State of Louisiana v. Curtis White, Jr. A/K/A Curtis Ray White, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-604

STATE OF LOUISIANA

VERSUS

CURTIS WHITE, JR.

A/K/A CURTIS RAY WHITE, JR.

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 128344-F
HONORABLE MARCUS L. FONTENOT, DISTRICT JUDGE

**********

WILBUR L. STILES
JUDGE

**********

Court composed of D. Kent Savoie, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Trent Brignac
Evangeline Parish District Attorney
Chauncey J. Hesnor
Jacob B. Fusilier
Assistant District Attorneys
13th Judicial District
Post Office Drawer 780
Ville Platte, LA 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
600 Jefferson Street, Suite 903
Lafayette, LA 70501
(337) 366-8994
COUNSEL FOR DEFENDANT/APPELLANT:
Curtis White, Jr.

STILES, Judge.

On February 24, 2023, Defendant Curtis White, Jr. was charged by an

amended bill of information with domestic abuse battery child endangerment, in

violation of La.R.S. 14:35.3(I), and second degree robbery, in violation of La.R.S.

14:64.4. A jury found Defendant guilty as charged on March 1, 2023. On July 6,

2023, the trial court sentenced Defendant to twenty-five years at hard labor for

second degree robbery and three years at hard labor for domestic abuse battery child

endangerment. It was ordered that these sentences run concurrently with one another,

but consecutive to any other sentence Defendant may be presently serving.

Defendant has appealed his convictions for both domestic abuse battery child

endangerment and second degree robbery and has appealed his sentence for second

degree robbery.1 For the following reasons, we affirm Defendant’s convictions and

sentence.

FACTS AND PROCEDURAL HISTORY

On May 17, 2022, Defendant, his girlfriend, Erin Marcantel, and her eight-

year-old daughter were in Ms. Marcantel’s house in Grand Prairie, Louisiana. 2

Defendant and Ms. Marcantel were involved in an argument, and as Ms. Marcantel

emerged from the bathroom with a bag of Defendant’s clothes, Defendant punched

her in the face, breaking her nose. He then asked Ms. Marcantel for the keys to her

2019 Nissan Altima, making it clear that he would hurt her further if she refused.

She gave him the keys. Defendant then took Ms. Marcantel’s cell phone and her

1
Defendant does not challenge his sentence for domestic abuse battery child endangerment.
2
Some testimony suggested there may have also been a sleeping baby in the house.

daughter’s cell phone. Ms. Marcantel told her daughter to go next door to Ms.

Marcantel’s parents’ home, but Defendant prevented her daughter from leaving.

Defendant then went outside, followed by Ms. Marcantel who asked for her

cell phones and keys back. Defendant returned the cell phones to Ms. Marcantel but

kept the keys. He told Ms. Marcantel that he would not take her car if she would

drive him to Alexandria. When she refused, he drove away in Ms. Marcantel’s car.

Defendant was subsequently arrested by the Alexandria Police Department at a

motel. At the time of his arrest, he gave the police officers the keys to Ms.

Marcantel’s car, which was parked in a nearby parking lot.

On June 8, 2022, Defendant was initially charged by bill of information with

domestic abuse battery child endangerment, in violation of La.R.S. 14:35.3(I), and

carjacking, in violation of La.R.S. 14:64.2. An amended bill of information filed on

February 24, 2023, again charged Defendant with domestic abuse battery child

endangerment, but the charge of carjacking was changed to second degree robbery,

in violation of La.R.S. 64.4.

A jury was selected on February 27, 2023. The jury heard evidence and

argument on February 28 and March 1, 2023, ultimately finding Defendant guilty of

both domestic abuse battery child endangerment and second degree robbery. The

State moved for a pre-sentence investigation, which was ordered by the court, and a

sentencing hearing was scheduled for July 6, 2023.

On July 6, 2023, Defendant appeared before the trial court for sentencing.

Defense counsel moved for a continuance, arguing that he had only recently been

appointed to represent Defendant and needed additional time to prepare and

potentially file post-trial motions. The State opposed any continuance of the

sentencing hearing. The trial court denied defense counsel’s motion to continue,

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finding that the public defender’s office had adequate time to prepare for the hearing

which had been scheduled for approximately four months. The State and defense

counsel then presented arguments for Defendant’s sentencing, after which the trial

court sentenced Defendant to serve twenty-five years at hard labor for second degree

robbery and three years at hard labor for domestic abuse battery child endangerment.

The trial court ordered these sentences to run concurrently with one another, but

consecutive to any other sentence Defendant may be presently serving.

Defendant has appealed, asserting five assignments of error:

I. The State failed to sufficiently prove that Curtis White, Jr. was
guilty of second-degree robbery.

II. The trial court erred in denying the defense’s objection to the jury
instruction for second-degree robbery. The defense properly
objected to an instruction that erroneously included additional
elements in the definition of second-degree robbery. Specifically,
the jury was instructed that second-degree robbery included the
use of “force or intimidation . . . to accomplish the taking,” which
are not elements of this crime.

III. The State failed to sufficiently prove that Curtis White, Jr. was
guilty of domestic abuse battery child endangerment.

IV. The 25-year sentence at hard labor for second-degree robbery is
constitutionally excessive.

V. The trial court erred in denying newly appointed defense
counsel’s reasonable request for a temporary continuance to
familiarize himself with the case and file post-trial motions. He
was appointed a short time before the sentencing hearing and had
identified issues to raise in a motion for a new trial, but the trial
court did not give counsel time to prepare or be effective.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals

for errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

3

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

Insufficient Evidence

As Defendant’s assignments of error numbers one and three both raise the

argument that insufficient evidence was presented at trial to convict Defendant of

the charges, we will address these two assignments together before addressing

Defendant’s assignment of error number two.

When sufficiency of the evidence is challenged, the analysis is well-

established:

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, 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.

Second Degree Robbery

In his first assignment of error, Defendant argues that the State failed to prove

him guilty of second degree robbery, as there was no nexus between the infliction of

serious bodily harm upon the victim and the taking of the victim’s car. Defendant

argues there was a temporal gap between the injury and the taking. According to

Defendant, the infliction of serious bodily injury and the taking must be effectively

simultaneous to violate the second degree robbery statute.

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The controlling statute, La.R.S. 14:64.4, defines second degree robbery as

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

that is in the immediate control of another when the offender intentionally inflicts

serious bodily injury.” Defendant focuses on the word “when” to support his

argument that the injury and the taking must be virtually simultaneous. However, he

cites no jurisprudence to support his argument. Instead, he refers to the facts of the

case, summarized above, and argues that pursuant to said facts, there was no nexus

between the infliction of serious bodily injury upon the victim, Ms. Marcantel, and

the taking of her car.

We find that the nexus between the injury and the taking is illustrated in the

trial testimony Defendant cites in his brief. It is clear that Ms. Marcantel would not

have relinquished her car keys if Defendant had not already broken her nose. Ms.

Marcantel testified to the following at trial:

Q: The medical records indicate a non-displaced fracture of the – of
the distal nasal bridge.

A: Yes.

Q. Okay. That’s punched in the nose, correct?

A: Correct.

Q. Alright. Um, now he… then after he punched you what happened
next?

A: He, um, asked for my keys.

Q. Okay. To a 2019 Silver, Nissan Altima?

A: Correct.

Q: That car is your car- is your car?

A: Yes. It was.

Q: Okay. Did you want to give him the keys?

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A: No.

Q: Alright, um…

A: He told me if I didn’t give them to him, he would hurt me.

Q: Okay. So, he threatened you with further harm after punching
you in the nose if you didn’t give him the keys?

A: Correct.

While we have not found a case on point, there is jurisprudence regarding

another robbery statute, La.R.S. 14:64, i.e., armed robbery. Although that statute

proscribes a taking “while armed with a dangerous weapon,” Louisiana courts have

stated that the use of a weapon at any point in the continuous course of a robbery,

even after the taking, can constitute armed robbery. See, e.g., State v. Brown, 11-363

(La.App. 1 Cir. 9/14/11), 77 So.3d 297, writ denied, 11-2293 (La. 3/9/12), 84 So.3d

550. This is because the use of the weapon even after the taking facilitates the taking.

Similarly, the injury inflicted in the present case by Defendant on Ms. Marcantel

clearly facilitated the taking of her keys, and thereby, her car.

Based on our discussion above, we find that, viewing the evidence in the light

most favorable to the State, any rational trier of fact could find the essential elements

of second degree robbery were proved beyond a reasonable doubt. This assignment

of error is therefore without merit.

Domestic Abuse Battery Child Endangerment

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

by the State did not support his conviction for domestic abuse battery child

endangerment. The controlling statute, La.R.S. 14:35.3, states, in pertinent part:

A. Domestic abuse battery is the intentional use of force or
violence committed by one household member or family member upon
the person of another household member or family member.

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B. For purposes of this Section:

....

(5) “Household member” means any person presently or
formerly living in the same residence with the offender and who is
involved or has been involved in a sexual or intimate relationship with
the offender, or any child presently or formerly living in the same
residence with the offender, or any child of the offender regardless of
where the child resides.

....

I. This Subsection shall be cited as the “Domestic Abuse Child
Endangerment Law”. Notwithstanding any provision of law to the
contrary, when the state proves, in addition to the elements of the crime
as set forth in Subsection A of this Section, that a minor child thirteen
years of age or younger was present at the residence or any other scene
at the time of the commission of the offense, the offender, in addition
to any other penalties imposed pursuant to this Section, shall be
imprisoned at hard labor for not more than three years.

Defendant argues that the evidence did not demonstrate that he was a “household

member” because it did not demonstrate that he was “living” in the victim’s, Ms.

Marcantel’s, residence.

The State has replied to Defendant’s argument by citing testimony that

Defendant did live at Ms. Marcantel’s residence “off and on” and had lived there in

the past. For example, Ms. Marcantel testified:

Q: Okay. Um, do you know the defendant Curtis White, Jr.?

A: Yes, I do.

Q: How do you know him?

A: We were in a relationship.

Q: An intimate relationship?

A: Yes.

Q: Okay, a sexual relationship?

7

A: Yes.

Q: Uh, y’all had dated at one point?

A: Yes.

Q: Kind of off and on?

A: Yes.

Q: Did the defendant ever live in the household with you?

A: Yes, he do [sic].

Q: Okay. Um, did he live with you consistently or was it kind of…

A: On and off.

Q: On and off, but he did live there, right?

A: Yes.

Q: Okay. Um, at the time the defendant lived with you did your
daughter live with you?

A: Yes.

....

Q: And he was a domestic partner or a boyfriend, an on and off again
boyfriend, correct?

A: Correct.

Q: And your [sic] absolutely certain that he did live with you at
some point in time.

A: I’m absolutely certain. His wife knows it and I have family that
knows it.

When questioned on cross-examination, Ms. Marcantel further testified:

Q: You said that, uh, y’all lived together on and off…

A: Yes, we do…

Q: Uh, so, how long did he, uh, stay at your house? At a time?

A: He stayed at my house months at a time.

8

Q: How many months?

A: Consecutively, at least three months.

....

Q: Um, was he going back and forth to Alexandria at the time?

A: He would go back and forth but he was not living in Alexandria.

Q: Is that according to your definition of living? In Alexandria?

A: He had no home in Alexandria. He had no residence at that time.

Q: When he… how did he get to your house?

A: By me and my vehicle.

Both Defendant and the State cite in their briefs State v. Davis, 15-1949, pp.

12–14 (La. 3/15/17), 221 So.3d 28, 36 (footnote omitted), which discussed a

previous version of La.R.S. 14:35.3:

As a final point in our analysis, we return to the defendant’s
argument that, because both Ms. Leonard and the defendant described
their relationship in terms of “staying with” each other, the definition
of “household” contained in La. R.S. 14:35.3(B)(2) is unmet. The crux
of the defendant’s argument is that La. R.S. 14:35.3(B)(2) defines
household in terms of a couple “living in the same residence” with each
other, rather than “staying with” each other. This argument lacks merit.
There is no requirement that witnesses use the exact language in a
statute for a court to determine that the conditions in the statute have
been met. The defendant does not argue, and we do not find, that “living
in the same residence” is a technical term. Pursuant to La. R.S. 1:3, in
the absence of technical terminology, statutory “[w]ords and phrases
shall be read with their context and shall be construed according to the
common and approved usage of the language.” Similarly, pursuant to
La. R.S. 14:3, “all of [the] provisions [of the Criminal Code] shall be
given a genuine construction, according to the fair import of their words,
taken in their usual sense, in connection with the context, and with
reference to the purpose of the provision.” Following the principles of
La. R.S. 1:3 and La. R.S. 14:3, we have no difficulty in determining
that the witnesses’ testimony that they were “staying with” each other
is synonymous with “living in the same residence” under La. R.S.
14:35.3(B)(2).

9

We find that the State adduced testimony that Defendant was living with and

had formerly lived with Ms. Marcantel. Defendant’s argument is an attempt to

discuss a nuance that does not exist, as the defendant attempted to do in State v.

Davis, 221 So.3d 28. There is no such nuance or problem of legal interpretation in

this case. Ms. Marcantel’s plain testimony that Defendant was living with her, albeit

“off and on,” supported Defendant’s conviction for Domestic Abuse Battery Child

Endangerment.

As this was the only point Defendant contested under this assignment, we find

that this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that the trial court erred

by denying his objection to the jury instructions regarding second degree robbery.

At the end of Defendant’s trial and prior to the trial court reading its

instructions to the jury, defense counsel objected to the inclusion of “force and

intimidation” as an element of second degree robbery. The trial court overruled the

objection, providing the following instruction to the jury concerning second degree

robbery:

The defendant is charged with Second Degree Battery… Second
Degree Robbery of Erin Marcantel. Second Degree 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 when the offender
intentionally inflicts serious bodily injury. The phrase, anything of
value must be given the broadest possible construction including any
conceivable thing of the slightest value. Thus, in order to convict the
defendant of Second Degree Robbery you must find; Number one that
the defendant intentionally took something of value belonging to
another. And Number two, that the thing of value taken was in the
possession or immediate control of Erin Marcantel when it was taken.
Number three, that the defendant used force or intimidation
against Erin Marcantel in order to accomplish the taking. Number
four, that the defendant acted with the specific intent to inflict serious

10

bodily injury upon Erin Marcantel. And Number five, that Erin
Marcantel suffered serious bodily injury.

(Emphasis added). The State agrees in its appellee brief that an error occurred, at

least as far as the inclusion of “intimidation,” however, it argues that the error was

harmless.

While we have found no case directly on point, we note that the State has cited

supreme court jurisprudence regarding error in criminal jury instructions:

[A]ll constitutional errors are not structural and indeed, most are
amenable to harmless error analysis. Sullivan [v. Louisiana], 508 U.S.
[275] at 278-79, 113 S.Ct. [2078] at 2081 [(1993)], (citing to Chapman
v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967);
Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302
(1991)). An invalid instruction on the elements of an offense is
harmless if the evidence is otherwise sufficient to support the jury’s
verdict and the jury would have reached the same result if it had never
heard the erroneous instruction. E.g., Rose v. Clark, 478 U.S. 570, 106
S.Ct. 3101, 92 L.Ed.2d 460 (1986); State v. West, 568 So.2d 1019
(La.1990)(following Rose). The determination is based upon “whether
the guilty verdict actually rendered in this trial was surely unattributable
to the error.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081; State v.
Bourque, 622 So.2d 198, 241 n. 20 (La.1993)(citing Sullivan). As
repeatedly stated by the United States Supreme Court, “[a] defendant is
entitled to a fair trial but not a perfect one.” E.g., Bruton v. United States,
391 U.S.123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968).

The Third Circuit misinterprets Sullivan. An improper definition
of reasonable doubt permeates an entire verdict in that the jury has
applied the wrong standard in judging the defendant on each and every
element and a reviewing court has no way of discerning whether or not
the jury would have found the same elements had they applied the
proper standard.

Conversely, the erroneous instruction at issue merely added the
improper additional element of “intent to inflict great bodily harm”
along with the proper “intent to kill.” The jury is thus presented with
the proper standard and may not be presented with evidence which
could support the improper element. In such a circumstance a reviewing
court, following Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081 can
determine if the verdict is unattributable to the erroneous instruction.
Therefore, this error is not of such magnitude as to vitiate all jury
findings and may well have had no effect whatsoever.

11

Because the erroneous instruction at issue may be an irrelevancy
and because a reviewing court can make this determination, the error is
not structural such as that in Sullivan, but rather a trial error which may
or may not have prejudiced defendant and thus is subject to harmless
error analysis, or in the case of an ineffective assistance claim, an
analysis of whether defendant was prejudiced by the error.

Ineffective Assistance.

To prevail in a post-conviction ineffective assistance of counsel
claim, the defendant must establish (1) that counsel’s performance fell
below an objective standard of reasonableness under prevailing
professional norms, and (2) that there is a reasonable probability that
but for counsel’s inadequate performance the outcome of the trial court
would have been different. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d
1337, 1339 (La.1986).

The first prong is easily met here as the rule of [State v.] Butler
[322 So.2d 189 (La. 1975)] is well-established with over twenty years
duration and a reasonably competent attorney would know of it and
properly object when presented with the instant erroneous instruction.

As to the second prong, whether defendant was harmed or
prejudiced by counsel’s error, we agree with Judge Sullivan’s analysis
articulated in his dissent to the court of appeal’s grant and order for new
trial. The jury in this case was presented with a binary choice between
the State’s version of what occurred and the defendant’s. The defendant
testified that he and the victim were struggling over the gun when it
accidentally discharged twice. The State argued and presented
sufficient evidence to show that the defendant entered with the intent to
kill the victim but failed to complete his plans. State v. Hongo, 625
So.2d 610 (La.App. 3d Cir. 1993), writ denied, 631 So.2d 1163
(La.1994). There was no argument or evidence presented to the jury
which would support a finding that the defendant had the intent to only
inflict great bodily harm. Indeed, given only the two versions that were
presented, no reasonable jury could have concluded that defendant had
the intent to only inflict great bodily harm. Thus, the court’s erroneous
inclusion of intent to inflict great bodily harm did not prejudice the
defendant, nor would its omission have affected the verdict.

State v. Hongo, 96-2060, pp. 4–6 (La. 12/02/97), 706 So.2d 419, 421–22 (footnotes

omitted).

The State also noted a more recent supreme court case which discussed Hongo:

In State v. Hongo, we held that an erroneous jury instruction
which, in violation of Louisiana law, improperly includes intent to

12

inflict great bodily harm as an element of attempted second degree
murder is subject to the harmless error analysis. 96-2060 (La.12/02/97),
706 So.2d 419. We held that “an invalid instruction on the elements of
an offense is harmless if the evidence is otherwise sufficient to support
the jury’s verdict and the jury would have reached the same result if it
had never heard the erroneous instruction.” Id. at 421. “The
determination is based upon ‘whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” Id. (Citing
Sullivan v. Louisiana, 508 U.S. 275, 279, 113 So.Ct. 2078, 124 L.Ed.2d
182 (1993)).

State v. Bishop, 01-2548, p. 7 (La. 1/14/03), 835 So.2d 434, 439.

Pursuant to the court’s analysis in Hongo, 706 So.2d 419, we find that the

evidence of second degree robbery presented at Defendant’s trial was strong, as

discussed above in Defendant’s first assignment of error. It is clear that Defendant

committed a taking of Ms. Marcantel’s vehicle and facilitated said taking by

seriously injuring her.

We note that Defendant has cited State v. Porter, 626 So.2d 476 (La.App. 3

Cir. 1993), in which this court reversed and remanded a conviction for second degree

murder due to a faulty jury instruction. As the concurrence in that case explained,

the record evidence did not facially demonstrate that the defendant intended to

murder anybody; thus, the incorrect instruction in that case might have led to an

erroneous conviction. In the present case, Defendant makes a specific argument that

intimidation forms no part of second degree robbery. In his view, if the conviction

was based on the jury’s belief that the taking was facilitated by the victim’s fear of

further pain—in other words, because she was intimidated—then his conviction was

invalid. We disagree with this argument, for the reasons discussed above under

Defendant’s first assignment of error. The controlling statute, La.R.S. 14:64.4,

proscribes a situation in which the infliction of serious bodily injury is employed to

effect a taking. The evidence adduced at trial clearly shows that was the scenario

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that happened in the present case. Pursuant to Hongo, 706 So.2d 419, we find that

no reasonable jury could have concluded otherwise.

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

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth assignment of error, Defendant argues that his twenty-five year

sentence for second degree robbery is excessive. Although Defendant objected to

the sentence at the sentencing hearing, he acknowledges that he did not file a motion

to reconsider sentence. He now requests a review of the sentence for constitutional

excessiveness.

We note that the sentencing range for second degree robbery is three to forty

years at hard labor. La.R.S. 14:64.4(B). Thus, Defendant’s sentence of twenty-five

years at hard labor is well within the statutory range.

The failure to file a motion to reconsider sentence precludes appellate review

of arguments related to the sentence. Specifically, La.Code Crim.P. art. 881.1

provides, in pertinent part:

A.(1) In felony cases, within thirty days following the imposition
of sentence or within such longer period as the trial court may set at
sentence, the state or the defendant may make or file a motion to
reconsider sentence.

....

E. 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
arguing any ground not raised in the motion on appeal or review.

At the sentencing hearing, Defendant’s attorney simply stated, “just note the

defense’s objection to the sentencing,” without arguing any specific grounds upon

14

which the objection may have been based. As acknowledged by Defendant in his

brief, no motion to reconsider sentence was filed.

Furthermore, this court does not address issues that were not first presented to

the trial court. Uniform Rules—Courts of Appeal, Rule 1–3. No argument was

presented to the trial court at the sentencing hearing in support of defense counsel’s

objection to the sentences. Nor was any motion filed in the trial court challenging

Defendant’s sentence.

For these reasons, we decline to review Defendant’s sentence for

excessiveness as it is not properly before us.

ASSIGNMENT OF ERROR NUMBER FIVE

In his fifth and final assignment of error, Defendant argues that the trial court

erred by denying the request made by his more recently appointed counsel, Paul

Barker, to continue the sentencing hearing.

At the close of Defendant’s trial on March 1, 2023, the trial court scheduled a

sentencing hearing for July 6, 2023. Defendant received notice of this hearing in

open court. At the July 6 hearing, the following colloquy occurred:

BY THE COURT

Mr. Barker, wait. Come up to the podium or to the chair.

BY MR. BARKER

Your honor, at this time, we’re filing in the record a motion, uh,
to continue sentencing. Uh, as the court’s maybe … may or may not be
aware, the public defender who was representing Mr. White at trial is
no longer employed with the public defender’s office. I have been only
recently contracted to handle this matter, uh, and to attempt to flush out
some post-trial issues that would be right to be considered a Motion for
New Trial. Um, as stated in the Motion to Continue Sentencing that I’m
filing, I have not had sufficient time to flush out those motions. There
are, uh, several, uh, issues that I have been, uh, identified that I think
would be, uh, important to be heard a Motion for New Trial. Uh, and
for those reasons, we are seeking a content… uh, a continuance of this

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sentencing that is set for today, uh, to allow me time to properly draft
and file a Motion for New Trial.

BY THE COURT

Mr. Fusilier.

BY MR. FUSILIER

State opposes, and we are in a position to go forward with
sentencing, Judge. I don’t oppose Mr. Barker, as I wanted to say earlier,
I wanted to give him a fair opportunity to file and argue what he wants
to argue, Judge. But the State’s position is we feel that, um, there is a
significant gap between the Jury’s Verdict and the Sentencing Hearing.
And the PDO could have hired Mr. Barker, you know, sixty or ninety
days ago whatever…

BY THE COURT

Madam Clerk, do you have the date the Jury returned its verdict?

BY THE MINUTE CLERK

February 28th, uh, would you like the minutes?

BY THE COURT

Yes, please.

BY MR. BARKER

And your honor, it… just to respond to that, um, it’s not as
though Mr. White is out on the street at this time. He is incarcerated.
There’s no delay in, uh, administration of justice by having him
sentenced at a later date. It’s not like he’s going to walk free today if
we don’t have him sentenced. It’s simply letting him sit where he is for
a bit longer to allow me the opportunity to properly develop these post-
trial issues that would most likely turn into post-conviction issues at a
later time if they aren’t heard at this time.

BY THE COURT

Okay, my records and the clerk’s records reflect that on March 1,
2023, Mr. White was convicted, and a sentence was set… sentencing
was set for July 6th, that’s at least four months. Uh, I think it’s ample
time at that time the PDO was present, he was represented by the PDO
at trial, that’s ample time to prepare so your motion is denied.

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BY MR. BARKER

Just note the objection.

BY THE COURT

So, noted. Where’s Mr. White? Let’s get Mr. White in. Good
morning, Mr. White, let the record reflect that Mr. White is present with
counsel, um, Mr. White did you have an opportunity to visit with
counsel before the hearing this morning?

BY MR. WHITE

Yes sir.

BY THE COURT

Okay. And counsel you’ve had the opportunity to visit with Mr.
White?

BY MR BARKER

Yes, your honor.

On appeal, Defendant makes arguments similar to those he made in the trial

court in both his motion to continue and in oral argument. In the course of his

argument, appellate counsel refers to the “last-minute appointment of sentencing

counsel.” Appellate counsel states that Defendant’s trial counsel left the public

defender’s office at some point prior to sentencing. As the trial court noted,

Defendant and the public defender’s office had four months’ notice of the date of

sentencing. The State observes in its appellee brief that sentencing counsel, Paul

Barker, was appointed on May 19, 2023. Thus, he was appointed more than a month

before the July 6, 2023 sentencing hearing.

Louisiana courts generally review a denial of a motion for continuance for

abuse of discretion, requiring the defendant alleging such an error to demonstrate

prejudice. “The trial court’s denial of a motion for continuance is not grounds for

reversal absent abuse of discretion and a showing of specific prejudice.” State v.

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Moore, 40,311, p. 9 (La.App. 2 Cir. 1/13/06), 920 So.2d 334, 342, writ denied, 06-

2267 (La. 6/1/07), 957 So.2d 167. See also State v. Melancon, 17-944 (La.App. 3

Cir. 4/18/18), 243 So.3d 676; State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924

So.2d 1120.

Defendant has not demonstrated any prejudice to his case. His argument

centers around his characterization of sentencing counsel’s appointment as “last-

minute.” He also states, “It is not clear what day he was appointed.” We note that

this statement is incorrect, as the appointment letter for sentencing counsel appears

in the record, indicating that Mr. Barker was appointed more than a month before

the sentencing hearing.

In the absence of any showing of prejudice, we find that the trial court did not

abuse its discretion by denying the motion to continue the sentencing hearing. As

such, this assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant’s convictions and sentence are affirmed.

AFFIRMED.

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