State of Louisiana v. Demetrius D. Nash

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1146

STATE OF LOUISIANA

VERSUS

DEMETRIUS D. NASH

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22567-09
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward J. Marquet
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Demetrius D. Nash

Demetrius D. Nash
Avoyelles Correctional Center
1630 Prison Road
Cottonport, LA 71327
IN PROPER PERSON

AMY, Judge.

The defendant was charged with attempted armed robbery and attempted

armed robbery with a firearm. In separate cases, the defendant was charged with

armed robbery and armed robbery with a firearm;1 possession of stolen things; and

a probation violation. Pursuant to a plea agreement, the State dismissed several of

the charges, and the defendant pled guilty to attempted armed robbery in this case

and an armed robbery charge in another case. The defendant also admitted his

probation violation. Thereafter, the trial court sentenced the defendant to twenty

years at hard labor, without benefit of probation, parole, or suspension of sentence

for the attempted armed robbery charge. The trial court sentenced the defendant to

thirty-five years at hard labor, without benefit of probation, parole, or suspension

of sentence for the armed robbery conviction, and three years at hard labor for the

probation violation. Further, the trial court ordered that all sentences be served

consecutively. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that the defendant, Demetrius D. Nash, approached Amy

Jo Tartaglia2 and Kayla Soileau as they were leaving an event at the Civic Center.

Ms. Tartaglia and Ms. Soileau were using a baby stroller to transport a cooler and

lawn chairs from the event. According to Ms. Tartaglia’s testimony, the defendant

approached Ms. Tartaglia and Ms. Soileau and pointed a gun at the stroller.

Realizing that there was no child in the stroller, the defendant pointed the gun at

Ms. Tartaglia and demanded money. Ms. Soileau ran, screaming for help, and Ms.
1
As discussed further herein, with regard to the charges of armed robbery and armed
robbery with a firearm, the defendant pled guilty to armed robbery. His conviction and sentence
in that case are on appeal in State v. Demetrius D. Nash, 12-1147 (La.App. 3 Cir. _/_/_), __
So.3d __.
2
Ms. Tartaglia’s name is spelled variously as “Amy Joe” and “Tortaglia” in the record.
We use the spelling in her testimony given at sentencing.

Tartaglia attempted to defend herself. Although Ms. Tartaglia was unable to

disarm the defendant, he eventually ran away without taking anything from the two

women.

The record indicates that the defendant was involved in another incident

later that night. According to the State, the defendant and an accomplice

approached two women, Morgan Abshire and Darlena Abshire, in a parking lot.

After the defendant threatened the women with a gun, he and the accomplice took

cash from both women and took Darlena’s cell phone. Several minutes after the

robbery, the defendant used the cell phone; one of the phone calls was to his

mother’s house. The State noted that this led to the defendant being identified as a

suspect in both robberies.

In connection with the attempted robbery of Ms. Tartaglia and Ms. Soileau,

the defendant was charged in docket number 22567-09 with attempted armed

robbery, a violation of La.R.S. 14:27 and La.R.S. 14:64, and attempted armed

robbery with a firearm, a violation of La.R.S. 14:27 and La.R.S. 14:64.3. In

connection with the robbery of Morgan and Darlena Abshire, the defendant was

charged under docket number 27791-09 with armed robbery, a violation of La.R.S.

14:64, and armed robbery with a firearm, a violation of La.R.S. 14:64.3.

The defendant agreed to plead guilty to attempted armed robbery and armed

robbery and to admit to a probation violation. In return, the State dismissed the

charges of attempted armed robbery with a firearm and armed robbery with a

firearm. The State also dismissed a charge of possession of stolen things over

$500 under another docket number. At the change of plea hearing, the defendant

initially disagreed with the State’s factual basis for the attempted armed robbery

charges, and the trial court refused to accept the defendant’s guilty plea. However,

2

after speaking with his attorney, the defendant indicated that he wanted to plead

guilty to that charge, and the trial court accepted his guilty plea. The defendant

also pled guilty to armed robbery and admitted his probation violation.

The trial court subsequently sentenced the defendant to twenty years at hard

labor, without the benefit of probation, parole, or suspension of sentence for the

attempted armed robbery conviction. For the armed robbery conviction, the trial

court sentenced the defendant to thirty-five years at hard labor, without the benefit

of probation, parole, or suspension of sentence. With regard to the probation

violation, the trial court ordered that the defendant’s probation be revoked and that

he serve the previously suspended three-year term. The trial court ordered that all

of the defendant’s sentences run consecutively.

Thereafter, the defendant filed a motion for reconsideration, alleging that

“very important mitigation evidence” was missing from the pre-sentence

investigation, namely, that the defendant “was the victim of a serious crime of

violence committed by his step-father who attempted to kill him and essentially

left him for dead, and that this experience has been a factor in his development and

ability to adapt in society.” The trial court held a hearing on the defendant’s

motion. After hearing the evidence presented, the trial court found that the

defendant had a traumatic experience when he was a young boy. However, the

trial court declined to grant the defendant’s motion for reconsideration, noting that

the defendant failed to make good choices, showed no remorse for his actions, and

“did not attribute very much of what his actions were” to the trauma he

experienced as a child.

Herein, the defendant appeals his conviction and sentence for attempted

armed robbery. The defendant’s conviction and sentence for armed robbery is on

3

appeal in State v. Demetrius D. Nash, 12-1147 (La.App. 3 Cir. _/_/_), __ So.3d __.

The defendant moved to consolidate briefing of the two cases on appeal. For this

reason, we address the issues presented in both cases simultaneously.

The defendant appeals, asserting in his counseled brief that his sentence is

unconstitutionally excessive. The defendant has also filed a pro se brief, asserting

that his guilty plea was involuntary, that his sentence is excessive, and that the trial

court was biased against him.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent on the face of the record. After reviewing the record, the court finds

no errors patent.

Invalidity of Guilty Plea

The defendant contends that his guilty plea with regard to the charge of

attempted armed robbery is invalid because it was a product of fear and coercion.3

He also contends that his initial reticence to plead guilty should have put the trial

court on notice of his claims of innocence and that the trial court accepted his

guilty plea without having a substantial basis for the defendant’s guilt.

In State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d

945, 950, this court addressed the requirement that the trial court ascertain a factual

basis in accepting a guilty plea, stating:

Generally, a defendant waives the right to question the merits of
the State’s case or the underlying factual basis by entering a plea of
guilt, or plea of nolo contendere. State v. Brooks, 38,963 (La.App. 2

3
In his pro se brief, the defendant only argues that his guilty plea for the charge of
attempted armed robbery is invalid. Accordingly, we only address the validity of the defendant’s
guilty plea for that charge.

4

Cir. 9/22/04), 882 So.2d 724[, writ denied, 04-2634 (La. 2/18/05), 896
So.2d 30]. “When a guilty plea is otherwise voluntary, there is no
necessity to ascertain a factual basis for that plea unless the accused
protests his innocence or for some other reason the trial court is put on
notice that there is a need for such an inquiry. In that event, due
process requires a judicial finding of a significant factual basis for the
defendant’s plea.” State v. Linear, 600 So.2d 113, 115 (La.App. 2
Cir.1992); See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970).

Further, a guilty plea is not precluded even when a defendant communicates his

belief that he is innocent to the trial court. Linear, 600 So.2d 113. In those cases,

“[t]he presence of significant evidence of actual guilt provides a means by which

the court may test whether a plea was intelligently entered.” Id. at 115.

The record indicates that, at the change of plea hearing, the trial court

advised the defendant as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709 (1969), and advised the defendant of the potential sentencing exposure for

each charge. The defendant denied that he was pleading guilty as a result of any

force or coercion and confirmed that he had discussed the guilty pleas with his

attorney. The State then offered the following factual basis for the defendant’s

charge of attempted armed robbery:

22567-09 is the attempted armed robbery. This occurred on
May 15th, 2009 at the Civic Center. Amy Tortaglia [sic] and a
student of hers, Kayla Soileau, were leaving a function at the Civic
Center. They were approached by the defendant; he pulled a gun on
them. Kayla Soileau ran. He demanded money from Amy Tortaglia
[sic]. She put up a fight and started struggling with him, and I believe
struck him a couple of times, and then he took the gun and left
without getting any money from her. So it was an attempted armed
robbery.

Thereafter, the defendant denied that he robbed anyone at the Civic Center.4

4
The record indicates that the following exchange occurred:

THE COURT: Did you hear that, Mr. Nash?

MR. NASH: Yes, sir.

5

After a brief discussion about whether an Alford plea or no contest plea was

appropriate, the defendant indicated that he wanted to plead no contest. However,

the trial court initially rejected the defendant’s guilty plea. The defendant did not

contest the State’s factual basis for the charge of armed robbery, and the trial court

accepted the defendant’s guilty plea for that charge. The defendant also admitted

to a probation violation. However, after consulting with his attorney, the defendant

indicated that he had changed his mind and wanted to “plead guilty to the

THE COURT: Is that true, sir?

MR. NASH: Well, I said I ain’t but -

THE COURT: How you want to plead to the charge?

MR. NASH: Guilty.

THE COURT: I don’t understand, why are you shaking your head? Did you hear
what Mr. Kimball said -

MR. NASH: Yes, sir.

THE COURT: - about you pulled a gun on some people at the Civic Center on a
particular date that he talked about, -

MR. NASH: Yes, sir.

THE COURT: - and that the lady struggled with you and you ran away and you
got nothing from the attempted armed robbery?

MR. NASH: Yes, sir.

THE COURT: And I asked you, did you hear it; you heard it?

MR. NASH: Yes, sir, I heard it.

THE COURT: Is it true? Is what he said true?

MR. NASH: No, sir.

THE COURT: What’s wrong with what he said?

MR. NASH: I ain’t robbed the people at the Civic Center.

THE COURT: That’s not the people at the Civic Center?

MR. NASH: I ain’t robbed nobody at the Civic Center.

6

attempted armed robbery.” The trial court then accepted the defendant’s guilty

plea as to that charge.

In this case, we find that the record contains a significant factual basis which

allowed the trial court to test whether or not the defendant entered into his guilty

plea intelligently. The factual basis provided by the State set forth all of the

elements necessary for a conviction of the crime of attempted armed robbery. See

La.R.S. 14:27 and 14:64. Further, in addition to the factual basis provided with

regard to the attempted armed robbery at the Civic Center, the State offered a

factual basis for the defendant’s armed robbery charge and noted that the

defendant’s involvement in that offense “led us to develop him as a suspect and

then he was, of course, identified in this one as well as the attempted robbery at the

Civic Center.” Additionally, before he consulted with his attorney, the defendant

indicated that he would be willing to enter a no contest plea to the charge of

attempted armed robbery.

The record indicates that “the trial court properly inquired into and

investigated the factual bas[i]s for the guilty plea[] in light of defendant’s

temporary and vague assertion of innocence.” State v. Mack, 45,552, p. 4 (La.App.

2 Cir. 8/11/10), 46 So.3d 801, 804. Viewing the transcript in its entirety, we

conclude that the defendant knowingly and intelligently entered a guilty plea to the

crime of attempted armed robbery in this case. See also State v. Estes, 42,093

(La.App. 2 Cir. 5/9/07), 956 So.2d 779, writ denied, 07-1442 (La. 4/2/08), 978

So.2d 324.

This assignment of error is without merit.

7

Excessiveness of Sentence

In both his counseled brief and his pro se brief, the defendant contends that

his sentence is unconstitutionally excessive. Specifically, he contends that the trial

court improperly ignored mitigating evidence and improperly relied on the

incorrect factual conclusion that the defendant pointed a gun at a child, and that the

trial court erred in imposing consecutive sentences.5

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, a panel of

this court addressed the review of excessive sentence claims, stating:

La. Const. art. 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. State v. Campbell, 404
So.2d 1205 (La.1981). 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. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746
So.2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The
relevant question is whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been more
appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, this court has held that:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501. While a
comparison of sentences imposed for similar crimes may provide
5
The trial court also imposed a three-year hard labor sentence for the defendant’s
probation violation. In his pro se brief, the defendant mentions that the consecutive nature of his
sentence for the probation violation is excessive. The defendant’s sentence in that matter was
imposed under a separate docket number and is not on appeal in either this case or in docket
number 12-1147.

8

some insight, “it is well settled that sentences must be individualized
to the particular offender and to the particular offense committed.”
State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is
within the purview of the trial court to particularize the sentence
because the trial judge “remains in the best position to assess the
aggravating and mitigating circumstances presented by each case.”
State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

We observe that, absent a motion that asserts specific grounds for

reconsideration of the sentence imposed, a defendant is limited to a bare

excessiveness review of his or her sentence. State v. Runyon, 06-823 (La.App. 3

Cir. 12/6/06), 944 So.2d 820, writ denied, 07-49 (La. 9/21/07), 964 So.2d 330.

The record indicates that the defendant filed a motion for reconsideration which

alleged that mitigation evidence had come to light which warranted reconsideration

by the trial court and that the defendant’s sentence was excessive, especially due to

the consecutive nature of the sentences.

The trial court is required to take into consideration the aggravating and

mitigating factors delineated in La.Code Crim.P. art. 894.1, and to state the

considerations taken into account and the factual basis therefor into the record. See

State v. Decuir, 10-1112 (La.App. 3 Cir. 4/6/11), 61 So.3d 782. Although the

record should indicate that the trial court adequately considered those guidelines,

there is no requirement that that trial court list every aggravating or mitigating

circumstance. Id. See also State v. Smith, 433 So.2d 688 (La.1983). “The

important elements which should be considered are the defendant’s personal

history (age, family ties, marital status, health, employment record), prior criminal

record, seriousness of offense, and the likelihood of rehabilitation.” Decuir, 61

So.3d at 785 (quoting State v. Scott, 36,763 (La.App. 2 Cir. 1/29/03), 836 So.2d

9

1180). If the offense to which the defendant has pled guilty does not adequately

describe the entire course of the defendant’s conduct, the trial court may consider

the benefit obtained by the defendant pursuant to plea bargain, especially in those

cases where the plea bargain results in a significant reduction in the defendant’s

sentencing exposure. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d

1095.

However, even if the trial court does not comply with the requirements of

Article 894.1, if an adequate factual basis for the sentence is contained in the

record, there is no need for the appellate court to remand for resentencing. State v.

Bey, 03-277 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268.

The defendant particularly objects to the trial court’s reliance on the

erroneous factual conclusion that the defendant “pointed a gun at a child.” We find

no merit to the defendant’s argument in this regard. The record indicates that one

of the victims, Ms. Tartaglia, testified at the sentencing hearing that Mr. Nash

pointed his gun at a baby stroller she was using to transport lawn chairs and an ice

chest. According to Ms. Tartaglia, once Mr. Nash realized that there was not a

child in the stroller, he pointed the gun at her. The following exchange occurred

later:

THE COURT: . . . . Why would you pull a gun, point it at a child?--

MR. NASH: I ain’t--

THE COURT: -- what you thought was a child --

MR. NASH: I ain’t point it at no child.

THE COURT: I understand you didn’t point it at a child, but you
pointed it at a baby stroller where a child would normally have been
seated.

10

Thus, we find no support in the record for the defendant’s assertion that the trial

court inappropriately relied on an erroneous conclusion of fact in sentencing the

defendant. Although the trial court initially misspoke, the defendant objected to

the trial court’s characterization of the defendant’s actions. The trial court’s

factual statements are supported by Ms. Tartaglia’s testimony and are not

manifestly erroneous.

With regard to the trial court’s consideration of the guidelines delineated in

La.Code Crim.P. art. 894.1, the record indicates that the trial court was privy to a

pre-sentence investigation. The defendant’s trial counsel stated at the sentencing

hearing that he had the opportunity to review the pre-sentence investigation with

the defendant and that he did not see anything “glaringly inaccurate.” 6 Although

the pre-sentence investigation is not contained in the record, the record reveals that

the defendant was twenty-one years old at sentencing. The record also indicates

that the defendant had an unspecified “long history of criminal activity.”

Specifically, the record indicates that the defendant was on probation for a felony

charge of simple burglary at the time the crimes herein were committed. When

questioned by the trial court, the State noted that the defendant’s prior conviction

actually consisted of two thefts and two burglaries. Further, the defendant had a

long history of drug abuse and mental issues, which the trial court noted may have

been connected to the defendant’s use of PCP.

The defendant also complains that the trial court failed to take into

consideration that he had been the victim of a serious crime when he was a young

6
The defendant’s trial counsel also testified at the defendant’s motion for reconsideration.
In his testimony, trial counsel testified about his general procedure in reviewing a pre-sentence
investigation but was unsure of whether he received the pre-sentence investigation the day of
sentencing or before sentencing.

11

child. The defendant filed a motion for reconsideration on that basis, and the

evidence presented at that hearing was that, when the defendant was eight years

old, the defendant’s stepfather strangled him and left him for dead. The defendant

was hospitalized for several weeks as a result of the attack. Subsequently, the

defendant’s stepfather was tried for attempted second-degree murder, and the

defendant, then twelve years old, testified at the trial. The stepfather was

convicted of attempted manslaughter and sentenced, as a habitual offender, to

twenty-five years at hard labor. The former assistant district attorney who

prosecuted the stepfather testified that the defendant was “closed off and angry”

after the case.

At the hearing on the motion for reconsideration, the trial court found that

the defendant had suffered a traumatic event when he was young but that the

defendant himself did not consider the incident to be significant. The trial court

also noted that the defendant reported the incident to the probation officer who

compiled the pre-sentence investigation and that it was contained therein. The trial

court denied the defendant’s motion for reconsideration, noting that the defendant

started making bad choices when he was very young, that he showed no remorse

when he was in front of the court, and that he “failed woefully to impress[the trial

court] in any shape, form or fashion.”

Based on this review, we find that the record clearly indicates that the trial

court considered several of the factors delineated in La.Code Crim.P. art. 894.1.

Although the trial court did not delineate every aggravating and mitigating factor

therein, there is sufficient evidence in the record to conclude that the trial court

adequately considered those guidelines.

12

With regard to the defendant’s contention that his sentence is

unconstitutionally excessive, the record indicates that the defendant pled guilty to

attempted armed robbery, a violation of La.R.S. 14:27 and La.R.S. 14:64, and

armed robbery, a violation of La.R.S. 14:64. The crime of armed robbery carries a

potential sentence of “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). The crime of attempted armed robbery carries a maximum potential

sentence of forty-nine and one-half years, without benefit of parole, probation, or

suspension of sentence. See La.R.S. 14:27(D)(3); State v. Brown, 09-884 (La.App.

4 Cir. 3/31/10), 36 So.3d 974, writ denied, 10-1120 (La. 4/29/11), 62 So.3d 105.

The record indicates that the defendant was sentenced to twenty years at

hard labor, without the benefit of probation, parole, or suspension of sentence for

the charge of attempted armed robbery. For the charge of armed robbery, the

defendant was sentenced to thirty-five years at hard labor, without the benefit of

probation, parole, or suspension of sentence. Further, the defendant admitted to a

parole violation and the trial court imposed the previously suspended three-year

hard labor sentence in that case. The trial court also ordered that all of the

defendant’s sentences run consecutively.

The record indicates that the defendant committed two serious offenses, both

involving the use of a firearm. See State v. Mason, 10-284, p. 15 (La.App. 5 Cir.

1/11/11), 59 So.3d 419, 429 (“Armed robbery is a most serious crime and should

be dealt with very sternly.”), writ denied, 11-306 (La. 6/24/11), 64 So.2d 216. The

defendant’s sentences are not maximum sentences. Even so, sentences of thirty-

five to fifty years have been found acceptable even for first offenders convicted of

armed robbery. Id. (citing State v. Duncan, 09-232 (La.App. 5 Cir. 11/10/09), 28

13

So.3d 410). The defendant is not a first felony offender. According to the record,

the defendant had at least one prior felony offense, for which he was on probation

when these crimes occurred. We also observe that the defendant’s sentencing

exposure was reduced pursuant to his plea agreement with the State. Williams, 839

So.2d 1095. Given these circumstances, the trial court did not abuse its discretion

in imposing a twenty-year hard labor sentence for the crime of attempted armed

robbery and a thirty-five year hard labor sentence for the crime of armed robbery.

See also State v. Carroll, 41,001 (La.App. 2 Cir. 4/12/06), 926 So.2d 827, writ

denied, 06-1470 (La. 12/15/06), 944 So.2d 1283. Accordingly, we find that the

defendant’s individual sentences are not unconstitutionally excessive. See Barling,

779 So.2d 1035; Smith, 846 So.2d 786.

The defendant also contends that his sentences are unconstitutionally

excessive because the trial court ordered that they be served consecutively.

Louisiana Code of Criminal Procedure Article 883 states, in relevant part:

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.

Although concurrent sentencing is favored where the offenses arise out of the same

course of conduct, the trial court has the discretion to impose consecutive

sentences “based on factors including the defendant’s criminal record, the severity

or violent nature of the crimes, or the danger the defendant poses to the public.”

Runyon, 944 So.2d at 831 (citing State v. Thomas, 98-1144 (La. 10/9/98), 719

So.2d 49). However, where the trial court imposes consecutive sentences, it must

14

articulate a particular justification for doing so beyond the standard sentencing

guidelines contained in La.Code Crim.P. art. 894.1. Runyon, 944 So.2d 820.

Even assuming that the defendant’s crimes were part of the same act or

transaction or that they constituted part of a common scheme or plan, we find that

the trial court sufficiently articulated a particular justification for imposing

consecutive sentences. The record indicates that, in addition to the information

provided in the pre-sentence report concerning the effect of the defendant’s actions

on the victims of his crimes, the trial court heard the testimony of Ms. Tartaglia.

Ms. Tartaglia testified as to the lingering effects of the defendant’s crime,

including PTSD, panic attacks and nightmares. Further, the trial court commented

on the defendant’s criminal history, including the fact that he was on probation

when he committed the instant crimes. The trial court was particularly impressed

that the defendant pointed a weapon at a baby stroller, although the trial court

acknowledged that there was no child in the stroller at the time the defendant

pointed the gun at the stroller. We also observe that, at the motion for

reconsideration, the trial court associated the defendant’s denial that he pointed a

gun at the stroller with a lack of remorse. Thus, we find that the trial court

articulated a particular justification for the imposition of consecutive sentences.

See State v. Hawkins, 06-1599 (La.App. 3 Cir. 5/2/07), 956 So.2d 146, writ denied,

07-1156 (La. 12/7/07), 969 So.2d 627; Runyon, 944 So.2d 820. The trial court did

not err in imposing consecutive sentences.

Based on our review of the record, we find that the trial court sufficiently

considered the aggravating and mitigating circumstances delineated in La.Code

Crim.P. art. 894.1 and that the trial court did not abuse its discretion in imposing

either the defendant’s individual sentences or in ordering them to be served

15

consecutively. Accordingly, we find that the defendant’s sentences for attempted

armed robbery and armed robbery are not “so grossly disproportionate to the

severity of the crime as to shock our sense of justice.” Barling, 779 So.2d 1035,

1042. The defendant’s assignments of error in this regard are without merit.

Bias on the Part of the Trial Judge

In his remaining pro se assignment of error, the defendant contends that the

trial court was biased against him. Louisiana Code of Criminal Procedure Article

674 addresses the procedure for recusation of judges, stating, in relevant part,that:

A party desiring to recuse a trial judge shall file a written
motion therefor assigning the ground for recusation. The motion shall
be filed prior to commencement of the trial unless the party discovers
the facts constituting the ground for recusation thereafter, in which
event it shall be filed immediately after the facts are discovered, but
prior to verdict or judgment.

Our review of the record reveals that the defendant did not file a motion to

recuse or otherwise make any allegations of bias prior to asserting this issue on

appeal. Because the defendant failed to present this issue to the trial court, it is

waived on appeal. State v. Williams, 580 So.2d 448 (La.App. 5 Cir. 1991). Thus,

we do not consider the defendant’s argument in this regard.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant,

Demetrius D. Nash, for attempted armed robbery, a violation of La.R.S.

La.R.S.14:27 and La.R.S. 14:64, are affirmed.

AFFIRMED.

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