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State v. Johnson

Court of Appeals of Louisiana, Second Circuit

July 5, 2017

STATE OF LOUISIANA Appellee
v.
DEMETRICK D. JOHNSON Appellant

         Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court Nos. 2015-93F & 2015-94M Honorable Ann B. McIntyre, Judge

          LOUIS G. SCOTT Counsel for Appellant.

          JOHN M. (MACK) LANCASTER District Attorney WILLIAM R. BARHAM PENNY DOUCIERE Assistant District Attorneys Counsel for Appellee.

          Before DREW, MOORE, and COX, JJ.

          MOORE, J.

         The defendant, Demetrick D. Johnson, pled guilty to one count of domestic abuse battery (burning), a violation of La. R.S. 14:35.3(B)(1) and (5), by burning his domestic partner, Remona Smith Edwards, with a hot iron on her right arm during a violent domestic argument. At sentencing, the district court applied Subsection M of the statute, a special penalty provision triggered when the domestic abuse battery is committed "by burning that causes serious bodily injury" as defined by Paragraphs B(1) and B(5)[1] in the statute. The court sentenced the defendant to 40 years at hard labor without benefit of probation, parole, or suspension of sentence. Johnson now appeals his conviction and sentence, alleging in four assignments of error that the sentence is unlawful, excessive, and his guilty plea was infirm. For the following reasons, we affirm the conviction and sentence.

         FACTS

         On February 14, 2015, the Franklin Parish Sheriff's Office received an anonymous emergency call reporting that a black male was beating a black female inside a black Jeep Cherokee at the ATM located at the Winnsboro Bank in Gilbert, Louisiana. Deputies Joshua Dunn and Shawn Butler were dispatched to the scene. Deputy Dunn testified at the preliminary examination that they drove to the reported location and stopped a black Jeep Cherokee on La. Highway 15. He testified that the defendant was the front seat passenger, and the victim, Remona Smith Edwards, was the driver of the vehicle. The officers separated the two and interviewed each person individually. Deputy Dunn said that Ms. Edwards had cuts and bruises on her face, including a bruised and swollen eye.

         One of the deputies asked Ms. Edwards if Johnson had hit her. Edwards said she was afraid to say because Johnson said he would kill her if she told the deputies that he hit her, but she eventually admitted to the deputy that Johnson had physically assaulted her that day, hitting her in the face several times and punching her in the back and left hip. Johnson admitted that he punched Edwards. Both were taken to the sheriff's office.

         Deputy Dunn described the injuries on Ms. Edwards as "scratches on her face and her left eye was bruised and swollen." She also had "red marks on her bottom lip." While at the sheriff's office, Deputy Dunn also noticed a burn about which he said, "it was-it looked bad." * * * "It was -it was puffy red, swollen." When asked at the preliminary hearing if the burn was in the shape of an iron, Deputy Dunn said, "It did have-yes. Yes."

         According to the presentence investigation ("PSI"), Ms. Edwards told the deputy that, several days earlier, Johnson came home from work and raised his fists at her while she was ironing. She pushed him, and he grabbed her right arm and held the hot iron to her forearm. Afterward, Johnson barred Edwards from leaving the house by threatening her, telling her that she knew what would happen if she tried to leave. Edwards told the officers that she did not leave because she felt like Johnson would hurt her. After hearing Edwards' allegations and observing the visible signs of abuse, the deputies arrested Johnson on charges of aggravated second degree battery and false imprisonment. At the time of the arrest, Johnson was on parole from a prior conviction.

         The sheriff's office made photographs of the several injuries suffered by Ms. Edwards, including her burned arm and the injuries to her face and left hip. These photos are not part of the record on appeal.[2]

         On February 20, 2015, Johnson was charged by a bill of information citing "La. R.S. 14:35.3E" as count one, "Domestic Abuse Battery by Burning by committing a battery upon Remona Smith Edwards, a member of his household, by burning her with an iron on her right arm on or about February 11, 2015." Count two of the bill charged one count of simple robbery on February 14, 2015, in violation of La. R.S. 14:65 "by taking cash belonging to * * * Edwards by use of force or intimidation."

         On the same day, Johnson was charged by a separate bill of information with one count of domestic abuse battery on February 14, 2015, in violation of La. R.S. 14:35.3, and one count of false imprisonment in violation of La. R.S. 14:46.

         On June 10, 2015, defense attorney Amanda Wilkins, the second of four defense attorneys[3] who were appointed to represent the defendant in the proceedings up to the time of his guilty plea, argued a motion to subpoena the medical records of the victim, Ms. Edwards, and, because she was newly appointed counsel, she moved for a continuance to prepare for trial. It is important to note that the defendant, who was highly engaged in the various hearings, was present at this hearing. Ms. Wilkins explained that the medical evidence was important because a battery-by-burning conviction could expose her client to a sentencing range of 5 to 50 years if the state proved the element of a "substantial injury" to the victim. Hence, she argued that the victim's medical records might prove to be exculpatory regarding that element. The state responded that they have photos that showed the extent of the injuries to the victim. The hearing was continued to August 26, 2015, in order to include Ms. Edwards in the hearing since it concerned her medical records. Again, the defendant was present in open court with his defense counsel. Ms. Wilkins stated the following in her opening remarks:

This is a case involving domestic abuse battery by burning which carries a five to fifty year penalty and one of the elements of that serious charge. And then one of the elements of that is that there is a substantial or serious injury caused by the burning. And so that is one of the reasons why we've requested Ms. Edward's medical records is just about the nature of the injury.

         Ultimately the matter was resolved when Ms. Edwards agreed to authorize the release of her medical records to the defense, and the motion was granted. The record contains no medical records; apparently there were never any medical records regarding this incident.

         The case came up for trial on June 6, 2016. After the jury was selected, Johnson decided to enter into a written plea agreement with the state. A handwritten entry in the preprinted "standard form" agreement specified that Johnson agreed to plead guilty to "DAB by burning." There is no citation of the statute of conviction or citation of Subsection M. In exchange for the guilty plea, the state agreed to dismiss all other charges, waive the right to charge as a habitual offender, allow the sentence to run concurrently with any other sentence, and to allow Johnson credit for time served since February 14, 2015, the date of his arrest. The agreement also provided that the court would order a PSI and "sentence within statutory range." Neither the statute nor the special penalty provision was cited to the trial court.

         The Guilty Plea Hearing

         The defendant entered his guilty plea on June 6, 2016. The following factual basis for the plea was made in court by the assistant district attorney:

And as a factual basis for this complaint was a call that was made by an anonymous caller to the Franklin Parish Sheriff's Office who in turned [sic] dispatched units regarding a fight that was happening inside of a vehicle at the Gilbert branch, of the Winnsboro State Bank. The caller personally witnessed Mr. Johnson striking the victim, Ms. Edwards. And they had gotten some money out of the ATM machine. Officers responded. They pulled the vehicle over. They did notice that Ms. Edwards was in a bad way. Had visible injury to her face. And when they got back to the sheriff's office, she did show them where an iron had burned her. Photographs were taken. They're provided to defense counsel. We're going to submit those photographs in the course of the trial. The burn is in the actual shape of an iron. You can tell it is an iron. And that is consistent with her statement that, that happened during a fight at her home with Mr. Johnson on or about February 11, 2015. Said there was an argument that escalated and he had taken her arm and pushed the iron intentionally against her arm knowing that it was hot. So that is the factual basis for the plea. They were living together at the time. Mr. Johnson was living there at the home of Ms. Edwards. And that is the extent of our case and that's what we would offer to prove to the jury. That's our factual basis.

         Following this statement, the court had the defendant sworn in and asked him some questions before determining that he was competent to enter a guilty plea and to freely waive his constitutional rights. Then the following exchange took place:

Court: Have you had the opportunity to talk to your attorney, Mr. Young, about your case and any defenses that you might have?
Defendant: Yes, Ma'am. We spoke.
Court: Did Mr. Young explain the charge and the maximum and minimum sentence you could receive if you did not accept this plea agreement?
Defendant: Excuse me?
Court: Did he explain to you the charge and the maximum and minimum sentence that you could receive if you did not accept this plea agreement?
Defendant: Yes, ma'am.
Court: Do you need any additional time with him?
Defendant: Uh. . . .
Defense Counsel: I think we're good.
Defendant: I think we got a clear understanding.

         The defendant acknowledged that he understood the charge as recited in the bill of information stating that he committed a battery on Remona Smith Edwards, a member of his household, by burning her with an iron on her right arm.

         After reading the statute defining the general offense of domestic abuse battery[4] and reading the definition of a household member, the court told the defendant that it needed to state the sentencing range. The judge stated the following:

It says, that if domestic abuse battery is committed by burning, that results in serious bodily injury, the offense shall be classified as a crime of violence and the offender shall be imprisoned at hard labor for not less than five nor more than fifty years without benefit of probation, parole, or suspension of sentence. So, that is the statutory definition and the sentence that you were exposed to. I also want to explain that serious bodily injury means bodily injury that involves extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. Also would involved [sic] unconsciousness as one part of that. I'm also going to explain to you about a second, third, or fourth conviction of domestic abuse battery since I think that, that would be what you would be exposed to if you ever are arrested on another domestic abuse battery. Let me get that.

         The defendant interrupted the judge at this point, stating:

Defendant: Excuse me, Ms. McIntyre? Where I can explained uh, my in details about the story before ...

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