State of Louisiana v. Justin Seawright

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-956

STATE OF LOUISIANA

VERSUS

JUSTIN SEAWRIGHT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 141932
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

AFFIRMED.

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

Honorable Keith A. Stutes
Lafayette Parish District Attorney
J.N. Prather, Jr.
Assistant District Attorney
Janet Perrodin
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR STATE/APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Justin Seawright

Justin D. Seawright
Dixon Correctional Institute
P.O. Box 788 Unit-2 Dorm-5
Jackson, LA 70748
DEFENDANT/APPELLANT
Justin Seawright

SAUNDERS, Judge.

There were multiple amended bills of information filed in this case, the most

recent dated January 12, 2015. The State charged Defendant, Justin Seawright,

with carjacking, a violation La.R.S. 14:64.2; and two counts of armed robbery,

violations of La.R.S. 14:64. Defendant waived formal arraignment on March 12.

The parties met in open court on March 30 in anticipation of a guilty plea, but

Defendant made no such plea. The district court continued the matter to August 3.

Defendant filed a written motion for speedy trial on April 13; on April 15, the

court signed an order reiterating the August 3 trial date. On July 23, the State filed

a motion in open court to continue the trial from the August 3 date. Defendant

objected, but the court granted the continuance and set the matter for September 8.

The court also reduced Defendant’s bonds for the three charges. Jury selection

began on September 8. Ultimately, the jury found Defendant guilty of all three

charges. On December 1, 2015, the court sentenced Defendant to fifteen years at

hard labor for carjacking, without benefit of parole; for the armed robbery in count

two, the court sentenced Defendant to twenty years to run concurrently with the

carjacking sentence, without benefit of parole. On the other armed robbery, the

court sentenced Defendant to thirty years to run consecutively with the other two

sentences.

Defendant now appeals, assigning one error through counsel; he has also

filed a pro se brief, assigning three errors, although one reiterates counsel’s

assignment.

FACTS:

As noted earlier, a jury found Defendant guilty of carjacking and two counts

of armed robbery. He used the vehicle from the carjacking in one of the robberies,

which he committed at a bank in Lafayette Parish.

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 no errors patent.

PRO SE ASSIGNMENT OF ERROR NO. 1:

We will address this assignment of error first, as it raises a pre-trial issue and

the other assignments all address the sentence. Defendant states that he filed a

motion for speedy trial on April 13, 2015. At a hearing on July 23, 2015, the

district court granted the State a continuance and set a trial date for September 8,

2015. As Defendant notes in his brief, his motion for speedy trial was based upon

La.Code Crim.P. art. 701(D). This provision and related paragraphs state:

D. (1) A motion by the defendant for a speedy trial, in order to
be valid, must be accompanied by an affidavit by defendant’s counsel
certifying that the defendant and his counsel are prepared to proceed
to trial within the delays set forth in this Article. After the filing of a
motion for a speedy trial by the defendant and his counsel the time
period for commencement of trial shall be as follows:

(a) The trial of a defendant charged with a felony shall
commence within one hundred twenty days if he is continued in
custody and within one hundred eighty days if he is not continued in
custody.

(b) The trial of a defendant charged with a misdemeanor shall
commence within thirty days if he is continued in custody and within
sixty days if he is not continued in custody.

(2) Failure to commence trial within the time periods provided
above shall result in the release of the defendant without bail or in the
discharge of the bail obligation, if after contradictory hearing with the
district attorney, just cause for the delay is not shown.

E. “Just cause” as used in this Article shall include any grounds
beyond the control of the State or the Court.

F. A motion for a speedy trial filed by the defendant, but not
verified by the affidavit of his counsel, shall be set for contradictory
hearing within thirty days.

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A statutory speedy trial claim is a pre-trial claim that becomes
moot upon conviction. See State v. Johnson, 622 So.2d 845 (La.App.
4th Cir.1993). Any rights under La.C.Cr.P art. 701 become moot after
conviction because the remedy for such a violation is the pre-trial
release of the defendant, not a bar to prosecution. State v. Johnson,
08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1091, writ denied,
09-1394 (La.2/26/10), 28 So.3d 268 (citing State v. Cowger, 581
So.2d at 286).

State v. Otkins-Victor, 15-340, p. 71 (La.App. 5 Cir. 5/26/16), 193 So.3d 479, 529.

Thus, Defendant’s pro se assignment lacks merit to the extent it relies upon

La.Code Crim.P. art. 701.

Defendant also argues his constitutional right to a speedy trial was violated.

However, it is questionable whether he raised this basis in the district court and

thus preserved it for appellate review. His written motion was based upon La.Code

Crim.P. art. 701. Also, when the parties discussed the speedy trial motion at the

hearing on a State motion to continue, defense counsel mentioned Defendant’s

constitutional right to speedy trial, but his argument indicated he was seeking

pretrial release or a lower bond.

[Mr. Register:]

Now, if she wants to get her continuance, Judge,
and we want to compromise on this, then good. Cut his
bond in half. You know, give him the opportunity to be
released.

....

THE COURT: Do we know what his bond is? Can
we find out what his bond is?

MR. REGISTER: It’s roughly $250,000. But he
can’t -- Even if you reduce that in half, he still can’t get
out.

THE COURT: Well, I mean, I’m going to reduce
it, because -- Although we’re only making him wait
about a month, I’m going to reduce his bond. But I need
to know what it is.

MR. REGISTER: Can you call?
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THE COURT: Find out what his bond is. He has
several charges? I need to know what his total bond is on
all the charges.

(OFF THE RECORD AND THEN BACK ON THE RECORD)

THE BAILIFF: Total bond, Judge, is $250,000.

THE COURT: $250,000.

THE MINUTE CLERK: Is there a breakdown?

THE COURT: Can they break it down for us?
Ask them if they can break it down by charge for us.

(OFF THE RECORD AND THEN BACK ON THE RECORD)

THE BAILIFF: Two armed robberies at
$100,000 and one carjacking at $50,000.

THE COURT: All right. So I’m going to - - on
each of these charges, I’m going to reduce the bond by
50 percent. So the carjacking bond will now be
$25,000, armed robbery will be - - one count $50,000
and the other $50,000. So his total bond is not
$125,000.

MR REGISTER: And, again, for the record,
Judge, we certainly appreciate the Court reducing his
bond in half, but we just want the Court to note our
objection, if, in fact, it’s the Court’s desire to continue
this case.

THE COURT: Yeah, I know. I’m going to allow
it to be continued to that September 8th trial date as a
first priority fixing. Everybody needs to make sure their
witnesses are here. There’s going to be no more
continuances in this matter.

Defendant’s pro se brief cites a supreme court case and jurisprudence therein

regarding constitutional speedy trial rights:

A defendant’s right to a speedy trial is a fundamental right
imposed on the states by the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. Klopfer v. North
Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). See
also La. Const. (1974) art. 1, § 16. The underlying purpose of this
constitutional right is to protect a defendant’s interests in preventing
oppressive pretrial incarceration, limiting possible impairment of his
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defense, and minimizing his anxiety and concern. Barker[v. Wingo],
407 U.S. [514] at 515, 92 S.Ct. 2182 [1972].

The United State Supreme Court made the following
observations concerning a defendant’s Sixth Amendment right to a
speedy trial in Barker:

The right to a speedy trial is a more vague concept
than other procedural rights. It is, for example,
impossible to determine with precision when the right
has been denied. We cannot definitely say how long is
too long in a system where justice is supposed to be swift
but deliberate. As a consequence, there is no fixed point
in the criminal process when the State can put the
defendant to the choice of either exercising or waiving
the right to a speedy trial. If, for example, the State
moves for a 60-day continuance, granting that
continuance is not a violation of the right to speedy trial
unless the circumstances of the case are such that further
delay would endanger the value the right protects. It is
impossible to do more than generalize about when those
circumstances exist. . . . Thus, as we recognized in
Beavers v. Haubert, [198 U.S. 77, 25 S.Ct. 573, 49 L.Ed.
950 (1905)], any inquiry into a speedy trial claim
necessitates a functional analysis of the right in the
particular context of the case:

“The right of a speedy trial is
necessarily relative. It is consistent with
delays and depends upon circumstances. It
secures rights of a defendant. It does not
preclude the rights of public justice. 198
U.S., at 87[, 25 S.Ct. 573] . . . .

The amorphous quality of the right also leads to
the unsatisfactorily severe remedy of dismissal of the
indictment when the right has been deprived. This is
indeed a serious consequence because it means that a
defendant who may be guilty of a serious crime will go
free, without having been tried. Such a remedy is more
serious than an exclusionary rule or a reversal for a new
trial, but it is the only possible remedy.”

Id. at 522-23, 92 S.Ct. 2182 (footnote omitted).

In determining whether a defendant’s right to speedy trial has
been violated, courts are required to assess the following factors: (1)
the length of the delay, (2) the reason for the delay, (3) the defendant's
assertion of his right to a speedy trial, and (4) the prejudice to the
defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182; State v. Alfred,
337 So.2d 1049, 1054 (1976) [on rehearing]. Under the rules
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established in Barker, none of the four factors listed above is “either a
necessary or sufficient condition to the finding of a deprivation of the
right to speedy trial.” Id. at 533, 92 S.Ct. 2182. Instead, they are
“related factors and must be considered together . . . in a difficult and
sensitive balancing process.” Id.

State v. Love, 00-3347, pp. 14-15 (La. 5/23/03), 847 So.2d 1198, 1209-10.

Even though this court views the issue as not preserved for appellate review,

the assignment still lacks merit. In discussing the Barker factors, Defendant

alleges no specific prejudice in his pro se brief.

We will address the remaining pro se assignments in numerical order for the

sake of clarity.

PRO SE ASSIGNMENT OF ERROR NO. 2:

In his second pro se assignment of error, Defendant argues the district court

erred by failing to rule on his motion to reconsider sentence. We find that this

assignment rests upon an incorrect premise, as the sentencing court did rule upon

Defendant’s oral motion to reconsider sentence:

MR REGISTER: All right. Thank you. And, at
this point, I’m going to verbally request a motion for
reconsideration - - and I’ll follow it up with a written
motion.

As it relates to the sentence in count one, which is
15 years, and count two, which is 20, we would simply
argue to the Court that such a sentence is excessive based
upon those particular - - based up those two counts.

As relates to count three, it is my understanding that
the Court is ordering that count three run consecutive to
counts one and two. We would make the argument that
count two and three involve a single set of the same facts.
And, to allow those sentences to run concurrent - - or at
least consecutive - - we would simply move to the Court
that is simply cruel and unusual and unjust punishment,
and we would ask the Court to reconsider the sentence
that the Court has just imposed.

THE COURT: Well, as I pointed out, counts one
and two are running concurrent, because they were the
same event and the same victim.
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Count three happened a day later. It’s not the same
event and the same victim, although he did use the vehicle
from the carjacking to facilitate it.

And, as that is a separate and distinct offense, the
Court finds it’s appropriate that that sentence run
consecutive, which is why I have so ordered.

Therefore, this assignment lacks merit.

ASSIGNMENT OF ERROR & PRO SE ASSIGNMENT OF ERROR NO. 3:

In counsel’s sole assignment of error and the final pro se assignment of

error, they claim that Defendant’s sentences are excessive. However, the pro se

brief challenges the consecutive nature of the sentence for the second count of

armed robbery. This was the same basis raised in his oral motion to reconsider

sentence, just cited in the previous assignment. His counsel-filed brief contains

two arguments. It first argues that the sentencing court failed to include sufficient

reasons in the record to support the sentence. However, the general thrust of his

argument is a bare claim of excessiveness, as he contends the “sentences make no

measurable contribution to acceptable goals of punishment” and further requests

this court to remand with an order “to impose lesser, non-constitutionally excessive

sentences.” He also argues the sentences should have been concurrent.

The pertinent provision is La.Code Crim.P. art. 881.1(E), which 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.” The issue of whether all of the sentences should have been

concurrent is clearly preserved and will be addressed.

The controlling statute is La.Code Crim.P. art. 883:

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If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

As shown by the colloquy cited in the previous assignment, the sentencing

court gave reasons for the consecutive sentence. Further, this court has upheld

consecutive sentences for separate acts. State v. H.B., 06-1436 (La.App. 3 Cir.

4/4/07), 955 So.2d 255. Pursuant to La.Code Crim.P. art. 883 and H.B., this

portion of the assignment lacks merit.

To the extent counsel argues that the district court failed to properly support

the sentence with reasons, that argument has not been preserved as a separate issue.

This court has explained: “Because the defendant did not raise in his oral motion to

reconsider sentence that the trial court failed to comply with La.Code Crim.P. art.

894.1, he cannot raise that for the first time on appeal. See La.Code Crim.P art.

881.1(E) and Uniform Rules--Courts of Appeal, Rule 1-3.” State v. Matthew, 07-

1326, p. 4 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, 997, writ denied, 08-1664 (La.

4/24/09), 7 So.3d 1193. Therefore, this portion of the assignment lacks merit.

Defendant also argues that sentences are excessive in length. He received

fifteen years for carjacking, with a concurrent twenty-year sentence for armed

robbery, and a consecutive thirty-year sentence for the other armed robbery. As

noted earlier, Defendant’s oral motion to reconsider sentence did not address the

length of incarceration. As that ground was not raised, it is precluded pursuant to

La.Code Crim. P. art 881.1. This court has explained:

In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772
So.2d 356, the defendant failed to object to the sentence imposed at
the sentencing hearing and did not timely file a motion to reconsider
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sentence. Thus, this court found his claim of excessiveness of
sentence was barred.

Based on the above statutory law and jurisprudence, Defendant
is precluded from a review of the excessiveness of the sentences. We
are mindful, however, that this court has reviewed claims of
excessiveness where no objection was made, no motion to reconsider
sentence filed, or at a minimum, Defendant only objected to the
excessiveness without stating a ground for his objection. 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, 178 L.Ed.2d 775 (2011); State v. Thomas, 08-1358
(La.App. 3 Cir. 5/6/09), 18 So.3d 127. Accordingly, we will review
the Defendant’s claim as a bare claim of excessiveness.

This court discussed the standard of review applicable to claims
of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir.
3/3/04), 867 So.2d 955, 958-59, as follows:

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).

The fifth circuit, in [State v.] Lisotta, [98-648
(La.App. 5 Cir. 12/16/98),] 726 So.2d [57,] 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

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3. The sentence imposed for similar crimes by the same
court and other courts.

State v. Bowles, 13-80, pp. 7-8 (La.App. 3 Cir. 10/9/13), 123 So.3d 350, 357, writ

denied, 13-2655 (La. 4/25/14), 138 So.3d 643.

As for the nature of the crimes, armed robbery and carjacking are clearly

violent offenses, even though Defendant apparently used an airgun to facilitate

them. Regarding the nature and background of the offender, we cite the following

colloquy:

[THE COURT:]

I’ve shared the report with Ms. Perrodin, the ADA, and with
your attorney, Mr. Register. And I understand that you and Mr.
Register just went over the PSI. Is that correct?

JUSTIN D. SEAWRIGHT:

Yes, ma’am.

THE COURT:

The possible sentence which can be imposed upon you for each
count of armed robbery is imprisonment at hard labor for not less than
10 not more than 99 years, without benefit of parole, probation, or
suspension of sentence.

The possible sentence which can be imposed upon you for the
offense of carjacking is imprisonment at hard labor for not less than
two nor more than 20 years, without benefit of parole, probation, or
suspension of sentence.

The presentence report reflects that you have one prior felony
conviction from June 29th of 2001 when you pled guilty to simple
burglary. On that charge you were place on probation. However,
your probation was revoked, and, subsequently, your parole was also
revoked on that charge.

You also have misdemeanor convictions for possession of
marijuana, DWI, and receiving stolen things. And your record
indicates that you have had at least four bench warrants issued for
failure to appear in court, two of which appear to still be active bench
warrants.

Do you dispute any of that?

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JUSTIN D. SEAWRIGHT:

No, ma’am.

THE COURT:

All right.

THE COURT: Mr. Register, are there any facts
that you would like to bring before the Court in regard to
mitigation?

MR. REGISTER: The only thing that I would like
to add, Judge, is that, at the time that my client was
arrested, he did, in fact, participate with, I believe, some
federal authorities and gave them some information
pertaining to other cases.

And it’s my understanding that information was
useful at some point, that resulted in the arrest of other
defendants. I don’t know if the DA would confirm that
or not but, at the same time, it was indicated in the
sentencing - - presentencing report that he was not given
any credit for that.

If, in fact, that is undisputed by the DA, in
sentencing this defendant, I would ask the Court to give
him some credit for cooperating with the federal or state
authorities that resulted in other arrests.

Pursuant to the final Lisotta factor, the supreme court upheld a forty-year

sentence for an armed robbery in which the defendant used a toy pistol. State v.

Green, 409 So.2d 563 (La.1982). The first circuit affirmed a twenty-five-year

sentence for an armed robbery committed with an unloaded BB gun. State v.

Craddock, 10-1473 (La.App. 1 Cir. 3/25/11), 62 So.3d 791, writ denied, 11-862

(La. 10/21/11), 73 So.3d 380. The second circuit affirmed a thirty-year sentence

for an armed robbery committed with an unloaded gun. State v. Bowers, 39,970

(La.App. 2 Cir. 8/19/05) 909 So.2d 1038. These cases show that the armed

robbery sentences at issue do not fall outside the norms of Louisiana jurisprudence.

Pursuant to La.R.S. 14:64, Defendant could have received up to ninety-nine years

for each armed robbery; under La.R.S. 14:64.2, he could have received up to
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twenty years for carjacking. In light of the various points of consideration, the

sentence imposed is not excessive.

DECREE:

The convictions and sentences are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules– Courts of Appeal, Rule 2–16.3.

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