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State v. Williams

Court of Appeals of Louisiana, Third Circuit

April 5, 2017

STATE OF LOUISIANA
v.
ERNEST RAY WILLIAMS

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 315-582 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

          Phillip Terrell District Attorney - Ninth Judicial District Court Numa V. Metoyer, III Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Carey J. Ellis, III Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Ernest Ray Williams

          Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.

          JOHN E. CONERY JUDGE

         On January 28, 2016, Defendant, Ernest Ray Williams, was convicted by a jury of attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1, and theft of a firearm, a violation of La.R.S. 14:67.15. Defendant had also been charged with, but acquitted of, cruelty to animals, a violation of La.R.S. 14:102.1(B).

         On March 22, 2016, the trial court sentenced Defendant to twenty-five years on the attempted second degree murder conviction and to ten years on the theft of a firearm conviction, to be served concurrently. Defendant objected to his sentences and timely filed a written motion to reconsider sentence. The trial court overruled the objection and denied the motion.

         On appeal, Defendant asserts two assignments of error. Defendant challenges the sufficiency of the evidence on both convictions and argues that his sentences are excessive.

         FACTS AND PROCEDURAL HISTORY

         After a history of alleged domestic abuse, Defendant and his wife, Patricia Tolbert (also known as Patricia Williams), became estranged. Patricia was living in an apartment on her family's property (herein referred to as "the Tolbert's residence"). On May 12, 2013, Defendant's sister and brother dropped Defendant off at a call tower where he claimed he needed to be to make his way to an upcoming job. When exiting his sister's vehicle, Defendant grabbed a duffle bag he had placed in the back of the vehicle. Shortly after Defendant's sister and brother dropped Defendant off at the call tower, his sister found two suicide notes in her vehicle. One of the suicide notes was addressed to Defendant's brother and the other to Defendant and Patricia's son. Defendant's sister and brother contacted police and informed them that they believed Defendant was going to hurt himself and that they had reason to believe he was going to hurt Patricia, too. Defendant's sister and brother told police that Defendant believed Patricia was going to serve him with divorce papers, and he stated to them, "like I said when we was married, to death do us part and that's how it's going to be."

         Deputies were dispatched to the Tolbert's residence, where Patricia was staying in an apartment behind the main house. As the deputies were making their way to Patricia's apartment, they noticed movement in a work shed that was close in proximity to Patricia's apartment. There in the work shed, deputies found Defendant dressed in camouflage with a stolen AR-15 assault rifle and two fully loaded thirty-round clips. Defendant also had multiple boxes of ammunition beside him. The doorway to Patricia's apartment faced the front of the Tolbert's residence in such a way that had she exited her apartment, she would have been in the line of fire from where Defendant was armed in the work shed with his stolen rifle. Defendant had been lying in wait in the work shed for roughly six hours. Defendant surrendered to the deputies, and they secured the rifle and ammunition. Defendant admitted to the deputies that he had shot a dog in a field on his way to Patricia's apartment (presumably to test how the gun functioned).

         The serial number on the rifle indicated that the rifle in Defendant's possession belonged to Phillip Hunter. Defendant had been hired as a handyman at Mr. Hunter's law firm. The rifle had been stolen from Mr. Hunter's law firm and defendant replaced it with a fake gun that had been painted black by Defendant to conceal his theft. Following Defendant's arrest, the deputies knocked on the door of Patricia's apartment. Patricia answered the door and stated that she had not left the apartment in the last six hours, and she had no knowledge that defendant was in the work shed armed with an assault rifle.

         A jury found Defendant guilty of attempted second degree murder and theft of a firearm. Defendant was sentenced to twenty-five years for attempted second degree murder and ten years for theft of a firearm, to be served concurrently. Defendant appeals his convictions and sentences. For the following reasons, we affirm in part, amend in part, vacate in part, and remand in part.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent concerning Defendant's sentences.

         Louisiana Revised Statute La.R.S. 14:27 provides, in pertinent part:

D. Whoever attempts to commit any crime shall be punished as follows:
(1)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.

         Further, La.R.S. 14:30.1 provides, in pertinent part:

B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

         At sentencing, the trial court used the following language when sentencing Defendant:

I haven't heard any remorse, you know, and so, for the Theft of a Firearm, I'm sentencing you to 10 years[, and] for the Attempted Second Degree Murder, I'm sentencing you to 25 years. Those will run concurrently and you shall receive credit for time served. And this is a crime of violence.

         As to Defendant's sentence for attempted second degree murder, the trial judge made no mention of the statutorily mandated language that the sentence was to be served at hard labor without benefits. On its face, the sentence is illegally lenient. However, because it is mandatory for Defendant's sentence to be served at hard labor and without benefit of parole, probation, or suspension of sentence as provided by La.R.S. 14:27 and La.R.S. 14:30.1, we amend Defendant's sentence to provide that the sentence for attempted second degree murder is to be served at hard labor without benefit or parole, probation, or suspension of sentence. See State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La. 4/24/09), 7 So.3d 1193.

         Second, the trial court did not specify whether Defendant's sentence for theft of a firearm is to be served with or without hard labor. Louisiana Revised Statutes 14:67.15 provides, in pertinent part, "For a first offense, the penalty for theft of a firearm shall be imprisonment with or without hard labor for not less than two years nor more than ten years, without the benefit of probation, parole, or suspension of sentence and a fine of one thousand dollars." Because the trial court did not specify whether the sentence for theft of a firearm was to be served with or without hard labor and such is optional by statute, Defendant's sentence for theft of a firearm is indeterminate. Likewise, the statutorily required language that "without the benefit of probation, parole or suspension of sentence and a fine of one thousand dollars" was not imposed. Louisiana Code of Criminal Procedure Article 879 requires the imposition of a determinate sentence. Therefore, we find that Defendant's sentence for theft of a firearm should be vacated, and the case remanded for resentencing with the trial court being instructed to specify whether the sentence is to be served with or without hard labor and to specify that the sentence be imposed without the benefit of probation, parole or suspension of sentence and a fine of one thousand dollars as required by the statute. See id; State v. Newton, 12-541 (La.App. 3 Cir. 2/13/13), 129 So.3d 25. See Matthew, 983 So.2d 994.

         ASSIGNMENT OF ERROR ONE

         In Defendant's first assignment of error, he challenges the sufficiency of the ...


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