when the prosecutor ultimately used four, of the ten
strikes that he exercised, to excuse black veniremen.

....

In response, the prosecutor argues the extensive criminal
experience of the two defense attorneys, the numerous motions filed
and pre-trial hearings conducted by them, the interviews of several
prospective mitigating witnesses, the filing for a sanity commission,
and the hearsay statement of a psychologist that found defendant had
no mental problems. In rebuttal, defendant points out that much of the
prosecutor’s argument is beyond the record.

A claim of ineffectiveness is generally relegated to post-
conviction proceedings, unless the record permits definitive resolution
on appeal. See, e.g., State v. Peart, 621 So.2d 780, 787 (La.1993).
The same approach is followed in capital cases. When the record
permits, this court may reach the merits of complaints about counsel’s
performance and may grant relief if appropriate. State v. Hamilton,
92-2639 (La.7/1/97), 699 So.2d 29, 32-35, cert. denied, 522 U.S.
1124, 118 S.Ct. 1070, 140 L.Ed.2d 129 (1998) (several errors at the
penalty phase, including counsel’s failure to make an opening
statement, to investigate and present available mental health evidence
and a twelve-sentence closing argument resulted in the jury's not
having benefit of relevant and admissible material, requiring a new
penalty hearing); State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d
1272, 1291-1293 (counsel’s tepid opening at the penalty phase
admitting unreadiness coupled with failure to present mitigating
evidence, prepare witnesses, object to inadmissible unadjudicated
other crimes evidence or make a closing argument required a new
penalty phase); State v. Myles, 389 So.2d 12, 31 (La.1979) (failing to
offer mitigating evidence followed by perfunctory and lackluster
closing argument which did not emphasize the jurors’ legal
obligations designed to prevent arbitrary imposition of capital
punishment required a new penalty hearing).

In the present case, the record, standing alone, does not
establish ineffective assistance of counsel. Indeed, defense counsel, in
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order to meet the prejudice prong of the standard in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
probably will need a post-conviction evidentiary hearing to present
mitigating evidence that allegedly was available and not used at trial.
Moreover, the prosecutor did not attempt at trial to produce evidence
that defendant’s representation was adequate because that was not
then at issue, and opportunity should be provided to rebut what is now
asserted to be mitigating evidence that should have been presented
(and, of course, are not in the record on appeal). It is for these very
reasons that effective assistance claims are generally relegated to post-
conviction proceedings, where both sides will have an opportunity to
present evidence on the issue. We conclude that such a procedure is
appropriate in this case.

State v. Miller, 99-192 pp. 23-25 (La. 9/6/00), 776 So.2d 396, 410-11, cert. denied,

531 U.S. 1194, 121 S.Ct. 1196 (2001) (footnotes omitted). This court will relegate

Defendant’s pro se ineffective assistance of counsel claims to the post-conviction

relief process.

DECREE

Defendant’s convictions and sentences are affirmed. His arguments

regarding ineffective assistance of counsel is relegated to the post-conviction relief

process.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules-Courts of Appeal. Rule 2-16.3.

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