State of Louisiana v. Corey Joseph Craig

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-226

STATE OF LOUISIANA

VERSUS

COREY JOSEPH CRAIG

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 10-129
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

CONVICTIONS AND SENTENCES FOR ATTEMPTED FIRST DEGREE
MURDER AND AGGRAVATED BURGLARY ARE AFFIRMED;
CONVICTION AND SENTENCE FOR ATTEMPTED
ARMED ROBBERY IS VACATED.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Corey Joseph Craig

James P. Lemoine
Disrict Attorney, Thirty-Fifth Judicial District Court
Jimmy D. White
Assistant District Attorney
P. O. Box 309
Colfax, LA 71417
(318) 627-2971
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

In January 2009, the victim, Matthew Cannon, walked into his home in

Grant Parish after work. While his home computer was warming up, he entered

his bathroom and brushed his teeth. After he finished, he walked toward his

bedroom and noticed there were objects on his bed that he did not place there. He

also saw that his gun cabinet had been emptied. He then looked to his right, into

his son‟s bedroom, and saw a masked man with a gun. The gunman fired from

close range, and the victim dropped to the floor, thinking he had been shot.

Cannon then managed to scramble out of the house. The gunman also left

the house, apparently by another exit. The victim saw the gunman outside and

recognized him as Defendant because he had removed his mask. Defendant was

Cannon‟s neighbor. Defendant ran toward his family home while the victim ran to

another neighbor‟s house. The gunman shot at the victim one more time from his

family‟s driveway, then walked toward his house. The victim reached his other

neighbor‟s back door; they supplied him with a telephone, and he called 911.

The State filed a bill of information charging Defendant, Corey Joseph

Craig, with aggravated burglary, a violation of La.R.S. 14:60; armed robbery, a

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

and La.R.S. 14:64; attempted first degree murder, a violation of La.R.S. 14:27 and

La.R.S. 14:30; and obstruction of justice, a violation of La.R.S. 14:130.1, all in

connection with the above described events.

Defendant moved for the appointment of a sanity commission; the trial court

granted the motion and held a hearing. It found that Defendant had the mental

capacity to assist his defense. The court arraigned him at that time. He

subsequently waived his right to a jury trial.

After trial had begun, the court conducted another hearing on Defendant‟s

competency and found no reasonable ground for appointment of another sanity

commission. Defendant took a writ of review, which this court denied. State v.

Craig, 11-240 (La.App. 3 Cir. 2/28/11) (an unpublished opinion). At the

conclusion of the trial, the court found Defendant guilty of aggravated burglary,

attempted armed robbery, and attempted first degree murder. He was found not

guilty on the two remaining charges.

The court sentenced Defendant to thirty years at hard labor for aggravated

burglary; thirty years at hard labor, with the first five years to be served without

benefit of parole, probation, or suspension of sentence, for attempted armed

robbery; and thirty years at hard labor, with the first ten years to be served without

benefits, for attempted first degree murder.

Defendant now appeals, assigning five errors regarding his conviction and

sentencing.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the evidence adduced

at trial was insufficient to uphold his conviction for attempted armed robbery. The

analysis for such a claim is settled and has been explained by this court:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,

2

436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Armed robbery is defined by La.R.S. 14:64(A): “Armed robbery is the

taking of anything of value belonging to another from the person of another or that

is in the immediate control of another, by use of force or intimidation, while armed

with a dangerous weapon.” Attempt is defined by La.R.S. 14:27(A):

Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

In delivering its verdict on the offense at issue, the trial court stated:

The [S]tate has alleged that Mr. Craig had the specific intent to
commit robbery. Mr. Craig‟s statement to the police was that he
intended to lie and wait for Mr. Cannon to come home, secure him,
obtain his ATM card and his pin number, steal his truck, go to Mr.
Cannon‟s bank and take money and go from there. At a minimum,
that is an attempt to commit Armed Robbery. The evidence also
shows that once Mr. Craig entered the home, that he broke into a
locked gun cabinet and removed various items. . . . With respect to
the crime of Armed Robbery, it is the Court‟s opinion that Mr. Craig
did intend to commit Armed Robber[y]. I think he had - - the state
admitted notes that were found that indicated planning. I think the
statement that was presented, or description that was presented, was a
casing of the place. Mr. Craig was taking notes of Mr. Cannon‟s
goings and comings. Mr. Craig had assembled various items on the
couch in the living room, apparently indicating that was where he
planned to extract the pin number and information and ATM card
from Mr. Cannon. It is clear to the Court that Mr. Craig intended to
attempt and [sic] Armed Robbery of Mr. Cannon. The way the events
occurred, the Court is not of the opinion that anything was actually
taken from the immediate person of Mr. Cannon. Those items were all
retrieved prior to Mr. Cannon entering the residence. However, it is
clear that the [State] has proven an attempted [sic] to commit Armed
Robbery.

3

Defendant‟s specific claim is that the evidence did not demonstrate that he took

any steps in furtherance of an armed robbery; thus, the conviction rested upon the

trial court‟s use of Defendant‟s description of his plan to rob the victim. Part of

that plan was to bind the victim with duct tape, but the record, including crime

scene photographs, does not demonstrate that duct tape was found at the scene.

Defendant notes the following long-standing jurisprudence:

In the trial of every criminal case the State, to warrant a legal
conviction of an accused, must prove the corpus delicti, or the fact
that a crime has been committed. Without such proof no conviction
will be permitted to stand. Underhill, Criminal Evidence, sec. 35, p.
42 (4th ed. 1935), states the rule as follows:

“Proof of the corpus delicti is essential to a conviction, must be
proved beyond a reasonable doubt, and must exclude every hypothesis
other than that a crime was committed in order to convict.”

The same authority in discussing the fact that the corpus delicti
may be proved by circumstantial evidence says:

“The corpus delicti, and all the elements thereof, may be proved
by circumstantial evidence, from which the jury may reasonably infer
that a crime has been committed. Such evidence must exclude every
reasonable hypothesis except guilt, and be convincing to a moral
certainty; and such proof of corpus delicti must be most convincing
and satisfactory proof compatible with the nature of the case.” Id.,
sec. 37, p. 45.

. . . .

[I]t is the general rule both under statutes and at common law
that an extrajudicial confession does not warrant a conviction unless it
is corroborated by independent evidence of the corpus delicti”. 22
C.J.S. Criminal Law s 839, p. 1472.

State v. Brown, 236 La. 562, 571-73, 108 So.2d 233, 236 (La.1959).

As the State points out, the evidence demonstrates acts in furtherance of

attempted armed robbery and, thus, the corpus delicti of that crime. Defendant had

removed the victim‟s firearms from a gun cabinet, loaded them, and strategically

placed them in various locations in the house before the victim came home.

4

Arguably, there was a completed armed robbery in this case because Defendant

took the victim‟s pistol, and his act of firing at the victim facilitated the taking. 1

However, as seen earlier, the trial court made a specific finding that a completed

crime had not been proven.

Defendant fled after his shot missed the victim. However, his actions up to

that point constituted acts in furtherance of an armed robbery. Had the bullet

found its mark, Defendant could have taken all the firearms he had removed from

the cabinet and any other items he wished. For the reasons discussed, this

assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that his convictions for

attempted first degree murder, attempted armed robbery, and aggravated burglary

violated constitutional protections against double jeopardy.

Defendant cites an earlier decision by this court:

The Double Jeopardy provisions in the state and federal
constitutions protect a defendant from both a second prosecution for
the same offense and multiple punishments for the same criminal act.
U.S. Const. amend. V; La. Const. art. 1, § 15; State v. Doughty, 379
So.2d 1088 (La.1980). When proof of a felony is an essential element
of first degree murder, double jeopardy precludes the conviction and
punishment of the defendant for both murder and the underlying
felony. State v. Cox, 07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998,
writ denied, 08-602 (La.9/4/09), 17 So.3d 948. However, an accused
who commits separate and distinct offenses during the same criminal
episode or transaction may be convicted and sentenced for each
offense without violating the prohibition against double jeopardy.
State v. Williams, 05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159,
writ denied, 06-1471 (La.12/15/06), 944 So.2d 1284.

1
“Louisiana jurisprudence does not distinguish between the armed robbery which occurs
before the killing of the victim and the robbery of the victim whom the defendant has already
killed. State v. Kirkpatrick, 443 So.2d 546 (La.1983).” State v. Goodley, 01-77, p. 10 (La.
6/21/02) 820 So.2d 478, 484.

5

As explained above, in this case, the State prosecuted and
charged the defendant with first degree murder based upon the
underlying offense of armed robbery or aggravated burglary. While
in brief the defendant contends that the jury based its first degree
murder conviction on the underlying offense of armed robbery, the
jury's intent in rendering its verdict, specifically which offense it
attributed to fulfill the elements of first degree murder, cannot be
discerned from the record before us. Nevertheless, the convictions
can be upheld if there is sufficient evidence to support either theory.
Cox, 4 So.3d 998. Here, it is clear that the defendant's protection
from double jeopardy was violated when he was convicted and
sentenced to first degree murder, armed robbery, and aggravated
burglary. However, the trial court imposed the proper remedy by
vacating the conviction and sentence for aggravated burglary, the less
severely punishable offense. Doughty, 379 So.2d 1088; State ex rel.
Adams v. Butler, 558 So.2d 552 (La.1990); Cox, 4 So.3d 998; State v.
Pittman, 95-382 (La.App. 5 Cir. 10/1/96), 683 So.2d 748; State v.
Head, 598 So.2d 1202 (La.App. 5 Cir.1992).

Additionally, the record supports a determination that under the
facts of this case, armed robbery and first degree murder were
separate and distinct offenses and thus do not violate double jeopardy.

State v. Ramsdell, 09-1510, pp. 10-12 (La.App. 3 Cir. 10/6/10), 47 So.3d 78, 85-

86.

In the present case, the State concedes the presence of double jeopardy and

recognizes that one of the convictions must be vacated as a consequence.

Specifically, both the State and Defendant suggest that the aggravated burglary

conviction should be vacated, since it is the least severely punishable offense. We

disagree, finding instead that the conviction for attempted armed robbery must be

vacated because, unlike the aggravated burglary conviction, it was not a separate

and distinct offense.

The trial court based the murder conviction on the commission of both

aggravated burglary and attempted armed robbery, but it needed only to be based

on one. We choose to vacate the conviction for attempted armed robbery as a

violation of the prohibition against double jeopardy because we find that the crime

6

of armed robbery was far more intertwined with the crime of attempted murder,

and that the crime of attempted burglary was a separate and distinct crime.

There is an established line of jurisprudence that shows aggravated burglary

offenses can be separated from factually-related other offenses. See State v.

Anderson, 499 So.2d 1252 (La.App. 4 Cir.1986), writ denied, 503 So.2d 490

(La.1987), State v. Davis, 09-1061 (La.App. 3 Cir. 4/7/10), 36 So.3d 351, State v.

Tyler, 11-1256, pp. 12-16 (La.App. 3 Cir. 5/2/12), 93 So.3d 670, 678-81, writ

denied, 12-1260 (La. 2/8/13), 107 So.3d 643.

Just as courts have separated burglaries from subsequent rapes for double

jeopardy purposes, burglaries may be similarly separated from subsequent murders

and attempted murders. Burglaries may be chronologically or temporally

separated from subsequent but otherwise factually related offenses. In other

words, by the time the defendant commits the subsequent offense, the burglary is a

completed and, thus separate, crime.

Applying the reasoning in Tyler to the present case, the aggravated burglary

was a completed offense before the victim even entered the house. Thus, it did not

fall within the sphere of constitutional double jeopardy protection. The attempted

armed robbery, however, was integral to the attempted first degree murder and is

the underlying offense which supports the attempted murder conviction. Thus, the

conviction for the attempted armed robbery must be vacated because “double

jeopardy precludes the conviction and punishment of the defendant for both

murder and the underlying felony.” Ramsdell, 47 So.3d at 85.

7

ASSIGNMENT OF ERROR NUMBER FOUR

Because it invites discussion of a predicate issue, we address the fourth

assignment out of order. In his fourth assignment, Defendant argues that the trial

court erred by determining that he was competent to stand trial.

Prior to trial, the court conducted a competency hearing on June 3, 2010, and

July 19, 2010; on the latter date, the trial court ruled that Defendant was competent

to assist in his defense. However, after trial began on February 15, 2011, newly-

appointed defense counsel filed another motion contesting Defendant‟s capacity,

which was heard on February 24, 2011.

At the hearing, only two witnesses testified. The first, Dr. Daniel Lanowski,

previously examined Defendant on February 7, 2011, and again on February 14,

2011; and Grant Parish Deputy Brad Suddeth, assigned as warden of the detention

facility where Defendant is being housed, testified regarding his observations and

interactions with Defendant while in his custody. After hearing from both

witnesses, the trial court ruled that there were no grounds for appointment of a new

sanity commission and again ruled that Defendant was capable of assisting at trial.

Trial was continued until March 14, 2011, to permit Defendant to file a writ

in this court. This court issued a stay order, but ultimately determined that there

was no error in the trial court‟s ruling. State v. Craig, 11-240 (La.App. 3 Cir.

5/3/11) (unpublished opinion). Thus, Defendant‟s assignment essentially re-visits

the 2011 ruling.

This court has stated:

Although a defendant may seek review of a pretrial ruling even after a
pretrial supervisory writ application is denied, when the defendant
does not present any additional evidence on this issue after the pretrial
ruling, the issue can be rejected. State v. Hebert, 97-1742 (La.App. 3
Cir. 6/3/98), 716 So.2d 63, writ denied, 98-1813 (La.11/13/98), 730

8

So.2d 455, cert. denied, 529 U.S. 1072, 120 S.Ct. 1685, 146 L.Ed.2d
492 (2000) (quoting State v. Magee, 93-643, p. 2 (La.App. 3 Cir.
10/5/94), 643 So.2d 497, 499). . . . , “[j]udicial efficiency demands
that this court accord great deference to its pre-trial decision unless it
is apparent that the determination was patently erroneous and
produced unjust results.” Hebert, 716 So.2d at 68. Our review of the
record reveals no additional evidence for the defendant‟s allegations
of prosecutorial misconduct which would support his pretrial motions.

State v. Perry, 12-298, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, 580, writ

denied, 12-2657 (La. 5/24/13), 116 So.3d 659.

Defendant now notes that the colloquy of his waiver of jury trial indicates

that he had difficulty deciding whether to make the waiver. Also, the trial court

took note of his “significant mental issues” during sentencing. However, these

points do not constitute new evidence of the kind contemplated by Perry.

Defendant made his waiver months before this court‟s writ ruling, and sentencing

factors do not provide a reason to revisit the conduct of the trial. During

sentencing, the court reiterated its conclusions that Defendant knew right from

wrong and was competent to stand trial. For the reasons discussed, this assignment

lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant questions whether he made a

valid waiver of the right to a trial by jury, especially in light of indications in the

record that he may have substandard learning ability. Assertions regarding his

possible mental difficulties were mentioned in the previous discussion of the fourth

assignment of error.

Defendant quotes the waiver colloquy at length; we note the pertinent

exchange:

9

BY THE COURT: Okay. And, sir, do you understand that you
have the right to be tried by a jury on those
charges?

BY MR. CRAIG: A jury?

BY MR. HIGGINS: A jury, twelve people, they sit up here and
they can judge you or we can have the Judge
judge you.

BY MR. CRAIG: It don‟t matter to me.

BY MR. HIGGINS: Okay.

BY THE COURT: Sir?

BY MR. CRAIG: It don‟t bother me.

BY MR. HIGGINS: It doesn‟t matter to him.

BY THE COURT: It doesn‟t bother you, okay. Sir, do you
wish to be tried by a Judge or a jury?

BY MR. HIGGINS: Judge.

BY MR. CRAIG: I don‟t know.

BY MR. HIGGINS: The Judge is what I advise.

BY MR. CRAIG: Judge, yeah.

BY THE COURT: Okay. Are you going to accept Mr. Higgins‟
recommendation of a judge trial?

BY MR. CRAIG: What did you say?

BY THE COURT: Are you going to follow Mr. Higgins‟ advice
and have a judge trial or do you wish to be
tried by a jury?

BY MR. CRAIG: I don‟t know what I want to be tried by.

BY THE COURT: Okay. Well, sir, you need to decide today.

BY MR. CRAIG: Well, by you then.

BY THE COURT: Okay.

BY MR. HIGGINS: Very good.

10

BY MR. WHITE: Judge, the only thing I would request is a
boykinization on the jury situation involving
his education and ability to understand what
a jury is. I haven‟t talked to him. I don‟t
know that he . . .

BY THE COURT: Mr. Craig, what was your highest level of
school?

BY MR. CRAIG: I don‟t know. I‟m not that good in school.

BY THE COURT: [O]kay. Do you know the last grade that
you passed?

BY MR. CRAIG: Seventh.

BY THE COURT: Seventh?

BY MR. CRAIG: But I ain‟t did nothing in there.

BY THE COURT: Sir?

BY MR. CRAIG: I ain‟t did nothing in there though.

BY THE COURT: Mr. Craig, do you know what a jury is?

BY MR. CRAIG: (NO VERBAL RESPONSE HEARD)

BY THE COURT: Sir, do you understand that a jury would be
people from this parish who are over the age
of 18, who would sit . . .

BY MR. HIGGINS: He‟s nodding his, so he. . .

BY THE COURT: I need you to answer. Do you understand
that they would be sitting in those chairs
right there and they would hear everything
that is presented in this case and they would
make a decision as to whether or not you
were innocent or guilty, instead of me
making that decision. Do you understand
that, sir?

BY MR. CRAIG: (NO VERBAL RESPONSE HEARD)

BY THE COURT: I need you to verbalize your answer, sir.

BY MR. CRAIG: Uh-huh. (INDICATES “YES”)

11

BY THE COURT: I need you to say your answer.

BY MR. CRAIG: Yeah, I understand.

BY THE COURT: Okay. So, do you understand that you could
have people from anywhere in Grant Parish
that would come up here, they would get
picked. Mr. Higgins would have an
opportunity to try to pick the ones he wants,
Mr. White would try to pick the ones that he
wants, get them up in that panel and they
would be the ones that would decide your
innocence or guilt. Now, would you prefer
me to do that or them to do that?

BY MR. CRAIG: I guess they can do it, the jury thing.

BY MR. HIGGINS: A what? A judge thing?

BY MR. CRAIG: I don‟t know.

BY MR. HIGGINS: What I‟m advising you to do, as your
attorney, is I believe because of the facts of
your case and the nature of your case and
what I intend to put on as evidence, that
includes psychiatric . . . includes doctors. I
think that Judge Willett is in a better
position to understand what the psychiatrists
say, than a jury does. Does that make
sense?

BY MR. CRAIG: Yes, sir.

BY MR. HIGGINS: Okay. But, that‟s what I‟d like to do.

BY THE COURT: Mr. White, do you have any questions you
wish to ask Mr. Craig?

BY MR. WHITE: No, Your Honor. I believe that‟s sufficient.

BY THE COURT: And, Mr. Craig, do you wish to be tried by
me or a jury?

BY MR. CRAIG: By you.

In a first circuit case involving an argument similar to the one now

advanced, the court stated:

12

A defendant may waive his right to a jury trial and elect to be
tried by the judge. LSA-C.Cr.P. art. 780(A). Generally, the waiver is
to be entered at arraignment. However, the trial judge may accept a
waiver of a jury trial at any time prior to the commencement of trial.
LSA-C.Cr.P. art. 780(B). A waiver of trial by jury is valid only if the
defendant acted voluntarily and knowingly. See State v. Kahey, 436
So.2d 475, 486 (La.1983). A waiver of this right is never presumed.
State v. Brooks, 2001-1138, p. 5 (La.App. 1st Cir.3/28/02), 814 So.2d
72, 76, writ denied, 2002-1215 (La.11/22/02), 829 So.2d 1037.
However, no special form is required for a defendant to waive his
right to a jury trial. State v. Gamble, 504 So.2d 1100, 1102 (La.App.
5th Cir.1987).

The record in this case reflects that on April 20, 2009, the day
before his trial, the court noted on the record that defense counsel
mentioned the possibility of the defendant waiving his right to a jury
trial. The defendant responded affirmatively when the court asked if
he had participated in discussions regarding a jury waiver with his
attorney. The defendant stated that he wanted to waive his jury-trial
right. Before accepting the waiver, the trial judge conducted a
colloquy to establish the defendant's competency to waive his right to
a jury trial. The judge explained that the defendant was charged with
two felonies and thus, he had the right to elect to have a jury hear his
case or to have the case decided by the judge. The defendant
indicated that he understood this right. Next, the court asked, “Now
do you know what a jury is? Do you understand what a jury is?” To
this, the defendant replied, “No.” The judge explained:

If you have a jury trial, you would have twelve
people, twelve citizens who would hear the evidence
from the witness stand and they would make the decision
whether or not you are guilty or you are innocent of the
charge of armed robbery and whether or not you are
guilty or innocent of the charge of aggravated battery.
They would make the decision about your guilt. I would
sentence you. Okay.

....

So you understand what a jury does? It‟s twelve
people who are selected, twelve citizens, and they listen
to the evidence and they decide whether or not you‟re
guilty or innocent.

If you have a trial with a Judge, I‟m the Judge, I‟m
the person that listens to the evidence, and I decide
whether or not you‟re guilty or innocent.

13

Do you understand the difference between the
two?

The defendant indicated that he understood the court‟s explanation.
After reviewing the bill of information and conferring with his
attorney, the defendant advised the court that he wished to waive his
right to a jury and proceed with a bench trial.

Upon reviewing the entirety of the jury trial waiver proceedings
in this case, we find that the defendant knowingly and intelligently
waived his right to be tried by a jury and elected to be tried by the trial
judge. Once the defendant indicated that he did not fully understand
the role of a jury, the court thoroughly explained the difference
between a bench trial and a jury trial in basic terminology. . . . .
Thus, considering the colloquy between the trial judge and the
defendant, as well as the defendant‟s demonstrated awareness of the
proceedings, we find that he knowingly and intelligently waived his
right to a jury trial.

State v. Coleman, 09-1388, pp. 3-6 (La.App. 1 Cir. 2/12/10), 35 So.3d 1096, 1098-

99, writ denied, 10-894 (La. 4/29/11), 62 So.3d 103. As noted in the discussion of

the fourth assignment of error, the trial court found Defendant competent to assist

in his defense.

The colloquy regarding his waiver of the right to trial by jury is similar to

the one analyzed in Coleman. This court is favorably impressed by Defendant‟s

on-the-record discussion with his counsel regarding the specific rationale for

choosing to waive the jury. Thus, we find that Defendant knowingly and

intelligently waived his right to a jury trial.

ASSIGNMENT OF ERROR NUMBER FIVE

In his final assignment of error, Defendant argues, as he did below, that his

sentences are excessive. Because we have vacated the armed robbery conviction

and sentence, only the sentences for attempted first degree murder and aggravated

burglary are at issue. Defendant was sentenced to thirty years at hard labor for

attempted first degree murder, with the first ten years to be served without benefit

14

of parole, probation, or suspension of sentence. For aggravated burglary,

Defendant was sentenced to thirty years at hard labor, to run concurrently.

Defendant acknowledges that the sentencing range for attempted first degree

murder is ten to fifty years. La.R.S. 14:27(D)(1)(a), La.R.S. 14:30. Thus, he

received a mid-range sentence for this offense. The potential term for aggravated

burglary is one to thirty years. Therefore, he received the maximum sentence

available for that crime. La.R.S. 14:60. Among other arguments, Defendant

claims that he is not the “worst kind of offender”; thus, the maximum sentence was

inappropriate. Preliminarily, the fact that the trial court meted out three concurrent

thirty-year sentences in this case suggests its assessment that thirty years was an

appropriate benchmark of punishment for Defendant‟s actions, rather than a

conclusion that he was the worst kind of offender regarding aggravated burglary.

The court was also explicitly concerned about the safety of the public.

This court has previously explained the analysis for an excessive-sentence

claim:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ „[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.‟ ”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences are
reserved for the most serious violations and the worst offenders.”
State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d
217, 225. The only relevant question for us to consider on review is
not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
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).

15

The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir.
12/16/98)] 726 So.2d [57] at 58, stated that the reviewing court should
consider three factors in reviewing the trial court's sentencing
discretion:

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. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59.

Regarding the nature of the crime and the nature and background of the

offender, we note the trial court‟s reasoning:

BY THE COURT: The Court has studied the pre-sentence
investigation. I‟ve also reviewed the medical reports prepared by
Doctors Binns, Piland, and Lanowski. The Court also received a letter
from Mr. Craig‟s mother, which I have reviewed. The Court does note
that Mr. Craig does have significant mental issues which have
seriously affected his intellectual development. The Court also notes
that the medical records indicate that his mother and family have
diligently tried to attend to his mental illnesses from an early age.
That is somewhat unusual. Often times we have people that get into
trouble, they want to blame the fact that they did what they did on the
mental illness and they want the [S]tate to then try to help them. Mr.
Craig‟s family has tried to help him. The Court also notes that Mr.
Craig is a very young man. The Court does consider his age and his
mental ability as mitigating factors. However, the Court also notes
that he has been treated by numerous facilities and physicians and has
received significant counseling, throughout his young age, that has not
seemed to prevent these type of incidences [sic]. The Court has
considered these matters as well as the nature of the present offenses,
in light of the provisions of the Code of Criminal Article 894.1. The
Court makes the following findings regarding sentence: Mr. Craig is
a 19-year-old male who has a history of mental illness, including,
ADHD, Conduct Disorder, Impulse Control, Intermittent Explosive
Disorder, Psychosis, Hallucinations, Bipolar and, according to Dr.
Lanowski, shows elements of a pervasive developmental disorder
characterized by severe impairments of social interactions and
unrealistic interests. This Court and the Appellate Courts have
previously examined the issues of Mr. Craig‟s competency to stand
trial and his ability to distinguish between right and wrong.
Therefore, I do not intend to revisit those issues. As I indicated, I do
consider Mr. Craig‟s age and mental deficiencies as significant
mitigating factors. However, Mr. Craig has a history of planning and

16

attempting to carry out serious criminal activity. The pre-sentence
investigation references a proceeding where Mr. Craig stole his
grandfather‟s truck and a gun in an effort to drive to Alabama to kill
someone who had offended him online. Fortunately, Mr. Craig was
apprehended in Alabama when his truck broke down. Twelve days
after his release from the state‟s custody, Mr. Craig attempted to carry
out a plan to break into Mr. Cannon‟s home, rob him at gun point, and
use the stolen money to flee the country. Mr. Cannon arrived home
early which disrupted Mr. Craig‟s plan, which resulted in Mr. Craig
firing a shot at Mr. Cannon at point blank range and fleeing into the
woods. Through his counsel and correspondence to this Court, Mr.
Craig and his family have appealed to the Court that Mr. Craig needs
psychiatric treatment, not imprisonment. As I indicated, Mr. Craig‟s
family has tried to get him psychiatric treatment. In light of that
treatment, Mr. Craig is still a danger to himself and those around him.
While I am sympathetic to Mr. Craig‟s family, I am equally
sympathetic to Mr. Cannon for the ordeal that he endured. Mr.
Cannon was the victim in this case, not Mr. Craig. I am not a mental
health expert. That‟s why we have experts to come and give us their
opinions. It is my ley [sic] opinion, based on the testimony that we
have received, that as a result of Mr. Craig‟s mental illnesses that he
does not comprehend fully the consequences of his actions. I would
equate it to a 6-year-old with a pellet gun. A 6-year-old doesn‟t
understand that a pellet gun can put someone‟s eye out. The problem
with Mr. Craig is he‟s smart enough to carry things out. He‟s smart
enough to plan elaborate criminal activity that is extremely dangerous
to other people. I do hope that Mr. Craig receives mental health
treatment in the future, but, society has a right to be protected from
dangerous individuals such as Mr. Craig.

Clearly, the first two factors of the Whatley/Lisotta analysis weigh against

Defendant, in light of the facts recited by the trial court.

Regarding the sentences imposed for similar crimes, Defendant cites

jurisprudence that is more relevant to attempted second degree murder than to the

current crimes. In State v. Sibley, 09-1104 (La.App. 3 Cir. 6/2/10), 41 So.3d 581, a

majority of this court upheld concurrent thirty-year sentences for attempted first

degree murder and armed robbery for a defendant diagnosed with mental illness.

During the crimes, he held a gun to one victim‟s head and shot another in the leg.

Id. at 586-87.

17

In the case noted below, the defendant‟s use of violence contributed to this

court‟s affirmance of his maximum sentence for aggravated burglary:

[T]he trial court did not abuse its considerable discretion when it
sentenced Defendant to thirty years at hard labor considering the
circumstance of the case and Defendant‟s criminal history. As noted
by the trial court, Defendant is a five-time felony offender and has an
extensive arrest record. In State v. Thompson, 39,454, 39,455
(La.App. 2 Cir. 3/2/05), 894 So.2d 1268, cited by the trial court in the
present case as a comparison, Thompson was convicted of aggravated
burglary and received the maximum sentence of thirty years. The
second circuit affirmed the sentence, noting that Thompson was a
four-time felony offender and had a lengthy criminal past. The
second circuit further stated, “Defendant was the worst type of
offender. The crimes were committed in a manner that endangered
the lives of several people and with total disregard for public safety
. . . it was clear that [Thompson] had not benefited from his previous
incarcerations and that, this time, he would be sent away to serve the
interest of public safety.” Id. at 1285.

Under the circumstances of the case as set forth by the trial
court above and considering Defendant‟s extensive criminal history,
Defendant‟s maximum sentence was not such that would shock this
court‟s sense of justice. Accordingly, there is no merit to this claim.

State v. Brandenburg, 06-1158 pp. 30-31 (La.App. 3 Cir. 2/7/07) 949 So.2d 625,

646, writ denied, 07-538 (La. 10/26/07), 966 So.2d 571, and writ denied, 07-614

(La. 10/26/07), 966 So.2d 573.

In State v. Thompson, 39,454, 39,455 (La.App. 2 Cir. 3/2/05), 894 So.2d

1268, the defendant received fifty years for attempted first degree murder and

thirty years for aggravated burglary. The court affirmed the sentences, explaining:

After conviction, the trial court ordered a presentence investigation
report of Defendant which revealed an extensive criminal history and
that he was a fourth-felony offender. The trial court sentenced
Defendant to the maximum sentence of 50 years at hard labor on the
attempted first-degree murder conviction and the maximum sentence
of 30 years on the aggravated burglary conviction.

In sentencing Defendant to the maximum sentences allowed,
the trial court found that these were the most serious violations of the
offenses; and, given his lengthy criminal past, Defendant was the
worst type of offender. . . . . Given the language of Grissom, supra,

18

and Guzman, supra, and Defendant‟s history, we find that the trial
court did not abuse its wide discretion in imposing the maximum
sentences; and that the sentences do not shock the sense of justice.
Accordingly, we reject this assignment of error.

Thompson, 894 So.2d at 1285. The fourth circuit sustained maximum sentences

for two aggravated burglaries that were connected with two rapes. State v. Scott,

593 So.2d 704, 711 (La.App. 4 Cir. 1991).2

Although none of the jurisprudence cited is exactly on all fours with the

present case, a common thread repeated is that maximum sentences may be upheld

for aggravated burglaries that are associated with other violent offenses. Also, the

cases show the sentences at issue does not fall “outside the norms of Louisiana

jurisprudence[.]” State v. Office, 07-193, p. 12 (La.App. 3 Cir. 10/3/07), 967 So.2d

1185, 1194, writ denied, 07-2274 (La. 4/18/08), 978 So.2d 348.

In the present case, Defendant shot at the victim from close range; only the

latter‟s good fortune (or the former‟s poor aim) prevented this from being a murder

case. Also, Defendant had recently made threats of violence toward another

person in a separate incident and took actions to make good on that threat. Thus,

Defendant‟s sentences for attempted first degree murder and aggravated burglary

are affirmed. A standard Whatley/Lisotta analysis supports this conclusion, and

Defendant‟s attempt to kill the victim, coupled with his apparent propensity for

violence, ranks him among the worst kind of offenders for the crime of aggravated

burglary. For the reasons discussed, this assignment lacks merit.

2
Although the Scott court‟s dispositional language indicates that all the sentences were to
be set aside, its discussion clearly indicates that the aggravated burglary sentences were not
excessive.

19

DECREE

Defendant‟s convictions and sentences for attempted first degree murder and

aggravated burglary are affirmed. The conviction and sentence for attempted

armed robbery are vacated, as the conviction violates the constitutional prohibition

against double jeopardy.

CONVICTIONS AND SENTENCES FOR ATTEMPTED FIRST

DEGREE MURDER AND AGGRAVATED BATTERY ARE AFFIRMED;

CONVICTION AND SENTENCE FOR ATTEMPTED ARMED ROBBERY

IS VACATED.

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