KA-0013-0442 Nonprecedential Affirmed Processed

State of Louisiana v. Jerry Anthony Brandon

Louisiana Court of Appeal, Third Circuit · Filed November 6, 2013

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Hearold 603 So. 2d 731
State Ex Rel. Graffagnino v. King 436 So. 2d 559
State v. Duncan 420 So. 2d 1105
State v. Moody 393 So. 2d 1212
State v. Richardson 425 So. 2d 1228
State v. Kennerson 695 So. 2d 1367
State v. Bourque 649 So. 2d 670
State v. Hypolite 903 So. 2d 1275
State ex rel. Hypolite v. State 937 So. 2d 381
State v. Humphrey 576 So. 2d 1104
State v. Russell 726 So. 2d 444
State v. Minnifield 745 So. 2d 19
State v. MacKey 687 So. 2d 465
State v. MacKey 712 So. 2d 865
State v. Smith 587 So. 2d 62
State v. Graves 798 So. 2d 1090
Davis v. Town of St. Gabriel 827 So. 2d 420
State v. Bamburg 772 So. 2d 356
State v. Williams 815 So. 2d 908
State v. Williams 836 So. 2d 59
State v. Johnlouis 22 So. 3d 1150
State v. JOHNLOUIS 38 So. 3d 336
State v. Thomas 18 So. 3d 127
State v. Perry 9 So. 3d 342
STATE EX REL. JOSEPH v. State 38 So. 3d 352
State v. HJL 999 So. 2d 338
STATE EX REL. GOLDSTON v. State 23 So. 3d 936
State v. Quinn 38 So. 3d 1102
State v. Adams 52 So. 3d 885
State v. Dorthey 623 So. 2d 1276
State v. Sepulvado 367 So. 2d 762
State v. Pyke 670 So. 2d 713
State v. Farhood 844 So. 2d 217
State v. Cook 674 So. 2d 957
State v. Whatley 867 So. 2d 955
State v. Williams 445 So. 2d 1264
Mack v. Southern Farm Bureau Casualty Insurance Co. 449 So. 2d 1346
State v. Armstrong 743 So. 2d 284
State v. Armstrong 759 So. 2d 92
State v. Young 663 So. 2d 525
Rey v. St. Paul Fire & Marine Ins. Co. 669 So. 2d 1223
State v. Pierre 854 So. 2d 945
State v. Price 864 So. 2d 626
State v. Champion 412 So. 2d 1048
State v. Manning 885 So. 2d 1044
State v. Jones 653 So. 2d 109
State ex rel. White v. Department of Corrections 660 So. 2d 856
State v. Dawson 316 So. 2d 109

Opinion text

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-442

STATE OF LOUISIANA

VERSUS

JERRY ANTHONY BRANDON

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR2011-6016
HONORABLEPATRICIA C. COLE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

Herbert Todd Nesom
District Attorney, Thirty-third Judicial District
Joe Green
Assistant District Attorney
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

p. 2

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT-APPELLANT:
Jerry Anthony Brandon

Jerry Anthony Brandon
ALC, Earth A-2
3751 Lauderdale Woodyard Road
Kinder, LA 70648
COUNSEL FOR DEFENDANT-APPELLANT:
Jerry Anthony Brandon

p. 3

PICKETT, Judge.

FACTS

On October 4, 2011, Melissa Strother was working the morning shift at a

convenience store in Allen Parish. As she was getting herself a snack, a masked

man walked in with a pistol. He pulled back the hammer and announced that he

was robbing the store. He ordered Strother to get down, and she complied.

At his command, she opened the cash register, and he removed

approximately three hundred and fifty dollars in currency from it. The robber then

ordered Strother into the beer cooler and told her to stay there for several minutes.

She exited the cooler immediately after he left the store, however, and saw him

steal her car. She promptly alerted the authorities. The ensuing investigation led

to the defendant‟s, Jerry Anthony Brandon‟s, arrest and confession.

On December 13, 2011, Jerry Anthony Brandon and a co-defendant, David

A. Funderburk, II, were charged with armed robbery, a violation of La.R.S. 14:64;

theft of $500 or more but less than $1,500, in violation of La.R.S. 14:67;

conspiracy to commit armed robbery, in violation of La.R.S 14:26 and La.R.S.

14:64; theft of $1,500 or more, in violation of La.R.S. 14:67; and obstruction of

justice by tampering with evidence, in violation of La.R.S. 14:130.1. A jury trial

began on September 17, 2012. On September 19, the state dismissed the second

count (theft), before the jury began hearing evidence. On September 21, said jury

found the defendant guilty of armed robbery, conspiracy to commit armed robbery,

theft of property having a value greater than $1,500, and obstruction of justice.

On September 28, 2012, the state charged defendant as a second habitual

offender, pursuant to La.R.S. 15:529.1. On January 31, 2013, the Court found the

p. 4

defendant to be a second habitual offender and sentenced him to forty-nine and on-

half-years at hard labor.

The defendant now seeks review by this court, assigning two errors through

appellate counsel. He assigns three more errors pro se, but one of these is

substantially similar to the first counsel-filed assignment.

ASSIGNMENTS OF ERROR

Through appellate counsel, the defendant asserts two assignments of error:

1. The trial court erred in denying defense counsel‟s request for a
recess and in proceeding with the trial without Jerry Brandon‟s
presence.

2. The trial court erred in imposing an excessive sentence.

The defendant asserts three assignments of error on his own behalf:

3. Whether the trial court‟s decision to continue on with the trial in
defendant‟s absence violated his rights under the Confrontation
Clause of the Sixth Amendment and the Due Process Clause of the
Fifth Amendment of the United States Constitution, and the Louisiana
State Constitution, Article 1, § 13.

4. Whether the trial court‟s decision in denying defendant‟s Motion
for Continuance based on inadequate notice of trial denied him Due
Process of Law, Equal Protection of the Law, and fundamental
fairness.

5. Whether the evidence presented at trial was sufficient to support the
verdict.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

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

we find one error patent.

As noted above, the defendant was convicted of armed robbery, conspiracy

to commit armed robbery, theft of property having a value greater than $1,500, and

2

p. 5

obstruction of justice. However, the trial court imposed a sentence on the armed

robbery conviction only.

The State filed a habitual offender bill which provided as follows:

H. TODD NESOM, DISTRICT ATTORNEY for the Thirty-third
Judicial District, Parish of ALLEN, State of Louisiana, here gives the
Court to understand and be informed that:

Jerry Brandon, is a habitual offender, Second Offense, in violation of
LA R.S. 15:529.1, having been previously convicted as follows:

The District Attorney for the Thirty-third Judicial District Court, for
the State of Louisiana, charges that heretofore the same defendant,
Jerry Brandon, was convicted on the 1st day of October, 2004, in the
11th Judicial District Court, Parish of Sabine, State of Louisiana, in
the matter entitled State of Louisiana vs. Jerry Brandon, criminal
docket number 58726, for the offense of Altering a Prescription, La.
R.S. 40:971;

And that the same defendant, Jerry Brandon, was convicted on the
21st day of September, 2012, in the 33rd Judicial District Court, Parish
of Allen, State of Louisiana, in the matter entitled State of Louisiana
vs. Jerry Brandon, criminal docket number 2011- 6016, for the
offenses of Armed Robbery, La.R.S.. 14:64; Criminal Conspiracy to
Commit Armed Robbery, La R.S. 14:26; Theft of $1500 or more, La.
R.S. 14:67 and Obstruction of Justice, La. R.S. 14:130.1.

contrary to the law of the State of Louisiana and against the peace and
dignity of the same.

At sentencing, the trial court stated in pertinent part:

In the current matter Mr. Brandon was convicted by a jury on
September 21st, 2012, of the offenses of Armed Robbery, Conspiracy
to Commit Armed Robbery, Theft of property valued at fifteen
hundred dollars or more, and Obstruction of Justice. He has not yet
been sentenced on those matters.

....

Court finds that the current conviction makes Jerry Brandon, the
defendant herein, a second felony offender.

....

[T]he Court found that you were a second felony offender under the
habitual offender law having previously been convicted of the

3

p. 6

Altering a Prescription, which we just went over, in the 11th JDC. As
such, the habitual offender statute, the sentence, has a mandatory
minimum sentence, shall be not less than one half the longest term nor
more than twice the longest term prescribed for a first conviction. In
this case, the longest term is for Armed Robbery. And, as Mr.
Deshotels said, that would be one half of ninety-nine (99) years or
forty-nine and a half (49.5) years. That is the mandatory minimum.
And of course the maximum would be two time [sic] ninety-nine (99)
or a hundred and ninety-eight (198) years.

....

You are being sentenced to Count one of the Habitual Offender Bill. I
have already explained how the habitual offender bill works and how
that impacts a sentence. The Court sentences you to serve forty-nine
and a half (49.5) years at hard labor with the Department of
Corrections, and said sentence is to be served without benefit of
probation, parole or suspension of sentence. That is the mandatory
minimum.

The trial court failed to impose a separate sentence on each the remaining

convictions, conspiracy to commit armed robbery, theft, and obstruction of justice.

Therefore, this court is remanding these convictions to the trial court to impose a

separate sentence on each conviction.

SUFFICIENCY OF THE EVIDENCE

We will address the defendant‟s fifth assignment of error first, as it attacks

the sufficiency of the trial evidence. A holding that the evidence was insufficient

would necessitate an acquittal, thus obviating any need to address the other

assignments of error. State v. Hearold, 603 So.2d 731 (La.1992).

The structure of a sufficiency analysis is settled:

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

4

p. 7

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,
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.

The defendant argues that the main witness who testified against him, his

accomplice Funderburk, was not credible. Also, he states that his confession

stemmed from a desire to protect April Thompson, the mother of his children.

Thompson is also Funderburk‟s sister. Both Thompson and Funderburk testified

for the state. The latter pled guilty to obstruction of justice before defendant‟s

trial. He admitted helping the defendant by driving a getaway car and hiding the

gun. He identified the defendant as the robber.

The defendant notes that Funderburk related different versions of the

relevant events at various times, including an implication that Thompson was the

getaway driver. At trial, Funderburk admitted to giving different versions of

events at different times. Further, he admitted to committing perjury in the

allocution at his guilty plea hearing. However, on re-direct, he testified that in

each version of events he related, the defendant was the robber. The main variable

in Funderburk‟s various statements is the role his sister played (or did not play) in

the crime.

Thompson testified that on the day of the offense, the defendant came home

with her brother and told her he was going to pay the light bill. He stated he had

obtained the money “from the store.”

5

p. 8

Ms. Strother testified to the events that occurred at the store. She testified

that a masked gunman committed the robbery. Ms. Strother described the masked

gunman as having a stocky build. Ms. Strother testified the robber‟s build was

more like the defendant‟s than Funderburk‟s.

The defendant testified on his own behalf and denied being involved in the

robbery. He acknowledged that he had given police a statement confessing to the

crime. He stated that he did so because he thought it would help Thompson keep

her children. He also acknowledged writing a letter to the district attorney‟s office

indicating that she was involved in the crime, not Funderburk. In that letter, he

confessed to involvement in the crime. During his testimony, the defendant

alleged that police misconduct occurred in relation to the taking of his confession,

in that officers told him what to say. He also testified that a detective‟s earlier

testimony that no pre-interview occurred was untrue.

It is clear that the defendant and Funderburk each related different versions

of events in various statements and writings. This court is not in a better position

than the jury to assess the credibility of each man. As noted earlier in Kennerson,

appellate courts do not second-guess fact-finder‟s credibility determinations.

More specifically, this court has explained:

This court will overturn a jury‟s credibility assessment only
when a witness‟s own testimony demonstrates that the witness‟s
ability to perceive events was impaired in some way. See, e.g., State
v. Bourque, 94-291 (La.App. 3 Cir. 11/2/94), 649 So.2d 670, wherein
one eyewitness had consumed a large amount of alcohol before the
offense and the other was a minor who believed all white men looked
alike, and defendant was white.

State v. Hypolite, 04-1658, p. 5 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, 1279, writ

denied, 06-618 (La. 9/22/06), 937 So.2d 381. The present case involves no

question of any witness‟s ability to perceive the events as they occurred.

6

p. 9

Therefore, the jury‟s credibility assessment will stand. When viewed in a light

most favorable to the prosecution under the Jackson standard, there is sufficient

evident to support the conviction.

For the reasons discussed, this assignment of error lacks merit.

REQUEST FOR A RECESS AT TRIAL

In his first and third assignments of error, the defendant complains that trial

All right. Bring in the jury.

(THE JURY IS PRESENT AND SEATED IN THE COURTROOM)

THE COURT:

Be seated. Good morning. We are ready for the closing
arguments, closing instructions, and your deliberation today.

8

p. 11

This morning, the reason we are late is the defendant, Mr.
Brandon, has contacted his attorney this morning and advised
his attorney, Mr. Deshotels, that he is ill and cannot be here
today. Since the evidentiary portion of the trial has been
completed, remember closing arguments are not evidence, then
he is allowed to waive his presence for the closings and we can
finish the trial without his being here. And I am going to
instruct you that there can be no presumption of guilty [sic]
because he is not here today, because he has that right to waive
his appearance. And so that is what we will do so we won‟t be
delayed any longer.

At the hearing on the motion for new trial, the parties and the court revisited

I know what the minutes say. I listened to what I said.
And that is what I said. And in the instructions I placed that a
defendant was allowed to waive his presence at trial. That is to
address any kind of prejudice that might arise. You had even
testified the day before about your heart problems and that you
were under stress because of these charges. You had told the
jury that. So they were aware that you had problems. Mr.
Brandon, you knew that proof of your medical emergency was
necessary. That is why we are having this hearing today.
Already in this case you have had to provide proof. You used a
faxed copy from the ER for one of the bench warrants that had
been obtained. Because actually there were two bench warrants
obtained. There was a bench warrant issued on the first time
this matter was set for trial, when you didn‟t appear for your
trial on May 21st, 2012. You didn‟t appear on that day. A bench
warrant was issued. You were set again for trial on July 16th,
2012. And a second bench warrant was issued because you
didn‟t appear for trial. This was the third time you were set for
trial and you didn‟t appear. So, you knew that you had to have
some kind of proof from the hospital for today‟s hearing
because you had to have that to get that other bench warrant
recalled. You even used that faxed copy to try to get a
continuance on the first day, that is September 17 th, whenever

10

p. 13

You never made further contact with your attorney, he
contacted you to let you know what the verdict was. You
admitted that you left the hospital whenever you found that out.
You never contact[ed] the Court after you left the hospital. You
never reported back to the Court after you left the hospital. I
believe you said you were arrested or you went to your house to
be arrested. So, the Court still does not believe that your
absence from the trial was involuntary, and that there was no
evidence presented today to change the Court‟s opinion. The
Court does not find that your absence was involuntary and I
deny your Motion for New Trial on that ground.

As the defendant observes, La.Code Crim.P. art. 831 requires that a

defendant be present at certain stages of criminal proceedings. However, he notes

that La.Code Crim. P. arts. 831(A)(6) and 832(A)(1) provide an exception to this

11

p. 14

rule for a defendant who voluntarily absents himself from criminal proceedings.

As shown in the trial court‟s remarks, the issue was evidentiary. The defendant

has failed to produce any proof that his absence from trial was involuntary. While

his earlier cardiac difficulties lend some plausibility to his argument, they do not

demonstrate the absence at issue was due to a medical necessity.

His pro se constitutional argument fares no better because of the same

absence of proof that his absence was involuntary. This court has observed:

[I]n State v. Humphrey, 576 So.2d 1104 (La.App. 3 Cir.1991), where
the defendant was released from his bond obligation the morning of
trial and failed to appear on the second day, we held that the
defendant‟s absence was voluntary. We further stated that there was
no error in the trial court‟s decision to proceed with the trial in the
defendant‟s absence and, by his voluntary absence, the defendant
“waived any rights he may have under Article 831, the Louisiana
Constitution, or the Sixth and Fourteenth Amendments to the United
States Constitution.” Id. at 1105. See also State v. Russell, 98-682
(La.App. 5 Cir. 1/13/99); 726 So.2d 444, writ denied, 99-0469
(La.6/18/99); 745 So.2d 19; State v. Mackey, (La.App. 3 Cir.
12/11/96); 687 So.2d 465, writ denied, 97-1814 (La.3/13/98); 712
So.2d 865; and State v. Smith, 587 So.2d 62 (La.App. 4 Cir.1991).

State v. Graves, 01-156, pp. 6-7 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, 1094,

writ denied, 02-29 (La. 10/14/02), 827 So.2d 420 (emphasis added). Citing the

federal constitution does not provide the defendant with any increased right to be

voluntarily absent from his trial, nor does it obviate the need for evidence to

support his contention that said absence was involuntary.

For the reasons discussed this assignment lack merit.

EXCESSIVE SENTENCE

In his second assignment of error, the defendant argues his forty-nine-and-

one-half-year habitual offender sentence was excessive. He also claims the trial

court failed to state a factual basis for the sentence on the record. He

acknowledges that the term is the mandatory minimum pursuant to La.R.S.

12

p. 15

15:529.1. There was no motion to reconsider sentence. La.Code Crim.P. art.

881.1(E) states:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

In one of this court‟s earlier cases, State v. Bamburg, 00-675 (La.App. 3 Cir.

11/2/00), 772 So.2d 356, the defendant failed to object to the sentence at the

sentencing hearing and did not timely file a motion to reconsider sentence. Thus,

this court found his claim of excessiveness of sentence was barred. See also State

v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578

(La. 1/31/03), 836 So.2d 59.

On the other hand, this court has reviewed excessiveness claims despite the

lack of an objection and motion to reconsider sentence. See State v. Johnlouis, 09-

235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38

So.3d 336, cert. denied, __ U.S. __, 131 S.Ct. 932 (2011); State v. Thomas, 08-

1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3

Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d 352; State

v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606

(La. 12/18/09), 23 So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38

So.3d 1102, writ denied, 10-1355 (La. 1/7/11), 52 So.3d 885. In the interest of

justice, we will review the defendant‟s argument as a bare claim of excessiveness.

This court has explained the analysis:

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.

13

p. 16

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).

The fifth circuit, in Lisotta, 726 So.2d 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.

However, as already noted, the sentence at issue was the mandatory minimum

required by statute. As this court has explained:

This court has held that when the trial court has no discretion to
deviate from a legislatively mandated sentence, failure to articulate
reasons as generally required by La.Code Crim.P. art. 894.1 is not an
error since it would be futile to do so at sentencing, unless the
sentences are constitutionally excessive. State v. Williams, 445 So.2d
1264 (La.App. 3 Cir.), writ denied, 449 So.2d 1346 (La.1984) and
State v. Dorthey, 623 So.2d 1276 (La.1993). See also State v.
Armstrong, 32,279 (La.App. 2 Cir. 9/22/99); 743 So.2d 284, writ
denied, 99-3151 (La.4/7/00), 759 So.2d 92.

In a case such as the instant case, where one of the sentences
was a mandatory sentence and the other a mandatory minimum
sentence, the Defendant has the burden to rebut the presumption that
the sentences are unconstitutional by clear and convincing evidence,
showing that:

[she] is exceptional, which in this context means that
because of unusual circumstances this defendant is a
victim of the legislature's failure to assign sentences that

14

p. 17

are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstance
of the case.

State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d
525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

Defendant has failed to meet her burden of showing how she is
exceptional under the circumstances. Except for reciting the law
regarding the general requirements for an adequate sentencing
procedure, Defendant does not give any reason why her consecutive
sentences are excessive.

State v. Pierre, 02-277, p. 15 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, 954, writ

denied, 03-2042 (La. 1/16/04), 864 So.2d 626.

The defendant makes no attempt to demonstrate that his case is so

exceptional as to justify a downward departure from the mandatory minimum

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

MOTION FOR A CONTINUANCE OF THE TRIAL

In his fourth assignment of error, the defendant argues the trial court erred

by denying his motion for continuance, which was based upon an allegation of

inadequate notice of trial. On September 17, 2012, a Monday, the defendant made

an oral motion for continuance. He also asked for a bench warrant to be

withdrawn. The court heard testimony by the defendant that he had missed a July

court date due to a hospitalization. The defendant also claimed that he did not

learn of his court date until the Friday immediately preceding trial. He appeared

on that date and was offered a plea bargain, which he refused. According to the

defendant, he was told of his trial date after he was arrested due to the bench

warrant. During his hearing testimony, he supplied documentation showing the

dates of his hospitalization.

15

p. 18

The supreme court has explained:

We have consistently held that the decision whether to grant or
refuse a motion for a continuance rests within the sound discretion of
the trial judge, and a reviewing court will not disturb such a
determination absent a clear abuse of discretion. [State v.] Bourque,
622 So.2d [198] at 225 [(La. 1993)]; see LA.CODE CRIM. PROC.
ANN. art. 712. In addition, this Court generally declines to reverse
convictions even on a showing of an improper denial of a motion for a
continuance absent a showing of specific prejudice. Bourque, 622
So.2d at 225; State v. Champion, 412 So.2d 1048, 1051 (La.1982).

State v. Manning, 03-1982, p. 30 (La. 10/19/04), 885 So.2d 1044, 1077, cert.

denied, 544 U.S. 967, 125 S.Ct. 1745 (2005).

Defense counsel noted that he made numerous attempts to contact the

defendant, but counsel had the wrong address, even though the defendant had

supplied the trial court and the State with the correct address in open court on July

10, 2012. It is not clear why the defendant did not receive counsel‟s telephone

calls. Counsel stated he had two numbers for the defendant, who merely stated

that his wife‟s number had been changed.

On appeal, the defendant notes that the bench warrant was issued based upon

a failure to appear on July 16. However, the record shows that on July 16, the trial

court granted the defendant‟s motion for continuance, which was filed on July 13.

At that time, trial was reset from July 16 to September 17. Nonetheless, the

defendant failed to appear on July 16, apparently due to his hospitalization.

We note the following colloquy:

[Defense Counsel:]

Q. Now, Mr. - - I am gonna correct you.

A. Okay.

Q. You called my office, not Friday - -

A. Uh huh (yes).

16

p. 19

Q. - - but you called my office about Wednesday.

A. No, it was Thursday.

Q. You called my office Thursday.

A. Thursday evening when I talked - - after I talked to my bail
bondsman, he told me what was going on. I called your office and I
called the office here.

Q. So, by at least Thursday you were aware that this trial was set.

A. I didn‟t - - no, I didn't know there was a trial set for Monday.

Q. You and I talked - -

- - Your Motion for Continuance is denied. The Bench
Warrant is recalled.

Defense counsel announced he was ready to proceed.

The defendant cites State v. Jones, 94-1142 (La.App. 3 Cir. 4/5/95), 653

So.2d 109, 111 writ denied, 95-1055 (La. 9/29/95), 660 So.2d 856, for the

principle that a criminal defendant must have sufficient notice of trial to summon

witnesses. In Jones, this court granted relief on a state appeal regarding a quashed

18

p. 21

indictment. In its discussion, the court noted that the defendant had at least three

years to prepare for trial. In the present case, the defendant had approximately

seven months to prepare by the time of the July trial setting. Accepting that the

defendant did not have actual notice of the September trial date, his counsel had

approximately two more months to prepare and apparently did so. As mentioned

above, counsel stated he was ready to proceed after the trial court denied the

continuance. Further, having reviewed the trial record in connection with the

earlier sufficiency analysis, we find counsel appears to have mounted a competent

defense.

The present case is distinguishable from another case the defendant cites,

State v. Dawson, 316 So.2d 109 (La.1975), because in that case there was no time

for either the defendants or their counsel to prepare. They did not receive actual

notice, and counsel was not appointed until the day of trial.

Further, even if an error occurred regarding the defendant‟s request for a

continuance, it is not reversible, pursuant to Manning, because the defendant has

not shown specific prejudice. The defendant names three witnesses that he says he

would have called to testify if he had received actual notice and thus had time to

subpoena them. He alleges that the first, Joey Busher, was incarcerated with the

defendant and Funderburk and could have testified about their conversations,

which indicated the defendant‟s confession was false. He also claims that David

A. Funderburk, Sr., the father of Funderburk and Thompson, could have testified

that he threatened the defendant, causing him to give a false confession. Further,

he says Funderburk‟s girlfriend and someone named Quentin West could have

testified regarding Funderburk‟s plan to rob the store.

19

p. 22

At this stage of proceedings, there is no information to verify the defendant‟s

claims. It is possible that his argument, and the relevant record, could be

developed in the post-conviction process.

In its present posture, the assignment lacks merit.

CONCLUSION

The convictions are affirmed. The sentence imposed for the armed robbery

conviction is affirmed. This matter is remanded to the trial court for imposition of

a separate sentence on each of the remaining convictions, conspiracy to commit

armed robbery, theft more than $1,500.00, and obstruction of justice.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

20

p. 23