FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 17654-15 HONORABLE DAVID A. RITCHIE, DISTRICT
Foster DeRosier, District Attorney, Counsel for Appellee:
State of Louisiana.
Elizabeth Brooks Hollins, Assistant District Attorney,
Counsel for Appellee: State of Louisiana.
Murray, Assistant District Attorney, Counsel for Appellee:
State of Louisiana.
M. Ikerd, Louisiana Appellate, Counsel for
Defendant/Appellant: William Chester Farry Jr.
composed of John D. Saunders, Phyllis M. Keaty, and John E.
E. CONERY, JUDGE.
proceedings on remand, Defendant, William Farry, appeals the
trial court's rejection of his ineffective assistance of
counsel claim. For the following reasons, we affirm.
AND PROCEDURAL HISTORY
convicted Defendant of armed robbery. The trial court
ultimately found Defendant to be a third habitual offender
and sentenced him to life imprisonment at hard labor, without
benefit of parole, probation, or suspension of sentence. This
court affirmed Defendant's armed robbery conviction in
State v. Farry, 16-210 (La.App. 3 Cir. 11/16/16),
206 So.3d 1222, writ denied, 17-301 (La. 10/16/17),
228 So.3d 753. By separate opinion, the court conditionally
affirmed Defendant's habitual offender sentence. See
State v. Farry, 16-211 (La.App. 3 Cir. 11/16/16), 207
So.3d 438. However, in this latter review, the panel remanded
the matter for an evidentiary hearing to address
Defendant's contention that his trial counsel was
ineffective in failing to object to or to file a motion to
reconsider sentence on the basis that a downward departure of
the mandatory sentence was warranted. Id.
remand, Judge David Ritchie conducted the ordered evidentiary
hearing. The record establishes that Defendant appeared with
appointed counsel, Edward Bauman, at that time. Mr. Bauman
stated that he had intended to subpoena Defendant's
original sentencing counsel, Robert Shelton, for the
evidentiary hearing but determined the issue could be decided
without Mr. Shelton. Mr. Bauman then urged the trial court to
find the original sentencing counsel was ineffective for
failing to file a motion to reconsider sentence. Mr. Bauman
asked the trial court to, in turn, resentence Defendant.
addressing Defendant's argument, however, the trial judge
noted that Mr. Shelton would likely be considered unavailable
for testimony due to hospitalization. The trial court then
moved on to the issue before it, stating that the standard of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052 (1984) must be applied in determining whether counsel
was ineffective. As stated in the opinion remanding the
matter: "In order to prove an attorney was ineffective,
a defendant must show his attorney was deficient, and he was
prejudiced by the deficiency." Farry, 207 So.3d
at 439 (citing Strickland, 466 U.S. 668).
Mr. Shelton was not present to testify as to why he did not
object to the mandatory life sentence or to file a motion to
reconsider the life sentence, the trial court stated that it
would assume for purposes of determining ineffective
assistance of counsel that Mr. Shelton was deficient in
failing to object to the sentence and in failing to file a
motion to reconsider sentence. Thus, the trial court focused
on whether Defendant was prejudiced by that alleged
deficiency. Focusing on the nature of the underlying armed
robbery,  the trial court remarked on what it
described as a "calculated violent" offense and one
reflecting "a criminal mindset that has no consideration
for anybody" but Defendant. The trial court further
noted Defendant's "failure to take responsibility
for or show any remorse for his crime is just another
validation that I - - that I think that sentence under the
habitual offender sentence was appropriate."
Accordingly, the trial court concluded that "it would
not have made a difference" if Mr. Shelton had objected
to the life sentence or had filed a motion to reconsider
to the hearing, Defendant's appointed counsel filed a
motion to reconsider sentence. At the time the trial court
convened an additional hearing for consideration of that
motion, it explained that Defendant's original sentencing
counsel, Mr. Shelton, had passed away since the prior
hearing. Questioning whether the motion to reconsider
sentence should be considered in light of the earlier
determination that the prejudice prong of the
Strickland standard had not been met, the trial
court noted that it had reviewed all of the letters submitted
on Defendant's behalf. The trial court then asked
Defendant if he would like to put anything additional on the
record. Defense counsel noted that Defendant would have liked
to have some of his family members present and that
Defendant's mother was present. The trial court allowed
Defendant's mother to testify.
the trial court reiterated its finding that Defendant failed
to prove ineffective assistance of counsel. Additionally, in
denying the motion to reconsider sentence, the trial court
cited State v. Lindsey, 99-3302 (La. 10/17/00), 770
So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct.
1739 (2001) for the proposition that Defendant had the burden
of demonstrating unusual circumstances so as to render the
legislatively-prescribed mandatory sentence unconstitutional.
The trial court determined that Defendant failed to do so,
explaining, in part, that:
At this point I would say that after considering - - you
know, after - -after the evidentiary hearing, after
considering everything that was said previously on Mr.
Farry's behalf, I can't say - - especially looking at
his criminal history and the facts of the current case, I
can't say - - and I don't believe that the defense
could have met at the time that Mr. Shelton was representing
him, had he made the motion, I don't see how he could
have made the argument by clear and convincing evidence that
Mr. Farry is an exceptional case and that these are unusual
circumstances in light of his criminal history, the current
charge, et cetera, to be able to prove that he - - you know,
that the - - that the mandatory life sentence in this case is
the trial court denied Defendant's motion.
that determination, Defendant filed the instant appeal. In
briefing to this court, he assigns the following as error:
I. The trial court's determination that trial counsel was
effective in this case was in error.
II. William Farry's appointed counsel to represent him at
the evidentiary hearing on remand was ineffective and
admittedly unprepared to fully represent William's
interest. This matter should again be remanded for a new
III. William Farry's habitual sentence for life should be
vacated and his case remanded for resentencing because his
case was (is) not final as of November 1, 2017; thus, under
the 2017 amendment to La.R.S. § 15:529.1, Williams is no
longer subject to a mandatory life sentence. Denial of relief
because of the 2018 change in law would constitute Ex
Post Facto and Due Process Clause violations.
to La.Code Crim.P. art. 920, this court reviews all appeals
for errors patent on the face of the record. That review
reveals no such errors.
first assignment, Defendant asserts that the trial court
erred in finding he was not prejudiced by Mr. Shelton's
failure to object to or request reconsideration of the
mandatory life sentence. Defendant acknowledges the facts of
the case are "bad," but contends Defendant's
counsel at the evidentiary hearing should have put on
evidence as ...