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State v. Piper

Court of Appeals of Louisiana, Third Circuit

March 7, 2019

STATE OF LOUISIANA
v.
MARCUS DWAYNE PIPER A/K/A MARCUS PIPER

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 331, 035 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE.

          Hon. Phillip Terrell, Jr. 9th JDC District Attorney Cheryl A. Carter Assistant District Attorney, Counsel for Plaintiff/Appellee: State of Louisiana.

          Edward Kelly Bauman Louisiana Appellate Project, Counsel for Defendant/Appellant: Marcus Dwayne Piper.

          Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret, Judges.

          BILLY HOWARD EZELL, JUDGE.

         In October of 2016, the Rapides Parish District Attorney's Office charged Defendant Marcus Dwayne Piper with attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. On April 24, 2018, the court heard Defendant's motion to recuse via a judge ad hoc and denied it. The parties selected a jury on June 5, and 6. Said jury began hearing evidence on the latter date and found Defendant guilty of a lesser-included offense, aggravated battery, a violation of La.R.S. 14:34, and guilty as charged for the possession of a firearm offense. On June 25, the court sentenced him to ten years at hard labor for aggravated battery and twenty years for possession of a firearm by a convicted felon.

         Defendant now seeks review by this court, assigning two errors.

         FACTS

         Keyon Stanley was walking out of a store and talking on her cell phone when Defendant ran up to her and put a gun to her head. He wanted information on the whereabouts of her boyfriend. Defendant's brother Charles approached and hit the top of her head, then Defendant hit her in the face with a gun. Defendant's brother stepped back and fired his weapon, but no shots hit the victim. The brothers got in a car and left the scene. Defendant had prior felony convictions.

         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 there is one error patent and the court minutes of sentencing require correction.

         First, the sentencing judge imposed both sentences without the benefit of parole, which is required for Defendant's conviction of possession of a firearm by a convicted felon, but this restriction may only be imposed for aggravated battery if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated battery was committed because of that status. Louisiana Revised Statutes 14:34(B) requires at least one year of the sentence be imposed without benefit of parole, probation, or suspension of sentence if the above "status" requirement applies. There was no reference by the sentencing judge to this provision, nor indication in the record that this "status" provision was applicable to Defendant's case. Accordingly, we find Defendant's aggravated battery sentence should be amended to delete the denial of parole eligibility. The trial court is instructed to make an entry in the court minutes reflecting this amendment.

         Next, the sentencing minutes indicate Defendant was ordered to pay court costs of $495.00 due June 25, 2018, and in default thereof, he was to serve ninety days in the parish jail. However, the sentencing transcript does not indicate the court imposed the payment of court costs or default time.[1] "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we order the trial court to correct the court minutes of sentencing to strike the order to pay court costs and to serve jail time in default thereof.

         ASSIGNMENT OF ERROR NUMBER ONE

         In his first assignment of error, Defendant argues the judge ad hoc erred by denying his motion to recuse the trial judge.

         During the recusal hearing, Defendant's trial attorney testified regarding the circumstances that led to the recusal motion:

A. He was first on the docket. He's charged with felon with a firearm and attempted murder. An offer of, uh, fifteen years had been tendered by the District Attorney. At some point during the day, he indicated that he wanted to go to trial and not take the plea. Um, I'm, I'm assuming the part y'all are talking about. I went into the courtroom, I said, uh, I may have told Ms. Carter we need to bind him over for trial, um, I recall the Judge saying, um, that's good or that'll -- tell your client that'll make our, my day. Something of that -- I don't know verbatim -- but something of that nature. Uh (interrupted)
Q. So you're testifying that your, your client declined the offer, the plea offer from the State?
A. He did.
Q. Okay. And did you inform the Judge that he declined the plea offer?
A. I think I may have just said we need to bind him over which would have indicated yes, that the plea offer was rejected.
Q. Okay. And specifically what was her response to that?
A. I thought she said tell your client he'll -- that will make our day or that will make my day. That's what I thought. It may have (interrupted)
Q. Can you recall specifically at this time?
A. No. I, I would not be able -- I mean, the tape is -- what, what it says is what it says. I -- that's what I recall.
Q. Whatever statements, um, that were made at that time -- whatever her response was what did you do after she made that response?
A. I probably said, you know, um, that's scary or maybe that - I don't know what -- I may have said that may be grounds for recusal right at that moment. I don't know. I -- the, the tape is -- well, the tape is the tape. Um, I, I -- my recollection was -- it and I'm not -- I can't - it'd be - I'd speculate if I -- what her thought was -- I don't know. Okay. I can't - I'm not gonna speculate.
Q. What, whatever your -- her statements were, um, was it the grounds for your motion for recusal?
A. Yes. Yes, but I'm not gonna speculate as to what she meant or thought. I'm just gonna tell you that's what I heard and that's what I, I felt like it -- ...

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